Submitted July 11, 2017
from the Board of Tax Appeals, No. 2012-4555.
& Gillis Law Group, L.L.C., Mark H. Gillis, and Kelley A.
Gorry, for appellant.
Thompson Hine, L.L.P., and Thomas Wyatt Palmer, for appellee
1} This case returns to this court after we issued a
remand order based on the parties' stipulation that the
Board of Tax Appeals ("BTA") should address certain
issues. See 141 Ohio St.3d 1462, 2015-Ohio-370, 24
N.E.3d 1180. On remand, the BTA addressed those issues and
adopted the appraisal valuation of the owner's appraiser
for the second time, and appellant, Olentangy Local Schools
Board of Education ("BOE"), has again
appealed. According to the BOE, the law required
that the property be valued as if unencumbered, pursuant to
Muirfield Assn., Inc. v. Franklin Cty. Bd. of
Revision, 73 Ohio St.3d 710, 654 N.E.2d 110 (1995). The
BOE also argues that the BTA's reliance on the appraisal
is unsupported by the record, and it calls for the
reinstatement of the auditor's valuation. We disagree,
and we therefore affirm.
2} At issue is the tax-year-2011 value of a vacant
22.27-acre parcel that is zoned "planned residential
district" and is subject to a
homeowners'-association agreement. The agreement creates
easement rights in a "common access driveway" for
neighboring parcels as well as an easement to enjoy a pond.
The easements encompass slightly more than half of the
3} The Delaware County auditor originally valued the
property at $654, 100, and the property owner, appellee
Algoma Group, filed a complaint with the Delaware County
Board of Revision ("BOR"). Algoma presented an
appraisal by Samuel D. Koon, a member of the Appraisal
Institute, who determined a value of $26, 000 per acre,
totaling $580, 000 (after rounding) for the 22.27 acres. The
BOR also certified as part of the record transmitted to the
BTA a study by the county's own appraiser indicating a
total value of $530, 000 (approximately $24, 000 per acre).
4} The BOR ordered a reduction to $580, 000 after
adopting Koon's appraisal, and the BOE appealed to the
BTA, which affirmed the adoption of the appraisal. Pursuant
to this court's remand order, the BTA addressed (1)
whether an appraisal valuing the property as encumbered for
tax year 2011 can be considered competent and probative
evidence and (2) whether one of the tax commissioner's
rules requires real property to be valued as encumbered for
tax year 2011. BTA No. 2012-4555, 2015 Ohio Tax LEXIS 2802,
*1-2 (June 22, 2015). Taking the second issue first, the BTA
held that Ohio Adm.Code 5703-25-11(B) did not require real
property to be valued as encumbered for tax year 2011.
Id. at *7-8, quoting Alliance Towers, Ltd. v.
Stark Cty. Bd. of Revision, 37 Ohio St.3d 16, 523 N.E.2d
826 (1988), paragraph one of the syllabus (for "
'real property tax purposes, the fee simple estate is to
be valued as if it were unencumbered' "). Regarding
the first issue, the BTA determined that Koon's appraisal
report "properly supports his ultimate opinion of value,
even if the deed restrictions on the subject property are not
considered." Id. at *8. The BTA identified
aspects of the appraisal that led it to accord the appraisal
5} On appeal, the BOE advances three propositions of
1. Algoma's appraiser valued the subject property as
encumbered by private, voluntary deed restrictions in
violation of Muirfield.
2. The second BTA decision is not supported by the record.
3. Algoma did not affirmatively negate the auditor's