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Plazamill Limited Partnership and

Surrey Sawmill Acquisition, LLC,

Franklin County Board of Revision,

the Franklin County Auditor and
the Dublin City Schools Board of

CASE NO. 2006-M-398
) Remanded Upon Settlement of Appeal May 22, 2008
Ohio Supreme Court

For the Property Owners

For the County


For the Bd. of Edn. -

Entered January 11, 2008

Sleggs, Danzinger & Gill Co., LPA

Steven R. Gill
820 West Superior Avenue, Suite 400
Cleveland, Ohio 44113
Ron O'Brien
Franklin County Prosecuting Attorney
Paul A. Stickel
Assistant Prosecuting Attorney
373 South High St., 201h Floor
Columbus, Ohio 43215
Rich, Crites & Dittmer, LLC
Mark Gillis
30 East Broad Street, Suite 300
Columbus, Ohio 43215

Ms. Margulies, Mr. Eberhart, and Mr. Dunlap concur.

This cause and matter comes to be considered by the Board of Tax Appeals
upon a notice of appeal filed by appellants on April 6, 2006. Appellants challenge a
decision, mailed March 9, 2006, of the Franklin County Board of Revision ("BOR"),

The property which is the subject of this appeal is located in the city of

Dublin City School taxing district of Franklin County, and is identified

on the auditor's records as parcel number 590-208806.

The value of the property determined by the Franklin County Auditor as of
January 1, 2004 was as follows:
Parcel No. 590-208806

True Value Taxable Value

$ 5,687,000
$ 8,816,000
$ 14,503,000

Upon consideration of a complaint filed by the Dublin City School District

Board of Education ("BOE"), the BOR determined that the correct values for the
subject property as of the tax lien date January 1, 2004 were as follows:
Parcel No. 590-208806

True Value Taxable Value

$ 5,687,000
$ 13,763,000
$ 19,450,000

The BOR made a separate value finding for tax year 2005. That value
finding is not challenged by the appellants. Appellants' brief, at 6. The appellants do
challenge the BOR's findings for tax year 2004, claiming that the values should not be
increased to reflect a sale of the property taking place on or about September 29, 2004.
The values claimed by the appellants for tax year 2004 are as follows:
Parcel No. 590-208806

True Value

$ 8,813,000
$ 14,500,000

Taxable Value

The matter was submitted to the Board of Tax Appeals, pursuant to R.C.
5717.01, upon the notice of appeal, the statutory transcript certified by the Franklin
County Auditor as secretary of the BOR, and the argument put forth by the appellants.
A hearing was scheduled in this matter, but the board was informed that the parties
had nothing by way of additional evidence to introduce. Thus, the hearing was
cancelled and a briefing schedule was propounded.
The subject property is a 20.567-acre plat of land located in the Sawmill
area of Franklin County. The property is improved with 194,760 square feet of retail

The property was purchased by Carrot River Development LLC ("Carrot

River") on November 15, 2002 for a purchase price of $14,500,000. Carrot River sold
the property to Surrey Sawmill Acquisition, LLC on September 29, 2004 for a
purchase price of $19,450,000. The property again transferred in August 2005 to the
present owners, Plazamill Limited Partnership. The parties do not argue that the
August 2005 sale is reflective of value for the 2004 tax lien date, and the board finds
that to be supported by the evidence.
The BOE sought an increase to the sale price after the November 2002
sale, and the BOR complied. At issue in this appeal is the BOE's later request, after

the September 29, 2004 sale, to raise the value of the property consistent with the
purchase price of $19,450,000.
At the hearing before the BOR, Mr. Robert Hepler testified. Mr. Hepler
is the president of Focus Ventures, Inc., a part owner and manager of the property
during the time Carrot River owned the center. Mr. Hepler described the property and
the activities which occurred during Carrot River's ownership.
Mr. Hepler explained that Carrot River was interested in the property
because of its location within the Sawmill Road corridor. Carrot River believed that
the center, which had significant vacancies when it was purchased, was capable


income growth. After a year of ownership, however, Carrot River had not lessened the
vacancy rate, and the center was at risk of losing a major tenant.
To reenergize the center and combat the potential loss of the tenant,
Carrot River began the process of obtaining a "right-in only" curb cut from Sawmill
Road. When the property was purchased, the only ingress/egress to the center was
through side entrances off either Sawmill Plaza Boulevard or Federated Boulevard.
This configuration made locations within the center harder to reach. S.T., map of
property. Access directly off the major street allowed cars to enter the center more
easily and had an additional benefit of increasing the visibility of certain storefronts
that were partially hidden by other buildings on the property.
According to Mr. Hepler, the curb cut convinced a current tenant to
extend its lease for three additional years and assisted the center in leasing other

space. The curb cut was approved on July 12, 2004 and completed by the closing date
of September 24, 2004. Mr. Hepler testified that the sale for $19,450,000 would not
have been completed without the curb cut in place.
We begin our review of this matter by noting that a party who asserts a
right to an increase or decrease in the value of real property has the burden to prove
the right to the value asserted. Cleveland Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision
(1994), 68 Ohio St.3d 336; Crow v. Cuyahoga Cty. Bd. of Revision (1990), 50 Ohio
St.3d 55; Mentor Exempted Village Bd. of Edn. v. Lake City Bd. of Revision (1988), 37
Ohio St.3d 318. Consequently, it is incumbent upon an appellant challenging
decision of a board of revision to come forward and





demonstrates its right to the value sought. Cleveland Bd. of Edn., supra; Springfield

Local Bd. of Edn. v. Summit Cty. Bd. of Revision (1994), 68 Ohio St.3d 493. Once
competent and probative evidence of true value has been presented by an appellant,
other parties asserting a different value then have a corresponding burden of providing
sufficient evidence to rebut the appellant's evidence. Springfield Local Bd. of Edn.,
supra; Mentor Exempted Village Bd. of Edn., supra.
Because the parties did not present



or documentary

evidence through hearing before this board, the evidence before us is limited to the
statutory transcript. Therefore, it is particularly important for this board to review the
existing record consistent with the Supreme Court's decision in Black v. Cuyahoga

Cty. Bd. of Revision (1985), 16 Ohio St.3d 1L

"The requirements of RC. 5717.05, as interpreted by

Cleveland [v. Bd. of Revision (1953), 96 Ohio App. 483],
establish that the common pleas court has a duty on appeal to
independently weigh and evaluate the evidence properly
before it. The court is then required to make an independent
determination concerning the valuation of the property at
issue. The court's review of the evidence should be thorough
and comprehensive, and should ensure that its formal
determination is more than a mere rubber stamping of the
board of revision's determination. ***." Id. at 13-14.
See, also, Columbus Bd. of Edn, supra, at 15 ("We find that the BTA in this case is
required to meet the standard enunciated in Black. Thus, if the only evidence before
the BTA is the statutory transcript from the board of revision, the BTA must make its
own independent judgment based on the weighing of the evidence contained in that
Therefore, we must examine the available record and determine value
based upon the evidence before us. Coventry Towers, Inc. v. Strongsville ( 1985), 18
Ohio St.3d 120; Clark v. Glander (1949), 151 Ohio St. 229. In so doing, we determine
the weight and credibility to be accorded to the evidence presented. Cardinal Fed. S.
L. Assn. v. Cuyahoga Cty. Bd. of Revision (1975), 44 Ohio St.2d 13.

In order to make an assessment of property at its taxable value, the

county auditor must first determine its true value. R C. 5713.03. It is well established
that when property has been the subject of a recent arm's-length sale between a willing
buyer and a willing seller, the sale price of the property shall be the true value for
taxation purposes. Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of
Revision, 106 Ohio St.3d 269, 271-272, 2005-0hio-4979; Zazworsky v. Licking Cty.

Bd. of Revision (1991), 61 Ohio St.3d 604; Hilliard City School Bd. of Edn. v.
Franklin Cty. Bd. of Revision (1990), 53 Ohio St.3d 57; Conalco v. Bd. of Revision
(1977), 50 Ohio St.2d 129, at the syllabus.
Accordingly, where there exists an actual sale of real property which is
both recent and ann's length, R.C. 5713.03 requires the county auditor to consider
such a sale as the best evidence of the property's true value. Berea, supra; Conalco,
supra; Park Investment Co., supra. In the present matter, the subject property sold
twice, in November 2002 and in September 2004. Generally,



transfers more than once in a triennial period, the sale closest to the tax lien date is
considered to be the better indication of value as of tax lien date. Bd. of Edn. of the

Hilliard City School Dist. v. Franklin Cty. Bd. of Revision (Jan. 4, 1991), BTA No.
1989-B-155, unreported. See, also, Bd. of Edn. of the Dublin Local Schools v. Franklin

Cty. Bd. of Revision (Oct. 12, 1989), Franklin App. No. 89AP-347, umeported. This
rule applies even where the subsequent sale is for a significantly higher amount.

Williams v. Columbiana Cty. Bd. of Revision (Apr. 4, 1997), BTA No. 1996-M-644,
unreported. Under this rule, the sale closest to tax lien date is the September 2004 sale,
at which time the property sold for $19,450,000.
It is the position of the appellants, however, that changes occurring to the

property after tax lien date caused the property to appreciate in value and the price
paid in September 2004 reflected that appreciation. Appellants first claim that the
leasing activity after tax lien date significantly changed the value of the


After January 1, 2004, a major tenant extended its lease and a significant amount of
vacant space was tenanted. Appellants argue that the additional income increased the
value of the subject property.
While we agree that a tenanted property is more valuable than a vacant
property, we do not agree that the sales price garnered later that year did not
accurately capture value for tax lien date. In fact, certain expectations regarding the
potential income of a property are part of any purchase decision. Mr. Hepler himself
validated this concept in his testimony concerning Carrot River's expectations at the
time of its original purchase. Even if leases are in place and there is an expectation of
an income stream, there are no guarantees that a lessee will not default shortly after a
property changes hands. The timing of the execution of new leases, either before or
after tax lien date, would create an artificial demarcation when attempting to value
We do, however, agree with appellants' second claim -that the property
physically changed after tax lien date with the addition of the curb cut off
Sawmill Road. Improvements to property after tax lien date but before sale date may
affect a property's fair market value.

Porginski v. Franklin Cty. Bd. of Revision

(Nov. 5, 1999), BTA No. 99-M-355, unreported;

Cuyahoga Falls Downtown

Development Corp. v. Summit Cty. Bd. of Revision (Mar. 10, 1995), BTA No.
1993-T-1015, unreported. See, also, Groveport-Madison Local Schools Bd. of Edn. v.

Franklin Cty. Bd. of Revision (June 29, 1990), BTA No. 1988-F-653, unreported;
Trotwood-Madison City School Dist. v. Montgomery Cty. Bd. of Revision (June 30,
1997), BTA No. 1995-

S-1283, unreported. We find Mr. Hepler's testimony regarding the timing of the curb
cut to be competent and probative evidence that the property as it existed on the tax
lien date was far different from the property as it existed on the sale date. Once
evidence is presented which calls into question the nature of the arm's-length sale, the
price garnered through the sale does not necessarily represent the property's true

Strongsville Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision 112 Ohio St.3d 309,

The board, therefore, rejects the September 2004 sale as evidence


value for the subject as of January 1, 2004. In this matter, the record reflects that a
sale occurred 14 months prior to tax lien date, and that sale was the basis for

valuation change as of January 1, 2002. This board finds that the November 2002 sale
price is reflective of value as of January 1, 2004 and, therefore, considering the record
before us and based upon a preponderance of competent evidence, this board finds that the
correct values of the subject property for tax year 2004 are as follows:
Parcel No. 590-208806

True Value Taxable Value

$ 5,687,000
$ 8,813,000
$ 14,500,000

We distinguish the holding in this appeal from our recent decision in Hudson City School Dist. Bd. of Edn. v.
Summit Cty. Bd. of Revision (Oct. 26, 2007), BTA No. 2005-M-1566, unreported, on appeal, Sup. Ct. No. 20072181. In that appeal we determined a change in zoning after tax lien date but before sale date was a contingency
that did not affect price. Here the evidence (i.e., testimony before the BOR) supports a finding that the physical
changes to the property were directly tied to value.

It is the order of the Board of Tax Appeals that the auditor of Franklin

County list and assess the subject real property in conformity with this decision and