Canton Towers, Ltd. v. Board of Revision of Stark County

• Citation: 444 N.E.2d 1027,3 OBR 302,3 Ohio St.3d 4
• Decision Date: 09 February 1983
• Docket Number: No. 82-439,82-439
• Court: Ohio Supreme Court
• Parties: , 3 O.B.R. 302 CANTON TOWERS, LTD., Appellee, v. BOARD OF REVISION OF STARK COUNTY, Appellant.

Page 4

3 Ohio St.3d 4

444 N.E.2d 1027, 3 O.B.R. 302

CANTON TOWERS, LTD., Appellee, v. BOARD OF REVISION OF STARK COUNTY, Appellant.

No. 82-439.

Supreme Court of Ohio.

Feb. 9, 1983.

Fred Siegel Co., L.P.A., and Fred Siegel, Cleveland, for appellee.

James R. Unger, Pros. Atty., and John B. Wirtz, Canton, for appellant.

PER CURIAM.

In order to determine the taxable value of the subject property, the BTA must first determine the "true value in money," as mandated by Section 2, Article XII of the Ohio Constitution and as codified in R.C. Title 57. Wynwood Apartments, Inc. v. Bd. of Revision (1979), 59 Ohio St.2d 34, 35, 391 N.E.2d 346 . Appellant contends that the BTA erred in determining the true value of the subject property. The true or fair market value of property for tax purposes is a question of fact, the determination of which is primarily within the province of the taxing authorities, and this court will not disturb a decision of the BTA with respect to such valuation unless it affirmatively appears from the record that such decision is unreasonable or unlawful. Consolidated Aluminum Corp. v. Bd. of Revision (1981), 66 Ohio St.2d 410, 414, 423 N.E.2d 75 ; Bd. of Revision v. Fodor (1968), 15 Ohio St.2d 52, 239 N.E.2d 25 .

The best evidence of the "true value in money" of real property is an actual, recent sale of the property in an arm's-length transaction. Conalco v. Bd. of Revision (1977), 50 Ohio St.2d 129, 363 N.E.2d 722 , paragraph one of the syllabus. Absent such information, Ohio Adm.Code 5705-3-03 sets forth three methods by which true value of real property may be calculated. These three recognized approaches are: (1) the market data approach, in which recent sales of comparable properties are weighed; (2) the income approach, in which net income from the property is capitalized; and (3) the cost approach, which adds the depreciated cost of the improvements to the land to the value of the land itself.

Appellant and the BTA had two appraisals of the subject property as of January 1, 1979 available for consideration. William J. Lemmon prepared a report for the board of revision, and developed the following values: market data approach--not available; income approach--$4,927,000; cost approach--$5,392,100. Richard Van Curen prepared a report at the request of appellee, which resulted in the following figures: market data approach--not available; income approach--$2,850,000; cost approach--$3,911,500. Both Lemmon and Van Curen concluded that the best indicator of true value was that derived from the income approach, Lemmon giving an estimated value of $4,927,000, and Van Curen making a final value estimate of $2,850,000. Moreover, both boards apparently accepted the conclusion that the income approach was most appropriate, although appellant adopted Lemmon's figures, while the BTA followed Van Curen's estimate.

Appellant first contends that the BTA abused its discretion by using the income approach instead of the cost approach to valuation.

However, Lemmon indicated that the cost approach was not appropriate, "due to the type of property being appraised." Similarly, Van Curen rejected the reliability of the cost approach because that value "is before any allowance for economic obsolescence. The plain fact of the matter is that the open market rents obtainable in this area would not be high enough to make the construction of this building feasible and it could--and would--not have been built if there had not been the very substantial Government subsidy." Both appraisers recognized that the cost of construction did not indicate the true value of the property, since Canton Towers exists only due to the FHA's willingness to underwrite its cost and continued maintenance, in the interest of providing centrally located low income housing for senior citizens. Without a federal loan guarantee, favorable mortgage terms, rent subsidy, and income tax advantages, the cost of construction for such housing would be prohibitively expensive. Considering the nature of this project, we do not find the BTA's rejection of the cost approach to be unreasonable or unlawful.

Appellant also contends that the BTA abused its discretion when it adopted the income approach valuation recommended by Van Curen. As provided in the Ohio Administrative Code, with this appraisal technique, "[t]he value is estimated by capitalizing the net income after expenses, including normal vacancies and credit losses. While the contract rental or lease of a given property is to be considered the current economic rent should be given weight. * * * Interest and capitalization rates should be determined from market data allowing for current returns on mortgages and equities." Ohio Adm.Code 5705-3-03(D)(2).

Van Curen's valuation of $2,850,000 was based on his estimate of fair rental value (economic rent) and current mortgage rates, rather than the "controlled contract rent" established by the FHA, and the longer term and lower mortgage rate obtained for the project. Lemmon used the actual fixed rent and mortgage for the property to arrive at his higher valuation. ¹

Appellant contends that only actual rents received and the forty year lower mortgage rate should have been used to calculate the income and capitalization rate. However, the Ohio Administrative Code specifically authorizes consideration of "economic rent" and "current returns on mortgages and equities" with the income approach to valuation. Moreover, this court has previously recognized that the BTA may consider economic rental value of commercial real property as an indicium of valuation for ad valorem real property taxation purposes. Wynwood Apartments, Inc., supra, syllabus. Although Wynwood involved a commercial property which had been rented for less-than-market rate, the principle applies with equal force to a residential unit in which artificially inflated rents are set. As in Wynwood, "economic rent is a proper consideration in a situation in which contract rent is not truly reflective of true value in money." Id. 59 Ohio St.2d at 37, 391 N.E.2d 346.

Since it appears the figures used by Van Curen and accepted by the BTA were accurate approximations of current market rents and conventional financing rates, we find that the willingness of the BTA to base its decision upon the appraisal offered by appellee was not unreasonable or unlawful. The decision of the BTA is affirmed.

Decision affirmed.

WILLIAM B. BROWN, SWEENEY, HOLMES, CLIFFORD F. BROWN and KERNS, JJ., concur.

FRANK D. CELEBREZZE, C.J., and LOCHER, J., dissent.

KERNS, J., of the Second Appellate District, sitting by assignment.

LOCHER, Justice, dissenting.

"The BTA is allowed 'wide discretion in determining the weight to be given to evidence and the credibility of witnesses * * *.' Cardinal Federal S. & L. Assn. v. Bd. of Revision (1975), 44 Ohio St.2d 13 , paragraph three of the syllabus. Nevertheless, R.C. 5717.04 permits reversal of a BTA decision when it is 'unreasonable or unlawful.' On direct appeal, this court has consistently reviewed the record before the BTA in order to determine whether there is evidence supporting the BTA's decision. See, e.g., Cardinal Federal S. & L. Assn., supra; Citizens Financial Corp. v. Porterfield (1971), 25 Ohio St.2d 53, 58 ; Ace Steel Baling v. Porterfield (1969), 19 Ohio St.2d 137, 139 ; Bd. of Revision v. One Euclid Co. (1968), 16 Ohio St.2d 43, 46 ; L.E. Shunk Latex Products, Inc., v. Evatt (1942), 140 Ohio St. 289, 292 ; Bd. of Education v. Evatt (1940), 136 Ohio St. 283, 286 . Accordingly, the evidence before the BTA deserves a closer examination." Youngstown Sheet & Tube Co. v. Bd. of Revision (1981), 66 Ohio St.2d 398, 406, 422 N.E.2d 846 (Locher, J., dissenting).

My review of the facts in this case leads me to a conclusion opposite to that of the majority. Therefore, I dissent.

Both appraisers, Lemmon and Van Curen, agreed that this building was unique and would not have been built without a government subsidy. They also agreed that the "income approach" was the best method of appraisal. (See Ohio Adm.Code 5705-3-03[D] for this kind of investment property.)

The majority notes that both appraisers deemed the market data approach, which compares the appraised property with recent sales, to be unavailable. Nevertheless, Van Curen used market...