Girard v. Trumbull Cty. Budget Comm.

• Decision Date: 07 September 1994
• Docket Number: No. 93-1251,93-1251
• Citation: 70 Ohio St.3d 187,638 N.E.2d 67
• Parties: CITY OF GIRARD et al., Appellees, v. TRUMBULL COUNTY BUDGET COMMISSION et al., Appellants.
• Court: Ohio Supreme Court

Page 187

70 Ohio St.3d 187

638 N.E.2d 67

CITY OF GIRARD et al., Appellees, v. TRUMBULL COUNTY BUDGET COMMISSION et al., Appellants.

No. 93-1251.

Supreme Court of Ohio.

Submitted May 17, 1994.

Decided Sept. 7, 1994.

In 1983, the appellant Trumbull County Budget Commission ("commission") adopted a resolution providing for the apportionment of the Trumbull County undivided local government fund ("LGF") "for years 1984 through 1990, inclusive (and also for years subsequent thereto unless revised, amended or repealed in the manner provided in Section 5747.53, Ohio Revised Code)." The resolution set forth a method of apportionment of the LGF as an alternative to the "statutory formula" set forth in R.C. 5747.51 and 5747.52.

In 1989, the commission also adopted an alternative method of apportionment for the Trumbull County undivided local government revenue assistance fund ("LGRAF") "using the same percentage of distribution as for the [LGF] for the years 1989 and 1990 inclusive."

On October 1, 1990, the commission adopted a resolution which was intended to replace the resolution adopted in 1983. This resolution provided for alternative methods of apportioning the Trumbull County LGF and LGRAF "for the years 1991 through 2000, inclusive * * * [and] subsequent to the year 2000 unless this Resolution is revised, amended or repealed in the manner provided in Section 5747.53 and Section 5747.63, Ohio Revised Code."

Thereafter, the commission allocated the LGF and the LGRAF for 1991 pursuant to the alternative methods adopted on October 1, 1990. Appellees, the cities of Girard, Hubbard and Niles, appealed the 1991 allocations to the Board of Tax Appeals ("BTA"). Those appeals (case Nos. 90-E-1482, 90-E-1494 and 90-J-1493) were consolidated and eventually dismissed by the BTA for lack of jurisdiction.

Prior to making apportionments for 1992, the commission, on August 7, 1991, sent a letter to each appellee informing it, respectively, of the amounts allocated from the LGF and LGRAF "to your Subdivision for the calendar year 1992." Emphasis added.) This letter was received by Girard and Niles on August 12 and by Hubbard on August 13, 1991. On September 17, 1991, the commission issued an Official Certificate of Estimated Resources ("official certificate") to each appellee for the budget year beginning January 1, 1992. The official certificates were received by appellees on September 26, 1991.

On October 25, 1991, appellees filed their notice of appeal from the 1992 allocations with the BTA. They alleged that the alternative formulas set forth in the October 1, 1990 resolution were improperly adopted "thirty days after the statutory deadline of September 1, 1990."

The BTA agreed and reversed and remanded the cause to the commission "to allocate the 1992 LGF and LGRAF pursuant to the alternate formula properly adopted in 1983."

The cause is now before this court upon an appeal as of right by appellants commission and Bazetta Township et al.

Dragelevich & Blair and J. Walter Dragelevich, Niles, for appellees.

Dennis Watkins, Trumbull County Pros. Atty., James J. Misocky, Chief Counsel, and Patrick F. McCarthy, Asst. Pros. Atty., for appellants.

ALICE ROBIE RESNICK, Justice.

The broad issue in this case is whether the commission may allocate and apportion the LGF and LGRAF in 1992 according to the alternative formula adopted on October 1, 1990. In determining this issue, we must address three contentions raised by appellants: (1) that appellees' appeal to the BTA filed on October 25, 1991, was untimely; (2) that a multi-year alternative formula for apportioning the LGF and LGRAF, adopted beyond the statutory deadline of September 1 for the year of its intended inception, is effective and applicable in subsequent years; and (3) that in failing to successfully appeal the October 1, 1990 adoption of the alternative formula to the BTA for the 1991 allocations, appellees waived their right to attack any procedural deficiencies in the adopting process in their appeal of the 1992 allocations.

I

We will first consider appellants' contention that appellees untimely appealed the 1992 allocations to the BTA. It is appellants' position that when appellees received the commission's letter dated August 7, 1991, they had thirty days from that time in which to perfect their appeal. Under R.C. 5705.37, an appeal must be perfected within thirty days of receiving either the official certificate or notice whichever occurs first. "Notice" is defined in R.C. 5747.51(J). The letter of August 7 was in "substantial compliance" with R.C. 5747.51(J), appellants argue, because it "alerted the subdivision as to their allocation under the formula." Thus, since this letter was received by appellees, respectively, on August 12 and August 13, 1991, their appeal filed with the BTA on October 25, 1991 was untimely.

We construe appellants' contention as a motion to dismiss for lack of subject-matter jurisdiction, which we deny.

R.C. 5705.37 provides, in relevant part, that:

"The taxing authority of any subdivision that is dissatisfied with any action of the county budget commission may, through its fiscal officer, appeal to the board of tax appeals within thirty days after the receipt by the subdivision of the official certificate or notice of the commission's action."

In Budget Comm. of Brown Cty. v. Georgetown (1986), 24 Ohio St.3d 33, 24 OBR 76, 492 N.E.2d 826, at the syllabus, we construed this language as follows:

"Pursuant to the express terms of R.C. 5705.37, the permissible time in which to perfect an appeal to the Board of Tax Appeals may be triggered by a subdivision's receipt of either the official certificate as set forth in R.C. 5705.37 or by receipt of notice as defined in R.C. 5747.51(J)."

Since appellants' appeal of the 1992 allocations was perfected within thirty days of receiving the official certificates but not within thirty days of receiving the commission's letter dated August 7, 1991, the determinative question is whether this letter constitutes "notice" as defined in R.C. 5747.51(J).

The relevant portion of R.C. 5747.51(J) provides that:

"Within ten days after the budget commission has made its apportionment, whether conducted pursuant to section 5747.51 or 5747.53 of the Revised Code, the auditor shall publish a list of the subdivisions and the amount each is to receive from the undivided local government fund and the percentage share of each subdivision, in a newspaper or newspapers of countywide circulation, and send a copy of such allocation to the tax commissioner.

"The county auditor shall also send by certified mail, return receipt requested, a copy of such allocation to the fiscal officer of each subdivision entitled to participate in the allocation of the undivided local government fund of the county. This copy shall constitute the official notice of the commission action referred to in section 5705.37 of the Revised Code." (Emphasis added.)

R.C. 5747.62(I) contains the same operative language applicable to LGRAF allocations.

The notice that is necessary to trigger the permissible time in which to perfect an appeal under R.C. 5705.37 is defined in R.C. 5747.51(J) and 5747.62(I) as a copy of the allocation required to be published and sent to the Tax Commissioner. Such allocation must include a list of the subdivisions, and the amount and percentage share that each subdivision is to receive from the fund being apportioned. Notice is required under these sections regardless of whether the statutory formula or an authorized alternative formula is utilized for the apportionment.

Neither R.C. 5747.51(J) nor 5747.62(I) provides for an alternative method in lieu of compliance with its mandatory notice requirements. Since the commission's letter dated August 7, 1991, did not include a copy of the allocation specified as constituting notice under R.C. 5747.51(J), it did not trigger the appeal time under R.C. 5705.37 with respect to the LGF apportionment. Similarly, since the commission's letter also failed to include a copy of the allocation specified as constituting notice under R.C. 5747.62(I), it did not trigger the appeal time under R.C. 5705.37 with respect to the LGRAF apportionment. Further, even if we were to recognize that "substantial compliance" with the notice requirements of R.C. 5747.51(J) and/or 5747.62(I) could trigger the appeal time under R.C. 5705.37, such did not occur by virtue of the commission's August 7 letter. That letter did nothing more than apprise each subdivision of its own respective numerical share of each fund.

Accordingly, we find appellants' contention to be without merit.

II

Appellants' principal contention is that the alternative formula adopted on October 1, 1990 "for the years 1991 through 2000," even though adopted beyond September 1, 1990, is nevertheless viable for 1992. They argue that since the alternative formula was adopted before the September 1, 1991 deadline for the 1992 allocations, "no subdivision was prejudiced by the apparent untimeliness." Since the intent of adopting the alternative formula was to provide for a multi-year method of distribution, the untimely adoption in the first year should not serve to thwart "the intent of the subdivisions to utilize said formula in subsequent years." We disagree.

The LGF and the LGRAF were created as "a form of financial state support of the smaller governmental units existing in Ohio." Andover Twp. v. Ashtabula Cty. Budget Comm. (1977), 49 Ohio St.2d 171, 173, 3 O.O.3d 238, 239, 360 N.E.2d 690, 691. They consist of state-collected tax money credited under various provisions of the Revised Code. R.C. 5725.24, 5727.45, 5733.12, 5739.21, 5741.03, 5747.03 and 5747.61. Such funds are designed "to assist the county and its subdivisions in their current operations." Canton v. Stark Cty. Budget Comm. (1988), 40 Ohio St.3d 243, 533 N.E.2d 308, 309. "These funds are transferred by the state auditor to the several...