Shinkle v. Ashtabula Cnty. Bd. of Revision

• Decision Date: 13 February 2013
• Docket Number: No. 2012–0670.,2012–0670.
• Citation: 985 N.E.2d 1243,135 Ohio St.3d 227
• Parties: SHINKLE, Appellant, v. ASHTABULA COUNTY BOARD OF REVISION et al., Appellees.
• Court: Ohio Supreme Court

135 Ohio St.3d 227

985 N.E.2d 1243

SHINKLE, Appellant,

v.ASHTABULA COUNTY BOARD OF REVISION et al., Appellees.

No. 2012–0670.

Supreme Court of Ohio.

Submitted Feb. 6, 2013.

Decided Feb. 13, 2013.

Robert S. Wynn, Jefferson, for appellant.

Britton, Smith, Peters & Kalail Co., L.P.A., Karrie M. Kalail, Michael E. Stinn, and Peter T. Zawadski, for appellee Jefferson Area Local School District Board of Education.

PER CURIAM.

[Ohio St.3d 228]{¶ 1} This case concerns the 2007 tax-year valuation of six properties owned by the appellant, Wesley A. Shinkle. On the merits, the Ashtabula County Board of Revision (“BOR”) retained the auditor's valuation for five parcels but ordered a reduction for one. Shinkle appealed all six of the BOR decisions to the Board of Tax Appeals (“BTA”), which issued its decision on March 20, 2012. In the case of one of the six parcels, the BTA decided that the complaint's failure to state an actual dollar amount of value reduction was a jurisdictional defect, and it remanded that cause to the BOR for dismissal. With respect to the other five parcels, the BTA found that the evidence offered by Shinkle was insufficient to find a value different from that determined by the BOR.

{¶ 2} On appeal, Shinkle argues that the BTA erred with respect to both the jurisdictional and the valuation issues. We disagree, and we therefore affirm.

Facts

Background

{¶ 3} Shinkle was the common owner of several parcels in the village of Rock Creek in Ashtabula County for which he filed six valuation complaints on March 31, 2008. The Jefferson Area Local School District Board of Education (the “school board”), appellee, filed a countercomplaint seeking to retain the auditor's valuation on one of those properties. After holding a hearing on August 14, 2008, the BOR issued its decision in each case on August 26, 2008. Shinkle appealed all six decisions to the BTA, which consolidated them for hearing and decision. On September 30, 2011, the BTA held a hearing at which Shinkle and his witnesses testified.

Shinkle's Testimony

{¶ 4} 1. 3244 Lawton Avenue. Shinkle testified that this parcel was an investment property, that about two-thirds of the lot was wetland, and that due to land taken and raised for a road alteration, a “dike effect * * * floods the property and has lowered the property value since I bought it.” He testified that the house on the lot was in poor condition and that it had a shingle roof, 20–year–old siding, bad landscaping, and an incomplete electric and plumbing installation. A barn on the property was also in poor condition. Shinkle stated that although [Ohio St.3d 229]he had originally paid $15,000 for the property in 1988, it was currently worth $8,500. The auditor valued the property at $89,400.

{¶ 5} 2. 3250 Main St. This is a residential property. Shinkle described his residence as a house built in the late 1800s with an unfinished interior and collapsing stone foundation and concrete-block walls. An unremediated gasoline spill affected this parcel. Shinkle had originally paid $35,000, and the auditor assigned the property a value of $32,000, allocating $25,100 to the land and $6,900 to the building. Shinkle believed the property to have a “negative value or a near negative value.”

{¶ 6} 3. 3252 Main St. For this “impound, storage, [and] trucking” parcel, Shinkle stated that in addition to the gasoline spill, the property lacked a sewer hookup. The auditor valued the property at $63,700 and Shinkle expressed no opinion of its value either in his valuation complaint or at the BTA hearing.

{¶ 7} 4. High St. Lot. This 0.62–acre vacant lot adjacent to Shinkle's residence was valued by the auditor at $11,700. Shinkle testified that it was topographically unsuited for construction and valued it at $1,200, in light of the gasoline spill flowing downhill onto the lot.

{¶ 8} 5 and 6. 3259 Main St. and 3271 Main St. These parcels included a gas station at 3259 Main valued by the auditor at $57,800 and the adjacent 0.02–acre vacant lot valued at $5,100. Shinkle testified that the value of both properties was $15,000 based on the poor condition of the building, a problem involving the sewer, and a disputed easement. He also claimed that the gas station was a spill site that drastically reduces the property's marketability.

{¶ 9} Shinkle also testified regarding the unremediated gasoline spill. In 1989, Rock Creek village performed a survey that identified underground storage tanks on two of the parcels at issue: the “impound, storage, [and] trucking” property at 3252 Main Street and Shinkle's residence at 3250 Main Street. The village removed four of the five storage tanks as part of excavating and installing the sewer. When the tanks were removed, a gasoline spill occurred that involved at least a thousand gallons. Before the fuel spill, Shinkle had paid $35,000 for the residence.

{¶ 10} The spill was never properly remediated, and Shinkle maintains that the ongoing contamination reduces the value of his properties below what the county determined. He referred to testimony of a BTA witness who testified that the Ohio Bureau of Underground Storage Tank Regulations (“BUSTR”) maintained an “open site number” on the two properties as of the date of hearing on September 30, 2011. This designation means that there was an unremediated spill on the site. According to the witness, such a designation affords BUSTR the authority to demand closure of the site and remediation, which makes the [Ohio St.3d 230]properties nearly impossible to sell or lease. Shinkle testified that his attempts to get the “open site” designation removed have been fruitless.

Exclusion of Expert Opinion

{¶ 11} In addition to offering his own testimony and opinions before both the BOR and the BTA, Shinkle offered the testimony of Patrick H. Laughlin. Laughlin was offered as an expert in “contamination remediation,” but his testimony was received as fact testimony rather than expert opinion testimony. Laughlin testified about the unremediated gasoline spill, its administrative consequences, and its negative effect on the value of the properties.

{¶ 12} Shinkle also proffered written appraisal reports and the testimony of Ronald Damon, who after questioning by the hearing examiner was deemed to be a fact witness rather than an expert.

{¶ 13} The examiner also struck the written opinions of value that Shinkle proffered as exhibits.

The BTA's Decision

{¶ 14} Shinkle filed his valuation complaints on March 31, 2008. On March 20, 2012, the BTA issued a single decision covering all six properties. The BTA found that the failure to specify an amount of value in dispute constituted a fatal jurisdictional defect as to Shinkle's complaint on the impound, storage, and trucking lot. Regarding Damon's testimony, the BTA stated that “although initially found to be competent to offer expert appraisal testimony, [Damon] was later determined to lack the necessary qualifications to offer an opinion, and, even if so qualified, [Damon] failed to adequately support the opinion expressed.” Shinkle v. Ashtabula Cty. Bd. of Revision, BTA Nos. 2008–K–1756 through 2008–K–1761, 2012 WL 992339, *4 (Mar. 20, 2012).

{¶ 15} With respect to the BOR record and the evidence admitted at the BTA hearing, the BTA determined that Shinkle had provided proof of certain defects, but had failed to offer sufficient evidence of value different from that found by the county. Because Shinkle “failed to meet his affirmative burden assigned on appeal,” the BTA concluded that “there exists an insufficient basis upon which to alter the auditor's and BOR's determinations” with respect to the five remaining parcels at issue. Accordingly, the board ordered dismissal of the case as to the impound and trucking lot and adopted the values determined by the BOR as to the other parcels.

Analysis

1. The requirement that the complaint state the amount of value at issue runs to the core of procedural efficiency and is jurisdictional

{¶ 16} A property owner dissatisfied with the value assigned to his property by the county auditor may contest that valuation by filing a complaint pursuant to [Ohio St.3d 231]R.C. 5715.19(A)(1). When the complaint claims at least $17,500 of overvaluation or undervaluation, R.C. 5715.19(B) requires the county auditor to give notice of the filing of the complaint to certain entities. That notification triggers the period within which the notified entity (in this case the school board) may file a countercomplaint and become a party to the proceedings. Finally, R.C. 5715.19(D) explicitly sets forth the mandate that makes the required notification possible: “Each complaint shall state the amount of overvaluation, undervaluation, discriminatory valuation, illegal valuation, or incorrect classification or determination upon which the complaint is based.”

{¶ 17} We have held that “[a]n appeal, the right to which is conferred by statute, can be perfected only in the mode prescribed by statute,” and the “exercise of the right conferred is conditioned upon compliance with the accompanying mandatory requirements.” Zier v. Bur. of Unemp. Comp., 151 Ohio St. 123, 84 N.E.2d 746 (1949), paragraph one of the syllabus; Worthington City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 124 Ohio St.3d 27, 2009-Ohio-5932, 918 N.E.2d 972, ¶ 17 (“we have consistently treated full compliance with R.C. 5715.19 as an indispensible prerequisite for the exercise of jurisdiction by a board of revision”); compare Knickerbocker Properties, Inc. XLII v. Delaware Cty. Bd. of Revision, 119 Ohio St.3d 233, 2008-Ohio-3192, 893 N.E.2d 457, ¶ 10 (incorrect taxpayer address on valuation complaint filed by board of education not a jurisdictional defect because the statute does not require that complaint state address). The reference to “mandatory requirements” in the Zier syllabus points to the importance of distinguishing mandatory from directory requirements. See 2200 Carnegie, L.L.C. v....