F^^:C ^ ^ ^H08 CLERK OP COURT SUPREME COURT of OHIO
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IN THE SUPREME COURT OF OHIO Board'of F,ducation of the Olentangy Local Schools, Case No. Appellant, and Richs Department Stores, Inc., Appellee, Appeal from the Ohio Board of Tax Appeals V. BTA Case No. 2006-A-1506 and 2006-A-1550 Franklin County Board of Revision, and Franklin County Auditor, and the Ohio Tax Commissioner, Appellees. NOTICE OF APPEAL OF THE BOARD OF EDUCATION OF THE OLENTANGY LOCAL SCHOOL DISTRICT Mark H. Gillis (0066908) Karen H. Bauernschmidt (0006774) COUNSEL OF RECORD COUNSEL OF RECORD Jeffrey A. Rich Karen H. Bauernschmidt Co., L.P.A. Rich, Crites & Dittmer, LLC 1370 West 6th Street, Suite 200 300 East Broad Street, Suite 300 Cleveland, Ohio 44113 Columbus, Ohio 43215 (216) 566-8500 (614) 228-5822 Fax (216) 566-0842 Fax (614) 228-2725 [email protected] Attorney for Appellee Richs Department Stores, Inc. Attorneys for Appellant Board of Education of the Olentangy Local School District ^^^^D f^^:C ^ ^ ^h08 CLERK OP COURT SUPREME COURT OF OHIO David Yost (0025007) COUNSEL OF RECORD Prosecuting Attorney, Delaware County, Ohio Kevin Shoemaker, Special Assistant County Prosecutor 140 North Sandusky Street Delaware, Ohio, 43015 (740) 833-2690 Attorney for Appellees Board of Revision and County Auditor Nancy H. Rogers (0002375) Ohio Attorney General 30 East.Broad Street, 17th Floor Columbus, Ohio, 43215 Attorney for Appellee Tax Commissioner IN THE SUPREME COURT OF OHIO Board of Education of the Olentangy Local Schools, Case No. Appellant, and Richs Department Stores, Inc., Appellee, Appeal from the Ohio Board of Tax Appeals V. B1'A Case No. 2006-A-1506 and 2006-A-1550 Frarilclin County Board of Revision, and Franklin County Auditor, and the Ohio "I'ax Commissioner, Appellees. NOTICE OF APPEAL OF THE BOARD OF EDUCATION OF THE OLENTANGY LOCAL SCHOOL DISTRICT Now comes the Appellant, the Board of Education of the Olentangy Local School District, and gives notice of appeal to the Supreme Court of Ohio from the decision of the Ohio Board of Tax Appeals in the case of Board of Education of the Olentangy Local Schools and Richs Department Stores, Inc. v. Delaware County Board of Revision and Delaware County Auditor, BTA Case Nos. 2006-A-1506 and 2006-A- 1550, rendered on November 25, 2008, copy of which is attached hereto as Exhibit B. The Errors complained of therein are set forth herein as Exhibit A. H. Gillis (0066908) Rich, Crites & Dittmer, LLC 300 East Broad Street, Suite 300 Columbus, Ohio 43215 (614) 228-5822 Fax (614) 540-7474 [email protected] Attorneys for Appellant Board of Education of the Olentangy Local School District EXHIBIT A - STATEMENT OF ERRORS The errors made by the Ohio Board of Tax Appeals in this matter were the following. The decision of the Board of Tax Appeals (BTA) was unlawful and unreasonable under R.C. 5717.04, in that: (1) The BTA erred in granting a reduction in the true and taxable value of the property for tax year 2005 because the BTA had no competent and probative evidence of any kind before it to support or justify any such reduction, and the reduction in value constituted a violation of R.C. 5713.01, R.C. 5715.01, and uniform rule provisions of Article XXI, Section 2, of the Ohio Constitution. The reduction in value granted by the BTA was arbitrary and capricious and constituted an abuse of discretion. (2) The BTA erred in failing and refusing to reinstate the Delaware County Auditor's original value of the property ($13,043,800 for parcel number 318-433-01-001-922) which was illegally reduced by the County Board of Revision because the Board of Revision had no competent 2 and probative evidence of any kind before it to justify or support a reduction in the true value of the property, and neither did the BTA. When there is no evidence in the record to support a reduction in value by a Board of Revision, the BTA must reinstate the County Auditor's value. (3) The BTA erred in failing to hold that a mall operating agreement has a clear and obvious effect and impact on the sale of a mall anchor store because the very documents demonstrating such effect or impact were in evidence and the effect or impact was clear to see from the plain face of the documents in question. The BTA erred in holding that such evidence was "conjecture" for the simple reason that the documents demonstrated that the effect and impact was preseut and not conjecture. The documents themselves clearly and plainly rebut the presumption that any such sale could possibly be an arm's-length sale. (4) The BTA erred in holding or concluding that a sale of comparable property can be presumed to an arm's-length sale because no such presumption can ever arise either in fact or in law, and no such presumption is legal or constitutional, and because such a presumption is not reasonable to begin with. One of the fundamental components of an appraisal is the requirement that the appraiser provide clear and convincing evidence which verifies the arm's-length nature of each of the sales relied on by the appraiser, and no presumption of any kind relating to the validity or arm's- length nature of any such sale can possibly arise or be asserted by the BTA. (5) The BTA erred in relying on sales, the validity of which was based on pure speculation, to value real property for tax purposes after acknowledging that the true value of real property cannot be based on speculation, and no such speculative evidence can constitute competent and probative evidence of the true value of real property. 3 (6) The BTA erred in holding that the sales of mall anchor stores can be used to value the Richs Department Stores property involved in the present appeal because no evidence showed that the sales were arm's-length sales or that the sales satisfied the conditions of R.C. 5713.03, and especially when the documents in evidence showed that the specific sales were not, in fact, arm's- length sales and the sale prices did not, in fact, reflect the market value or true value of the properties involved in all such sales. (7) The BTA erred in failing to reinstate the County Auditor's original value and thereby violated the "uniform rule" provisions ofArticle XII, Section 2, of the Ohio Constitution and related statutes enacted thereunder, and it erred in determining that the desire of the Board of Revision to reduce the value of the property, and the County Auditor's defense of his original value or lack thereof was relevant to its determination of the true value of the property. Whether the County Auditor did or did not concede anything relating to the value of the property has no legal or factual relevance to the BTA's determine of the true value of the property. (8) The BTA erred in reducing the true value of the property based on a value of $41.88 per- square foot for the property because there was no competent and probative evidence before it to support a finding that such a value reflected in any manner the true value of the property, and because such a value was purely arbitrary and capricious, and reliance on such a value was in violation of the uniform rule provisions of Article XII, Section 2 of the Ohio Constitution. No other property owner in Delaware County is entitled to have its property valued on such a basis such that which the BOR and BTA applied to the Richs' property. (9) The BTA erred in finding or concluding that the evidence submitted to the BOR and to the BTA contradicted the County Auditor's original value or was sufficient to authorize the BTA to 4 determine its own independent value for the property because there was no competent and probative evidence of any kind in the record to justify or support a different value than the original appraised value of the County Auditor, and a reduction in value cannot be granted by a BOR or the BTA without any evidence to clearly support and justify a reduction in value. (10) The BTA erred in finding or concluding that the evidence relating to a "Von Maur" sale and that evidence relating to the sale of the other anchor stores presented by Richs was competent and probative evidence of the true value of the Richs' property or was sufficient to support and justify a reduction in value of the property. 5 PROOF OF SERVICE ON BOARD OF TAX APPEALS I hereby certify that a true and complete copy of the foregoing notice of appeal was served upon the Clerk of the Ohio Board of Tax Appeals, as is evidenced by its filing stamp set forth hereon. Mark H. Gillis Attorney for Appellant CERTIFICATE OF SERVICE BY CERTIFIF,D MAIL I hereby certify that a true and complete copy of the foregoing notice of appeal was served upon Karen Bauemschmidt, 1370 West 6th Street, Suite 200, Cleveland, Ohio 44113, on Kevin Slroemaker, 471 East Broad Street, Suite 2001, Columbus, Ohio, 43215, and on Nancy H. Rogers, Ohio Attorney General, 30 East Broad Street, 17th Floor, olumbus, Ohio, 43215, by certified mail, return receipt requested, with postage prepaid, this ay of December, 2008 Mark H. Gillis Attomey for Appellant 6 IN THE SUPREME COURT OF OHIO Board of Education of the Olentangy Local Schools, Case No. Appellant, and Richs Department Stores, Inc., Appellee, Appeal from the Ohio Board of Tax Appeals V.