author: Per Curiam.

text:
    COLUMBUS CITY SCHOOLS BOARD OF EDUCATION, Appellee v. FRANKLIN COUNTY BOARD OF REVISION et al., Appellees;
    Network Restorations I, L.L.C., Appellant.
    No. 2016-0551
    Supreme Court of Ohio.
    Submitted May 8, 2018 Decided August 15, 2018
    Rich & Gillis Law Group, L.L.C., Mark Gillis, Dublin, and Kimberly G. Allison, for appellee Columbus City Schools Board of Education.
    Timothy A. Pirtle, Columbus, for appellant.
    Porter, Wright, Morris & Arthur, L.L.P., Dayton, Mark A. Snider, Abbigail L. Brothers, and L. Bradfield Hughes, Columbus, urging reversal for amici curiae, Ohio Capital Corporation for Housing, Ohio Housing Council, Coalition on Homelessness and Housing in Ohio, Ohio Community Development Corporation Association, Council for Rural Housing & Development of Ohio, Midwest Affordable Housing Management Association, Ohio Apartment Association, and Columbus Apartment Association.
   Per Curiam.

{¶ 1} This appeal challenges a decision of the Board of Tax Appeals ("BTA") and involves the question of how best to determine the true value of a low-income-housing property that is both rent restricted (i.e., the owner is restricted in the rent it can charge) and rent subsidized (i.e., some of the rent is paid by the government). Appellant, the property owner, Network Restorations I, L.L.C., maintains that rents as derived from rent-restricted comparables should be used in the analysis but that the property's rent subsidies should be excluded from consideration. Appellee Columbus City Schools Board of Education ("BOE") takes the opposite view, claiming instead that the property's actual rents, which include tenant-paid rent and rent subsidies, should be used.

{¶ 2} As explained below, we are compelled to vacate the BTA's decision and remand the cause to the BTA because it failed to weigh and analyze a potentially material piece of evidence presented by Network Restorations.

FACTS AND PROCEDURAL BACKGROUND

{¶ 3} The subject property consists of 101 low-income-housing rental units encompassed within 24 parcels that are scattered throughout Columbus. The parcels operate as one economic unit and contain one- to three-bedroom apartments. For tax year 2011, a sexennial reappraisal year in Franklin County, the Franklin County auditor valued the property at $4,417,500. Network Restorations filed a complaint seeking a reduction in this valuation, and the BOE responded with a countercomplaint urging retention of the auditor's valuation.

BOR proceedings

{¶ 4} At the Franklin County Board of Revision ("BOR") hearing, Network Restorations presented an appraisal report and supporting testimony from Donald E. Miller II, a certified appraiser. Miller explained that the subject property benefits from two types of government assistance.

{¶ 5} First, the property operates under the federal low-income-housing-tax-credit ("LIHTC") program. See 26 U.S.C. 42. "The LIHTC is a device for raising capital for low-income-housing projects that by themselves generate little (if any) profits-investors are attracted by federal income tax credits that are tied to the amount of capital invested in the housing projects." Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 151 Ohio St.3d 12, 2017-Ohio-2734, 85 N.E.3d 694, ¶ 6. As Miller explained, the property is bound by a restrictive covenant in accordance with the LIHTC program. The restrictive covenant here provides that 21 percent of the units must be made affordable to persons with incomes at or below 35 percent of the median gross income in the area ("AMGI"), 23 percent of the units must be made affordable to persons with incomes at or below 40 percent AMGI, and 56 percent of the units must be made affordable to persons with incomes at or below 45 percent AMGI.

{¶ 6} Second, the property receives project-based subsidies through the Department of Housing and Urban Development's ("HUD's") Housing Assistance Program ("HAP"). The HAP contract specifying the precise subsidy levels is not in the record. But Miller's appraisal report states that over 90 percent of the property's rental revenue came from subsidies for 2009, 2010, and 2011.

{¶ 7} In developing his opinion of value, which was based on an income approach, Miller hypothesized that the property was being operated solely in accord with the LIHTC program-that is, he accounted for the presence of the LIHTC restrictions but excluded the effect of the rent subsidies. He further explained: "The value is developed looking to the LIHTC rental market to see what rents are for those units and considers LIHTC operating expense data to estimate reasonable expenses were the property operating as a LIHTC property apart from the HUD/HAP program."

{¶ 8} Miller evaluated seven LIHTC rent comparables to generate a market-based effective gross income of $646,450. He then deducted operating expenses to arrive at a net operating income of $260,728. The data for the operating expenses draws from eight LIHTC properties and the subject property. After applying an overall capitalization rate of 11.15 percent and making deductions for personal property, Miller opined a rounded valuation of $2,310,000 as of the January 1, 2011 tax-lien date.

{¶ 9} The BOR determined that a reduced capitalization rate should apply, reasoning that an investor in this type of property would face "very little" risk and be assured of receiving an income. After reducing the capitalization rate, the BOR assigned a value of $2,448,200 for tax years 2011, 2012, and 2013.

BTA proceedings

{¶ 10} The BOE appealed to the BTA and furnished the testimony and appraisal report of Thomas D. Sprout, a certified appraiser. Like Miller, Sprout relied on an income approach to value the property. But unlike Miller, who relied on comparable data from other LIHTC properties, Sprout made his calculations in reliance on the subject property's actual income and expenses. And unlike Miller, who excluded the effect of the HUD subsidies, Sprout included them.

{¶ 11} Sprout estimated a net operating income of $465,000, to which he applied an overall capitalization rate of 10.75 percent. After deducting $60,000 to account for furniture, fixtures, and equipment, Sprout opined a valuation of $4,265,000 as of the January 1, 2011 tax-lien date.

{¶ 12} Miller appeared at the BTA hearing as well, and he again explained how he had arrived at the valuation stated in his appraisal report. Miller also provided four explanatory memorandums, one of which, Memorandum D, reflects his attempt to determine market rents of properties in similar locations that do not participate in low-income-housing programs. In Miller's view, Memorandum D confirms that the LIHTC market rent he developed in his appraisal report is similar to conventional market rents.

{¶ 13} The BTA viewed the case largely through the principles articulated in Alliance Towers, Ltd. v. Stark Cty. Bd. of Revision , 37 Ohio St.3d 16, 523 N.E.2d 826 (1988), and Woda Ivy Glen Ltd. Partnership v. Fayette Cty. Bd. of Revision , 121 Ohio St.3d 175, 2009-Ohio-762, 902 N.E.2d 984. Based on its understanding of those decisions, the BTA observed that rent subsidies can be taken into account to the extent they do not raise a property's value above that which would be found in the conventional market. Applying that understanding, the BTA favored Sprout's approach over Miller's: "In the absence of some evidence that the subject property is receiving rents above conventional market rents, * * * we find Sprout's analysis more accurately values the subject property as it existed on [the] tax lien date." BTA No. 2014-4633, 2016 WL 2907635, *4 (Mar. 17, 2016). The BTA thus assigned a value of $4,265,000 for tax years 2011, 2012, and 2013 but remanded the matter to the BOR because, in its view, some of the parcels were apparently subject to a tax-increment financing agreement that necessitated an allocation of value. Network Restorations then filed this appeal.

STANDARD OF REVIEW

{¶ 14} We will affirm a BTA decision that is reasonable and lawful. Satullo v. Wilkins , 111 Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 14. We review de novo the BTA's resolution of legal issues but will defer to the BTA's findings concerning the weight of the evidence if there is record support for them. Lunn v. Lorain Cty. Bd. of Revision , 149 Ohio St.3d 137, 2016-Ohio-8075, 73 N.E.3d 486, ¶ 13. DISCUSSION

{¶ 15} Although Network Restorations presents ten propositions of law for our consideration, the core of each claim is that the BTA erred in adopting the valuation opinion of Sprout, the BOE's appraiser, because he relied on the property's actual rents, which include both tenant-paid rent and rent subsidies. In Network Restorations' view, that method overstates the property's value because it fails to account for the LIHTC restrictions and impermissibly values the rent subsidies. Network Restorations asserts that when, as here, a property is subject to LIHTC restrictions but the owner receives rent subsidies, the proper analysis, as exemplified by Miller's approach, is to determine a LIHTC market rent that excludes the value of the rent subsidies. An amici curiae brief filed in support of Network Restorations echoes this sentiment.

{¶ 16} In making its argument, Network Restorations relies mainly on Alliance Towers , 37 Ohio St.3d 16, 523 N.E.2d 826, and Woda , 121 Ohio St.3d 175, 2009-Ohio-762, 902 N.E.2d 984. Those decisions are, to be sure, guideposts in our low-income-housing-valuation jurisprudence. But their meanings were addressed in a pair of more recent decisions that were decided after the submission of briefs in this case, namely, Columbus City Schools Bd. of Edn. , 151 Ohio St.3d 12, 2017-Ohio-2734, 85 N.E.3d 694, and Notestine Manor, Inc. v. Logan Cty. Bd. of Revision , 152 Ohio St.3d 439, 2018-Ohio-2, 97 N.E.3d 446. Because Columbus City Schools and Notestine Manor best reflect our contemporary understanding of how to properly value low-income housing, we begin by reviewing the insights from those decisions.

{¶ 17} In Columbus City Schools , we discerned three general principles that bear on the valuation of low-income housing. First, "in applying the income approach, market rents and expenses, as opposed to the actual rents of the properties at issue, are used." Id. at ¶ 16. Second, in using "an income approach, government subsidies should not be taken into account in a way that would increase the value of the property." Id. at ¶ 17. Third, a cost approach to valuation is disfavored. Id. at ¶ 18.

{¶ 18} Columbus City Schools involved a property that, like the property at issue in this case, operated under LIHTC restrictions and received subsidized rents. Id. at ¶ 5-7. In that case, the board of revision adopted the value opined by the property owner's appraiser, who valued the property under the hypothetical assumption that the property received market rents. Id. at ¶ 1, 8. The BTA, however, apparently regarded this method as violating Woda and reversed the BOR's decision. See Columbus City Schools at ¶ 11. In Woda , we held that the valuation of a LIHTC property should account for LIHTC restrictions. Id. at ¶ 30. The BTA apparently understood Woda 's directive as requiring an actual-rent income approach rather than a market-rent income approach, see Columbus City Schools at ¶ 11, 19, but we reversed the BTA's decision and "clarif[ied] that Woda adheres to the rule for using a market-rent income approach when valuing government-subsidized residential properties," Columbus City Schools at ¶ 22. Given that the BTA committed legal error in rejecting the owner's appraisal, we concluded that it was permissible to restore the board of revision's decision as a proper finding of fact because the owner's appraisal formed the basis for that decision. Id. at ¶ 23.

{¶ 19} Notestine Manor involved low-income housing operated in accord with a federal program that provided capital advances "to build rental housing for very low-income elderly individuals." Id. at ¶ 4 (detailing Section 202 of the Housing Act of 1959, codified at 12 U.S.C. 1701q ). A principal point of contention in that case centered on how best to read Alliance Towers and Woda in light of Columbus City Schools . The board of education argued that Columbus City Schools required a market-rent rather than a contract-rent income approach. But we determined that this reading was too strict, explaining that "the preference for market rent over contract rent is presumptive, not conclusive." Notestine Manor at ¶ 22. Harmonizing the case law, we instructed that "[t]he guiding principle from Alliance Towers , articulated in Woda Ivy Glen , and reiterated in Columbus City Schools , is that the valuation method must account for the 'affirmative value' of government subsidies, i.e., the tendency of government subsidies to inflate the value above what the market would otherwise bear." Id. In light of these principles, we upheld the BTA's adoption of an appraisal predicated on actual restricted rents. There was no evidence that adjusting from contract rent to market rent would have eliminated the subsidies' affirmative value. Id. at ¶ 23. And the record did not establish that contract rents exceeded those in the general market or that the property benefited from additional tax incentives. Id. at ¶ 24.

{¶ 20} The BTA did not have the benefit of Columbus City Schools and Notestine Manor when it decided this case; however, those cases as well as Woda itself justify the BTA's statement that Miller's appraisal logic "appears to be sound," 2016 WL 2907635 at *4. First, in developing a LIHTC market rent based on rents taken from comparable LIHTC properties, Miller heeded Woda ' s directive to take the LIHTC restrictions into account. Indeed, had Miller developed a market rent based on properties not subject to LIHTC restrictions, the LIHTC restrictions would not have been taken into account. Second, Miller's evaluation of rents from the LIHTC market rather than the property's actual rents is consistent with the court's instructions in Columbus City Schools , 151 Ohio St.3d 12, 2017-Ohio-2734, 85 N.E.3d 694, at ¶ 16, and Notestine Manor , 152 Ohio St.3d 439, 2018-Ohio-2, 97 N.E.3d 446, at ¶ 22, to consider market rents. To be sure, the reference to market rents in those decisions is best understood as describing rents that are both unrestricted and unsubsidized. But the logic of those decisions can be extended to permit consideration of an appropriate subset of market rents, here, the appropriate subset is rents from the LIHTC market. As Miller stated in Memorandum D, "[m]arket rent is derived from the market place a property competes within." Thus, in developing a market rent for a LIHTC property, Miller explained, it is permissible to look to rents from other LIHTC properties because these types of properties compete against each other.

{¶ 21} Turning to the issue whether the property's rent subsidies should be taken into account for real-property-valuation purposes, Columbus City Schools at ¶ 17 and Notestine Manor at ¶ 22 explain that the affirmative value of rent subsidies should be adjusted out to the extent that they raise rents above market rent. It is this principle that exposes a defect in the BTA's decision.

{¶ 22} Miller's Memorandum D purports to show that adding in the property's rent subsidies results in a rent elevated above market rent. Specifically, Miller computed $57,000 for a monthly LIHTC market rent and $55,787 for a monthly conventional market rent. In other words, Miller's computations show that a LIHTC market rent and a conventional market rent are essentially the same. Network Restorations then contrasted those figures with those asserted by the BOE, which used the property's actual rents-inclusive of rent subsidies-in computing to a monthly rent of $77,797. Based on these data points, Network Restorations asserts that adding in the rent subsidies under the BOE's approach inflates the property's value above market.

{¶ 23} But while the BTA admitted Memorandum D into the record, it never weighed the memorandum's probative value to determine whether it could be credited as showing that the subsidies inflated the rents above market rent. That was error. "[T]he BTA must review and weigh all competent evidence in the record in order to determine the property's true value."

Buckeye Terminals, L.L.C. v. Franklin Cty. Bd. of Revision , 152 Ohio St.3d 86, 2017-Ohio-7664, 93 N.E.3d 914, ¶ 22. And "the BTA must engage in sufficient discussion of the evidence to permit the court on appeal to determine whether the BTA acted reasonably and lawfully." Lutheran Social Servs. of Cent. Ohio Village Hous., Inc. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 125, 2017-Ohio-900, 79 N.E.3d 541, ¶ 12. When the BTA fails to account for potentially material evidence, it is proper for us to vacate the decision and remand the cause. Mann v. Cuyahoga Cty. Bd. of Revision , 152 Ohio St.3d 197, 2017-Ohio-8820, 94 N.E.3d 529, ¶ 1, 16.

{¶ 24} The BTA's statement that there is an "absence of some evidence that the subject property is receiving rents above conventional market rents," 2016 WL 2907635 at *4, reinforces the need for vacatur and remand. As Network Restorations points out, the BTA never said what an appropriate market rent is in this case. And, more fundamentally, there is evidence in the record that, if credited as probative, tends to impugn the BTA's statement that the property is not receiving rents above the conventional market rate. Given the BTA's failure to discharge its duty as the finder of fact, we vacate its decision and remand the cause with the instruction that the BTA "explicitly account" for Memorandum D, see Lutheran Social Servs. at ¶ 13, along with the other evidence.

{¶ 25} The BOE argues that the property should not be valued in accord with Miller's analysis, because, the BOE insists, the record does not support the facts asserted in his analysis. First, the BOE maintains that Network Restorations failed to establish that the subject property was 100 percent rent restricted as of the tax-lien date, asserting that the LIHTC restrictive covenant applies to only 20 of the 24 parcels at issue. Second, the BOE claims that the contract establishing the subsidies is not in the record.

{¶ 26} As to the first point, when the BTA makes a finding adverse to the winning party and the opposing party files an appeal, it is essential that the winning party challenge the adverse finding through a cross-appeal if it wishes to invoke the court's jurisdiction to consider the finding. Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 151 Ohio St.3d 100, 2017-Ohio-7578, 86 N.E.3d 301, ¶ 31-32. Here, the BTA described the property as consisting of 101 residential units scattered throughout 24 parcels. 2016 WL 2907635 at *1. The BTA then went on to describe the property within the parameters of the LIHTC restrictions, particularly the AMGI levels. Id. at *3. Not once did the BTA mention the possibility that some parcels may not have been subject to the LIHTC restrictions. Instead, the BTA viewed all 24 parcels as subject to the restrictions, and for good reason; no party raised the issue below. Indeed, the BOE's brief to the BTA described the subject property as consisting of 24 parcels that are " 'scattered site' residential properties operated as an economic unit by Network Restorations and encumbered with * * * Low Income Housing Tax Credits (LIHTC) * * *." Considering this posture, the BOE's failure to file a cross-appeal on this point deprives us of jurisdiction to consider the issue.

{¶ 27} As for the second point, it is immaterial that the contract establishing the rent subsidies is not in the record. We have held that "an appraiser's certification permits a fact-finder to rely on facts asserted in an appraisal report-particularly when * * * those facts are undisputed." Woda , 121 Ohio St.3d 175, 2009-Ohio-762, 902 N.E.2d 984, at ¶ 15. Here, Miller's appraisal report breaks down the property's yearly revenue into the amounts received from tenant-paid rent and from subsidized rent. Thus, even though the contract is not in the record, the level of subsidy can be derived from the report. Moreover, at the BTA hearing, the BOE's appraiser did not controvert the level of subsidy received at the property.

CONCLUSION

{¶ 28} For the foregoing reasons, we vacate the BTA's decision and remand the cause for further proceedings.

Judgment accordingly.

O'Connor, C.J., and Kennedy, French, Fischer, and DeGenaro, JJ., concur.

O'Donnell, J., concurs in part and dissents in part, would vacate and remand as to tax years 2011 and 2012, and concurs in that part of Justice DeWine's opinion directing the BTA to independently value the property for tax year 2013.

DeWine, J., concurs in part and dissents in part, with an opinion.

{¶ 29} The Board of Tax Appeals' ("BTA's") decision in this case dealt with the valuation of the property for three different tax years. For two of the tax years-2011 and 2012, I concur in the majority's judgment vacating the BTA's decision and remanding the case for consideration of the property owner's evidence. But for tax year 2013, I would direct the BTA to independently value the property under the statute that was in place for that tax year.

{¶ 30} Prior to tax year 2013, a county auditor was required to determine "the true value" of the real estate. Former R.C. 5713.03, Am.Sub.H.B. No. 920, 136 Ohio Laws, Part II, 3182, 3247. Effective tax year 2013, the statute changed. For tax year 2013, the auditor was required to determine "the true value of the fee simple estate, as if unencumbered." 2012 Am.Sub.H.B. No. 487 ("H.B. 487"); Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, ¶ 18 ("the H.B. 487 version [of R.C. 5713.03 ] applies to valuations for tax year 2013").

{¶ 31} I read the statute to mean exactly what it says: the effect of an encumbrance is not to be considered in valuing a piece of property. But unfortunately, a majority of this court recently held otherwise. In Notestine Manor, Inc. v. Logan Cty. Bd. of Revision , 152 Ohio St.3d 439, 2018-Ohio-2, 97 N.E.3d 446, we dealt with a tax appeal for tax year 2013 that concerned a property that had been financed through a federal program that provided capital for the development of low-income rental housing for the elderly. See 12 U.S.C. 1701q. Under the program, the property was subject to restrictions and covenants in favor of the United States Department of Housing and Urban Development ("HUD") that, among other things, limited the amount of rent the owner could charge. These restrictions obviously constituted an encumbrance on the property-that is, a " 'right to, or interest in, land which may subsist in another to diminution of its value, but consistent with the passing of the fee,' " Alliance Towers, Ltd. v. Stark Cty. Bd. of Revision , 37 Ohio St.3d 16, 22, 523 N.E.2d 826 (1988), fn. 5, quoting Black's Law Dictionary 473 (5th Ed.1979). So under the plain language of the statute, the property was required to be valued without consideration of the restrictions and covenants.

{¶ 32} But forget the plain language of the statute. The Notestine majority decided to ignore the legislative amendment to R.C. 5713.03 and value the property as encumbered. It noted that in a pre-H.B. 487 case involving the federal government's low-income-housing tax credits ("LIHTC") program, LIHTC use restrictions were taken into account in valuing the property. Notestine at ¶ 28, citing Woda Ivy Glen Ltd. Partnership v. Fayette Cty. Bd. of Revision , 121 Ohio St.3d 175, 2009-Ohio-762, 902 N.E.2d 984. It then concluded that the H.B. 487 amendment was not meant to supersede our existing caselaw. Notestine at ¶ 29.

{¶ 33} In other words, in Notestine , a majority of this court said that our precedent controlled over the plain language of a subsequent legislative enactment. And further, it said that even in the face of a statute that plainly requires property to be valued as if unencumbered, the auditor is required to value the property as encumbered.

{¶ 34} For obvious reasons, I dissented in Notestine . And because it is impossible to reconcile Notestine with the plain language of the legislative scheme, I would not apply its holding in this case.

{¶ 35} So where does that leave us? For tax years 2011 and 2012, the matter is governed by the older version of the statute and our precedent interpreting that statutory provision. Based upon that version of the statute and our precedent, I concur in the majority's judgment vacating the BTA's decision and remanding the case for consideration of the property owner's evidence-specifically, whether that evidence demonstrates that the rent subsidies resulted in the owner's receiving above-market rents. I disagree, however, with the majority's conclusion that the relevant market is the market for LIHTC property. Plainly, rents received for LIHTC property cannot be considered "market rents," because the governmental restrictions on rents for such properties mean that the rents are not set by market forces. Instead, the proper measure is actual market rents. That distinction likely matters little here, however, because the property owner's appraiser, Donald Miller II, calculated LIHTC rents and conventional market rents to be essentially the same. On remand, the BTA should determine what, if any, weight to give to Miller's calculation of actual market rents.

{¶ 36} For tax year 2013, I would apply the statute in effect for that year. That means the property should be valued as if unencumbered. In the proceeding below, neither party set forth evidence of the property's value as if unencumbered. Miller's appraisal relied upon market rents in the LIHTC market . As the majority explains, LIHTC projects are encumbered by restrictive covenants that limit the amount of rent the owner may charge its tenants. Thus, Miller's appraisal values the property as encumbered. Because the statute requires that the property be valued as if unencumbered for tax year 2013, it would be improper for the BTA to rely upon the values set forth in Miller's appraisal.

{¶ 37} The Columbus City Schools Board of Education proposed the value put forth in Thomas Sprout's appraisal. But like Miller, Sprout did not purport to value the property as if unencumbered. Instead, Spout's appraisal relied upon actual rents received-rents that, of course, were subject to the LIHTC restrictions. Thus, it was improper for the BTA to rely upon Sprout's appraisal in establishing the 2013-tax-year valuation.

{¶ 38} Because no party presented an appraisal that valued the property "as if unencumbered," I would direct the BTA on remand to independently value the property under the statute in place for tax year 2013. See Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of Revision , 147 Ohio St.3d 409, 2016-Ohio-7381, 66 N.E.3d 722, ¶ 21. I agree with the majority as to its remand instructions for tax years 2011 and 2012, subject to the caveat concerning the relevant market set forth above.

      An "economic unit" is "[a] combination of parcels in which land and improvements are used for mutual economic benefit. An economic unit may comprise properties that are neither contiguous nor owned by the same owner. However, they must be managed and operated on a unitary basis and each parcel must make a positive economic contribution to the operation of the unit." The Appraisal Institute, The Dictionary of Real Estate Appraisal 72-73 (6th Ed.2015); see also Park Ridge Co. v. Franklin Cty. Bd. of Revision , 29 Ohio St.3d 12, 504 N.E.2d 1116 (1987), paragraph two of the syllabus (it is permissible to value property according to an economic-unit theory).

      Project-based subsidies and tenant-based vouchers are among the notable forms of government assistance. The former are assignable to units at the property itself whereas the latter "travel" with the tenant.

      The amici are Ohio Capital Corporation for Housing, Ohio Housing Council, Coalition on Homelessness and Housing in Ohio, Ohio Community Development Corporation Association, Council for Rural Housing & Development of Ohio, Midwest Affordable Housing Management Association, Ohio Apartment Association, and Columbus Apartment Association.

      Notestine Manor also addressed the effect of amendments that 2012 Am.Sub.H.B. No. 487 ("H.B. 487") made to R.C. 5713.03, a statute governing the valuation of real estate. See Notestine Manor at ¶ 25-29. H.B. 487 took effect for tax year 2013, Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, ¶ 18, and tax year 2013 is one of the years at issue here by virtue of the carryover of the value that was determined for tax year 2011. Dispositive here is that no party contends that H.B. 487's amendments to R.C. 5713.03 apply in this case, and in any event, Notestine Manor held that those amendments did not override Woda , see Notestine Manor at ¶ 29.


source: Caselaw Access Project

license: Public Domain

text:
    LICKING HEIGHTS LOCAL SCHOOLS BOARD OF EDUCATION, Appellee, v. FRANKLIN COUNTY BOARD OF REVISION et al., Appellees;
    CK at Broad, L.L.C./CK Property Group, L.L.C., Appellant.
    No. 2016-0904
    Supreme Court of Ohio.
    Submitted April 24, 2018 Decided August 15, 2018
    Rich & Gillis Law Group, L.L.C., Mark H. Gillis, Dublin, and Kimberly G. Allison, for appellee Licking Heights Local Schools Board of Education.
    Sleggs, Danziger & Gill Co., L.P.A., and Todd W. Sleggs, Cleveland, for appellant.
   Per Curiam.

{¶ 1} This is a real-property-tax case on appeal from a decision of the Board of Tax Appeals ("BTA"), in which the BTA adopted the property value stated in an appraisal report presented by appellee Licking Heights Local Schools Board of Education ("BOE"). On appeal, the property owner, appellant, CK at Broad, L.L.C./CK Property Group, L.L.C. ("CK at Broad"), raises two jurisdictional challenges to the decision below. CK at Broad argues that its withdrawal of the complaint it originally filed for tax year 2011 deprived appellee Franklin County Board of Revision ("BOR") of jurisdiction to proceed on the BOE's countercomplaint. In the alternative, CK at Broad argues that the BOR's jurisdiction was limited to consideration of the land value, because CK at Broad's original complaint contested the value of the land and not the value of the improvements. We disagree with both arguments, and we therefore affirm the BTA's decision.

I. Background

{¶ 2} CK at Broad initiated this case by filing, on March 29, 2012, a complaint challenging the 2011 value of the subject property's land, but not the building constructed thereon. The BOE responded by filing its countercomplaint on May 20, 2012. At the BOR hearing, CK at Broad's counsel explained that he had filed the complaint challenging only the value of the land based on the mistaken assumption that the Franklin County auditor had assessed more land than was actually part of the parcel.

{¶ 3} In fact, counsel discovered, all the land assessed was part of the parcel as of January 1, 2011. As counsel explained, a property split was performed in November 2011, under which 5.966 acres of land was transferred to neighboring parcels, leaving only 1.154 acres for the parcel at issue, on which the building-a bank-was situated. For that reason, counsel withdrew the complaint in 2014.

{¶ 4} The BOE decided, however, to proceed to seek a value increase through its countercomplaint. On April 7, 2015, the BOR held a hearing and declared that it would exercise jurisdiction to determine the property's value for tax years 2012, 2013, and 2014, as well as 2011. CK at Broad presented the two jurisdictional arguments that are again presented in this appeal: (1) that the case may not proceed on the countercomplaint once the complaint has been withdrawn and (2) that even if it can, the countercomplaint can place no more at issue than did the complaint, with the result that the case involves only a challenge to the value of the land.

{¶ 5} The BOE presented the appraisal report and testimony of its appraiser, Thomas Sprout, and CK at Broad defended with the testimony and report of its appraiser, Samuel Koon, as to a land value for 2012. Counsel also placed into the record a 2011 land appraisal by Koon, which had been based on the erroneous understanding of the acreage to be assessed.

{¶ 6} The BOR convened on August 7, 2015, to decide the case. Relying on the premise that "it's land value that was actually in question," the BOR adopted Sprout's land value, $2,625,000, for 2011, while retaining the building value at the auditor's original valuation of $716,800, for a total value of $3,341,800 (a reduction from the $3,485,000 original total value determined by the auditor). Using a similar premise for 2012, 2013, and 2014, the BOR compared Koon's 2012 value for the 1.154 acres of land with the auditor's original land value of $804,300, and retained the auditor's original land value added to the auditor's value for the building of $716,800, for a "no change" total value of $1,521,100.

{¶ 7} The BOE appealed to the BTA, which considered the case on the record of the BOR proceedings. Although the BTA agreed with the BOR that there was jurisdiction to hear the case under the countercomplaint alone, the BTA held, contrary to the holding of the BOR, that both land and improvement value was at issue under the countercomplaint. The BTA adopted Sprout's appraisal values of $4,300,000 for 2011 and $2,700,000 for 2012 and 2013. CK at Broad has appealed, challenging the jurisdiction of the BTA to have so ruled.

II. Analysis

A. The voluntary dismissal of a complaint filed under R.C. 5715.19(A) does not retroactively invalidate a complaint filed under R.C. 5715.19(B)

{¶ 8} R.C. 5715.19(A) provides for the filing of complaints to challenge property values by March 31 of the year after the assessment year. When such a complaint has been filed and the taxable value at issue is $17,500 or more, R.C. 5715.19(B) provides for notice of such a filing to be given to the property owner (if the owner was not the complainant) and to the board of education. Within 30 days of receiving the notice, the notified person "may file a complaint in support of or objecting to the amount of alleged overvaluation, undervaluation, discriminatory valuation, illegal valuation, or incorrect determination stated in a previously filed complaint or objecting to the current valuation." Id. Our case law refers to this provision as affording the notified person "the opportunity to file a countercomplaint and make itself a party to the proceedings." 2200 Carnegie, L.L.C. v. Cuyahoga Cty. Bd. of Revision , 135 Ohio St.3d 284, 2012-Ohio-5691, 986 N.E.2d 919, ¶ 1. And indeed, R.C. 5715.19(B) ends with the statement that "[u]pon the filing of a complaint under this division, the board of education or the property owner shall be made a party to the action."

{¶ 9} But although the official complaint form uses the term "countercomplaint," as does our case law, that word does not appear in the statute itself. Instead, both R.C. 5715.19(A) and 5715.19(B) authorize the filing of a "complaint." For that reason, we will refer to a complaint filed under division (A) of R.C. 5715.19 as an "A complaint," and we will refer to a complaint filed under division (B) as a "B complaint."

{¶ 10} Using this terminology, the sequence of events in this case can be described as follows. First, CK at Broad filed an A complaint for tax year 2011 in March 2012. Next, while the A complaint was still pending, the BOE filed a B complaint for tax year 2011 in May 2012. For a period of time, both the A complaint and the B complaint were pending. Then, CK at Broad decided to dismiss its A complaint, while the BOE decided to seek an increase in value under its B complaint. CK at Broad argues that the voluntary dismissal of its A complaint divested the BOR and the BTA of jurisdiction to conduct proceedings under the B complaint.

{¶ 11} In support of its position, CK at Broad cites C.I.A. Properties v. Cuyahoga Cty. Aud. , 89 Ohio St.3d 363, 731 N.E.2d 680 (2000). In that case, a board of education filed an A complaint and a property owner filed a B complaint. But the board of education's A complaint was submitted on behalf of the board by an officer who was not a lawyer. As a result, the A complaint failed to invoke the board of revision's jurisdiction. Id. at 365, 731 N.E.2d 680, citing Sharon Village, Ltd. v. Licking Cty. Bd. of Revision , 78 Ohio St.3d 479, 678 N.E.2d 932 (1997). Regarding the board of revision's jurisdiction over the property owner's B complaint, we stated:

When a complaint filed with a board of revision pursuant to former R.C. 5715.19(A) is dismissed because it is jurisdictionally defective, a counter-complaint filed pursuant to R.C. 5715.19(B) must also be dismissed because the counter-complaint does not vest a board of revision with jurisdiction independent of the original complaint.

C.I.A. at syllabus.

{¶ 12} CK at Broad argues that our reasoning in C.I.A. means that even a voluntary dismissal deprives a B complaint of its jurisdictional basis. On the other hand, the BOE contends that C.I.A. turned on the failure of the original complaint to invoke the board of revision's jurisdiction.

{¶ 13} There is much in the C.I.A. decision to support CK at Broad's position on this issue. The syllabus states that the B complaint vests a board of revision with no "jurisdiction independent of the original complaint," and, citing R.C. 5715.19(B), the opinion states that "[t]he sole function of the countercomplaint * * * is to address the issues raised in a complaint filed pursuant to R.C. 5715.19(A)," C.I.A. at 366, 731 N.E.2d 680. These aspects of the decision militate toward concluding that a B complaint is not only dependent on the jurisdictional validity of the A complaint but on its continued pendency as well.

{¶ 14} That said, the present appeal does address a very different situation from that in C.I.A. Undoubtedly, C.I.A. is controlling authority in a case in which the A complaint is jurisdictionally defective, and we have no trouble concluding that by extension, a voluntary dismissal of an A complaint before the filing of a B complaint would also remove the jurisdictional basis for the filing of the B complaint. In both of those situations, the A complaint's jurisdictional validity and pendency at the time the B complaint is filed is a jurisdictional prerequisite to the validity of the B complaint. But neither of those situations is present here. {¶ 15} Applying C.I.A. to the present situation would require a significant further step that we do not think is justified by the language and purpose of R.C. 5715.19(B). In this regard, we amend our statement in C.I.A. that the "sole function" of a B complaint is to address the issues raised in the A complaint. 89 Ohio St.3d at 366, 731 N.E.2d 680. The very language of R.C. 5715.19(B) that we cited in C.I.A. cuts against the categorical character of that statement, because the statute not only authorizes a B complaint to support or object to the claim set forth in the "previously filed complaint," but it also explicitly authorizes a B complaint to "object[ ] to the current valuation." In other words, R.C. 5715.19(B) empowers the new complainant to challenge the current assessed value based on its own theory, independent of any argument advanced by the party that filed the A complaint.

{¶ 16} In this case, the BOE advanced its own independent objection to the auditor's original valuation, which it supported with appraisal evidence, and R.C. 5715.19(B) authorized that action by permitting a B complainant to "object[ ] to the current valuation." Although C.I.A. draws a parallel to civil procedure, the issue before us presents the purely statutory question whether the administrative tribunals have authority to conduct proceedings on the BOE's objection. In a related context, we have held that jurisdiction over a valuation complaint should be determined in light of the facts and circumstances as of the point in time that the complaint is filed , with the result that later events will not be given the effect of retroactively invalidating the complaint. Soyko Kulchystsky, L.L.C. v. Cuyahoga Cty. Bd. of Revision , 141 Ohio St.3d 43, 2014-Ohio-4511, 21 N.E.3d 297, ¶ 29-30. This rule is in keeping with the practice of the federal courts, where a determination of jurisdiction based on diversity of citizenship focuses on the time of filing of the complaint, to the exclusion of later developments, Pilling v. Virginia Property & Cas. Co. , 95 Fed.Appx. 126, 128 (6th Cir.2004), quoting Freeport-McMoRan, Inc. v. K.N. Energy, Inc. , 498 U.S. 426, 428, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991) ("it is well established that 'diversity of citizenship is assessed at the time the action is filed,' and subsequent action including substitution of parties does not defeat jurisdiction").

{¶ 17} We apply the time-of-filing doctrine to this case, and accordingly, we conclude that the voluntary dismissal of the A complaint long after the B complaint had been filed did not deprive the BOR and the BTA of jurisdiction to consider the BOE's claim, in the B complaint, for an increased value. Unlike the jurisdictional defect in the A complaint in C.I.A. , the voluntary dismissal of the A complaint by the owner in this case was not a circumstance in existence at the time the B complaint was filed; as a result, it had no jurisdictional impact on the validity of the B complaint.

B. The administrative tribunals' jurisdiction under the BOE's complaint was not limited to determining land value

{¶ 18} CK at Broad argues that even if the BOR retained jurisdiction over the countercomplaint, its jurisdiction under the B complaint was limited to determining the land value, because the A complaint on its face contested only the land value. We disagree.

{¶ 19} R.C. 5715.19(A)(1)(d) authorizes the filing of a complaint to challenge "the total valuation or assessment of any parcel that appears on the tax list." And as discussed, R.C. 5715.19(B) carries that authorization to the B complaint by permitting its filer to "object[ ] to the current valuation." It is true that the prescribed complaint form calls for the complainant to specify its claim for an increase or decrease in value, and in this case CK at Broad as complainant did focus on a claim for a reduction of land value. But the complaint process invokes a board of revision's jurisdiction over the entire valuation and assessment of the parcel. See Blatt v. Hamilton Cty. Bd. of Revision , 123 Ohio St.3d 428, 2009-Ohio-5260, 916 N.E.2d 1065, ¶ 20 ( R.C. 5715.19(A)"explicitly places the total value of the property (both land and improvements) at issue in an appeal of valuation"). Applying this principle, the BTA has consistently declined to confine its determination to the value of the land or the value of the improvements at the complainant's behest. See Soin v. Greene Cty. Bd. of Revision , BTA No. 2004-V-490, 2005 WL 2699285, *3 (Oct. 7, 2005), aff'd , 110 Ohio St.3d 408, 2006-Ohio-4708, 853 N.E.2d 1165, ¶ 9 (property owner, who complained of overvaluation of improvements but not land, suffered an overall increase in value when the board of revision and the BTA decreased the value of improvements but increased the value assigned to the land); see also Heskett v. Ross Cty. Bd. of Revision , BTA No. 2002-M-2107, 2003 WL 22417535, *3 (Oct. 17, 2003); Amsdell v. Cuyahoga Cty. Bd. of Revision , BTA No. 1993-M-1336, 1994 Ohio Tax LEXIS 1896, *8-9 (Nov. 14, 1994).

{¶ 20} This approach accords with the broader doctrine that the claim of value set forth in the original complaint does not limit the scope of the tribunal's determination of property value. The BTA's statutory duty in an appeal from a board of revision is to determine value. R.C. 5717.03(B) ; Jakobovitch v. Cuyahoga Cty. Bd. of Revision , 152 Ohio St.3d 187, 2017-Ohio-8818, 94 N.E.3d 519, ¶ 25. Moreover, "it is settled that 'when performing an independent valuation, the BTA is not bound by the values advocated by the parties.' " Huber Hts. City Schools Bd. of Edn. v. Montgomery Cty. Bd. of Revision , 152 Ohio St.3d 182, 2017-Ohio-8819, 94 N.E.3d 515, ¶ 17, quoting Sapina v. Cuyahoga Cty. Bd. of Revision , 136 Ohio St.3d 188, 2013-Ohio-3028, 992 N.E.2d 1117, ¶ 28 ; accord Jones & Laughlin Steel Corp. v. Lucas Cty. Bd. of Revision , 40 Ohio St.2d 61, 63, 320 N.E.2d 658 (1974) (rejecting the appellate court's holding that the reduction ordered is "limited to the valuation claimed in the taxpayer's initial complaint"). And finally, the absence of jurisdictional constraints on the finder of fact explains why complainants before the boards of revision often amend their complaints and advance a different claim at the hearing from that set forth in the original complaint. See, e.g. , Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 144 Ohio St.3d 324, 2015-Ohio-3633, 43 N.E.3d 387, ¶ 12, 15 ; Health Care REIT, Inc. v. Cuyahoga Cty. Bd. of Revision , 140 Ohio St.3d 30, 2014-Ohio-2574, 14 N.E.3d 1009, ¶ 8, 15, 76.

{¶ 21} The cases CK at Broad relies upon are inapposite. Both Dayton-Montgomery Cty. Port Auth. v. Montgomery Cty. Bd. of Revision , 113 Ohio St.3d 281, 2007-Ohio-1948, 865 N.E.2d 22, and Polaris Amphitheater Concerts, Inc. v. Delaware Cty. Bd. of Revision , 118 Ohio St.3d 330, 2008-Ohio-2454, 889 N.E.2d 103, involve a limitation on this court's appellate jurisdiction, not a limitation on the jurisdiction of the boards of revision or the BTA to determine both land and improvement value. The reasoning of those decisions depends upon the peculiarities of former R.C. 5717.04, 2016 Am.Sub.H.B. No.

384, the statute that authorized appeal from the BTA to the court. Indeed, in Polaris we drew this very distinction between R.C. 5715.19 and former R.C. 5717.04. Polaris at ¶ 5.

{¶ 22} For these reasons, we hold that the BOR and the BTA had jurisdiction to consider the BOE's claim for increased value pursuant to its "B complaint" and that the determination of value under that complaint was not limited to the value of the land.

III. Conclusion

{¶ 23} For the foregoing reasons, we affirm the decision of the BTA.

Decision affirmed.

O'Connor, C.J., and Kennedy, French, Fischer, and DeWine, JJ., concur.

O'Donnell, J., dissents, with an opinion joined by DeGenaro, J.

{¶ 24} Respectfully, I dissent.

{¶ 25} When a property owner files a R.C. 5715.19(A) complaint challenging a land valuation and a board of education files a complaint pursuant to R.C. 5715.19(B), if the property owner withdraws the "A" complaint, the board of revision must dismiss the "B" complaint because it does not vest the board of revision with jurisdiction independent of the original R.C. 5715.19(A) complaint.

Facts and Procedural History

{¶ 26} In March 2012, CK at Broad, L.L.C./CK Property Group, L.L.C., filed a complaint seeking a reduction in the value of certain land in Franklin County for tax year 2011 but not the value of a building on it, and in May 2012, Licking Heights Local Schools Board of Education ("BOE") filed a countercomplaint seeking to retain the auditor's valuation of both the land and the building.

{¶ 27} In 2014, CK at Broad withdrew its complaint, and thereafter, the BOE maintained it had the right to pursue an increase in the value of the entire property through its complaint. CK at Broad argued that Franklin County Board of Revision ("BOR") lacked jurisdiction to proceed on the BOE complaint because CK at Broad had withdrawn its complaint and even if the BOR had jurisdiction, it was limited to considering only the value of the land. The BOR concluded it had jurisdiction to determine the value of the land for tax years 2011, 2012, 2013, and 2014; it then reduced the auditor's land valuation for tax year 2011 and retained the auditor's land valuation for 2012, 2013, and 2014.

{¶ 28} The BOE appealed, and the Board of Tax Appeals ("BTA") concluded that "the BOR properly exercised jurisdiction over the BOE's countercomplaint" but "improperly disregarded the appraised values offered for the subject improvements by the BOE." The BTA increased the value of the property for tax years 2011, 2012, and 2013 but determined that the BOR lacked jurisdiction to determine the value for tax year 2014 for reasons unrelated to this appeal.

Law and Analysis

{¶ 29} R.C. 5715.19(A)(1) authorizes "[a]ny person owning taxable real property in the county," "the board of education of any school district with any territory in the county," and others to file a complaint to challenge a property value determination "on or before the thirty-first day of March of the ensuing tax year." R.C. 5715.19(B) provides that if a complaint is filed and "the stated amount of overvaluation, undervaluation, discriminatory valuation, illegal valuation, or incorrect determination is at least seventeen thousand five hundred dollars," the auditor shall "[w]ithin thirty days after the last date such complaints may be filed" give notice of the complaint to the property owner if the owner did not file it and "to each board of education whose school district may be affected by the complaint." Within 30 days after receiving that notice, the owner or board of education "may file a complaint in support of or objecting to the amount of alleged overvaluation, undervaluation, discriminatory valuation, illegal valuation, or incorrect determination stated in a previously filed complaint or objecting to the current valuation" and "be made a party to the action." Id.

{¶ 30} In C.I.A. Properties v. Cuyahoga Cty. Aud. , 89 Ohio St.3d 363, 365, 731 N.E.2d 680 (2000), this court considered whether a complaint "filed with a county board of revision pursuant to R.C. 5715.19(B) creates independent jurisdiction in a county board of revision if the original complaint is jurisdictionally defective." We held:

When a complaint filed with a board of revision pursuant to * * * R.C. 5715.19(A) is dismissed because it is jurisdictionally defective, a counter-complaint filed pursuant to R.C. 5715.19(B) must also be dismissed because the counter-complaint does not vest a board of revision with jurisdiction independent of the original complaint .

(Emphasis added.) Id. at syllabus.

{¶ 31} Although the majority acknowledges that "[t]here is much in the C.I.A. decision to support" the position that the withdrawal of a R.C. 5715.19(A) complaint divests a board of revision of jurisdiction to proceed on a R.C. 5715.19(B) complaint, majority opinion at ¶ 13, the majority fails to adhere to our precedent. Instead, it states:

In a related context, we have held that jurisdiction over a valuation complaint should be determined in light of the facts and circumstances as of the point in time that the complaint is filed , with the result that later events will not be given the effect of retroactively invaliding the complaint. Soyko Kulchystsky, L.L.C. v. Cuyahoga Cty. Bd. of Revision , 141 Ohio St.3d 43, 2014-Ohio-4511, 21 N.E.3d 297, ¶ 29-30.

(Emphasis sic.) Majority opinion at ¶ 16. And the majority concludes that C.I.A. does not apply because "[u]nlike the jurisdictional defect in the A complaint in C.I.A. , the voluntary dismissal of the A complaint by the owner in this case was not a circumstance in existence at the time the B complaint was filed * * * ." Majority opinion at ¶ 17.

{¶ 32} However, the timing of the dismissal of the A complaint does not alter the fact that pursuant to C.I.A. , a B complaint does not vest the board of revision with any jurisdiction independent of the A complaint. This case is controlled by our decision in C.I.A.

{¶ 33} Moreover, the facts and the holding of Soyko Kulchystsky are distinguishable. That case involved R.C. 5715.19(A)(2), which prohibits a person from filing a complaint against a valuation of property if the person has already filed a complaint against the valuation for "any prior tax year in the same interim period," unless an exception applies. We held that "the applicability of R.C. 5715.19(A)(2)(a) should be determined as of the date the second-filed complaint was filed," in part because such a holding "most fully comports with the language" of the statute, which "suggests that compliance should be determined as of the time of filing." Soyko Kulchystsky at ¶ 30-31. Soyko Kulchystsky did not address the viability of a B complaint following the dismissal of an A complaint, and the majority points to no language in R.C. 5715.19(B) that suggests a complaint filed pursuant to that provision survives the dismissal of the sole complaint that invoked the jurisdiction of the board of revision.

{¶ 34} Here, CK at Broad filed a complaint pursuant to R.C. 5715.19(A), thereby invoking the jurisdiction of the BOR. The BOE did not exercise the right to file a complaint pursuant to that provision and independently invoke the jurisdiction of the BOR, but instead, it filed a R.C. 5715.19(B) complaint, which pursuant to C.I.A. did not vest the BOR with jurisdiction independent of the original complaint. Therefore, when CK at Broad withdrew its complaint, the BOR should have dismissed the BOE's complaint, and the BTA erred in concluding otherwise.

{¶ 35} Accordingly, I would reverse the decision of the BTA and reinstate the auditor's valuations for tax years 2011, 2012, and 2013.

DeGenaro, J., concurs in the foregoing opinion.

      Additionally, the BTA held that the BOR had improperly exercised jurisdiction over the determination of value for tax year 2014 inasmuch as the carryover should not apply to the triennial-update year. That ruling has not been appealed.


text:
    The STATE EX REL. BEAVERCREEK TOWNSHIP FISCAL OFFICER v. GRAFF et al.
    No. 2016-0747
    Supreme Court of Ohio.
    Submitted January 23, 2018 Decided September 20, 2018
    Andrew P. Pickering, Special Assistant Greene County Prosecuting Attorney, for relator.
    Surdyk, Dowd & Turner Co., L.P.A. and Dawn M. Frick, Miamisburg, for respondents.
   Per Curiam.

{¶ 1} In this original action, relator, Beavercreek Township Fiscal Officer Christy L. Ahrens, seeks a writ of mandamus to compel respondents, the Board of Beavercreek Township Trustees and its members, Carol Graff, Jeffrey Roberts, and Thomas Kretz (collectively, "the board"), to approve and fund the salaries of two positions in the fiscal office in the amount she proposed.

{¶ 2} We conclude that R.C. 507.021(A) authorizes Ahrens to hire two assistants to the fiscal officer and to set compensation for those positions, subject to prior approval by the board. But because she has not demonstrated that the board abused its discretion when it denied her specific salary requests, we deny her request for a writ of mandamus compelling the board to approve and fund the two assistant positions at the specific salaries that she proposed. In addition, we conclude that the board exceeded its authority when it adopted Resolutions 2016-158 and 2016-159 setting the annual salaries for the two assistants to the fiscal officer. Accordingly, we issue a writ of mandamus ordering the board to rescind Resolutions 2016-158 and 2016-159 and to consider a new compensation proposal submitted by Ahrens.

Background

{¶ 3} Ahrens has been the fiscal officer for Beavercreek Township since 2006. In 2006, the board hired Deb White as a full-time accounts-payable/payroll technician. White reported to the assistant to the fiscal officer. According to the job description submitted as evidence, her basic responsibilities included record-keeping; reviewing the purchasing process "for proper account distribution, outdated purchase orders and reconciliation of vendor invoices;" and "[d]ocument[ing] and updat[ing] accounts payable procedures and accounting manuals." White's annual salary was $53,872 in 2014 and $55,494.40 in 2015. An annual salary of $57,158.40 was originally budgeted for 2016.

{¶ 4} In 2007, Ahrens appointed James Barone to the full-time position of assistant to the fiscal officer. Barone reported to Ahrens and, according to the job description submitted as evidence, was involved in "planning, organizing, coordinating and directing [the] activities of the Office of [the] Fiscal Officer," and in addition to other duties, he was "[r]esponsible for monitoring, preparing, and posting all revenues; monitoring all fixed assets (purchasing, transfers, and disposal); and * * * preparing and filing financial statements and reports (monthly, quarterly, and yearly)." In 2014, Barone's annual salary was $76,507.60.

{¶ 5} On November 14, 2014, Kretz and the township administrator, J. Alexander Zaharieff, met with Ahrens to discuss the creation of a township finance department that would be led by a finance director, who would report to the township administrator rather than to the fiscal officer. According to Ahrens, Kretz informed her that Barone would be hired as the finance director at the same salary and with the same responsibilities as he currently had as her assistant and that if she did not agree to the change, the board could defund the position of assistant to the fiscal officer. (Kretz denies threatening to defund the assistant position.) The board discussed its power to fund and defund positions at a March 9, 2015 special meeting.

{¶ 6} On March 16, 2015, the board created a finance department-whose employees would report to the township administrator-and it approved the proposed job description for the finance-director position. The board also approved a new township organizational structure that gave the township administrator supervising authority over the accounts-payable/payroll technician, thus eliminating the fiscal officer's supervising authority.

{¶ 7} On March 30, 2015, the board appointed Barone the finance director at the same salary he was making as assistant to the fiscal officer, $78,080.88. Barone's 2016 salary was budgeted at $81,167.06.

{¶ 8} R.C. 507.021(A) authorizes a fiscal officer to "hire and appoint one or more persons as the fiscal officer finds necessary to provide assistance to the township fiscal officer or deputy fiscal officer" and to "set the compensation of those persons subject to the prior approval of the board of township trustees." On February 12, 2016, Ahrens's attorney contacted the board's attorney with a proposal to hire two assistants to the fiscal officer pursuant to R.C. 507.021(A). The first assistant to the fiscal officer would earn an annual salary between $75,000 and $92,000 (the parties herein refer to this position as the "lead assistant" position). The second assistant to the fiscal officer would earn an annual salary between $50,000 and $65,000 (the parties herein refer to this position as the accounts-payable/payroll-assistant position). The lead assistant would report directly to the fiscal officer, and the accounts payable/payroll assistant would report to the lead assistant. According to Ahrens's attorney, the lead assistant would perform the duties "formerly performed by the assistant to the fiscal officer position, prior to the creation of the finance director position" and the accounts-payable/payroll assistant would perform "most of the duties" of the accounts-payable/payroll-technician position.

{¶ 9} On March 28, 2016, the board discussed Ahrens's proposal and adopted four resolutions:

(1) Resolution 2016-160 eliminated the position of finance director, effective May 9, 2016.
(2) Resolution 2016-161 eliminated the position of accounts-payable/payroll technician under the finance director and township administrator, effective May 9, 2016.
(3) Resolution 2016-158 authorized the lead-assistant position at an annual salary of $40,515.
(4) Resolution 2016-159 authorized the position of accounts-payable/payroll assistant under the fiscal officer at an annual salary of $28,200.

In May 2016, the board approved a $5,000 salary increase for each of the new positions.

{¶ 10} Ahrens alleges that under R.C. 507.021(A), the board must approve the fiscal officer's proposed compensation for her assistants and allocate the necessary funds absent an abuse of discretion by the fiscal officer. Ahrens requests a writ of mandamus directing the board to approve and fund the proposed salaries for the lead-assistant and accounts-payable/payroll-assistant positions.

Analysis

{¶ 11} To be entitled to a writ of mandamus, Ahrens must establish (1) a clear legal right to the requested relief, (2) a corresponding clear legal duty on the part of the board to provide it, and (3) the lack of an adequate remedy in the ordinary course of law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Ahrens must prove her entitlement to the writ by clear and convincing evidence. State ex rel. Doner v. Zody , 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus.

{¶ 12} Ahrens's mandamus claim hinges on her authority and the board's obligation under R.C. 507.021(A).

R.C. 507.021(A)

{¶ 13} The board argues in its brief that R.C. 507.021(A) grants it the "discretion to approve and appropriate amounts for the fiscal officer and, specifically, for amounts to be paid to any assistants." In its view, when a funding dispute arises, R.C. 507.021(A) places the burden on the township fiscal officer to prove that her request was reasonable and that the board of trustees abused its discretion in denying the request.

{¶ 14} By contrast, Ahrens argues that R.C. 507.021(A) gives the township fiscal officer the primary authority to set the compensation of any assistants hired under that provision. In her brief, she urges us to hold that under the current version of R.C. 507.021(A), the "requested appropriation must be made, unless the trustees prove that the request is an abuse of discretion."

{¶ 15} When this court seeks to ascertain the meaning of a statute, the threshold question is whether it is ambiguous. Jacobson v. Kaforey , 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8. "It is a cardinal rule of statutory construction that where the terms of a statute are clear and unambiguous, the statute should be applied without interpretation." Wingate v. Hordge , 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979). When a statute contains language that " 'is plain and unambiguous, and conveys a clear and definite meaning, [this court] must rely on what the General Assembly has said' * * * and give effect only to the words the legislature used, making neither additions to, nor deletions from, the statutory language." Wilson v. Lawrence , 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 11, quoting Jones v. Action Coupling & Equip., Inc. , 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12.

{¶ 16} R.C. 507.021(A) is not ambiguous. It expressly grants to a township fiscal officer the authority to decide whether assistants need to be hired and if so, whom to hire for those positions. The second sentence of the statutory provision at issue grants the fiscal officer the authority to set the compensation for the assistants, "subject to the prior approval of the board of township trustees." (Emphasis added.) This language clearly indicates that the General Assembly intentionally constrained a fiscal officer's ability to set her own assistants' salary; it makes board approval a prerequisite to the determination of the salary of a fiscal-officer's assistant.

{¶ 17} On the other hand, the plain language also contains a limitation on the board's authority; it may either grant or withhold its approval of a fiscal officer's compensation proposal, but it may not, as it did here, withhold approval and set the compensation for the fiscal officer's assistants. Thus, the board lacked the authority to adopt Resolutions 2016-158 and 2016-159. Thus, we hold that R.C. 507.021(A) unambiguously requires a fiscal officer to obtain board approval for the salary offered to any assistant hired under this section and it allows the board to either approve or deny the salary proposal. However, the board does not have authority under R.C. 507.021(A) to set the salaries for the fiscal officer's assistants.

{¶ 18} Ahrens points to the prior version of R.C. 507.021(A) as proof that the legislature enacted the current language to give the fiscal officer primary power over setting the salaries for fiscal-office employees. In support of her argument, she invokes the rule of statutory interpretation that provides that "[a] legislative amendment must be presumed to change the effect and operation of the law."

Lynch v. Gallia Cty. Bd. of Commrs. , 79 Ohio St.3d 251, 257-258, 680 N.E.2d 1222 (1997). Prior to 2004, R.C. 507.021 provided that "[t]he board of township trustees may employ such number of persons as it finds necessary to provide stenographic and clerical assistance to the township clerk or deputy clerk." Am.Sub.H.B. No. 441, 133 Ohio Laws, Part II, 2193. The term "fiscal officer" was substituted for "clerk" in 2005. Sub.S.B. No. 107, 151 Ohio Laws, Part I, 406, 458. In 2004, the General Assembly gave the clerk (fiscal officer) the power to decide whether to hire assistants and whom to hire as assistants and also the power to propose the salary for those assistants, subject to approval from the board. Ahrens argues in her brief that "[i]f this change is to mean anything, then the current language of R.C. 507.021(A) places the power of setting compensation primarily with the township fiscal officer."

{¶ 19} But as explained above, the language of R.C. 507.021(A) is unambiguous. Indeed, Ahrens's interpretation of R.C. 507.021(A) would render the phrase "subject to the prior approval of the board of township trustees" meaningless and thus fails to give effect to the words the legislature used. See Columbia Gas Transm. Corp. v. Levin , 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 19 (when interpreting statutes, "[c]ourts may not delete words used or insert words not used"). The effect of the legislative change was clearly to give the fiscal officer some authority over her own budget, but in order to hold that she has exclusive authority to set compensation, we would need to disregard the unambiguous statutory language, which we will not do. R.C. 507.021(A) requires the fiscal officer to obtain the board's approval before she sets the compensation for her assistants.

{¶ 20} Because the statute does not grant the fiscal officer exclusive authority to set the compensation of her assistants, mandamus cannot be used to compel the board to approve her compensation request absent a showing that the board abused its discretion in denying the request. State ex rel. Veterans Serv. Office of Pickaway Cty. v. Pickaway Cty. Bd. of Commrs. , 61 Ohio St.3d 461, 463, 575 N.E.2d 206 (1991). In Veterans Serv. Office , a county veterans-service commission sought a writ of mandamus to compel a board of county commissioners to appropriate the full amount it requested. In denying the writ, we noted that the relevant statute provided for "review and revision" by the board of the commission's budget request and held that the commission was not automatically entitled to its full request and that it could not compel the board to grant the request absent a showing that its denial was an abuse of discretion. Id. at 462-463, 575 N.E.2d 206.

{¶ 21} Because R.C. 507.021(A) calls for the prior approval of the board of township trustees, we reach a conclusion here analogous to the conclusion in Veterans Serv. Office : the board's decision whether to approve or reject the fiscal officer's compensation proposal is entitled to a presumption of reasonableness. In other words, R.C. 507.021(A) grants the fiscal officer the authority to propose to the board the compensation her assistants should receive, but if the board rejects that proposal, the burden is on the fiscal officer to show that the board abused its discretion in denying her request. See also State ex rel. Trussell v. Meigs Cty. Bd. of Commrs. , 155 Ohio App.3d 230, 2003-Ohio-6084, 800 N.E.2d 381 (4th Dist.) (statute does not grant sheriff final authority for appropriations to his office and therefore he is not entitled to a writ of mandamus to compel the board of commissioners to approve his full budget request absent a demonstration that the board abused its discretion in denying the request). {¶ 22} Accordingly, to be entitled to the requested writ of mandamus, Ahrens must demonstrate, by clear and convincing evidence, that the board abused its discretion when it rejected her compensation proposal.

Abuse of discretion

{¶ 23} To demonstrate an abuse of discretion, Ahrens must show that the board acted arbitrarily, unreasonably, or unconscionably in rejecting the compensation request. See State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs. , 90 Ohio St.3d 55, 61, 734 N.E.2d 811 (2000) (" 'abuse of discretion' implies an unreasonable, arbitrary, or unconscionable attitude").

{¶ 24} Ahrens contends in her reply brief that the board used "bad math" in rejecting her proposal and awarding lower salaries for the two assistant positions. She criticizes the survey that was submitted as evidence by the board in support of its rejection of her proposal. The survey shows the salaries paid to persons in similar positions in other Ohio townships, and it indicates various factors related to each position, including the title of the position, whether the position is full-time or part-time, the hourly rate/annual salary of the position, the population of the township, the 2013 general-fund revenues of the township, and the 2013 total revenues of the township. The survey indicated an average annual salary of $39,801.82 for positions similar to the lead-assistant position and an average annual salary of $29,322.80 for positions similar to the accounts-payable/payroll-assistant position. The board also compared and took into account the job descriptions for the new lead-assistant and accounts-payable/payroll-assistant positions that it authorized versus the job descriptions provided by many of the surveyed counties.

{¶ 25} Ahrens argues that the salary survey was flawed because it included both full-time and part-time positions, resulting in a lower average salary. She also argues that the survey included positions that were more comparable to the accounts-payable/payroll-assistant position in determining the average salary for the lead-assistant position. To illustrate her point, Ahrens points to the job description for the position of "fiscal analyst II" in Sylvania Township that was included in the survey. There is a handwritten notation at the top of the page that reads, "Comparable to: Account Payable $17.18 hr. 10 yr. service." In addition, the salary survey for the accounts-payable/payroll-assistant position includes 20 allegedly comparable positions, only seven of which are full-time positions. Because the board approved two full-time positions, the fact that it relied on data from part-time positions in other counties does detract from the weight of that evidence.

{¶ 26} Yet despite the shortcomings of the survey, Ahrens has not produced evidence to demonstrate that the board abused its discretion. In fact, the survey of comparable township positions that she submitted as evidence is not without fault. Referring to her survey, Ahrens contends that the salary ranges she proposed for the lead-assistant and accounts-payable/payroll-assistant positions were "in line with * * * similar positions with other nearby townships." However, her salary survey lacks information about the townships, which is necessary to support comparison, and therefore is insufficient to satisfy her burden of proof.

{¶ 27} She further argues that the unreasonableness of the board's decision is demonstrated by the fact that "[t]he two Assistant positions are almost identical to the Finance Director and Accounts Payable/Payroll Technician positions" that were previously funded. Although there are many overlaps in the duties of the prior positions and the new assistant positions, Ahrens fails to take into account noteworthy differences. For example, the finance-director position included the duties of providing revenue forecasts and assisting the township administrator in preparing the township budget and five-year departmental financial forecasts. The lead-assistant position that Ahrens proposed does not include these duties. Because preparing the budget is a significant duty, this change supports the board's claim that the lead-assistant position differs significantly from the finance-director position.

{¶ 28} In addition, the board acted reasonably by taking into account the township's financial condition when it considered Ahrens's proposal. The board emphasizes in its brief that it considered "the ongoing need to balance the general fund budget, and the years of the Township's general fund expenditures that exceeded the revenues and caused a reduction in carryover funds." Moreover, evidence in the record demonstrates that Ahrens publicly commented on the poor financial condition facing the township, criticizing the board as engaging in deficit spending. Therefore, it was not unreasonable or arbitrary for the board to consider the township's financial condition when reviewing Ahrens's proposed compensation for the two assistants, which, combined, would have cost the township over $100,000 in salary alone.

{¶ 29} Nor does the evidence support Ahrens's complaint that in rejecting her proposed salaries, the board was singling out her office to receive budget cuts.

Ahrens argues that Trustee Graff conceded in a March 28, 2016 board meeting that the board was cutting the salaries of the fiscal-office employees in half while leaving all other offices' budgets intact. But taken in context, Graff's comments do not support Ahrens's claim that no other offices' budget would be cut; the only salaries at issue at the March 28th meeting were those proposed by Ahrens. Graff's comments alone do not support Ahrens's claim that the board acted arbitrarily and unreasonably in rejecting her proposed salaries.

{¶ 30} In conclusion, Ahrens has not presented clear and convincing evidence that the board abused its discretion in rejecting her proposed salaries. But we also hold that the board exceeded its authority under R.C. 507.021(A) when it set the salaries for Ahrens's assistants. Accordingly, we issue a writ of mandamus ordering the board of trustees to rescind Resolutions 2016-158 and 2016-159 and to consider a new compensation proposal from Ahrens.

Writ granted in part

and denied in part.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, and DeWine, JJ., concur.

DeGenaro, J., not participating.


text:
    The STATE EX REL. PERRY TOWNSHIP BOARD OF TRUSTEES v. HUSTED, SECY., et al.
    No. 2018-1261
    Supreme Court of Ohio.
    Submitted September 17, 2018 Decided September 21, 2018.
    Hall Law Firm and Charles D. Hall III, Perry Township Law Director; and Fry Law, L.L.C., and Gary K. Fry, Canton, for relator.
    Michael DeWine, Attorney General, and Tiffany L. Carwile and Heather L. Buchanan, Assistant Attorneys General, for respondent Secretary of State Jon Husted.
    John D. Ferrero, Stark County Prosecuting Attorney, and Stephan P. Babik, Deborah A. Dawson, and Jessica L. Logothetides, Assistant Prosecuting Attorneys, for respondent Stark County Board of Elections.
   Per Curiam.

I. INTRODUCTION

{¶ 1} This expedited elections case involves a township property-tax levy. Relator, the Board of Trustees of Perry Township, in Stark County (the "trustees"), resolved to renew and increase an existing tax levy for road construction and repair. Respondent Stark County Board of Elections (the "board") disqualified the proposed levy and refused to place it on the November 2018 ballot because the trustees' resolution and the proposed ballot language state that the renewal and increase would commence in 2018, which is the last year of the existing levy. The trustees seek a writ of mandamus compelling the board to place the tax levy on the November 2018 ballot. We deny the writ.

II. FACTS

{¶ 2} At the May 2014 election, the voters of Perry Township approved a new one-mill property-tax levy for road construction and repair, commencing in tax year 2014 and lasting for five years. Property taxes levied in a particular tax year are collected in the following calendar year. See R.C. 323.12 and 5705.03(C). Accordingly, the 2014 levy applied to property in the township in tax years 2014, 2015, 2016, and 2017 and will apply in tax year 2018, with the tax collected in calendar years 2015, 2016, 2017, 2018, and 2019.

{¶ 3} On July 31, 2018, the trustees unanimously approved a resolution (the "resolution of necessity") (1) stating that the amount of taxes that can be raised within the ten-mill limitation in the township for the next five years will be insufficient to provide an adequate amount for road construction and repair, (2) stating that it will therefore be necessary to levy a renewal of the existing one-mill tax levy and an increase of three mills-constituting a four-mill levy-commencing in tax year 2018, first collected in 2019, and lasting five years, and (3) requesting the Stark County auditor to certify the dollar amount of revenue that would be generated by this levy. See R.C. 5705.03(B). The trustees certified this resolution of necessity to the auditor on August 1. On August 2, the auditor certified the estimated revenue that the levy would raise.

{¶ 4} On August 7, 2018, the trustees unanimously adopted a resolution (the "resolution to proceed") to submit to Perry Township's voters the renewal of the existing tax levy of one mill and an increase of three mills-a total tax levy of four mills-for road construction and repair. The resolution to proceed prescribed a form of ballot providing that the renewal and increase would commence in tax year 2018, with the tax first due in 2019, and would continue for five years. The trustees filed the resolution to proceed with the board on August 8.

{¶ 5} The board forwarded the ballot language to the office of respondent Ohio Secretary of State Jon Husted for review, and on August 17, Husted's office notified the board that it had approved the ballot language as to form. See R.C. 3501.05(J) and 3501.11(V).

{¶ 6} Nevertheless, on August 20, the board notified the trustees that it had disqualified the proposed renewal and increase for the reasons stated in an August 15 memorandum from the Stark County prosecutor's office. The memorandum stated that the trustees were "properly asking to place the renewal and increase on the ballot at the general election in 2018."

However, the memorandum continued, "[t]he problem is that the Resolution of Necessity, Resolution to Proceed and ballot language all state that the commencement date for the renewal and increase is 2018. * * * [T]he commencement date for the renewal and increase must be 2019, after the expiration of the current term of the levy."

{¶ 7} On August 23, the trustees asked the board to reconsider its disqualification of the tax levy. In their request, the trustees identified four renewal-and-increase levies for other townships-one in 2014, two in 2015, and one in 2016-that had commenced in the final tax year of the existing levy and that the board had placed on the ballot. The board rejected this request on August 27, though the board acknowledges that it had allowed those earlier levies onto the ballot. On September 5, the trustees filed this mandamus action.

III. ANALYSIS

A. Mandamus Standard

{¶ 8} To be entitled to a writ of mandamus, a relator must establish by clear and convincing evidence a clear legal right to the requested relief, a clear legal duty on the part of the respondent to grant that relief, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. When reviewing a decision of a county board of elections, the standard is whether the board engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions. Id. at ¶ 7.

B. Claims Against the Stark County Board of Elections

{¶ 9} The board disqualified the trustees' proposed levy from the ballot because the renewal and increase would have commenced in tax year 2018, the final year of the existing levy. The trustees argue that the board had a clear legal duty to place a levy commencing in the final year of the existing levy on the ballot. For the source of this duty, the trustees point exclusively to R.C. 5705.25.

{¶ 10} That statute provides that a resolution to renew an existing levy shall not be placed on the ballot unless the question is submitted to the electorate at "the general election held during the last year the tax to be renewed may be extended on the real and public utility property tax list and duplicate, or at any election held in the ensuing year." R.C. 5705.25(A). For purposes of this restriction, a levy is considered an "existing" levy "through the year following the last year it can be placed on that tax list and duplicate." Id. In other words, a renewal levy may be placed on the ballot at the general election in the final tax year in which it applies to the tax base (the last year it is extended on the tax list and duplicate) or at any election in the final calendar year in which tax from the levy is collected (the ensuing year).

{¶ 11} Under this provision, as the trustees and the board agree, the question whether to renew the existing Perry Township roads levy could be submitted to the voters of the township at the general election in 2018, the existing levy's last tax year, or in any election in 2019. R.C. 5705.25(A) does not, however, specify that the renewal and increase, if approved, can commence in the final tax year of the existing levy.

{¶ 12} R.C. 5705.25(B) provides:

The form of the ballots cast at an election held pursuant to division (A) of this section shall be as follows:
"An additional tax for the benefit of (name of subdivision or public library) .......... for the purpose of (purpose stated in the resolution) .......... at a rate not exceeding ...... mills for each one dollar of valuation, which amounts to (rate expressed in dollars and cents) ............ for each one hundred dollars of valuation, for ...... (life of indebtedness or number of years the levy is to run).
For the Tax Levy
Against the Tax Levy"

R.C. 5705.25(C) provides that for a renewal and increase of an existing levy, the form set forth above shall be altered so that the words "An additional" at the beginning of the form are replaced with the words "A renewal of ........ mills and an increase of ...... mills to constitute a." And R.C. 5705.25(D) concerns a voter-approved levy's certification to the tax commissioner and the levy's extension on the tax list. Like R.C. 5705.25(A), however, neither R.C. 5705.25(B), (C), nor (D) expressly confers a right to have a renewal and increase commence in the final tax year of the existing levy.

{¶ 13} The trustees have therefore failed to establish the existence of a clear legal right or the existence of a clear legal duty on the part of the board to certify the proposed levy, commencing in 2018, for placement on the ballot. This court cannot create a legal duty enforceable in mandamus; only the General Assembly has that authority. State ex rel. Willke v. Taft , 107 Ohio St.3d 1, 2005-Ohio-5303, 836 N.E.2d 536, ¶ 22. And R.C. 5705.25 does not provide a basis for concluding that the board failed to perform any clear legal duty or committed an abuse of discretion.

{¶ 14} The trustees also argue that the board's disqualification of their proposed renewal-and-increase levy is inconsistent with its placement of renewal-and-increase levies commencing in the final year of the existing levies on the ballot four times in recent years: once in 2014, twice in 2015, and once in 2016. However, the board states that it now believes that those prior decisions were incorrect. And " '[e]stoppel does not apply against election officials in the exercise of governmental functions.' " State ex rel. Barletta v. Fersch , 99 Ohio St.3d 295, 2003-Ohio-3629, 791 N.E.2d 452, ¶ 19, quoting State ex rel. Ditmars v. McSweeney , 94 Ohio St.3d 472, 476, 764 N.E.2d 971 (2002) (plurality opinion). Moreover, regardless of whether the board could permit the proposed levy to be placed on the ballot, "[m]andamus cannot be used to compel the performance of a permissive act," State ex rel. Hodges v. Taft , 64 Ohio St.3d 1, 4, 591 N.E.2d 1186 (1992). And as explained above, the trustees have not established that the board had a clear legal duty to place the proposed renewal-and-increase levy, commencing in the final year of the existing levy, on the ballot.

C. Claims Against the Secretary of State

{¶ 15} The trustees named Secretary Husted as a respondent in this case, along with the board. As Husted points out, his only role in the placement of a township tax levy on the ballot is to approve the ballot language as to form under R.C. 3501.05(J), and it is undisputed that his office did that in this case. The trustees have therefore not established that Husted failed to perform any clear legal duty.

IV. CONCLUSION

{¶ 16} For the foregoing reasons, we deny the trustees' request for a writ of mandamus.

Writ denied.

O'Donnell, Kennedy, French, and DeGenaro, JJ., concur.

Fischer, J., concurs in judgment only.

DeWine, J., dissents, with an opinion joined by O'Connor, C.J.

{¶ 17} The majority can point to no provision of law that says a renewal-and-increase levy may not commence in the final tax year of an existing levy. Yet the majority denies the writ because it can find no statutory provision explicitly stating that a renewal and increase may commence in the final tax year of an existing levy. That's nonsense. The Perry Township Board of Trustees submitted the resolution pursuant to R.C. 5705.19(G) and 5705.25(A). R.C. 5705.25 specifically authorizes a renewal and increase to be voted on in the last tax year of an existing levy. R.C. 5705.19 makes clear that a proposed levy may include the existing tax year: "The resolution shall specify the amount of the increase in rate that it is necessary to levy, the purpose of that increase in rate, and the number of years during which the increase in rate shall be in effect, which may or may not include a levy upon the duplicate of the current year ." (Emphasis added.) The Stark County Board of Elections-and now this court-have manufactured a legal requirement that exists nowhere in law. I would grant the writ and leave it up to the voters.

O'Connor, C.J., concurs in the foregoing opinion.

      Ten mills is the maximum amount of property tax that a political subdivision may levy without the approval of voters. See Ohio Constitution, Article XII, Section 2 ; R.C. 5705.02 ("The aggregate amount of taxes that may be levied on any taxable property in any subdivision * * * shall not in any one year exceed ten mills on each dollar of tax valuation of such subdivision * * * except for taxes specifically authorized to be levied in excess thereof").

      The "tax list and duplicate" refers to the county auditor's annually prepared list of real and public property in the county and to the duplicate of that list that the auditor provides to the county treasurer. See R.C. 319.28(A).