[Cite as Gillis v. Delaware Cty. Bd. of Revision, 2024-Ohio-5669.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARK H. GILLIS, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : DELAWARE COUNTY BOARD OF REVISION, : Case No. 24 CAH 04 0021 et al., : : Defendant - Appellees : OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Ohio Board of Tax Appeals, Case No. 2023-838
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 2, 2024
APPEARANCES:
For Defendant- Appellant For Appellee Northpark Endeavors, LLC
KAROL C. FOX MATTHEW S. ZEIGER E. JOEL WESP LAUREN P. RUBIN Rich & Gillis Law Group, LLC Zeiger,Tigges & Little LLP 5747 Perimeter Dr., Suite 150 3500 Huntington Center Dublin, Ohio 43017 41 S. High Street Columbus, Ohio 43215 For Appellee Olentangy Appellee Tax Ohio Tax Commissioner KELLEY A. GORRY Rich & Gillis Law Group, LLC DAVID A. YOST 5747 Perimeter Dr., Suite 150 Ohio Attorney General Dublin, Ohio 43017 30 E. Broad St., 17th Floor Columbus, Ohio 43215 MICHAEL P. CAVANAUGH Assistant County Prosecutor 145 N. Union St., 3rd Floor P.O. Box 8006 Delaware, Ohio 43015 Delaware County, Case No. 24 CAH 04 0021 2
Baldwin, J.
{¶1} The appellant, Mark H. Gillis, appeals the decision of the Ohio Board of Tax
Appeals decision affirming the Board of Revisions decision to dismiss his complaint.
Appellees are Delaware County Board of Revision, Delaware County Auditor, Olentangy
Local Schools Board of Education, Ohio Tax Commissioner, and Northpark Endeavors
(“Appellee Northpark”). The relevant facts are as follows.
STATEMENT OF THE FACTS AND THE CASE
{¶2} The appellant filed a third-party complaint with the Delaware County Board
of Revision for tax year 2022, challenging the value of the property owned by Appellee
Northpark known as Northpark Place. The appellant sought an increase in the value of
Northpark Place from $42,167,700 to $84,184,500 based upon the purchase occurring
on September 30, 2022. The appellant substantiated his claim with a Press Release.
{¶3} The Board of Revision scheduled a hearing on the appellant’s complaint for
May 25, 2023. However, one week before the scheduled hearing, the Board of Revision
met in open session and dismissed the appellant’s complaint for failing to comply with
R.C. §5715.19(A)(6)(a). The Board of Revision noted in its decision that the appellant
challenged the statute on constitutional grounds and that it lacks authority to address
constitutional issues.
{¶4} On May 19, 2023, the Board of Revision issued its written decision
dismissing the appellant’s complaint.
{¶5} The appellant appealed the Board of Revision’s decision to the Board of
Tax Appeals. Delaware County, Case No. 24 CAH 04 0021 3
{¶6} On February 21, 2024, the Board of Tax Appeals held an evidentiary
hearing.
{¶7} At the hearing, a former employee of the Franklin County Auditor’s Office
and a Deputy Tax Commissioner with the Ohio State Department of Taxation testified.
He testified, in general, about his experience with auditors determining the true value in
money of every parcel in a county. Based upon the data collected, the witness estimated
properties recently sold were valued more than thirty percent below the recent sales price.
He also explained how the undervaluation of one property could lead to an increased tax
burden on other properties.
{¶8} At the conclusion of the hearing, the Board of Tax Appeals affirmed the
decision of the Board of Revision dismissing the appellant’s complaint. The Board did not
opine on the constitutionality issue.
{¶9} The appellant filed a timely notice of appeal and herein raises the following
seven assignments of error:
{¶10} “I. THE DECISION IS UNREASONABLE AND UNLAWFUL BECAUSE THE
BTA RELIED UPON REVISIONS TO R.C 5715.19(A)(6)(a) THROUGH 2022 Am. Sub.
H.B. 126 (“H.B. 126”) THAT VIOLATE BOTH THE U.S. CONSTITUTION AND THE OHIO
CONSTITUTION.
{¶11} “II. FACIALLY, AND AS APPLIED TO APPELLANT, THE REVISION TO
R.C. 5715.19(A)(6)(a) TO LIMIT THE FILING OF A BOARD OF REVISION COMPLAINT
ONLY UPON PROPERTY SUBJECT TO AN ARM’S-LENGTH SALE (the “Arm’s-Length
Sale Restriction”) VIOLATES THE UNIFORM RULE MANDATED BY ARTICLE XII,
SECTION 2 OF THE OHIO CONSTITUTION. Delaware County, Case No. 24 CAH 04 0021 4
{¶12} “III. FACIALLY, AND AS APPLIED TO APPELLANT, THE REVISION TO
R.C. 5715.19(A)(6)(a) TO LIMIT THE FILING OF A BOARD OF REVISION COMPLAINT
ONLY UPON PROPERTY SUBJECT TO AN ARM’S-LENGTH SALE OCCURRING
BEFORE, BUT NOT AFTER, THE APPLICABLE TAX LIEN DATE (THE “BEFORE BUT
NOT AFTER TAX LIEN DATE RESTRICTION”) VIOLATES THE UNIFORM RULE
MANDATED BY ARTICLE XII, SECTION 2 OF THE OHIO CONSITUTION.
{¶13} “IV. FACIALLY, AND AS APPLIED TO APPELLANT, THE ARM’S-LENGTH
SALE RESTRICTION VIOLATES APPELLANT’S RIGHT TO EQUAL PROTECTION OF
THE LAWS AS GUARANTEED BY THE 14TH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION.
{¶14} “V. FACIALLY, AND AS APPLIED TO APPELLANT, THE BEFORE BUT
NOT AFTER TAX LIEN DATE RESTRICTION VIOLATES APPELLANT’S RIGHT TO
EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE 14TH AMENDMENT OF
THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 2 OF THE OHIO
{¶15} “VI. FACIALLY, AND AS APPLIED TO APPELLANT, THE ARM’S LENGTH
SALE RESTRICTION VIOLATES APPELLANT’S RIGHT TO DUE PROCESS
GUARANTEED BY THE 14TH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND HIS RIGHT TO DUE COURSE OF LAW GUARANTEED BY
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{¶16} “VII. FACIALLY, AND AS APPLIED TO APPELLANT, THE BEFORE BUT
NOT AFTER TAX LIEN DATE RESTRICTION VIOLATES APPELLANT’S RIGHT TO
DUE PROCESS GUARANTEED BY THE 14TH AMENDMENT OF THE UNITED STATES Delaware County, Case No. 24 CAH 04 0021 5
CONSTITUTION AND HIS RIGHT TO DUE COURSE OF LAW GUARANTEED BY
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”
I., II., III.
{¶17} In the appellant’s first, second, and third Assignments of Error, the appellant
argues that the Arm’s-Length Sale Restriction and the Before But Not After Tax Lien Date
Restriction of R.C. §5715.19(A)(6)(a) violate the Uniform Rule of Article XII, Section 2 of
the Ohio Constitution. We disagree.
STANDARD OF REVIEW
{¶18} “When considering the constitutionality of a statute, [a reviewing] court
‘presume[s] the constitutionality of the legislation, and the party challenging the validity of
the statute bears the burden of establishing beyond a reasonable doubt that the statute
is unconstitutional.’ ” Dayton v. State, 2017-Ohio-6909, ¶12, quoting Wilson v. Kasich,
2012-Ohio-5367, ¶18. The party challenging the statute has “a ‘heavy burden’ when
attempting to overcome the presumption of constitutionality.” Dayton at ¶12.
ANALYSIS
{¶19} R.C. §5715.19(A)(6), in pertinent part, states:
The legislative authority of a subdivision, the mayor of a municipal
corporation, or a third party complainant shall not file an original complaint
with respect to property the subdivision or complainant does not own or
lease unless both of the following conditions are met: Delaware County, Case No. 24 CAH 04 0021 6
(a) If the complaint is based on a determination described in division
(A)(1)(d) or (e) of this section, the property was (i) sold in an arm’s
length transaction, as described in section 5713.03 of the
Revised Code, before, but not after, the tax lien date for the tax
year for which the complaint is to be filed, and (ii) the sale price
exceeds the true value of the property appearing on the tax list
for that tax year by both ten per cent and the amount of the filing
threshold determined under division (J) of this section[.]
{¶20} The appellant argues that the Arm’s-Length Sale Restriction and the Before
But Not After Tax Lien Date Restriction of R.C. §5715.19(A)(6)(a) violate the Uniform Rule
of Article XII, Section 2 of the Ohio Constitution. Article XII, Section 2 of the Ohio
Constitution, in pertinent part states, “[l]and and improvements thereon shall be taxed by
uniform rule according to value[.]”
{¶21} In interpreting Article XII, Section 2 of the Ohio Constitution, the Supreme
Court of Ohio has stated, “while the constitution prescribes that all property shall be taxed
by a uniform rule * * * it does not prescribe the mode of ascertaining the taxable valuation
of property, or the time as to which the value is to be determined.” Shotwell v. Moore, 45
Ohio St. 632, 645. The Supreme Court continued, “[t]he method of ascertaining the true
value of property in money, and the time as of which the same shall be listed for taxation,
have been left to the wisdom of the legislature.” Id.
{¶22} The Before But Not After clause and Arm’s-Length Sales Clause of R.C.
§5715.19(A)(6)(a) regulate timing of third-party complaints with regard to certain similarly
situated properties, those sold in an arm’s length transaction described in R.C. §5713.03. Delaware County, Case No. 24 CAH 04 0021 7
It does not regulate the valuation of the property. Since, according to the Ohio Supreme
Court in Shotwell, “[t]he method of ascertaining the true value of property in money, and
the time as of which the same shall be listed for taxation, have been left to the wisdom of
the legislature[,]” R.C. §5715.19(A)(6)(a) does not violate the Uniform Rule of Article XII,
Section 2 of the Ohio Constitution.
{¶23} Therefore, the appellant’s first, second, and third Assignments of Error are
overruled.
I., IV., V.
{¶24} In the appellant’s first, fourth, and fifth Assignments of Error, the appellant
argues that the Arm’s-Length Sale Restriction and the Before But Not After Tax Lien Date
Restriction of R.C. §5715.19(A)(6)(a) violates the appellant’s right to Equal Protection of
the laws guaranteed by the Fourteenth Amendment of the United States Constitution and
Article I, Section 2 of the Ohio Constitution. We disagree.
{¶25} Again, “[w]hen considering the constitutionality of a statute, [a reviewing]
court ‘presume[s] the constitutionality of the legislation, and the party challenging the
validity of the statute bears the burden of establishing beyond a reasonable doubt that
the statute is unconstitutional.’ ” Dayton v. State, 2017-Ohio-6909, ¶12, quoting Wilson v.
Kasich, 2012-Ohio-5367, ¶18. The party challenging the statute has “a ‘heavy burden’
when attempting to overcome the presumption of constitutionality.” Dayton at ¶12.
{¶26} Before performing an Equal Protection Analysis, we must determine
whether or not the appellant and Appellee Northpark are similarly situated parties. Delaware County, Case No. 24 CAH 04 0021 8
{¶27} The Equal Protection Clause of the Ohio provides, in pertinent part, “[a]ll
political power is inherent in the people. Government is instituted for their equal protection
and benefit.” Ohio Constitution, Article I, Section 2. This requires that similarly situated
persons be treated similarly under the law. State v. Lawson, 2013-Ohio-2111 (10th Dist.),
¶18. “The comparison of only similarly situated entities is integral to an equal protection
analysis.” GTE North, Inc. v. Ziano, 2002-Ohio-2984, ¶22. “But the Equal Protection
Clause ‘does not require things which are different in fact * * * to be treated in law as
though they were the same.’ ”Id. quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct.
879, 84 L.Ed. 1124 (1940). “Thus, to state an equal protection claim, a party must claim
that the government treated similarly situated persons differently.” Sherman v. Ohio
Public Employees Retirement System, 2019-Ohio-278 (10th Dist.).
{¶28} The appellant’s primary argument is that their Delaware County property is
similarly situated to Appellee Northpark’s Delaware County property and is receiving
disparate treatment. However, the appellant has misplaced emphasis on the disparate
treatment of the two properties. The Ohio Supreme Court has stated, “the Equal
Protection Clause protects people, not property.” Ohio Apt. Assn. v. Levin, 2010-Ohio-
4414, ¶39. Therefore, “the proper analysis focuses on the classification of property
owners.” Id.
{¶29} In the case sub judice, the appellant has failed to provide any analysis
establishing that he, as the owner of a single-family home, is similarly situated to Appellee
Northpark, the property owner of a four hundred, seventy-two-unit condominium complex,
recently acquired in an arm’s length transaction. “The burden is on [the appellant] to show
[he is] situated similarly” to a comparator. Id. at ¶45. Delaware County, Case No. 24 CAH 04 0021 9
{¶30} Article XII, Section 2a of the Ohio Constitution, in pertinent part states,
(C) Notwithstanding Section 2 of this article, laws may be passed that
provide all of the following:
(1) Land and improvements thereon in each taxing district shall be placed
into one of two classes solely for the purpose of separately reducing the
taxes charged against all land and improvements in each of the two
classes as provided in division (C)(2) of this section. The classes shall
be:
(a) Residential and agricultural land and improvements;
(b) All other land and improvements.
{¶31} The Ohio Supreme discussed Article XII, Section 2a of the Ohio Constitution
in Roosevelt Properties Co. v. Kinney, 12 Ohio St.3d 7, 12 (1984),
Appellant’s argument pertaining to Section 2, Article XII is predicated
upon the assertion that all “residential” property is not being taxed uniformly.
The resolution of this argument is necessarily contingent upon whether this
court agrees that appellants’ properties are used for “residential” purposes,
as that term is utilized within Section 2a, Article XII and R.C. 5713.041.
Having previously determined that appellant’s properties are utilized in a
business or commercial capacity, we are unable to conclude that a violation
of Section 2 Article XII exists.
{¶32} Similarly, we cannot conclude R.C. §5715.19(A)(6) violates the appellant’s
Equal Protection of the Uniform Rule under Section 2 Article XII of the Ohio Constitution.
The appellant’s argument is predicated on the fact that both his and Appellee Northpark’s Delaware County, Case No. 24 CAH 04 0021 10
properties are residential in nature. He relies merely on his expert witness “easily
recognizing” that the properties are similarly situated. The appellant has provided no
analysis of the use of either property. The appellant’s single-family home could be owner-
occupied or rented out. The appellant also failed to provide an analysis of how Appellee
Northpark uses its property, just an explanation of why Appellee Northpark purchased the
property. Without providing an analysis of how each property is used, the appellant has
failed to establish the property owners are similarly situated.
{¶33} Accordingly, the appellant’s first, fourth, and fifth Assignments of Error are
I., VI., VII.
{¶34} In the appellant’s first, sixth, and seventh Assignments of Error, the
appellant argues that the Arm’s-Length Sale Restriction and the Before But Not After Tax
Lien Date Restriction of R.C. §5715.19(A)(6)(a) violates the appellant’s right to Due
Process by the Fourteenth Amendment of the United States Constitution and right to Due
Course of Law Article I, Section 16 of the Ohio Constitution. We disagree.
{¶35} Again, “[w]hen considering the constitutionality of a statute, [a reviewing]
court ‘presume[s] the constitutionality of the legislation, and the party challenging the
validity of the statute bears the burden of establishing beyond a reasonable doubt that
the statute is unconstitutional.’ ” Dayton v. State, 2017-Ohio-6909, ¶12, quoting Wilson v.
Kasich, 2012-Ohio-5367, ¶18. The party challenging the statute has “a ‘heavy burden’ Delaware County, Case No. 24 CAH 04 0021 11
when attempting to overcome the presumption of constitutionality.” Dayton at ¶12.The
standard of review for Due Process claims differs with the classification and right at issue.
{¶36} “Laws limiting rights, other than fundamental rights, are constitutional with
respect to substantive due process and equal protection if the laws are rationally related
to a legitimate goal of government.” See State v. Thompkins, 1996-Ohio-264; Toledo v.
Tellings, 2007-Ohio-3724, ¶33.
{¶37} The Ohio Supreme Court has stated,
This deferential rational-basis standard is “a paradigm of judicial
restraint,” Fed. Communications Comm. v. Beach Communications, Inc.,
508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), and “not a
license for courts to judge the wisdom, fairness, or logic of legislative
choices,” Id. at 313, 113 S.Ct. 2096. “The Constitution presumes that,
absent some reason to infer antipathy, even improvident decisions will
eventually be rectified by the democratic process and that judicial
intervention is generally unwarranted no matter how unwisely we may think
a political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct.
939, 59 L.Ed.2d 171 (1979). Therefore, a legislative classification must
survive so long as a court can conceive of any “plausible” policy justification
– regardless of whether the court views that reason as unwise, unfair, or
illogical Beach Communications at 313, 314, 113 S.Ct. 2096.
State v. Bevly, 2015-Ohio-475, ¶35.
{¶38} In the context of a rational basis review, “a state has no obligation to
produce evidence to sustain the rationality of a statutory classification.” Columbia Gas Delaware County, Case No. 24 CAH 04 0021 12
Transm. Corp. v. Levin, 2008-Ohio-511, ¶91, citing Lyon v. Limbach (1988), 40 Ohio St.3d
92, 94, as cited in State v. Mole, 2016-Ohio-5124, ¶27, reconsideration denied, 2016-
Ohio-7199, ¶27.
{¶39} The appellant contends R.C. §5715.19(A)(6)(a) is unconstitutional because
it deprives the appellant due process of law.
{¶40} The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides a state shall not “deprive any person of life, liberty, or property
without due process of law.” The Supreme Court of Ohio has determined the “due course
of law” clause of Article I, Section 16 of the Ohio Constitution is the equivalent of the “due
process of law” clause in the Fourteenth Amendment. Direct Plumbing Supply Co. v.
Dayton, 138 Ohio St. 540, 544 (1941).
{¶41} Again, R.C. §5715.19(A)(6), in pertinent part, states:
The legislative authority of a subdivision, the mayor of a municipal
corporation, or a third party complainant shall not file an original complaint
with respect to property the subdivision or complainant does not own or
lease unless both of the following conditions are met:
If the complaint is based on a determination described in division
(A)(1)(d) or (e) of this section, the property was (i) sold in an arm’s length
transaction, as described in section 5713.03 of the Revised Code, before,
but not after, the tax lien date for the tax year for which the complaint is to
be filed, and (ii) the sale price exceeds the true value of the property Delaware County, Case No. 24 CAH 04 0021 13
appearing on the tax list for that tax year by both ten per cent and the
amount of the filing threshold determined under division (J) of this section[.]
{¶42} The Ohio Supreme Court held in State ex rel. Poe v. Jones, 51 Ohio St.
492, 516 (1894):
[W]henever, by laws of a state, or by state authority, a tax, assessment,
servitude, or other burden is imposed upon property for the public use,
whether it be for the whole state or some limited portion of the community,
and those laws provide for a mode of confirming or contesting the charge
thus imposed, in ordinary courts of justice, with such notice to the person,
or such proceeding in regard to the property as is appropriate to the nature
of the case, the judgment in such proceedings cannot be said to deprive the
owner of his property without due process of law, however obnoxious it may
be to other objections.
Id. at 516, 37 N.E. at 952, citing Davidson v. New Orleans (1877), 96 U.S. 97, 24
L.Ed.616.
{¶43} The appellant has failed to argue that R.C. §5715.19(A)(6)(a) are not
rationally related to a legitimate goal of government. Furthermore, we find R.C.
§5715.19(A)(6)(a) provides for notice and a reasonable mode of contesting the tax
assessment as the Supreme Court of Ohio required in State ex rel. Poe v. Jones, 51 Ohio
St. 492, 516 (1894). Therefore, it does not violate the due process of law.
{¶44} Accordingly, the appellant’s first, sixth, and seventh Assignments of Error
are overruled. Delaware County, Case No. 24 CAH 04 0021 14
CONCLUSION
{¶45} For the forgoing reasons, the judgment of the Board of Tax Appeals is
hereby affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, John, J. concur.