COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59144 JAN PICK, TRUSTEES FOR THE : JAN PICK TRUST : : APPELLANT : : JOURNAL ENTRY -vs- : AND : OPINION CUYAHOGA COUNTY BOARD OF : REVISION, ET AL. : : APPELLEES : : DATE OF ANNOUNCEMENT : OCTOBER 3, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Board of Tax Appeals : Case No. 86 A 1224 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For APPELLANT: For APPELLEES: FRED SIEGEL, ESQ. STEPHANIE TUBBS JONES KAREN H. BAUERNSCHMIDT, ESQ. Cuyahoga County Prosecutor TODD W. SLEGGS, ESQ. SAUNDRA CURTIS-PATRICK 906 Citizens Bldg. Assistant County Prosecutor 850 Euclid Avenue Courts Tower - Ninth Floor Cleveland, OH 44114 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J., This cause arises from an appeal by appellant, Jan Pick, Trustees for the Jan Pick Trust, from valuations by the Board of Tax Appeals ("BTA") of real property for the tax year of 1985. The property consists of a building housing a 113,333 square-foot K-Mart discount store and a smaller store containing 20,000 square feet on 10.719 acres of land in Middleburg Heights, Ohio. For the tax year at issue the county auditor determined the true value to be $3,246,000. Appellee, the Board of Revisions, after hearing appellant's complaint, rendered the same valuation. On appeal, the BTA found the value to be $2,970,000. Appellant's expert witness before the BTA indicated in his appraisal report that the property's value was $2,580,000 for 1985. Appellee's expert witness testified that the value was $2,970,000 for 1985. The record also contains evidence indicating that the property sold in July 1984 for $1,959,000. Although both expert witnesses were aware of the sale each concluded the sale price was not indicative of fair market value. In addition, each expert agreed the income approached to value provided the best indication of the subject property's true value. This cause is presently before us on appeal pursuant to R.C. 5717.04. The scope of our review concerning the BTA's real property value determination is set forth in the syllabus of Cardinal - 3 - Federal S&L Assn. v. Bd. of Revision (1975), 44 Ohio St. 2d 13. It provides in relevant part: "2. The Board of Tax Appeals is not required to adopt the valuation fixed by any expert or witness *** "3. The Board of Tax Appeals is vested with wide discretion in determining the weight to be given to evidence and the credibility of witnesses which come before the board. *** "4. The fair market value of property for tax purposes is a question of fact, the determination of which is primarily within the province of the taxing authorities, and this court will not disturb a decision of the Board of Tax Appeals with respect to such valuation unless it affirmatively appears from the record that such decision is unreasonable or unlawful. *** [Citations omitted]." Furthermore, the BTA has wide latitude to weigh the evidence and determine the credibility of witnesses. It need not adopt the testimony of any particular expert and its decision will not be reversed if it is supported by the record. Howard v. Cuyahoga Cty. Bd. of Revision (1988), 37 Ohio St. 3d 195. Appellant's first assignment of error provides: I. THE BOARD OF TAX APPEALS UNREASONABLY AND UNLAWFULLY HELD THAT THE 1984 SALE OF THE SUBJECT PROPERTY WAS NOT INDICATIVE OF VALUE. Appellant argues the BTA erred by failing to find that the 1984 sale of the subject property for $1,959,000 was indicative of the true value. For the following reasons appellant's contention lacks merit. - 4 - "Although the sale price is the 'best evidence' of true value of real property for tax purposes, it is not the only evidence. A review of independent appraisals evaluating the cash equivalency of the sale price is appropriate where it is shown that the sale price does not reflect true value." Ratner v. Stark Cty. Bd. of Revision (1986), 23 Ohio St. 3d 59, syllabus. Thus, true value is not synonymous with sale price. The evidence presented by each party's experts clearly rebutted the presumption that the sale price reflected true value. Appellee's expert appraiser testified the 1984 sale price was not predicated on normal market conditions and as such was not indicative of true value. He noted the sale was predicated upon property subject to a lease, mortgages and a number of other factors which would influence the net cash a buyer would be willing to pay. Similarly, the appellant's expert in his report noted the sale did not include anything for the K-Mart leasehold and was based on contract, not economic rent. Thus, both experts agreed the 1984 sales price was not indicative of value. Accordingly, the record supports the BTA's holding that the sale was not probative of true value and that decision is not unreasonable or unlawful. The appellant's second assignment of error provides: II. THE BOARD OF TAX APPEALS UNREASONABLY AND UNLAWFULLY HELD THAT INFORMATION NOT AVAILABLE TO A PROSPECTIVE PURCHASER AS OF THE TAX LIEN DATE COULD BE CONSIDERED IN DETERMINING TRUE VALUE. - 5 - Appellant argues the BTA erred by relying on appellee's appraisal which included gross sales for the period ending April 30, 1985. The gross sales were used to formulate an estimate of overage rent to be paid by K-Mart. Appellant contends consideration of this information is contrary to law since such information would not be available to a willing buyer on that date. We do not agree. Mr. Baker, the appellee's expert appraiser testified before the BTA that information concerning sales through December 31, 1984 would be available shortly thereafter. In addition, accurate projections of sales figures are maintained by retailers such as K-Mart to estimate sales volume for the fiscal year ending April 30, 1985. Mr. Baker opined that the above information would be made available to a buyer as of January 1, 1985 by the seller who would get the figures and estimates from K-Mart. Certainly rent and projected sales figures would be of great importance to a prospective purchaser of the subject property. In light of its importance a prospective purchaser would go to great lengths to obtain such information prior to entering into a purchase agreement. If such information was not provided by the seller we find it likely that a prospective purchaser would retain an expert to obtain an estimate of future sales. - 6 - Accordingly, we are not persuaded that accurate future sales estimates would not be available to a willing buyer on the date of valuation. Thus, we find no error in the BTA's consideration of Mr. Baker's appraisal which utilized gross sales to formulate an estimate of overage rent to be paid by K-Mart. Appellant's second assignment of error is overruled. Appellant's third assignment of error provides: III. THE BOARD OF TAX APPEALS ACTED UNREASONABLY AND UNLAWFULLY IN RELYING ON THE APPRAISAL REPORT OF MR. WESLEY BAKER IN DETERMINING TRUE VALUE. Appellant argues the BTA's determination of value was not supported by credible and substantial evidence of a competent and probative nature. Specifically, appellant attacks various aspects of Mr. Baker's appraisal report. We dismiss appellant's contentions and conclude Mr. Baker's appraisal report and testimony constitutes credible and substantial evidence. Initially, appellant disputes the factual basis of the $2.50 per square foot base rent figure utilized in Mr. Baker's income approach. In his appraisal report Mr. Baker determined that a base rent of $2.50 per square foot would be reasonable for this property as of January 1, 1985. He testified he based this conclusion upon comparable leases for major discount stores and leases for other K-Mart stores. Furthermore, Mr.Baker testified that he had some of the leases with him, but due to their confidential nature, he declined to read them into the record. - 7 - We conclude the appraisal report and testimony of Mr. Baker provides credible and substantial evidence that the base rent of $2.50 per square foot was reasonable in light of current commercial markets. Appellant next maintains the $4.50 per square foot value assigned to the excess frontage land was not supported by the evidence. Mr. Baker's appraisal report includes a summary of comparable commercial/retail land sales of high density frontage land. Included amongst that list is the July 1977 sale of a similar sized parcel in Middleburg Heights. In that sale a restaurant purchased land for $4.01 per square foot. Mr. Baker testified that he adjusted the comparable sales figures upward in light of the property's high density frontage site and its location adjacent to a McDonald's restaurant. In addition, Mr. Baker testified the $4.50 figure was discounted significantly when one looks at other fast food sites which sell for upwards of $10.00 per square foot. In light of the above, we conclude the $4.50 value assigned to the excess high density frontage was supported by the evidence. Next appellant maintains Mr. Baker's appraisal report contains erroneous mathematical calculations for determining overage rent as used in the original K-Mart lease. Appellant is mistaken in his belief that Mr. Baker utilized the terms of the original lease to calculate the overage rent. Since the date of - 8 - valuation was January 1, 1985, Mr. Baker appraised the property as if a new lease would originate as of that date. Rather than calculating base rent as a percentage of gross sales as did the old lease, Mr. Baker considered more recent K-Mart leases, comparable discount store leases, and data from a trade publication Dollars and Cents of Shopping Centers to determine the lease rent in terms of dollars per square foot. Thus, we conclude Mr. Baker did not make mathematical errors in calculating income and contrary to appellant's assertion the income was not inflated. Appellant's third assignment of error is overruled. Appellant's fourth, sixth and seventh assignments of error are interrelated and will be discussed together. They provide: IV. THE BOARD OF TAX APPEALS DECISION IS UNREASONABLE AND UNLAWFUL FOR THE REASON THAT IT FAILED TO ADOPT THE OPINION OF VALUE OF MR. RICHARD P. VAN CUREN. VI. THE BOARD OF TAX APPEALS ABUSED ITS DISCRE- TION, ACTED UNREASONABLY, UNLAWFULLY AND ARBITRARILY IN DETERMINING THE VALUE FOR THE SUBJECT PROPERTY FOR THE TAX YEAR 1985. VII. THE BOARD OF TAX APPEALS DECISION IS UNREA- SONABLE AND UNLAWFUL FOR THE REASON THAT THE DECISION IS CONTRARY TO THE WEIGHT OF EVIDENCE PRESENTED TO THE BOARD OF TAX APPEALS. The appellant argues the trial court erred in failing to adopt its expert's opinion of value. It also alleges the BTA abused its discretion, acted unreasonably, unlawfully and - 9 - arbitrarily in determining the value of the subject property. Appellant's contentions lack merit. As stated previously the BTA has wide latitude to weigh the evidence and determine the credibility of witnesses. It need not adopt the valuation fixed by any expert or witness and its decision will not be reversed if it is supported by the record. Howard, supra. After review of the entire record and consistent with our disposition of the foregoing assignments of error, we conclude the BTA's decision is reasonable and lawful. Furthermore, it is supported by the record. Accordingly, appellant's fourth, sixth and seventh assignments of error are overruled. Appellant's fifth, eighth, ninth and tenth assignments of error question the constitutionality of the subject property's valuation. They provide: V. THE DECISION OF THE BOARD OF TAX APPEALS CONSTITUTES THE TAKING OF PROPERTY WITHOUT DUE PROCESS AND IS THEREFORE IN VIOLATION OF AMENDMENT XIV, SECTION 1 OF THE UNITED STATES CONSTITUTION. VIII. THE DECISION OF THE BOARD OF TAX APPEALS IS UNREASONABLE AND UNLAWFUL AND IS CONTRARY TO THE LAWS OF OHIO AND THE OHIO CONSTITUTION. IX. THE DECISION OF THE BOARD OF TAX APPEALS VIOLATED ARTICLE XII, SECTION 2 OHIO CONSTITUTION THAT PROPERTY SHOULD BE TAXES [SIC] BY "UNIFORM RULE." X. THE DECISION OF THE BOARD OF TAX APPEALS VIOLATES THE RIGHT OF 'EQUAL PROTECTION' UNDER ARTICLE I, SECTION 2 AND ARTICLE II, - 10 - SECTION 26 OHIO CONSTITUTION AND AMENDMENT XIV, SECTION I UNITED STATES CONSTITUTION. Appellant argues the BTA's valuation of the subject property is violative of Fourteenth Amendment Due Process, federal and state equal protection provisions, and Art. III Sect. II of the Ohio Constitution. Each of appellant's constitutional arguments proceeds under the premise that the BTA's decision is unreasonable and unlawful, and its valuation of the subject property is incorrect. In that we have previously determined herein that the BTA's valuation was reasonable and lawful appellant's constitutional attacks lack merit. Thus, appellant's fifth, eighth, ninth and tenth assignments of error are overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Board of Tax Appeals to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. BLACKMON, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .