COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59371, 59372, 59373 CITY OF NORTH OLMSTED : and : NORTH OLMSTED BD. OF EDUCATION: : Plaintiff-appellants: : JOURNAL ENTRY vs. : and : OPINION CUYAHOGA COUNTY BOARD OF : REVISION, et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 21, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Board of Tax Appeals : Case No. 87-E-48/87-E-49 JUDGMENT : AFFIRMED IN PART; : REVERSED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellants: THOMAS A. KONDZER Attorney at Law 24500 Center Ridge Road, #175 Westlake, Ohio 44145 For defendant-appellees STEPHANIE TUBBS JONES Cuyahoga County Board Cuyahoga County Prosecutor of Revision and TIMOTHY J. KOLLIN, Assistant Auditor: Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 (Cont.) - a - For defendant-appellees FRED SIEGEL Developers Diversified, KAREN H. BAUERNSCHMIDT et al: TODD W. SLEGGS Attorneys at Law 906 Citizens Building Cleveland, Ohio 44114 - 1 - FRANCIS E. SWEENEY, J.: Appellants, City of North Olmsted and North Olmsted Board of Education, timely appeal from the determination of the Board of Tax Appeals setting the taxable value of property located at Butternut Ridge Road and SR 252 in North Olmsted, Ohio. For the reasons set forth below, we affirm in part and reverse in part, vacating that portion of the decision setting a value for the property for the 1986 tax year. The pertinent facts are as follows: The appellee/property owner, Developers Diversified, filed a decrease complaint on March 28, 1986 with the Board of Revision, No. 4651, stating that the fair market value of the subject property was $150,000 for the tax year 1985. The subject proper- ty is identified as permanent parcel numbers 236-10-033, 236-11- 009, 236-11-011, 236-11-018 and 235-12-010. This property is vacant land which was zoned for single-family residential use in 1985. The appellants filed an increase complaint, No. 6336, stating that the fair market value of the subject property was $652,275 for the tax year 1985. The Board of Revision found no increase or decrease in the fair market value of the property and - 2 - stated the value of the property was $188,950 for the tax year 1985. Appellants and appellee/property owner, Developers Diver- sified, filed an appeal of the Board of Revision's finding with the Board of Tax Appeals. At the Board of Tax Appeals hearing, the appellee/property owner presented the appraisal testimony of Richard T. Racek. Mr. Racek concluded the total fair market value of the subject property was $192,000 for the tax year 1985. This conclusion was based on the property's use as it was presently zoned for single-family residential use. The appel- lants presented the appraisal testimony of Mr. Canitia. Mr. Canitia found that the highest and best use of the property was not as it was presently zoned, but for a mixed use of commercial, high-density residential, retail and office facilities. Mr. Canitia concluded that based upon the property's highest and best use, the value of the property was $2,210,000.00. He concluded that the total fair market value of the property for the tax year 1985 was $652,000 as it was presently zoned. The Board of Tax Appeals accepted Mr. Racek's appraisal and determined the fair market value of the property for the tax year 1985 was $192,000.00. The Board also made a determination that the fair market value of the property for the tax year 1986 was $200,000.00. Appellants now timely appeal the board's finding, raising three assignments of error for our review. - 3 - ASSIGNMENT OF ERROR I THE BOARD OF TAX APPEALS ACTED WITHOUT JURIS- DICTION AND VIOLATED APPELLANTS' RIGHTS TO DUE PROCESS OF THE LAW WHEN IT ATTEMPTED TO SET THE VALUE OF THE SUBJECT REAL ESTATE FOR THE 1986 TAX YEAR WHEN THE HEARING BEFORE THE BOARD OF TAX APPEALS RELATED ONLY TO THE 1985 TAX YEAR. ASSIGNMENT OF ERROR II THE ACTION OF THE BOARD OF TAX APPEALS IN SETTING A TAXABLE VALUE FOR THE SUBJECT PROPERTY FOR THE 1986 TAX YEAR IS NOT SUP- PORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE AND MUST BE REVERSED. We will address Assignments of Error I and II together as they contain similar issues of law and fact. Appellants argue the trial court erred in determining the taxable value for the tax year 1986 where the appeal before the Board of Tax Appeals pertained only to the tax year 1985. This argument has merit. R.C. 5715.19 provides that the Board may determine the taxable value of subsequent years in the triennium until the complaint is finally determined. However, in the present case, we find that the Board violated appellants' due process rights to notice and an opportunity to present evidence regarding the tax year 1986. Due Process mandates that prior to an administrative action which results in a deprivation of an individual's liberty or property, the governmental agency must afford that individual reasonable notice and opportunity to be heard. State, ex rel. Great Lakes College, v. Medical Board (1972), 29 Ohio St. 2d 198. - 4 - In the present case, at the time of the hearing, appellants had a separate complaint pending with the Board of Revision for the tax year 1986. The Board gave appellants no indication that it would determine the issue raised in this separate complaint. Further, the appeal to the Board of Tax Appeals specified that it per- tained only to the 1985 tax year. At the hearing, both parties and the Board clearly limited the matter to be considered by the Board to the 1985 tax year. Consequently, the only evidence presented as to the value of the property for the tax year 1986 was the opinion of appellees' expert, Mr. Racek, stating that the value was $200,000.00. The record demonstrates that Mr. Racek did not state how he reached this conclusion. Further, appellants' expert, Mr. Canitia, stated that he only arrived at a value for 1985, "the year in question," and that the value for 1986 would be slightly different. Accordingly, we conclude that the Board erred in determining the valuation of the tax year 1986 since appellants' due process right to notice and an opportunity to be heard was violated and since the Board's decision was not based on sufficient, credible evidence. Therefore, Assignments of Error I and II are sustained, and the decision insofar as it refers to the 1986 tax year is hereby vacated. - 5 - ASSIGNMENT OF ERROR III THE ORDER OF THE BOARD OF TAX APPEALS SETTING THE FAIR MARKET VALUE OF THE SUBJECT PROPERTY AS OF JANUARY 1, 1985 AT $192,000.00 AND THE ASSESSED VALUE AT $67,200.00 MUST BE REVERSED BECAUSE IT IS NOT SUPPORTED BY ANY RELIABLE EVIDENCE AND IS THE RESULT OF A MISREADING OF THE EVIDENCE BY THE BOARD OF TAX APPEALS. Appellants argue the Board's determination regarding the fair market value of the subject property for the 1985 tax year was unreasonable and unlawful. The Board of Tax Appeals is not obligated to adopt the valuation by any expert or witness. Wolf v. Cuyahoga Cty. Bd. of Revision (1984), 11 Ohio St. 3d 205. Furthermore, the Board possesses wide discretion in evaluating the weight of the evi- dence and credibility of witnesses which come before it. Id. This court will not disturb a decision of the Board unless it affirmatively appears from the record that such decision is unreasonable or unlawful. Ratner v. Stark Cty. Bd. of Revision (1986), 23 Ohio St. 3d 59. In the present case, the Board found that the market approach used by Mr. Racek, in which he inspected comparable sales of six vacant tracts of land zoned for single-family residential use, was more reliable than the approach of Mr. Canitia. In Mr. Canitia's residential use appraisal, he relied on sales of multi-family or apartment land sales. The Board found that Mr. Canitia's residential use appraisal did not have that degree of competency or reliability which would persuade the - 6 - Board to adopt his conclusions. On the other hand, the Board found that Mr. Racek's conclusion was based on well-analyzed data and that he was better able to explain the data and the steps he took in reaching his conclusion. Therefore, we find that the decision of the Board of Tax Appeals, being supported by proba- tive evidence in the record, is reasonable and lawful and must be affirmed as to the tax year 1985. Assignment of Error III is overruled. Judgment affirmed in part and reversed in part. - 7 - This cause is affirmed in part and reversed in part. It is, therefore, considered that said appellees recover of said appellants their costs herein. It is ordered that a special mandate be sent to said 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. KRUPANSKY, C.J. BLACKMON, J. CONCUR JUDGE FRANCIS E. SWEENEY 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. .