COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73049 DONNA C. BROWN : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION CITY OF STRONGSVILLE, ET AL. : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-301616. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Michael R. Gareau, Esq. James M. Dubelko, Esq. Gareau & Dubelko Co., L.P.A. 23823 Lorain Road, Suite 200 North Olmsted, Ohio 44070 For Defendant-appellant: Thomas G. Kovach, Esq. Squire, Sanders & Dempsey, L.L.P. 4900 Key Tower 127 Public Square Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., J.: Defendants-appellants City of Strongsville, Strongsville City Council, and The Assessment Equalization Board for the Benbow Road/Hunt Road Improvement Project (hereinafter, collectively, appellants ), appeal from the final order of July 15, 1997, which ordered the following: (1) a modification in the real property tax assessment on two parcels1 from $51,000 to a reduced amount of $13,860; (2) enjoined the City of Strongsville from proportionately assessing the two parcels in connection with the construction of a water line running along the parcels' frontage on Benbow Road; and, (3) taxed costs of the administrative appeal to the City of Strongsville. The owner of the two parcels in question is plaintiff-appellee Donna C. Brown ( Brown ). For the reasons adduced below, we affirm. A review of the record on appeal in this administrative appeal taken pursuant to R.C. 2506, et seq., indicates that on June 21, 1993, the City of Strongsville declared a necessity pursuant to R.C. 727.12 to construct a water line along 10,933.340 feet of Benbow and Hunt Roads and then assessed the majority of the 1The parcels at issue, located at 18984 Benbow Road, are further identified by the permanent parcel numbers 399-23-001 and 399-23-002. The property has been in Brown's family since 1936 and contains, on parcel -002 (5.5 acres), a two-bedroom farm house, three-car garage, and an out building. The remainder of the property, parcel -001 (4.5 acres), is vacant land with woods and a ravine. The county auditor assessed the property for tax purposes in 1994 at a fair market value of $62,000 (for the -002 parcel) and $17,000 (for the -001 parcel)(total for both parcels $79,000.00). -3- estimated $395,000 cost of such construction2, or $334,481, against the property owners abutting these roads in proportion to the benefits that may result from the improvement upon the lots and lands. See Findings of Fact, at paragraph 3; R.C. 727.01(B). The City further determined that only 24 of the 52 lots on these two roads would be specially benefitted by the construction of the water line and prepared a special assessment against these particular owners. The linear frontage of these 24 parcels was 5,906.65 feet3, requiring a special assessment of $56.63 per foot. In acquiring public financing for its portion of the construction in 1993, the City listed a reason for the construction as being done to complete the water main loop in the southeast quadrant of the City which would benefit the properties there by increasing the water pressure. See Findings of Fact, at paragraph 4. In December of 1993, the City notified the owners of the 24 specially benefitted parcels of their estimated assessments; R.C. 727.13. Brown's total special assessment at that time was $65,869.40 ($26,679.52 for permanent parcel number 399-23-001; $39,189.88 for permanent parcel number 399-23-002). 2The construction was to lay the water line, installing an upgraded 12" diameter pipe instead of the normal 8" diameter pipe (so as to increase the water pressure for the property owners along Hunt/Benbow Roads and the nearby subdivision of Chandler Commons), installing fire hydrants, making house connections and making improvements to an intersection. See R.C. 727.05. The City decided to pay for only the statutory minimum of 2% of the project. 3The combined lineal frontage for Brown's two parcels is 1,163.180 feet. -4- Thereafter, Brown and twelve other property owners on the roads in question who were impacted by the special assessment filed objections with the City pursuant to R.C. 727.15. The City, in response to the objections, appointed an Assessment Equalization Board, duly comprised of three disinterested freeholders of the City pursuant to R.C. 727.16, to hear the objections and to equalize the assessments in the event the objections were found to have merit. After conducting a number of meetings and hearing from numerous witnesses, this Board reported on January 31, 1995, to City Council that the special assessments were excessive. With regard to Brown's parcels, this Board recommended that her assessment be reduced from $65,869.40 to a new amount of $25,620.00. Dissatisfied with the Board's January 31 recommendation, City Council, without reason, subsequently disapproved the Board's report and adopted Resolution No. 1995-107, proposed by Ward 2 councilman David V. Allen, which appointed a second Assessment Equalization Board4 to further review the owners' objections. See R.C. 727.17. The second Board held public hearings on July 18, August 15, September 11, October 11, October 23, November 13, December 8, 1995. In these meetings, testimony and evidence was taken from property owners and expert witnesses. Brown presented expert real 4This second Board, one of the appellants in the notice of appeal sub judice, was comprised of three citizens, namely, George H. Jardine, John Ziegler (the Chairman of the Board) and Bert Hockenberry, Jr. -5- estate appraisals indicating that her property would have a $2,310.00 increase in fair market value per buildable lot on that property in the event that the water line were to be constructed, and that her property contained no more than six (6) buildable lots. See expert reports of Messers. Douglas Thompson and Alex Kanareff. Thus, Brown's evidence suggested that the special benefit to her amounted to $13,860.00 (six [6] buildable lots x $2,310.00 = $13,860.00). The City offered no expert evidence to the Board regarding anticipated increases in fair market value to the properties on Benbow and Hunt Roads. At the last meeting, the Board indicated that the City had agreed to increase its share of the construction costs, thereby reducing the assessment to $8,500.00 per each buildable lot of the subject properties5, thereby assessing Brown a total of $51,000.00 (6 buildable lots on Brown's property x $8,500.00 = $51,000.00). On December 18, 1995, the City adopted and approved the second Board's report (also dated December 18, 1995). See Resolution No. 1995-255. This Resolution increased the project amount the City would assume to $98,150.00. Brown filed her notice of appeal to common pleas court on January 12, 1996, seeking to have the special assessment against her property overturned. Subsequent to briefing by the parties, the trial court issued its Findings of Fact and Conclusions of Law on July 15, 1997, finding in favor of Brown. See Journal Vol. 5The Board had determined that the benefitted properties contained a total of thirty-five (35) buildable lots. -6- 2108, pages 24-34. The defendants filed their appeal to this court on August 21, 1997. The case of Blake v. City of Solon (April 21, 1994), Cuyahoga App. No. 65255, unreported, 1994 WL 144404, which is cited by both parties herein, is instructive on reciting the applicable law and standards of review: The authority of municipalities to levy assessments to pay the costs of public improvements that specially benefit the property assessed is set forth in Chapter 727. of the Ohio Revised Code. Specifically, R.C. 727.01 authorizes municipalities to levy assessments to pay the costs of " * * * constructing * * * sewers, sewage disposal works and treatment plants and sewage pumping stations * * *." Three methods are provided by R.C. 727.01 for the apportionment of the cost of a public improvement by special assessment upon abutting, adjacent, contiguous, or other specially benefited (sic) lots or lands in the municipality. These methods are as follows: (A) By a percentage of the tax value of the property assessed; (B) In proportion to the benefits which may result from the improvement; or (C) By the front foot of the property bounding and abutting upon the improvement. R.C. 727.12(D) requires a municipality in its resolution of necessity to state the method of levying the special assessment chosen by the municipality. *** It is not disputed that the City attempted to assess the cost of the improvements in proportion to the benefits which may result from the improvements pursuant to R.C. 727.01(B). After receiving notice of the tentative special assessments, appellant filed an objection pursuant to R.C. 727.15, and said objection was heard by the duly-appointed assessment equalization board. See, R.C. -7- 727.16 and 727.17. It is the duty of the assessment equalization board "to determine whether the complaining property owner's land will benefit from the improvement and if so, to what extent. * * * " Tolson v. Oregon (1976), 53 Ohio App.2d 183, 184; Dillon v. McNeel (1990), 68 Ohio App.3d 219, 225; see, also, R.C. 727.17. * * * It is well settled that legislative determinations for special improvements and the procedures for such assessments are presumed valid and reasonable until a showing to the contrary has been made. See, Wolfe v. Avon (1984), 11 Ohio St.3d 81; Stewart v. Bay Village(1990), 69 Ohio App.3d 817; and State, ex rel. Wise v. City of Solon (Nov. 18, 1993), Cuyahoga App. No. 64210, unreported. Where a party seeks to overturn an assessment on the ground that certain legal requirements were not complied with in making the assessment, such party has the burden of alleging and proving that such requirements were not met. Schiff v. City of Columbus (1966), 9 Ohio St.2d 31. * * * R.C. 2506.04 sets forth the standard of review to be applied by common pleas courts in administrative appeals from final judgments, orders or decisions of equalization boards of political subdivisions. A court of common pleas may find that the order, adjudication or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. R.C. 2506.04. The court of common pleas engages in a limited weighing of the evidence in the administrative record to determine whether there exists a preponderance of reliable, probative and substantial evidence to support the agency decision. Dudukovich v. Lorain Metro Housing Auth.(1979), 58 Ohio St.2d 202; Roodhouse v. Bedford Hts. Civil Serv. Comm. (1989), 62 Ohio App.3d 793, 795. A common pleas court may not, however, blatantly substitute its judgment for that of the agency, especially in -8- areas of administrative expertise. Dudukovich, supra. * * * In an administrative appeal, pursuant to R.C. 2506.04, the court of appeals is limited to reviewing the judgment of the common pleas court on questions of law. Dudukovich, supra, 207-208; In re Annexation of 1,544.61 Acres (1984), 12 Ohio App.3d 231. On factual issues, the court of appeals is not permitted to weigh the evidence but is limited to a determination of whether the judgment is against the manifest weight of the evidence. Karches v. Cincinnati (1988), 38 Ohio St.3d 12; Kisil v. Sandusky (1984), 12 Ohio St.3d 30. The question of whether the City applied an appropriate formula for assessing the special benefits to appellant's property is a question of law. "The enhancement in the value of property that results from a public improvement is the special benefit that will support an assessment against that property to pay for the improvement. Such enhancement in value of such property is a benefit to its owner that accrues to him and not to the public or to the rest of the community." Schiff, supra, paragraph four of the syllabus; Stewart, supra at 819. "A special assessment is lawful or constitutional only where founded upon special benefits accruing from the improvement for which the assessment is levied." Laskey v. Hilty (1951), 91 Ohio App. 136, paragraph three of the syllabus. In reviewing case law on various methods utilized in distributing the cost of a project proportionately to the benefits which may result to an individual parcel of property, it is apparent that no single formula is required. The Ohio Supreme Court has, however, delineated some guidelines for approving plans which mathematically distribute the cost of the project to the property benefited (sic). In Miami Conservatory District v. Ryan (1922), 104 Ohio St. 79, the supreme court stated: -9- * * * It is of course essential that there be equality and uniformity in making assessments, but it does not follow that there must be exactness. In nearly all street improvements provided for by municipal legislation, the assessments are made by levy of a fixed sum upon each foot front of property abutting upon the improvement, and the municipal legislation is made to carry the declaration that the several pieces of property are specially benefited to the extent of the assessment so levied. In a majority of such cases a careful analysis of the condition would disclose that some properties are very greatly benefited (sic) and others but slightly; that the assessment while uniform in theory is arbitrary in fact; and yet the validity of that mode of assessment is no longer questioned or even criticised (sic). (Emphasis added.) 1994 WL 144404 at 3-5. Five assignments of error are presented for review. I THE TRIAL COURT ERRED IN HOLDING THAT THE BENEFIT TO AN IMPROVED PARCEL IS TO BE DETERMINED SOLELY BY REFERENCE TO THE INCREASE IN THE PARCEL'S FAIR MARKET VALUE. Contrary to the asseverations of appellants, the trial court did not base its ultimate decision solely on whether the water line construction special benefits increased the fair market value of Brown's parcels. Inherent in the evidence relative to the $2,310.00 increase in fair market value is the fact that this amount was based upon the unrebutted expert opinion that a total of six buildable lots could be carved out of the parcels at a future date and that the benefit of the water line to each of those -10- proposed future lots was $2,310.00. The property owner's increase in fair market value did not even closely approximate the proposed assessment. Thus, the court did not err in permitting the injunction and modifying the assessment. Stewart v. Bay Village, supra at 819-820, citing Wolf v. Avon, supra, quoting Schiff, supra, at paragraph five of the syllabus. The first assignment of error is overruled. II THE TRIAL COURT ERRED IN HOLDING THAT APPELLEE BROWN COULD CARRY HER BURDEN AS TO THE ENHANCEMENT IN VALUE WITHOUT OFFERING AN APPRAISAL OF HER OWN PARCELS. The evidence submitted by Brown at the administrative level, which was unrefuted by the City, indicates that Brown did submit a valuation appraisal for her property both before and after the proposed construction of the water line. Brown herself submitted the county auditor's 1994 fair market value of the property of $79,000.00. Brown's real estate expert, Douglas Thompson, testified that after comparing two recent comparable sales of real property in Strongsville, one of which was located at 18717 Benbow Road (the LaQuatra property, which is serviced by well water) and one of which was located at 15906 Kingswood Court (the Huben property, which is serviced by city water), the effect of the proposed construction would increase the value of Brown's property by $2,310.00 per buildable lot. Absent expert evidence to the contrary which would rebut the evidence of increase in valuation, the trial court had sufficient evidence upon which it could base its opinion. -11- The second assignment of error is overruled. III THE TRIAL COURT ERRED IN HOLDING THAT THE BOARD WAS OBLIGATED TO ADOPT THE EXPERT OPINION OF APPELLEE BROWN'S APPRAISER MERELY BECAUSE NO REBUTTAL EXPERT WAS OFFERED. First, it is noted that the Findings of Fact and Conclusions of Law did not hold that the trial court was obligated to adopt Mr. Thompson's expert opinion on the appraisal of the parcels. To the extent that appellants argue that the trial court held that it was obligated to adopt the appraisal opinion, the framing of the assignment in this language is a mischaracterization of the trial court's decision. In this assignment, appellants argue that the trial court's ruling was oblivious to the burdens of proof in assessment hearings when the trial court determined that the Board's assessment ($51,000.00) of Brown's parcels was excessive. While it is true that the trial court was under no obligation to accept Mr. Thompson's opinion, the trial court remains the weigher of the evidence which is statutorily bound to review all the evidence presented, and if it determines from the preponderance of reliable, probative and substantial evidence that the Board's decision is unreasonable or unsupported by the record, it is authorized to vacate or modify the Board's decision. See R.C. 2506.04; Dudukovich v. Lorain Metro Housing Auth., supra. In the case sub judice, the trial court's reliance on Mr. Thompson's report was proper in fulfilling the trial court's mandate of weighing the evidence in the record. -12- The third assignment of error is overruled. IV TO t that the existing well water service on Brown' parcels was of acceptable quality was against the weight of the evidence. See Findings of Fact at paragraph 26. Next, appellants argue that the court's finding that Mr. Thompson's report was obviously credible was against the weight of the evidence because this report was allegedly premised on the availability of acceptable well water. See Conclusions of Law at paragraph 47.THE EXTENT THE Appellants further argue that the weight of the evidence indicates 6 aph 2, identified Brown's parcels andESFindings of F stated the following in pertinent part: At all times relevant to this appeal, both parcels were serviced by well water of acceptable quality. 7Conclusions of Law, paragraph 4, states: 4. The only evidence of increase in fair market value offered to AEB II below, was provided by an expert real estate appraiser, Douglas Thompson, who opined that Brown's property would probably experience an increase in fair market value of $2,310.00 per buildable lot as a result of the proposed water line improvement. Thompson's opinion testimony was unchallenged by the City, was based upon a theory or technique generally accepted in the real estate appraiser community, was internally logical and consistent, and was obviously credible. Daubert v. Merrell Dow Pharmaceuticals (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. (Italicization added.) -13- that the well water on Benbow Road was not of acceptable quality or yield. The record on appeal does not contain verbatim transcripts of the Board meetings. Instead, the minutes of the Board meetings are summaries of the testimony prepared by the Clerk of Council. The minutes for the Board's September 11, 1995 meeting, at page 7, indicates that Brown testified that her parcels currently have well water and that she has no problems with it. This testimony by Brown is the only evidence in the record provided which touches on the issue of well water quality/yield on Brown's parcels. There is no evidence in the record before us that any parcel on Benbow Road has a demonstrable problem with well water. Accordingly, we cannot conclude that the trial court's Findings and Conclusions at issue relative to the quality of the well water servicing Brown's parcels, or the LaQuatra property used in Mr. Thompson's report, was against the manifest weight of the evidence. Karches v. Cincinnati, supra; C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. The fourth assignment of error is overruled. V AS APPELLEE BROWN DID NOT CARRY HER BURDEN OF ESTABLISHING THAT THE AMOUNT OF THE ESTIMATED ASSESSMENTS EXCEEDED THE INCREASE IN VALUE, THE CITY WAS NOT REQUIRED TO PROVE THE CONTRARY. This assignment's argument is premised on appellants' belief that Brown did not demonstrate that the estimated assessments against her property exceeded the enhancement in the fair market -14- value posed by the construction of the water line. Based on the previous assignments, Brown amply demonstrated that the estimated assessments grossly exceeded the project's enhancement to the fair market value of the property. The fifth assignment of error is overruled. Judgment affirmed. -15- It is ordered that appellee recover of appellant her 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 Common Pleas Court 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. Exceptions. ANN DYKE, P.J., CONCURS; TERRENCE O'DONNELL, J., DISSENTS. ______________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .