[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Adams v. Harris, Slip Opinion No. 

.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                         SLIP OPINION NO. 

ADAMS ET AL., APPELLANTS AND CROSS-APPELLEES, v. HARRIS, TAX COMMR.,
                         APPELLEE AND CROSS-APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Adams v. Harris, Slip Opinion No. 

.]
Taxation—Real-property            tax—Current-agricultural-use            valuation—Tax
        commissioner abused her discretion by unreasonably and arbitrarily
        adopting $1,000 per acre woodland-clearing-cost rate—Decision of Board
        of Tax Appeals reversed and cause remanded to tax commissioner with
        instructions that she adopt woodland-clearing-cost rate that complies with
        Adm.Code 5703-25-33.
   (No. 2023-0733—Submitted April 9, 2024—Decided September 26, 2024.)
APPEAL from the Board of Tax Appeals, Nos. 2015-1090, 2016-1061, 2017-1867,
                         2018-1143, 2019-1632, 2020-1347.
                                 _________________
        STEWART, J., authored the opinion of the court, which KENNEDY, C.J., and
FISCHER, DEWINE, DONNELLY, BRUNNER, and DETERS, JJ., joined.
                            SUPREME COURT OF OHIO




       STEWART, J.
       {¶ 1} Appellants and cross-appellees, a group of landowners, appeal from a
decision of the Board of Tax Appeals (“BTA”) that affirmed six journal entries
issued by appellee and cross-appellant, the Tax Commissioner of Ohio, Patricia
Harris. Each of the six entries issued by the tax commissioner adopts a valuation
table to be used by Ohio’s county auditors in assessing land that qualifies for
“current agricultural use valuation” (“CAUV”), and each entry relates to a different
tax year for years 2015 through 2020. The valuation table in each of the entries
sets a clearing-cost rate of $1,000 per acre for woodlands—an amount that must be
deducted by county auditors from the per-acre value of woodland to determine the
woodland’s agriculture-use value. On appeal to this court, as on appeal below to
the BTA, the landowners claim that the $1,000 clearing-cost rate adopted by the tax
commissioner in each of the six entries is too low and that the tax commissioner
has ignored evidence proving that the rate should be higher. The landowners claim
that because the clearing-cost rate is too low, their woodlands are overvalued,
causing them to pay more property tax than appropriate for the land.
       {¶ 2} For the reasons that follow, we reverse the BTA’s decision upholding
the tax commissioner’s entries setting the $1,000 rate and remand the cause to the
tax commissioner for further, evidence-based consideration of an appropriate value
for the clearing-cost rate for woodlands.
                               I. BACKGROUND
                       A. Overview of the CAUV program
       {¶ 3} The origins of this case trace back to Adams v. Testa, 2017-Ohio-
8853, a case in which many of the same landowners to the present appeal had
challenged the tax commissioner’s journal entry for tax year 2015 concerning the
$1,000 clearing-cost rate for woodlands. At issue in Adams v. Testa was the BTA’s
decision that the tax commissioner’s 2015 CAUV entry was not appealable under




                                            2
                                January Term, 2024




R.C. 5717.02(A) as a “final determination.” We reversed the BTA’s decision and
remanded the matter to the BTA for further proceedings, holding that the entry was
a final determination within the meaning of the statute. 

. In rendering
our decision, we explained the CAUV program as follows:


                In 1974, the Ohio Constitution was amended to allow “land
       devoted exclusively to agricultural use [to] be valued for real
       property tax purposes at the current value such land has for such
       agricultural use.” Ohio Constitution, Article II, Section 36. As a
       consequence, agricultural land is taxed based on its agricultural-
       income potential as opposed to its fair market value. To accomplish
       this valuation, the tax commissioner is required to adopt rules to
       determine the “current agricultural use value” of such land. R.C.
       5715.01(A). The rules are to take into account soil productivity,
       crop-price patterns, capitalization rates, farmland market values, and
       other pertinent factors. 

                Pursuant to this directive, the tax commissioner adopted
       rules setting forth a method by which the commissioner, in
       consultation with an agricultural advisory committee, sets CAUVs
       on an annual basis. See Ohio Adm.Code 5703-25-30 through 5703-
       25-36.    The CAUVs are finalized by the tax commissioner’s
       adoption of an administrative journal entry. Ohio Adm.Code 5703-
       25-31(D). The county auditors then use the CAUVs “as prima-facie
       correct valuation for parcels or tracts of land devoted exclusively to
       agricultural use.” Ohio Adm.Code 5703-25-31(E).
                Included in the definition of agricultural land is land upon
       which timber is grown that is part of or next to farmland. R.C.
       5713.30. To value such woodland, the tax commissioner calculates




                                         3
                             SUPREME COURT OF OHIO




       a cost to clear the land to convert it to cropland. See Ohio Adm.Code
       5703-25-33(M)(4). The clearing cost is then subtracted from the
       cropland value to determine the woodland value. 

               The CAUVs are set forth in a table that is promulgated by
       the tax commissioner each year. Ohio Adm.Code 5703-25-31(D).
       The table establishes a per-acre CAUV for both cropland and
       woodland for each soil type in Ohio.


(Brackets added in Adams.) Id. at ¶ 4-7.
       {¶ 4} From 1983 to 2014, the tax commissioner applied a clearing-cost rate
of $500 per acre for woodlands. In 2015, the tax commissioner adjusted the rate,
doubling it to $1,000. The tax commissioner has carried that rate through to 2020.
As the challenge to the 2015 journal entry progressed before the BTA following
our remand in Adams, additional landowners were joined as parties to the
proceedings, and together the landowners continued to appeal the tax
commissioner’s journal entries that she had entered for the ensuing years. These
separate appeals were consolidated by the BTA. Thus, by the time the BTA entered
its decision in this case, it had before it challenges to the tax commissioner’s 2015,
2016, 2017, 2018, 2019, and 2020 journal entries, and those challenges included
new landowners as party plaintiffs in addition to those landowners who had brought
the initial challenge in Adams v. Testa.
B. The BTA’s merit hearing
       {¶ 5} The BTA convened a merit hearing during which the parties presented
their arguments and offered documentary exhibits and witness testimony. What
follows is a description of the evidence furnished to the BTA with respect to each
CAUV entry that the tax commissioner issued for tax years 2015 through 2020.




                                           4
                                January Term, 2024




                                 1. Tax year 2015
       {¶ 6} The landowners presented testimony from a former employee of the
Ohio Department of Taxation (“the department”), Gloria Gardner, who had worked
at the department from 1999 until her retirement in January 2021. While there,
Gardner worked specifically on the CAUV program in the Division of Tax
Equalization—the division that runs the CAUV program—from approximately
2009 through 2020. During her testimony, Gardner described the process behind
the tax commissioner’s adoption of the $1,000 clearing rate for woodlands and her
involvement in that process, including communications she had had with others in
the division and with interested parties.
       {¶ 7} Gardner testified that in November 2014, she emailed John Dorka,
who was the executive director of the Ohio Forestry Association at that time,
advising him that the tax commissioner was researching whether to increase the
clearing-cost rate for woodlands and asking him if he could provide documents on
the topic. The Ohio Forestry Association is a member of the agricultural advisory
committee created under Adm.Code 5703-25-32(A), which “annually advise[s] the
tax commissioner on economic, technological and other current developments that
might be considered in the determination of agricultural land values.” Dorka
informed Gardner that, based on a survey of the association’s members who
provided clearing services, a proper clearing-cost rate would be between $2,200
and $4,500 per acre. Gardner told Dorka that she found the information he provided
“helpful” and advised him that a “focus” of the 2015 agricultural advisory
committee meeting would be on revising the clearing-cost formula.
       {¶ 8} In January 2015, Gardner prepared a spreadsheet summarizing the
proposed changes to the CAUV program for the purpose of the tax commissioner’s
2015 journal entry. She proposed that the clearing-cost rate be increased “from
$500 to $1,000 based on a survey showing average clearing costs of $3,350/acre
and the ratio of cropland value to [United States Department of Agriculture




                                            5
                             SUPREME COURT OF OHIO




(“USDA”)] market value (30%).” In response to Gardner’s proposal, Shelley
Wilson, an executive administrator who oversaw the Tax Equalization Division of
the Department of Taxation, sent an email to Gardner stating:


               The only thing I’m not comfortable with is the rationale for
       setting the clearing costs at $1,000 an acre. While I think there’s
       certainly truth in what you say, I don’t think we will be able to
       defend artificially reducing the cost to clear—at least not in writing.
       Maybe what we should do is use a higher figure and raise the
       minimum value.


       {¶ 9} Gardner testified at the BTA hearing that she could not recall the
rationale behind her proposal to increase the clearing-cost rate from $500 to $1,000
based on the 30-percent ratio of cropland value to USDA market value. Indeed,
when Gardner responded to Wilson’s email, Gardner recognized the perceived
difficulty in generating a clearing-cost rate for woodlands and joked, “For the
deduction . . . put them on a dart board!” (Ellipsis in original.)
       {¶ 10} In March 2015, Gardner received the results of a survey conducted
by one of the landowners in this case, David Coldwell, a timber consultant who
advises landowners on woodlands management. Coldwell reported an average
clearing-cost rate of $3,587.50 to $4,000 per acre based on information he had
received from eight land-clearing companies.
       {¶ 11} In June 2015, the tax commissioner selected a clearing-cost rate of
$1,000, which, according to a May 2015 table that summarized the changes for tax
year 2015, was “based on input from [the] advisory committee.” During her
testimony before the BTA, Gardner could not recall any specific committee
member that had recommended that rate for adoption. But she stated that the
department had been presented with a range of clearing-cost data from around $800




                                          6
                                January Term, 2024




on the low end to around $4,000 to $5,000 on the high end. According to Wilson’s
testimony, the low-end data that Gardner referred to came from an email Gardner
had received from the Ohio Farm Bureau Federation, on which Wilson had been
copied, that specified a low-end price range of $800 to $1,000 per acre to clear
woodland. Wilson testified, however, that she did not regard the low-end figures
as reliable.
        {¶ 12} At the hearing, Wilson could not identify any person or organization
that provided the tax commissioner with reliable data showing a clearing-cost rate
of $1,000 or less. According to Wilson, the most that the department could deduce
was that $500 was too low. As Wilson testified: “[W]e looked at the survey data
and found nothing that came from the market that we felt we could rely on. And
so exercising the Tax Commissioner’s discretion in this matter we doubled the 500
to a thousand.”
                                    2. Tax year 2016
        {¶ 13} At a March 2016 advisory-committee meeting, the Ohio Farm
Bureau Federation submitted a memorandum characterizing the increase to the
clearing-cost rate from $500 to $1,000 as a “step in the right direction” while also
emphasizing that the increase “by no means went far enough to account for the true
costs of clearing and draining land.” Around this time, Stan Dixon, a department
official with supervisory authority over those involved in calculating CAUV
values, conveyed to Brad Perkins, who by that time was the executive director of
the Ohio Forestry Association, that the department was interested in obtaining
payment receipts for land-clearing work to develop a better understanding of what
the clearing-cost rate should be.
        {¶ 14} In May 2016, Perkins presented the department with information
drawn from seven payment receipts to Miller Logging, Inc., a land-clearing
company, which showed an average clearing cost for woodland of $3,785 per acre.
Perkins testified that representatives from the department told him that he had




                                           7
                               SUPREME COURT OF OHIO




provided “good information” and that they would “take [the information] under
consideration to possibly make changes to the amount.”
       {¶ 15} In early June 2016, Gardner received information from the United
States Department of Agriculture, which had obtained information from the
Wyandot County Soil and Water Conservation District, showing that a project had
been cleared for $4,179 per acre.         Regardless, later that month, the tax
commissioner issued an entry retaining the $1,000 rate. None of the information
that Perkins provided or that Gardner received showed that woodland had been
cleared for $1,000 per acre.
                                  3. Tax year 2017
       {¶ 16} In March 2017, after being told by a department representative that
the evidence he had previously presented was insufficient because it had come from
only one land-clearing company, Perkins provided information to the department
from another company, Berne Reclamation, that had performed three woodland-
clearing projects. After combining those three projects with the projects he had
submitted in 2016, Perkins was able to show an average clearing cost of $3,659.65
per acre. At the next advisory committee meeting, Perkins received feedback that
this information was “excellent.” Nevertheless, Perkins testified that following the
meeting, department personnel told him that he “probably needed to quit bringing
this [issue] up at the committee meetings because it wasn’t going to change.” The
tax commissioner issued an entry in August 2017 retaining the $1,000 figure.
                       4. Tax years 2018, 2019, and 2020
       {¶ 17} For the 2018 and 2019 tax years, the department did not receive
additional clearing-cost information or survey any land-clearing companies to
determine their rates. In June 2018, the tax commissioner issued an entry for tax
year 2018, again retaining the $1,000 rate. The results for the following year were
the same: in July 2019, the tax commissioner issued an entry for tax year 2019
retaining the $1,000 rate.




                                         8
                               January Term, 2024




       {¶ 18} In April 2020, Perkins emailed Gardner’s successor, Jacqueline St.
John, in response to St. John’s email that had distributed preliminary CAUV values
for 2020 to the Agricultural Advisory Committee members and asked for member
feedback on the proposed values. Perkins’ email questioned why the department
annually updates “all the other numbers in the [CAUV] formulas” except for
woodland-clearing costs.     He also gave an overview of the Ohio Forestry
Association’s position on the department’s decision not to update clearing costs for
woodlands. He stated:


               The current situation that Ohio and the nation are going
       through with COVID-19 has pointed dramatically to the importance
       of maintaining our productive forest lands in forests. Toilet paper
       is flying off the shelves, people are having more things shipped in
       boxes directly to their homes to avoid in-person shipping. Much
       needed medical equipment and supplies, food, and other essential
       items are being shipped on wooden pallets all over the country. All
       of these things and more come from our productive forests.
               We need a tax structure for our forest lands that encourages
       people not to convert it to other uses. But, when you only have a
       harvest with income once every few decades, it can be hard to
       convince some people not to take the quick money from housing
       developers and the like, if they are continually paying taxes on
       property with no income for decades. That is why the land clearing
       cost was originally put in the formula, to keep the taxes at a low
       enough point that people would keep their forests in forests.
               . . . Ohio went from being 90-95% forested in the days of the
       first settlers, to a low of only 10% by around the year 1900. It had
       all been cleared for farming and other uses. It took until 1990 for




                                         9
                             SUPREME COURT OF OHIO




       that number to increase back to around 30%, as many of the old non-
       productive hill farms were abandoned for farming and reverted back
       [sic] to forests. That number has been steady now for 30 years.
       However, there is only so many more old farms that can revert back
       [sic] to forest, and there is forested acreage being cleared every day
       for the next housing development, highway, or industrial complex.
       We are going to start losing forested acreage in the very near future
       if we don’t do something to keep people from converting it. The
       Ohio Department of Tax Equalization can do their part by updating
       the formula with real data.
               Lastly, the Department likes to use numbers from Ohio State
       University in their [sic] calculations, so keep in mind that the OSU
       Forest Economist recognizes the Forest Products Industry in Ohio
       as having more than a $26 Billion total economic impact in the state.


It appears from the record that Perkins never received a follow-up response to his
email from the department.
       {¶ 19} As with the two earlier years, the department did not receive
additional clearing-cost information or survey land-clearing companies to
determine what they charged to clear woodland. In July 2020, the tax commissioner
issued an entry for tax year 2020 retaining the $1,000 rate.
             C. The BTA’s decision upholding the six journal entries
       {¶ 20} In a decision issued on May 9, 2023, the BTA upheld each of the six
journal entries issued by the tax commissioner containing a clearing-cost rate of
$1,000 for woodlands. Specifically, the BTA concluded that under the standard
announced by this court in Johnson v. McClain, 

, the tax
commissioner had not abused her discretion in setting the clearing-cost rate at
$1,000. BTA Nos. 2015-1090, 2016-1061, 2017-1867, 2018-1143, 2019-1632,




                                         10
                               January Term, 2024




2020-1347, 

, *7-8 (May 9, 2023).              The BTA explained,
“Adopting the Advisory Committee’s recommended $1,000 clearing cost
deduction was well within her discretion.” Id. at *7. In reaching its decision, the
BTA rejected the tax commissioner’s argument that for some of the years at issue,
some of the landowners lacked standing to bring their challenge. Id. at *5. The
BTA determined that this court’s decision in Adams v. Testa, 

, was
adequate to resolve the standing question because that opinion found that the
landowners had standing to challenge the 2015 CAUV entry and there was no
indication that the landowners who had been added to the ensuing appeals were not
owners of property for purposes of challenging a CAUV entry. BTA Nos. 2015-
1090, 2016-1061, 2017-1867, 2018-1143, 2019-1632, 2020-1347, 

, at *5.
       {¶ 21} The landowners appealed to this court, asserting two propositions of
law:


               Proposition of Law No. 1: The BTA acted unlawfully and
       unreasonably by upholding the commissioner’s utilization of a
       woodland clearing cost of $1,000 per acre in the commissioner’s
       calculation of CAUVs for woodlands without reliable and probative
       evidence to support that figure for the years of 2015 through 2020.
               Proposition of Law No. 2: The BTA acted unlawfully and
       unreasonably by upholding the commissioner’s use of a woodland
       clearing cost of $1,000 per acre to calculate CAUVs for woodlands
       from 2015 through 2020 despite the commissioner’s failure to
       annually obtain [and] collect accurate and reliable land clearing cost
       data from the information sources listed in Ohio Adm.Code 5703-
       25-33(D) as required by Ohio Adm.Code 5703-25- 33(A) and (D),
       despite the commissioner’s failure to annually obtain land clearing




                                        11
                            SUPREME COURT OF OHIO




       data from the best available sources as required by Ohio Adm.Code
       5703-25-33(A) and (J), and despite the commissioner’s failure to
       annually calculate CAUVs that are accurate, reliable, and practical
       and that are the product of careful attention to the many principles
       and techniques involved as required by Ohio Adm.Code 5703-25-
       33(B).


       {¶ 22} The tax commissioner cross-appealed, raising the following three
propositions of law:


                Proposition of Law No. [1]: Where an individual appellant
       seeks to appeal a given year’s CAUV Table, but that year’s CAUV
       Table does not apply to the county in which that appellant’s property
       resides, then that appellant is not a “taxpayer” under R.C.
       5717.02(A) with respect to that year’s CAUV Table, and therefore
       the BTA lacks jurisdiction over that appellant’s claims with respect
       to that year’s CAUV Table.
                Proposition of Law No. [2]: Where an individual appellant
       does not advance his challenge to a given year’s CAUV Table at the
       earliest available opportunity, at public hearing before the
       Commissioner, that appellant is barred from challenging that year’s
       CAUV Table before the BTA.
                Proposition of Law No. [3]: Pursuant to R.C. 5717.02 and
       R.C. 5717.04, only an individual taxpayer may file an individual
       appeal to the BTA, and as such, the BTA lacks jurisdiction to
       entertain appellants’ collective, multi-taxpayer appeal.




                                        12
                                January Term, 2024




                                  II. ANALYSIS
       {¶ 23} We review BTA decisions “to determine whether they are
reasonable and lawful.” Grace Cathedral, Inc. v. Testa, 

, ¶ 16,
citing R.C. 5717.04.     Because the tax commissioner’s cross-appeal presents
threshold questions, we address it first.
                      A. The tax commissioner’s cross-appeal
       {¶ 24} The tax commissioner’s cross-appeal advances three propositions of
law. None persuade us.
1. Whether the tax commissioner waived some of the arguments in her cross-
                                       appeal
       {¶ 25} At the outset, the landowners assert that the tax commissioner has
waived the arguments in her cross-appeal for the 2018, 2019, and 2020 CAUV
entries because she did not advance those arguments during the BTA’s proceedings
following the remand that this court ordered in Adams v. Testa, 

. In support, the landowners cite Bd. of Edn. of South-Western City Schools
v. Kinney, 

 (1986), in which we observed that “[a]s a general
rule, this court will not consider matters which were not presented to the Board of
Tax Appeals.”
       {¶ 26} The tax commissioner counters with two arguments. First, the tax
commissioner contends that the arguments she raises on cross-appeal were
preserved below for the 2018, 2019, and 2020 CAUV entries by a motion to dismiss
that she filed in the 2015 CAUV table case. Since the 2018, 2019, and 2020 CAUV
table cases were consolidated with the 2015 case, the tax commissioner maintains
that the motion to dismiss in the 2015 case applies with equal force to the
consolidated cases. Second, the tax commissioner contends that regardless of
whether her arguments for dismissal were preserved for the 2018, 2019, and 2020
cases, a question concerning a tribunal’s subject-matter jurisdiction can be raised
at any time. See H.R. Options, Inc. v. Zaino, 

, ¶ 8 (“we will treat the




                                            13
                              SUPREME COURT OF OHIO




Tax Commissioner’s contention as preserved because a party cannot waive subject-
matter jurisdiction, regardless of procedural deficiencies”). Under this rule, if the
tax commissioner’s three arguments in her cross-appeal are jurisdictional in
character, then she may raise them now. This is where we begin our analysis.
       {¶ 27} The tax commissioner’s first proposition of law on cross-appeal
implicates a question of standing and therefore may be understood to be
jurisdictional in character. As this court has stated, “‘[s]tanding is jurisdictional in
administrative appeals “where parties must meet strict standing requirements in
order to satisfy the threshold requirement for the administrative tribunal”’—both
the tax commissioner and the BTA—‘“to obtain jurisdiction.”‘ ” (Brackets added
in Cincinnati City School Dist. Bd. of Edn.) Cincinnati City School Dist. Bd. of
Edn. v. Testa, 

, quoting Victoria Plaza Ltd. Liab. Co. v.
Cuyahoga Cty. Bd. of Revision, 

, quoting State ex rel. Tubbs Jones
v. Suster, 

; see also Abraitis v. Testa, 

 (“this court’s jurisdiction over a tax case derives from the jurisdiction of the
tax authorities from which the appeal has been taken”). The landowners’ waiver
argument against this proposition therefore fails.
       {¶ 28} The tax commissioner’s second proposition of law on cross-appeal
points to a line of decisions that, she argues, require a litigant to raise a challenge
to an administrative decision at the first available opportunity. That opportunity,
the tax commissioner says, presented itself at the tax commissioner’s public hearing
prescribed by Adm.Code 5703-25-31.             But, as will be explained, the tax
commissioner has misread that line of decisions. The tax commissioner’s argument
based on Adm.Code 5703-25-31 cannot create jurisdictional consequences,
because statutes, not administrative rules, delimit an agency’s jurisdiction. See
State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 

 (noting the
“general rule that agencies created by statute have such jurisdiction as the General
Assembly confers”). Accordingly, it follows that the tax commissioner may have




                                          14
                               January Term, 2024




waived her argument under her third proposition of law regarding the 2018, 2019,
and 2020 CAUV entries. Nevertheless, we will not reach the question of whether
the tax commissioner’s motion to dismiss filed in the 2015 CAUV case preserved
her arguments for the 2018, 2019, and 2020 cases, because, as explained below, we
find no merit to the tax commissioner’s argument on cross-appeal that the
landowners were required to raise their challenges to the CAUV tables during the
public-comment process to preserve their right to further challenge the tax
commissioner’s CAUV decisions.
       {¶ 29} The tax commissioner’s third proposition of law on cross-appeal
asserts that R.C. 5717.02(A) authorizes appeals to the BTA by a single taxpayer—
not, as here, multiple taxpayers. The tax commissioner’s third proposition of law
further asserts that multiple landowners cannot appeal, because R.C. 5717.04
authorizes appeals from BTA decisions to the court of appeals for the county in
which the property is located and allowing multiple landowners to appeal would
result in appeals potentially being brought in multiple courts of appeals. Both
arguments are jurisdictional in character. As explained in Adams, R.C. 5717.02(A)
speaks to the BTA’s jurisdiction in terms of “what may be appealed . . . and who
may bring the appeal.” Adams, 

. Because an element of
the BTA’s jurisdiction under R.C. 5717.02(A) depends on an appeal brought by a
taxpayer, the tax commissioner’s argument is jurisdictional in character. Similarly,
the tax commissioner’s argument under R.C. 5717.04 is jurisdictional in character
because it concerns who may bring an appeal—that is, whether an appeal can be
brought by only a single taxpayer or whether the right to appeal extends to multiple
taxpayers at the same time. The landowners’ waiver argument opposing this
proposition therefore fails.




                                        15
                             SUPREME COURT OF OHIO




  2. Whether the BTA lacked jurisdiction over taxpayers who appealed the
 issuance of CAUV entries that addressed counties where the taxpayers did
                                not own property
       {¶ 30} We now turn to the merits raised in the tax commissioner’s cross-
appeal. When the tax commissioner issues a CAUV entry, she attaches to it a table
of values that Ohio’s county auditors use to appraise CAUV property in their
respective counties. Adm.Code 5703-25-31(D); Adm.Code 5703-25-33(A). Each
entry applies to the counties performing a triennial or sexennial appraisal,
Adm.Code 5703-25-31(D)—generally one-third of the counties in Ohio. Thus, the
2015 entry applied to about one-third of the counties (to simplify, we’ll call them
“A counties”), the 2016 entry applied to about another third (“B counties”), and the
2017 entry applied to the remainder (“C counties”). The cycle of issuing CAUV
entries began again in 2018 with the tax commissioner’s issuing an entry applicable
to A counties, and so on for 2019 and 2020.
       {¶ 31} The tax commissioner argues that if a landowner in one of the A
counties were to appeal an entry issued in, say, 2016, then the BTA would lack
jurisdiction over that landowner’s appeal because the entry would apply only to the
landowners in B counties.      Ultimately, the tax commissioner’s argument is
inconsequential for the purpose of this case.
       {¶ 32} In Adams v. Testa, the precursor to the present appeal, this court held
that the landowners who had appealed the 2015 CAUV entry had standing to
challenge the entry because “all of [them] own[ed] land subject to the” entry and
thus were “taxpayers” within the meaning of R.C. 5717.02(A). 

. In other words, under our holding in Adams, all of the landowners owned
land in—borrowing the nomenclature from above—the A counties.
       {¶ 33} The tax commissioner claims, however, that this case is different
from Adams because this case extends through 2020. To support her argument, the
tax commissioner points to the Fishers, plaintiff-appellant landowners, who have




                                         16
                                January Term, 2024




appealed the CAUV entries issued in 2015, 2016, and 2017. According to the tax
commissioner, the Fishers own land in Sandusky County, one of the counties
enumerated in the 2015 CAUV entry. Thus, the argument goes, the Fishers had
standing to challenge only the 2015 entry, not the entries for 2016 and 2017. The
tax commissioner claims that the Fishers are not “taxpayer[s]” under R.C. 5717.02
for purposes of the 2016 and 2017 entries and therefore are not eligible to appeal
the entries for those years.
       {¶ 34} Our decision in Cincinnati Golf Mgt., Inc. v. Testa, 

,
obviates the need to decide the question the tax commissioner poses, which would
entail evaluating the standing of each landowner to bring this appeal. In Cincinnati
Golf Mgt., the tax commissioner sought to have the City of Cincinnati dismissed
for lack of standing. But this court refused to grant dismissal, finding that the
argument was moot. Id. at ¶ 15. This court held that because a private entity whose
interests were adverse to the tax commissioner was involved as a party in the case,
there was “no jurisdictional necessity to determine the city’s standing.” Id. at ¶ 13,
citing Miller v. Blackwell, 

 (S.D.Ohio 2004) (“If the Court
determines that any one of the Plaintiffs has standing, the Court has jurisdiction and
may proceed with the case.”).
       {¶ 35} Here, there is no dispute that the Fishers have standing to challenge
the 2015 CAUV entry. So, in addition to what this court already said in Adams,

 (concluding that the landowners in that appeal had
standing to challenge the 2015 entry), this court’s jurisdiction over the appeal
concerning the 2015 entry is complete, irrespective of the standing of other
landowners in this appeal.
       {¶ 36} Turning to the landowners’ challenges to the 2016 and 2017 CAUV
entries, even assuming that the Fishers lack standing to challenge them, there is still
jurisdiction over such a challenge if another plaintiff-appellant landowner has
standing to bring that challenge.        To help answer that question, the tax




                                          17
                            SUPREME COURT OF OHIO




commissioner cross-references a table that she had furnished to the BTA, which,
she says, explained to the BTA “which appellants had standing to challenge a given
year’s CAUV Table—and, in turn, which ones should be jurisdictionally barred
from challenging a given year’s CAUV Table.”              The table that the tax
commissioner furnished to the BTA contains 31 entries, applicable to 31 discrete
landowners, that purported to tell the BTA which landowners should be dismissed
from the appeals challenging the 2015, 2016, and 2017 CAUV entries. The table
does not help the tax commissioner’s argument.
       {¶ 37} The table’s second row, for example, refers to a landowner who
appealed the 2015 and 2016 CAUV entries. The tax commissioner urged the BTA
to dismiss that landowner from the appeal challenging the 2015 entry, but not the
2016 entry. Thus, the tax commissioner does not dispute that that landowner has
standing to challenge the 2016 entry. By the tax commissioner’s own table, that
landowner has standing to challenge the 2016 entry.
       {¶ 38} Meanwhile, the fourth row refers to a landowner who appealed the
2015, 2016, and 2017 CAUV entries. The tax commissioner urged the BTA to
dismiss that landowner from the appeal challenging the 2015 and 2016 entries, but
not the 2017 entry. Thus, the tax commissioner does not dispute that that landowner
has standing to challenge the 2017 entry. Again, by the tax commissioner’s own
table, that landowner has standing to challenge the 2017 entry.
       {¶ 39} To recap, the tax commissioner concedes that the Fishers have
standing to challenge the 2015 entry. And according to her own table, at least one
landowner has standing to challenge the 2016 and 2017 entries, respectively.
Because the tax commissioner does not advance an argument concerning the
standing of any landowners to challenge the 2018, 2019, or 2020 entries, her
standing argument necessarily fails in its entirety for every entry at issue in this
appeal. Therefore, we have jurisdiction over this appeal. See Cincinnati Golf Mgt.,

.




                                        18
                                   January Term, 2024




    3. Whether each appellant must have raised a challenge to each year’s
                CAUV entry at the tax commissioner’s public hearing
           {¶ 40} Adm.Code 5703-25-31(D) states:


           [A] public hearing shall be held on the proposed [CAUV] entry after
           reasonable public notice has been given by the commissioner at least
           thirty days prior to the date set for the hearing in such manner and
           form as the commissioner determines.          After the hearing the
           commissioner shall adopt the entry for the ensuing tax year for use
           in said counties for the next ensuing three tax years.


In her third proposition of law, the tax commissioner argues that if a landowner
failed to advance a challenge to a proposed CAUV entry at the public hearing, then
that landowner “is barred from challenging that year’s CAUV [entry] before the
BTA.” According to the tax commissioner, most of the landowners failed to appear
at the public hearing or failed to raise their issues to her directly. The tax
commissioner thus seeks to bar the claims of every landowner in this appeal, except
for the two who submitted written comments or objections in 2015 and 2016
regarding the rate that had been set for woodland clearing.
           {¶ 41} Notably, Wilson, an executive administrator in the Tax Equalization
Division of the department, testified that the public hearings are available so that
the public can provide thoughts and comments on the tax commissioner’s proposed
entries.     Wilson’s testimony makes clear that these public hearings are not
adversarial in nature; the hearings do not support an atmosphere where a formal
complaint or legal challenge could be raised. Indeed, Wilson testified that not every
issue raised by a person or entity at the public hearing is considered by the tax
commissioner. Instead, Wilson testified, all comments made at the public hearings




                                             19
                             SUPREME COURT OF OHIO




get recorded and then are ranked according to their perceived importance—i.e.,
whether they raise a novel or significant issue or concern.
       {¶ 42} The tax commissioner does not cite a rule or a statute that requires
the result she urges here—that a landowner waives a challenge to a CAUV entry
unless the landowner first challenges the entry at a public hearing. While the tax
commissioner does cite caselaw in support of her position, we are not persuaded
that the caselaw she cites is relevant in this context. The tax commissioner cites
over 20 decisions to support her argument, but none arose within the context of, as
here, a nonadversarial, public hearing held by an agency that failed to culminate in
the adjudication by that agency of a particular party’s rights. Therefore, rather than
address each cited decision, we analyze the three she cites that involved her
predecessors in office.
       {¶ 43} The tax commissioner begins by couching her argument in terms of
waiver, citing Kinney, 

 (1986). But the posture of that case,
unlike here, involved the filing of a formal complaint with the tax commissioner by
a local board of education that challenged the tax-exempt status of discrete parcels
of municipal property.      The complaint was first heard by one of the tax
commissioner’s attorney examiners and decided by the tax commissioner, whose
denial of the complaint was then appealed to the BTA. The BTA affirmed the tax
commissioner’s denial. This court determined on appeal that because the board of
education had not raised its challenges to the constitutionality of the application of
a tax statute during the tax commissioner’s proceedings, the argument was waived
for the purpose of appeal. 

 (observing that a taxpayer must raise a
“challenge at the first available opportunity during the proceedings before the Tax
Commissioner, and a failure to do so constitutes a waiver of that issue”). The
posture here is markedly different because the tax commissioner did not determine
a particular party’s rights in an adversarial proceeding.




                                         20
                               January Term, 2024




       {¶ 44} The tax commissioner fares no better in trying to cast her argument
in jurisdictional terms based on CNG Dev. Co. v. Limbach, 

 (1992),
and DeWeese v. Zaino, 

. In both of those cases, unlike here, the
tax commissioner had taken a specific action (issuance of an assessment) against a
particular taxpayer that placed the taxpayer’s liability at issue. Each case also
featured a statute that authorized the taxpayer to advance objections to the tax
commissioner by way of a petition for reassessment. CNG at 31, citing R.C.
5739.13; DeWeese at ¶ 10, citing R.C. 5711.31. In each case, this court held that
the BTA could not exercise jurisdiction over issues that were not raised during the
tax commissioner’s proceedings. CNG at 32; DeWeese at ¶ 20. Again, the posture
here is markedly different. Accordingly, we reject the tax commissioner’s third
proposition of law.
    4. Whether R.C. 5717.02 and 5717.04 forbid multi-taxpayer appeals
       {¶ 45} In her final proposition of law, the tax commissioner argues that
“only an individual taxpayer may file an individual appeal to the BTA, and as such,
the BTA lacks jurisdiction to entertain appellants’ collective, multi-taxpayer
appeal.” The tax commissioner relies on R.C. 5717.02(A), which provides that an
appeal from a final determination by the tax commissioner “may be taken to the
board of tax appeals by the taxpayer.” (Emphasis added.) She also relies on R.C.
5717.04, which provides that a “proceeding to obtain a reversal, vacation, or
modification of a decision of the [BTA] determining” an appeal from a final
determination “shall be by appeal to the supreme court or to the court of appeals
for the county in which the property taxed is situated or in which the taxpayer
resides.” (Emphasis added.) The tax commissioner emphasizes the singular form
of “taxpayer” used in both statutes, arguing that the word should be understood to
exclude the plural form. The tax commissioner argues that because both statutes
are written in the singular form, a multi-taxpayer appeal, such as the one at issue




                                        21
                             SUPREME COURT OF OHIO




here, must be dismissed as jurisdictionally defective. We are not persuaded by this
argument.
       {¶ 46} Ohio law provides that the “singular includes the plural, and the
plural includes the singular.” R.C. 1.43(A). And we have warned against “making
fine distinctions about the meaning of a statute based upon its use of the singular
form of a word.” State v. D.B., 

; see also State v. Nettles,

 (finding “little difficulty” in concluding that a statute’s use of
the word “county” included the plural form based on R.C. 1.43(A)). Applying these
authorities, we conclude that the word “taxpayer” as used in R.C. 5717.02 and
5717.04 encompasses its plural form.
       {¶ 47} The tax commissioner fears that if this court adopts the plural form,
then it will create an impossibility under R.C. 5717.04. R.C. 5717.04 authorizes an
appeal to the court of appeals in which the property is located or the taxpayer
resides. Because this case involves property located in multiple counties, the tax
commissioner hypothesizes that appeals could have been brought in multiple courts
of appeals. The tax commissioner’s argument invites an advisory opinion from this
court because the hypothetical is not present in this case—that is, this case consists
of one appeal involving multiple taxpayers brought in one judicial forum. This
court’s “long-standing practice disfavors issuing advisory opinions.” Capital Care
Network of Toledo v. Ohio Dept. of Health, 

, ¶ 31. Accordingly, we
reject the tax commissioner’s final proposition of law.
                            B. The landowners’ appeal
 1. Whether the BTA erred in upholding the tax commissioner’s selection of
                           the $1,000 clearing-cost rate
       {¶ 48} In their first proposition of law, the landowners argue that the tax
commissioner abused her discretion in selecting the $1,000 clearing-cost rate for
the CAUV entries. In affirming these entries, the landowners claim that the BTA
acted unreasonably and unlawfully.




                                         22
                                January Term, 2024




       {¶ 49} In Adams, 

, we observed, generally and
without deciding the issue, that the tax commissioner enjoyed “discretionary
authority” in adopting her 2015 CAUV entry.           “[W]hen the BTA reviews a
determination of the tax commissioner that involves the commissioner’s exercise
of a discretionary power conferred by statute, the BTA must apply the abuse-of-
discretion standard.” Johnson, 

 (considering a farmer’s
challenge to the BTA’s affirmance of the tax commissioner’s adoption of a figure
in a CAUV entry relating to soil drainage). Because the exercise of the tax
commissioner’s discretion is at issue, this court too must apply an abuse-of-
discretion standard. See J.M. Smucker, L.L.C. v. Levin, 

, ¶ 16
(observing that “the BTA and the court must apply an abuse-of-discretion standard
when reviewing” a discretionary act of the tax commissioner). In conducting our
review, we must determine whether the landowners have shown that the tax
commissioner’s actions are unreasonable, arbitrary, or unconscionable. 

          a. The tax commissioner acted unreasonably and arbitrarily
       {¶ 50} The landowners claim that the tax commissioner’s adoption of the
$1,000 clearing-cost rate for woodlands was unreasonable and arbitrary.           “A
decision is unreasonable if there is no sound reasoning process that would support
that decision.” AAAA Ents., Inc. v. River Place Urban Redevelopment Corp., 

 (1990). A decision is arbitrary if it is “‘without [an] adequate
determining principle; . . . not governed by any fixed rules or standard.’ ” (Ellipsis
added in Scandrick.) Dayton ex rel. Scandrick v. McGee, 

(1981), quoting Black’s Law Dictionary (5th Ed. 1979).
       {¶ 51} In this case, the BTA determined that the tax commissioner stayed
within the bounds of her discretion in “[a]dopting the Advisory Committee’s
recommended $1,000 clearing cost deduction,” BTA Nos. 2015-1090, 2016-1061,
2017-1867, 2018-1143, 2019-1632, 2020-1347, 

, at *7, and the
tax commissioner defends the BTA’s determination on appeal. The one piece of




                                         23
                             SUPREME COURT OF OHIO




evidence that bears most directly on the BTA’s determination is the CAUV table
from May 2015 that summarized the changes for tax year 2015. It contains a
statement that the tax commissioner’s decision to increase the rate from $500 to
$1,000 was “based on input from [the] advisory committee.” But it is hard to
determine the accuracy of that statement in light of the evidence presented in this
case. Gardner could not recall any member of the advisory committee who had
recommended a clearing-cost rate of $1,000 per acre for woodlands. Nor could
Wilson recall any person or organization who provided the department with reliable
data showing a clearing-cost rate of $1,000 per acre.
       {¶ 52} Another piece of evidence that touches on the $1,000 rate is an email
from the Farm Bureau to Gardner, explaining that the bureau had received a
clearing quote from a drainage contractor in the range of $800 to $1000. But as
Wilson explained during her testimony before the BTA, that quote was not a
reliable datum that could support a woodland-clearing-cost rate. And neither
Gardner nor Wilson could otherwise point to any specific evidence or method to
explain why the $1,000 rate was selected by the tax commissioner. According to
Gardner, “just from the general discussions from the Advisory Committee and
discussions within the Department, the Department believed that increasing the
clearing costs from 500 to a thousand dollars per acre at that time was a reasonable
adjustment to make.” And Wilson testified that because the market data considered
by the department was unreliable, the tax commissioner simply doubled the rate to
$1,000 in recognition that the $500 rate was too low.
       {¶ 53} We conclude under these facts that the tax commissioner abused her
discretion in selecting the $1,000 clearing-cost rate for woodlands. First, the $1,000
rate is arbitrary because it is “‘not governed by any fixed rules or standard,’ ”
Scandrick, 

, quoting Black’s.           In Scandrick, this court
considered whether a city had abused its discretion in selecting one bidder over
another to construct a recreation center. The city explained that its selection process




                                          24
                                January Term, 2024




had preferred local bidders even if their bids were not the lowest but added the
caveat that if a nonlocal bidder submitted a bid that was “many percentages” below
a local bidder, then the city might select that nonlocal bidder. 

. We found
that the many-percentages standard was arbitrary because it contained “absolutely
no guidelines or established standards for deciding by how ‘many percentages’ a
bid may exceed the lowest bid and yet still qualify as the ‘lowest and best’ bid.”

 We stated that “[a]bsent such standards, the bidding process becomes an
uncharted desert, without landmarks or guideposts” to guide an official’s exercise
of discretion. 

       {¶ 54} Here, nothing in the CAUV-related regulations or statutes authorizes
the tax commissioner to apply a doubling method to the previous rate, and the
parties have not pointed to reliable evidence from which the $1,000 clearing-cost
rate could have been derived. Instead, as Gardner and Wilson attested, the tax
commissioner effectively made an instinctive decision based on the department’s
view that the $500 per acre clearing-cost rate was too low. The tax commissioner’s
decision to increase the rate is warranted in light of the department’s view that the
existing rate was too low. But the problem is that simply doubling the rate does not
necessarily result in a reasonable endpoint. By the tax commissioner’s logic, if she
has discretion to double the rate with no concrete basis or reason to do so, then she
seemingly has discretion to triple or quadruple the rate.         Indeed, under her
argument, the use of any other multiplier to set a new rate would seemingly fall
within her discretion. The tax commissioner’s method is bereft of standards by
which to test the exercise of discretion, and therein lies the problem.
       {¶ 55} Second, for the same reasons provided above, the decision to set a
$1,000 clearing-cost rate for woodlands is unreasonable because it is not supported
by a “sound reasoning process,” AAAA Ents., 

. The doubling
method used to calculate the rate is not supported by any recognized authority,
whether it be statistical, legal, agricultural, or otherwise. And because the method




                                         25
                             SUPREME COURT OF OHIO




has no foothold in sound reasoning, it could just as easily have been discarded in
favor of a different method that relies on a different multiplier. Thus, we find that
the tax commissioner’s decision was unreasonable.
       {¶ 56} Because we conclude that the tax commissioner abused her
discretion in adopting the $1,000 rate for the 2015 CAUV entry, we similarly
conclude that she did so for the 2016, 2017, 2018, 2019, and 2020 CAUV entries
because those entries carried the 2015 rate forward without adjustment.
        b. The tax commissioner’s counterarguments are unpersuasive
       {¶ 57} The tax commissioner advances several counterarguments to rebut
the landowners’ claim that she acted unreasonably and arbitrarily. None convince
us.
       {¶ 58} First, the tax commissioner argues that because the landowners have
challenged the CAUV entries “in their entirety,” the landowners must show that the
clearing-cost rate combined with all the other variables that go into a CAUV entry
(e.g., soil type, capitalization rate, cost of farming equipment) could never produce
an accurate CAUV in an Ohio county. To begin, the tax commissioner’s premise
is wrong. The landowners challenge only a narrow aspect of the CAUV entries:
they request that the court find that the clearing-cost rate was adopted in error and
direct the tax commissioner to reissue the CAUV entries with a revised rate.
       {¶ 59} But even if the tax commissioner’s premise were correct—i.e., that
the landowners challenge the CAUV entries in their entirety—the legal authority
she relies on to advance her point is inapt because it is based in constitutional law,
which does not apply here. The landowners are not raising a facial challenge to the
constitutionality of a statute such that they would be required to prove that there is
no set of circumstances in which the CAUV entry could be upheld. See, e.g., Arbino
v. Johnson & Johnson, 

 (to prevail on a facial challenge, a
challenger “must demonstrate that there is no set of circumstances in which [the]
statute would be valid”).




                                         26
                                January Term, 2024




        {¶ 60} Second, the tax commissioner makes an economic argument. She
says that increasing the clearing-cost rate above $1,000 would result in a minimum
impact on the landowners. But she cites no authority that requires a taxpayer to
show that the relief sought would exceed a minimum impact. She also points to
one landowner who testified at the BTA hearing that he had no concrete plans to
clear the woodlands from his property. She reasons that it is untenable for that
landowner to seek relief here because the clearing-cost deduction already creates a
windfall for him since he will get the benefit of the deduction without actually
paying to have the woodland cleared.          The tax commissioner has made this
argument, however, while conceding elsewhere in her brief that a landowner may
take the deduction whether or not “a particular parcel had actually cleared
woodland that particular year (or even attempted to do so).” Thus, the purported
windfall referred to by the tax commissioner is one that she agrees is permitted by
the entry she drafted. If that is a problem from a tax-policy perspective, we see no
reason why she could not address it in a future CAUV entry. But it is not an issue
for us to resolve.
        {¶ 61} Third, the tax commissioner says that if the landowners were to
prevail, then one set of CAUV entries will apply to them and another set will apply
to everyone else. We do not agree. The tax commissioner points to nothing in the
CAUV-related statutes or regulations that contemplates that she may issue a
taxpayer-specific CAUV entry; rather, the CAUV entries apply across the board to
all qualifying taxpayers. Additionally, even if it would be difficult for the tax
commissioner to reissue a CAUV entry with a revised clearing-cost rate, the tax
commissioner cites no authority for the proposition that this court may withhold
relief to a deserving taxpayer based on a tax commissioner’s fear that the relief will
be challenging to implement.
        {¶ 62} Fourth, the tax commissioner claims that in order for this court to
grant relief, we must determine whether the landowners have suffered an injury.




                                         27
                              SUPREME COURT OF OHIO




The tax commissioner cites Moskowitz v. Cuyahoga Cty. Bd. of Revision, 2017-
Ohio-4002, ¶ 11, in which we held that “[i]n tax proceedings, a party may appeal a
decision only to the extent that the decision aggrieves that party.”        The tax
commissioner provides no meaningful analysis to support this argument, which is
grounds alone to reject it. See, e.g., Mason City School Dist. Bd. of Edn. v. Warren
Cty. Bd. of Revision, 

 (rejecting an undeveloped legal
argument). But even if the tax commissioner had provided an analysis in support,
the landowners have pointed to evidence that, on its face, shows that the clearing
costs for woodlands are in excess of $1,000 per acre. And the evidence shows that
a lower clearing-cost rate will generally result in a higher tax bill for CAUV
purposes. Thus, the landowners have shown an adequate injury.
          {¶ 63} Fifth, the tax commissioner argues that in order for the landowners
to obtain relief, the BTA would be required to rewrite the CAUV entries, which it
is not authorized to do. She correctly observes that the BTA is a creature of statute
and can only exercise such powers as are conferred by statute. See Cleveland Gear
Co. v. Limbach, 

 (1988) (“the Board of Tax Appeals is an
administrative agency, a creature of statute”). The tax commissioner thus argues
that because R.C. 5713.03 does not expressly authorize the BTA to revise a
numerical figure in a CAUV entry, the BTA cannot provide the relief sought by the
landowners. This is a straw-man argument. In this case, the landowners have not
asked this court to order the BTA to issue revised CAUV entries; the landowners
have asked us to order the tax commissioner to issue revised CAUV entries.
          {¶ 64} Sixth, the tax commissioner says that because the “logical endgame”
of the landowners’ appeal is to receive a refund of overpaid real-property taxes, the
landowners should have instead brought individual complaints before their
respective county boards of revision under R.C. 5715.19. The tax commissioner
has again erected a straw man—the landowners have not asked for a refund in this
appeal.




                                          28
                                  January Term, 2024




       {¶ 65} Last, the tax commissioner raises a policy argument that warns
against granting relief to the landowners because she foresees requests from the
landowners for property-tax refunds that might financially harm the counties in
which the landowners own their respective properties. It is not the function of this
court to resolve policy arguments. See Willacy v. Cleveland Bd. of Income Tax
Review, 

.
       {¶ 66} In sum, we find the tax commissioner’s counterarguments meritless.
    2. Whether the tax commissioner ran afoul of Adm.Code 5703-25-33 in
                          calculating the clearing-cost rate
       {¶ 67} The landowners’ second proposition of law is largely a response to
the view expressed by department personnel at the BTA’s hearing that bemoaned
the lack of reliable data to calculate a clearing-cost rate for woodlands. According
to the landowners, the CAUV regulations do not permit the tax commissioner to
pick a clearing-cost rate “out of thin air” but, rather, impose an affirmative
obligation on her to locate evidence that will generate a reliable clearing-cost rate
notwithstanding the perceived inadequacy of third-party-supplied evidence. The
landowners are correct.
       {¶ 68} Relevant here is a CAUV rule requiring the tax commissioner to
“calculat[e] and prepar[e]” her CAUV table in accordance with Adm.Code 5703-
25-33. Adm.Code 5703-25-33(A). The landowners point to divisions (B), (D) and
(J) of the rule, which provide:
•      “The use of the income approach to develop annual ‘Current Agricultural
       Use Value of Land Table Or Tables’ that are accurate, reliable and practical
       requires that careful attention be given to the many principles and
       techniques involved.” Adm.Code 5703-25-33(B);
•      “Information shall be obtained from such agencies as cooperative extension
       service, college of agriculture, the Ohio state university; Ohio agricultural
       research and development center; national resources conservation services,




                                          29
                             SUPREME COURT OF OHIO




       U.S.D.A.; forest service, U.S.D.A.; national agricultural statistical service,
       U.S.D.A.; department of agriculture of Ohio; department of natural
       resources of Ohio, federal land bank and other reliable sources.” Adm.Code
       5703-25-33(D);
•      “Non land production costs: Information on typical non-land production
       costs shall be obtained from the best available sources.” Adm.Code 5703-
       25-33(J).
       {¶ 69} Reading those divisions together, the landowners argue that the fact
that the tax commissioner received insufficient data from third parties to calculate
a clearing-cost rate did not give her license to create a rate out of whole cloth.
Rather, the landowners say, the tax commissioner has a mandatory duty under
division (D) to obtain information from “reliable sources” and a mandatory duty
under division (J) to obtain information from “the best available sources.” Because
the tax commissioner did not obtain such information, the landowners reason that
the tax commissioner violated divisions (D) and (J). Further, the landowners claim
that because the tax commissioner did not heed divisions (D) and (J), the tax
commissioner violated division (B)’s requirement that she calculate and prepare a
CAUV table that is accurate, reliable, and practical.
       {¶ 70} Although the question here turns on the meaning of a rule rather than
a statute, our statutory-interpretation principles apply with equal force. See State
ex rel. Fire Rock, Ltd. v. Dept. of Commerce, 

 (when a “case
involves the interpretation of a rule rather than a statute, this court’s statutory-
interpretation principles apply just the same”). “The starting point for determining
a rule’s meaning is its text, see Spencer v. Freight Handlers, Inc., 

, 

, 

, ¶ 16, which must be understood in its
context, according to the rules of grammar and common usage, State ex rel. Steele
v. Morrissey, 

, 

, 

.” Fire




                                         30
                               January Term, 2024




Rock at ¶ 13. When a rule’s meaning is unambiguous, a court must apply that
meaning and may not amend the rule through the insertion or deletion of words. 

       {¶ 71} Here, the use of “shall” in both divisions (D) and (J) is significant.
“‘In statutory construction, the word “may” shall be construed as permissive and
the word “shall” shall be construed as mandatory unless there appears a clear and
unequivocal legislative intent that they receive a construction other than their
ordinary usage.’ ” State ex rel. Gilreath v. Cuyahoga Job & Family Servs., 2024-
Ohio-103, ¶ 43, quoting Dorrian v. Scioto Conservancy Dist., 

(1971), paragraph one of the syllabus; see also Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 114 (2012) (“when the word shall can reasonably be
read as mandatory, it ought to be so read” [emphasis in original]). Because nothing
in the text of the rule obviously suggests that the rule’s use of the word “shall”
should bear anything other than its ordinary meaning, it follows that the tax
commissioner had a mandatory duty to obtain information as contemplated by
divisions (D) and (J) in the course of adopting the CAUV tables at issue here.
       {¶ 72} The     tax   commissioner     generally    accepts   this   reading,
acknowledging that “[c]ertainly, [she] should—and does—endeavor to rely upon
the most reliable data available.” And she further acknowledges that it would be
improper for her to ignore reliable evidence. But she says that she did not ignore
reliable information; rather, she says that the information that was provided to her
was unreliable. Thus, she reasons that she should not be penalized for not relying
on the data that was given to her. Quoting the BTA’s decision for the proposition
that “‘[i]n an ideal world, the Commissioner could have compiled data from sources
throughout the state to verify an average [clearing] rate,’ ” BTA Nos. 2015-1090,
2016-1061, 2017-1867, 2018-1143, 2019-1632, 2020-1347, 

, at
*7, the tax commissioner urges us to recognize that “[t]his is the real world, of
course. And part of that real world is that, in the absence of information that the
Department determines to be insufficiently reliable, . . . the Department still must




                                        31
                              SUPREME COURT OF OHIO




proceed with developing a CAUV Table for each year.” The tax commissioner’s
argument fails on two levels.
       {¶ 73} First, the evidence does not establish that it was impossible for the
department to obtain reliable information. The most specific piece of evidence on
this point is Wilson’s testimony.       When asked whether the department had
considered conducting studies or research, or engaging someone else to do it,
Wilson testified that for 2015, the department had “initiate[d] some telephone calls
. . . to companies that [it] identified as potentially being able to provide [it] with
this information. But people [weren’t] always really happy to say how much they
charge for their services when [receiving a] call from the tax department.” At best,
Wilson’s testimony suggests that finding reliable data is difficult but not
impossible. Moreover, after 2015, Wilson testified that the department made no
phone calls and made no requests for information from land-clearing companies to
attempt to find reliable data. And Wilson further testified that the department has
never conducted written surveys or sent out questionnaires. Nor has it been shown
that the department lacks the resources to obtain sufficiently reliable information.
       {¶ 74} Second, Adm.Code 5703-25-33(B) contemplates that the tax
commissioner will issue a CAUV table that is “accurate, reliable and practical.” By
the tax commissioner’s logic, this standard need not be met when, as here, the
department deems the information given to it by the advisory committee unreliable
or faces difficulties in obtaining such information. Yet, there is no exception in the
rule that would allow the tax commissioner to depart from the standard under the
circumstances presented here. And this court can no more create an exception to
an administrative rule than it can a statute. See Pauley v. Circleville, 2013-Ohio-
4541, ¶ 38 (“The General Assembly understands how to draft laws that contain
exceptions, but included no exception that can be applied in this case. And we will
not create an exception by judicial fiat.”).




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                               January Term, 2024




       {¶ 75} In sum, we conclude that the tax commissioner did not follow
Adm.Code 5703-25-33 in adopting the clearing-cost rate.
                               III. CONCLUSION
       {¶ 76} We reverse the BTA’s decision and remand the cause to the tax
commissioner with instructions that she adopt a clearing-cost rate that complies
with the standards prescribed in Adm.Code 5703-25-33. The tax commissioner
may evaluate additional evidence outside of the existing record in selecting a rate.
                                                                  Decision reversed
                                                               and cause remanded.
                              __________________
       Van Kley Law, L.L.C., and Jack A. Van Kley, for appellants and cross-
appellees.
       Dave Yost, Attorney General, and Daniel G. Kim, Assistant Attorney
General, for appellee and cross-appellant.
       Chad A. Endsley, Leah F. Curtis, and Leah Hetrick, urging reversal for
amicus curiae, Ohio Farm Bureau Federation.
                              __________________




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