Summary
In Wellsville, the caretaker for a city-owned cemetery was required as part of his employment to live in a house on the cemetery property.
Summary of this case from Grandview Hospital v. ZainoOpinion
No. 80-1556
Decided May 13, 1981.
Taxation — Real property — Exemptions — Property used exclusively for public purposes — Cemetery land and improvements thereon — R.C. 5709.121, applied.
APPEAL from the Board of Tax Appeals.
In 1972, the city of Wellsville purchased 3.601 acres of land to extend the boundaries of an existing cemetery owned and operated by the city. Included within the 3.601 acres was a two story brick house which is used as a residence by the caretaker of the cemetery. The caretaker has an office in the residence in which the cemetery records are kept. The caretaker pays no rent to the city.
On December 30, 1977, the city filed with the Commissioner of Tax Equalization an application to remove the 3.601 acres from the tax duplicate and place the acreage on the tax exempt list. The commissioner found the cemetery grounds are entitled to tax exemption pursuant to R.C. 5709.08 except for the one-half acre on which the house is located. The one-half acre and house thereon was excluded by the commissioner because it was not used for a public purpose. Upon appeal, the Board of Tax Appeals reversed the commissioner and held that the one-half acre and house thereon is exclusively used for a public purpose in furtherance of and incidental to that end, and thus qualifies for tax exemption.
The cause is now before this court on an appeal as of right.
Mr. William L. Bush, law director, for appellee.
Mr. William J. Brown, attorney general, and Mr. Charles M. Steines, for appellant.
Appellant contends the requirements of R.C. 5709.08 have not been met because the property used as the private residence for the cemetery caretaker is not being used exclusively for a public purpose.
R.C. 5709.08 provides, in pertinent part: "Real or personal property belonging to the state or United States used exclusively for a public purpose, and public property used exclusively for a public purpose, shall be exempt from taxation. * * *"
R.C. 5709.121 provides that public property shall be considered as used exclusively for public purposes if it is "(B) Otherwise made available under the direction or control of * * * the state, or political subdivision for use in furtherance of or incidental to its * * * public purposes and not with the view to profit."
In Cincinnati Nature Center v. Bd. of Tax Appeals (1976), 48 Ohio St.2d 122, the court stated, at page 125, that the criteria of R.C. 5709.121 require that the property must "(1) be under the direction or control of a charitable institution or state or political subdivision, (2) be otherwise made available `for use in furtherance of or incidental to' the institution's `charitable * * * or public purposes,' and (3) not be made available with a view to profit." The court held that houses which were used by the Cincinnati Nature Center as residences for employees responsible for taking care of the nature preserve were used in furtherance of and incidental to the charitable purpose of the center, and thus entitled to be tax exempt.
In the instant cause, the city has title to the cemetery land and uses it for the exclusive benefit of the public. The house serves as an office and a place for keeping public records. The Board of Tax Appeals found from the facts presented that the house is necessary to assure the presence of the caretaker on the premises to care for and protect the public grounds from damage.
Applying the criteria of R.C. 5709.121 and Cincinnati Nature Center, supra, to this cause, we find the decision of the board allowing tax exemption to the one-half acre and house thereon to be neither unreasonable nor unlawful.
We also find it was not unreasonable or unlawful for the board to reject appellant's alternative contention that the only statute that can be considered to determine the right to exemption here is R.C. 5709.14 which relates to tax exemption for graveyards. Appellant's position is inconsistent since he decided the city's request for tax exemption on the basis of his interpretation of R.C. 5709.08. Moreover, all the real property here is public property, and, thus, appropriate to be considered for tax exemption under R.C. 5709.08.
The decision of the Board of Tax Appeals is affirmed.
Decision affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.