Budget Commission v. Village of Georgetown

Douglas, J. The primary issue raised by the parties is whether R.C. 5747.51(J) provides the sole method by which official notice to subdivisions may be given for purposes of determining the timeliness of an R.C. 5705.37 appeal, or whether R.C. 5705.37 provides for a permissible alternative form of notice. For the reasons set forth below, we hold that, pursuant to the express terms of R.C. 5705.37, the permissible time in which to perfect an appeal to the Board of Tax Appeals may be triggered by a subdivision’s receipt of either the official certificate as set forth in R.C. 5705.37 or by receipt of notice as defined in R.C. 5747.51(J). R.C. 5747.51 outlines the procedures involved in the allocation of the undivided local government fund by budget commissions. Division (J) of this provision requires that within ten days after a budget commission has made its apportionment: “* * * [T]he auditor shall publish a list of the subdivisions and the amount each is to receive from the undivided local government fund and the percentage share of each subdivision, in a newspaper or newspapers of county-wide circulation, and send a copy of such allocation to the commissioner of tax equalization. “The county auditor shall also send by certified mail, return receipt requested, a copy of such allocation to the fiscal officer of each subdivision entitled to participate in the allocation of the undivided local government fund of the county. This copy shall constitute the official notice of the commission action referred to in section 5705.37 of the Revised Code. * * *” R.C. 5747.55 provides the method by which an apportionment by the budget commission may be appealed, as follows: “The action of the county budget commission under section 5747.51 of the Revised Code may be appealed to the board of tax appeals in the manner and with the effect provided in section 5705.37 of the Revised Code * * * " The relevant portion of R.C. 5705.37, referred to above, provides as follows: “The taxing authority of any subdivision which is dissatisfied with any action of the budget commission may, through its fiscal officer, appeal to the board of tax appeals within thirty days after the receipt by such subdivision of the official certificate or notice of such action of said commission. * * *” Appellee asserts that when read in pari materia, these statutory provisions manifest the intent of the legislature to provide for appeals from [36] actions of the budget commission only when notice is received thereof, in accordance with the specific statutory requirements for notice relevant to such actions. Appellee contends that R.C. 5705.37 is a general grant of the right to appeal from a decision of the county budget commission. As such, notice by way of certificate, pursuant to that provision, is not sufficient to trigger the thirty-day appeal time since R.C. 5747.51 and 5747.55 provide specific procedures for appealing decisions regarding the allocation of local government funds. We disagree.4 This court held in Painesville v. Lake County Budget Comm. (1978), 56 Ohio St. 2d 282, 284 [10 O.O.3d 411], that: “The right to appeal an allocation of a local government fund to the Board of Tax Appeals is created by statute. (R.C. 5747.55.) Therefore, if * * * [appellee] has failed to comply with the appropriate statutory requirements, the board lacks subject-matter jurisdiction to hear the appeal.” In addition, it is well-established law in Ohio that “ ‘* * * [w]here a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred.’ ” Queen City Valves, Inc. v. Peck (1954), 161 Ohio St. 579, 581 [53 O.O. 430], citing American Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147, 150 [34 O.O. 8]. R.C. 5747.55 states that an appeal thereunder may be taken “in the manner” provided in R.C. 5705.37. Pursuant to the express terms of R.C. 5705.37, appellees must perfect an appeal to the Board of Tax Appeals within thirty days of the receipt of either the “official certificate or notice” of such action. While R.C. 5747.51(J) defines “notice” as set forth in R.C. 5705.37, it does not provide that such “notice” is the exclusive manner by which the jurisdiction of the board may be invoked. Such a construction of R.C. 5747.51(J) would defy the obvious meaning of R.C. 5705.37, which identifies two separate and distinct methods of initiating the running of the thirty-day appeal time. Accordingly, we find this contention of appellee to be without merit. Appellee also contends that the official certificate received by it is insufficient as a form of notice. Appellee argues that while this certificate provides information regarding the undivided local government fund as a potential source of revenue, it is not effective in giving subdivisions notice of the commissioner’s actions relative to the allocation and apportionment of such funds among them. Further, appellee claims that since such certificate is, by statute, subject to amendment, a subdivision may erroneously conclude that at the time of its making, there was no anticipated revenue from the local government fund and that a new certificate would [37] be issued later if funds became available. Again, we find appellee’s arguments unpersuasive. A review of the official certificate delivered to the fiscal officer of the village of Georgetown on December 23, 1983, not only establishes that it complies with the statutory requirements of R.C. 5705.34 and 5705.35, but more importantly, it apprises appellee of the fact that it was not receiving any funding from the undivided local government fund. In addition, this certificate cited the statutory provision authorizing the budget commission to exclude a subdivision from such funding, R.C. 5705.30, in the space normally provided for an amount from the undivided local government fund. Finally, appellee did not file an appeal with the Board of Tax Appeals until May 22, 1985. This was nearly fourteen months after appellant’s letter of March 27, 1984 expressly notified appellee that no distribution of local government funds would be made due to appellee’s failure to submit the requisite budget. Accordingly and for the reasons stated above, we find that the board committed error in not granting appellant’s motion to dismiss on the basis of lack of jurisdiction and we hereby reverse the board’s decision and enter final judgment for appellant. Decision reversed. Locher, Holmes, C. Brown and Wright, JJ., concur. Celebrezze, C.J., and Hoffman, J., dissent. Hoffman, J., of the Fifth Appellate District, sitting for Sweeney, J. Footnotes [4] Initially we note that even were this court to construe these provisions as appellee suggests, we could only conclude that the board would still have lacked jurisdiction to hear this case. That is, if R.C. 5747.51(J), in fact, provides the only proper form of notification for purposes of appeal, appellee, having never been so notified, did not and does not have the right to appeal under R.C. 5705.37.