Deposition of STEVEN J. BIRCH, Chief Appraiser

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Re-appraisal of commercial property in Avon
Request for 1997 real estate tax valuations denied
Land use should determine land valuation

[Part of] Deposition of STEVEN J. BIRCH, a Witness herein, called by the Appellant as upon oral examination, taken before Jennifer E. Mounsey, Court Reporter and a Notary Public within and for the State of Ohio, at the Lorain County Administration Building, 226 Middle Avenue, 2nd Floor, Elyria, Ohio, on Friday, October 1, 1999 at 1:15 p.m.

APPEARANCES:

On behalf of the Appellant:

Garrett J. Murray Co., by Garrett J. Murray, Esq.

ALSO PRESENT:

Jack Smith, Daniel Talarek [Lorain County Treasurer], Pam McCartney

STEPHEN J. BIRCH, being first duly sworn and/or affirmed, was examined and testified as follows:

MR. MURRAY: Okay. Let the record show that this is the deposition of Steve Birch. It is being taken pursuant to a subpoena letter dated September 13, 1999, with the consent of the Board of Revision, who are not present at this time.

For the record, Steve Birch was unable to testify at the hearing before the Board of Revision on September the 15th because of a death in his family, and was rescheduled for September 24th, which was -- '99, which was canceled by reason of the absence of his counsel and was rescheduled for today, October 1st, 1999.

DIRECT EXAMINATION OF STEVEN J. BIRCH BY MR. MURRAY:

Q:: Mr. Birch, can I call you Steve?

A:: Go right ahead.

Q:: Okay. Steve, we're here today regarding the complaints that were filed by my client. We're asking for relief from the Board of Revision for certain reappraisal valuations that were made on certain parcels that are owned by my clients, the Smiths, and that's in Avon, Ohio, for the tax year of 1998.

I'm going to ask you some questions; and I understand that you're the Chief Appraiser for the County; and I'm just trying to seek some information, and I'm not -- if there's a question that I ask that you don't understand, all you have to do is say so ...

Q:: Okay. As the Chief Appraiser, then, what are your duties?

A:: To -- well, they're just general. To maintain the County's appraisal records. I just kind of oversee the Appraisal Department, answer questions from taxpayers about values, correct, reappraise, just a little bit of everything.

Q:: Okay. We're here today regarding the Smith properties; and are you familiar with those parcel numbers that I had just given to you?

A:: You can -- and I -- I looked the case over a little bit ...

Q:: So, can you answer who is in charge of the reappraisals of the Smith properties in Avon?

A:: Well, I imagine it's the Chief Appraiser has the ultimate responsibility. I can accept part of the responsibility, but the County Auditor's actually the, you know, appraising chief, but --

Q:: Did you actually do the --

A:: I don't believe I did, no.

Q:: Do you know who did?

A:: Probably -- probably someone in my office. It could have been directed by me to analyze the property, and she probably brought it to me, or whoever it was, and said, how does this look? I might have said okay. It happens every day. I can't -- I wish I could remember, really.

Q:: But, generally speaking, are you the one that puts the final approval --

A:: Yeah, I think I'd say that, especially something like this.

Q:: Okay. Now, do you know, did someone outside the Lorain County Auditor's office suggest that the parcels on Avon Commons site be revaluated for real estate tax purposes?

A:: You know, things like that happen. But I don't think it happened in this case. Not that --

Q:: So you're not sure?

A:: Nobody ever came to me and said reappraise these. It's -- I -- I really can't answer that. You know --

Q:: All right.

A:: I would like to say that so-and-so did.

Q:: Do you keep records on your reappraisals?

A:: We just use the property record card. Those were the notes I made.

Q:: If someone called in and said, you ought to take a look at Mr. Smith's property, would you make a note on that card?

A:: Well, sometimes. In this case, I'm sure nobody did that. But there are residential --

Q:: Why are you sure that nobody did?

A:: Well, I guess I'm not sure.

Q:: Okay. Do you know upon whose request the reappraisal of this property was initiated?

A:: No idea, no.

Q:: Did the County Auditor, Mark Stewart, did he suggest that you look at this property?

A:: Mark suggests I look at a lot of properties. This could have been one of them.

Q:: You don't remember whether he did on this particular property?

A:: You know, like I say, for me, it all -- we're talking, you know, hundreds of parcels a month. But he has come to me already and said, we need to look at this property differently or there's something about it that's not right. It looks like there's an error here.

Q:: Has he sometime come to you and said, we need you to take a look at this property based upon newspaper articles?

A:: No.

Q:: Never has?

A:: No. It would be based on the actual use of the property. You know, if it --

Q:: Right.

A:: -- appeared to be something that -- in an area where --

Q:: Okay. Steve --

A:: Go ahead.

Q:: -- as I mentioned before, from November of '97 up through -- up through the end of August of '99, this piece of property has been in the newspaper.

Is it possible that because of the fact that it was [proposed] to be [developed] that that called your attention to this property?

A:: No. No. The whole Avon area is being scrutinized because there is so much commercial activity out there; and there's a lot of property that's changing USE from residential and agricultural to commercial ...

... assuming something happens in an area where people are changing zonings, changing that kind of thing, then we look at the value to see if -- that they may have been given a break too long ...

Q:: That might be called to your attention, either by someone calling in or by the newspaper? How else would you -- how else would you know? I mean, why would you all of a sudden decide to revalue?

A:: Just take a drive through Avon. Good lord, you can see that there's -- things are changing out there; and we see -- sales come across our desk.

Q:: Okay. And, Steve, those changes that are coming about are reported in newspapers, right? ...

A:: I read the newspaper occasionally. You know, whether I appraised this property based on a news article, no way ...

Q:: You just indicated a couple minutes ago that it depends on the use of the property, whether the use has changed or not --

A:: Or that it looks like it might change. If the potential's there for change, then we look at it. Like I say, if -- if there wasn't a for sale sign on a farm field yesterday, it's a farm field.

If there's a for sale sign on there now, lots available, something that we should look at; and that gets reported to the people that work in the Auditor's Office, drive in and say, hey, I saw a sign here, that sort of thing ...

MR. SMITH: ... We've had a for sale sign up for 30 years. There's -- a for sale sign been up for 30 years.

THE WITNESS: Is that right?

MR. SMITH: And that has been -- no change.

THE WITNESS: Well, I --

Q:: Okay. So -- so, what you actually are saying that if the use of the property doesn't change, then the valuation shouldn't change?

A:: Generally, we don't go looking for ...

Q:: ... Do you know when you reappraised the Smith property, the month or the year?

A:: It might be -- it might be on the property record card.

Q:: Can you get that?

THE WITNESS: Do you have a copy of it in the file?

MS. McCARTNEY: How did I know you were going to get to that. I was just looking -- here now.

A:: Let's see here. It says 1998, reappraisals to commercial zoning Z-2 -- or C-2. I'm sorry. Not Z-2.

Q:: Which parcel are you talking about?

A:: This is Parcel 032 [probably referrring to Bennett parcel 04-00-015-102-032], and the contractor -- is that part of this? ...

MR. SMITH: That is -- that is adjacent --

[The Bennett parcel was part of the site of the then proposed Avon Commons and was under option to First Interstate in 1998.]

A:: Must be another parcel you guys asked to bring, okay. Virginia Smith, et al.

MR. SMITH: Hm-hm.

A:: All right. It says reappraised to commercial, zoned C-2. This is 1998.

Q:: Which parcel is that?

A:: This is Parcel 28.[probably referrring to 04-00-015-102-028]

MR. SMITH: 6.66 acres.

A:: Parcel 38 [probably referrring to 04-00-015-102-028] appraised to commercial, zoned C-2. It says 1998 here. So, I mean, during -- sometime during '98, but the specific date is not on there, just says the year.

If I could find out what that is, I'll let you know.

Q:: Okay. So you don't know how it -- how it came about that you were -- that you suddenly revaluated his property?

A:: It was -- in the normal way, like I say, it happens every day. It comes to our attention in some manner ...

Q:: During the time that you were -- your department was working on this, did you know that there was an option by [First] Interstate --

A:: No.

Q:: -- on this property?

Q:: Were you aware at the time that you were ... [reappraising the Smith] properties in Avon, that the Richard Jacobs Group, along with Robert Stark, had an option on Norfolk & Southern parcel -- Southern parcel, which was 028101082 of 209 acres to build a shopping center that was a million square feet? ...

A:: Shoot, Garrett. I probably -- maybe I knew everything about it that day, but I don't know nothing about it today. It's hard for me to -- I don't keep track of, you know, specific instances about everything.

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Q:: Well, can you -- can you explain why the -- well, first of all, the lady [Joyce Hockenberger] that testified here last week indicated that you were doing a general revaluating of the values of the properties east of Rte. 83 based upon the properties west of 83.

A:: See, I'm not familiar with that general reappraisal that's of any kind -- you know. I don't know.

Q:: You weren't doing a general appraisal?

A:: Could have been. You know, that's what I say.

Q:: That's your department. I mean, were you or weren't you?

A:: We do it, and then we go onto the next thing, you know. That's --

Q:: Well, general reappraisal means, to me, that you're taking on an area and you're going to go from --

A:: Well, we're doing a complete appraisal of the entire County right now.

Q:: Yeah, but I'm talking about specifically -- about Avon specifically in the area east of 83.

Was there a general plan to go out and do these?

A:: Not that I'm aware of...

Q:: Can you -- can you give me an idea as to why that Jacobs, Norfolk & Southern parcel might have a valuation of $2,061 an acre when -- when our property was reappraised for over $9,000 an acre?

A:: Well, if it's worth 2,000 an acre, then we're correct. If it's not worth 2,000 an acre, maybe we need to investigate that property and then determine a more proper value. Why it hasn't been done yet, I don't know.

Q:: Well, why -- why would there be a distinction between the Jacobs property and the Smith property when the Smith property had no sewer? Jacobs did, and Jacobs was next to -- next to Manco.

Why would there be that disparity?

A:: Maybe it's an error. It's either an error on Jacobs property or it's an error on the Smith property.

Q:: Well, it could be an error?

A:: Could be. Maybe it's not. Maybe they're both valued exactly correctly, but if there's a disparity and it's identical properties --

Q:: You don't know why there would be a disparity?

A:: It's either an error on one part or the other, or it's an oversight or --

Q:: Maybe they should both be valued the same per acre?

A:: I don't know. I have -- believe me, I have not done an analysis of either of these properties.

Q:: Not the Smith property, either?

A:: I've never done any analysis, no. If it was brought to my attention that this is the way it should be done, but --

Q:: So if an appraiser from your department said -- went out and looked at the Smith property, and here's the Smith property, and you think it should be at $9,470 an acre, as far as being a Chief Appraiser, you would apparently accept that because you haven't done any specific work on the Smith property yourself?

A:: You know, if I did, I don't remember. I could have easily -- I could have looked at the whole thing yesterday.

Q:: And your cards don't reflect who did what or looked at it?

A:: Not the ones you have in the file here, no.

Q:: Do you have other ones that would reflect who did it and --

A:: I could look for those. I don't know. Sometimes we keep a file of -- of changes and sometimes we don't.

Q:: On each property?

A:: Yeah. Just as a -- I'll tell you. There are some changes that I make that go into the system, and the change card goes in the trash. There are some that are held onto for reasons; and I don't know about these, if these were held onto or if they were pitched. To me, it -- it's just more paper to take and ruin my desk.

Q:: You're talking about the old cards?

A:: Right. Well, where I'm making the pencil change, or whoever's making the pencil changes. Sometimes I retain, sometimes I just throw them away.

Q:: Are there any changes on the ones that --

A:: That's just a computer-generated copy there. If there are pencil copies of it, just reflect what's on the card, which there's no secret writing. Whatever's written on the change card gets put on into the system and it just shows up on the new card.

Q:: Would show up on the printout?

A:: Right ...

Q:: Steve, the other question we had was ... the Discount Drug parcel ... And that had a valuation of $1,978.65 an acre; and Jack can show you where that is.

MR. SMITH: Yeah. This is Holy Trinity Church, and here's the Discount Drug Mart parcel; and it's -- it actually is an active business.

Q:: And --

THE WITNESS: It's appraised for what?

MR. SMITH: $1,978 an acre.

THE WITNESS: And it's got an actual business on there?

MR. SMITH: Yeah.

THE WITNESS: You know, I'd like to believe that you got the right information. You know, I'd like to believe that -- that you're telling me that that's right. But, you know, I don't know if that's right or not. You can tell me anything. I'm supposed to agree to whatever you say?

MR. MURRAY: No.

THE WITNESS: You know --

MR. MURRAY: No.

THE WITNESS: -- if you want to give me the parcel numbers for these --

MR. SMITH: Well --

THE WITNESS: I'll go up and look.

MR. MURRAY: Well --

THE WITNESS: If they're at $1,930 an acre, I'll try to give you a reason why.

MR. SMITH: 1,978.65.

THE WITNESS: Okay.

MR. SMITH: You want me to give you that parcel number?

THE WITNESS: Write it on a piece of paper. I'm not going to run out and get it.

Q:: Well, part of this is to point out to you that there are some inequities, as far as we feel, because --

A:: Hey, you know what? I'll agree with you that not every parcel in this County is appraised accurately.

Q:: But we're --

A:: No question about it.

Q:: We're trying to show that our property, the valuation is excessive. That's the --

A:: Excessive -- ...

Q:: I want to also point out, Steve, that if -- if the transaction goes through, that there's going to be green space property acreage reserved that is going to be sold to First Interstate for $500 an acre.

We've already pointed out that this 7.3367 acre parcel, which is part of our 002, is a residential use; and we also wanted to point out that -- that this parcel here,... [Mr. Murray pointing to parcel 04-00-015-102-030] is commercial, is where the antique shop is situated; and that also is appraised for over 9,000 an acre.

A:: Any reason why you guys didn't bring this in when you got your tax bill and talk about it?

MR. SMITH: We did.

Q:: We did. We filed --

A:: Did you talk to -- not a complaint, but on an informal basis, say, hey, I got this tax bill that went way up. Can I come in and talk to you guys, why that happened? Did you come in and talk to me?

MR. SMITH: I didn't know who to talk to.

Q:: Frankly -- ...

A:: We have people that come in with properties like this all the time and say, you know, if -- if -- it's not going to be all commercial. We're going to have this put up, this put up, this put up. You know, I'd like to hear that.

Q:: See, part of the problem is that when you do come and say, as I did to the Auditor, I have a client here that has this and option's not been exercised ...

He said this to me: Do you know that you can file a complaint, and do you know that you can pay what the taxes, you know -- you can pay what you feel your property's valued at?

But, if you're wrong, then you're going to get assessed interest or penalty or interest or whatever.

So, on that basis, we went ahead and got our complaints out and filed our complaints ...

A:: I like -- I would like to be able to straighten them out before it gets to that.

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Q:: Okay. Steve, excuse me, but I did ask you to bring the 1997 and 1998 valuations of commercial property on the east side of -- on the east of State Rte. 83 in Avon; and you are not -- not able to give those to --

A:: I think -- there wasn't enough time in the day for me to do the amount of work that you requested and be able to do everything else that's been stacked up on my desk since the week I missed work.

Q:: But -- but you did realize that we were asking for that under a subpoena?

A:: Well, I don't know if it was a subpoena. If I knew that -- there was a letter. Does it say subpoena on it?

Q:: Well, the first one does, yes.

A:: The first -- there's another letter that says --

Q:: Mr. Stewart indicated that I didn't have to file a subpoena, that a letter would serve as a subpoena; and you would --

A:: I understand that, just to have me present. I didn't even know it was a subpoena for all these documents.

Q:: Can we -- can we still get the 1997 and 1998 valuations?

A:: If you give me the list of parcels, I would be glad to do that, but I don't know if I got the time or, you know, to research hundreds of parcels. It just doesn't happen ...

MR. MURRAY: You're talking about Detroit.

MR. SMITH: To the County line, which is probably maybe, at the most, five large commercial parcels.

A:: Then it should be easy to find those, right? You know, if you'd have given me a map that says -- you know, you got maps here. I never saw these maps. I mean, it's not that -- ...

Q:: But, Steve, the difference would be that this is a Board of Revision hearing and it's in answer to a subpoena. That's the difference.

A:: That's the first time ever that I've had to -- you know, that the documents like this -- ...

MR. TALAREK: Let me -- excuse me. I'm sorry. How many parcels are we talking about? ...

MR. SMITH: There are a few large parcels on the east side of 83 ... Discount Drug Mart ... 36.53 acres. ... -- your secretary [Pam McCartney] just brought up the valuations which exactly match the [1998] numbers I had.

THE WITNESS: Yeah.

MR. MURRAY: What's that?

MR. SMITH: $72,280.

THE WITNESS: That's the 35 percent?

MR. SMITH: That's the 35 percent.

THE WITNESS: That's appraised for $206,000.

MR. SMITH: I know. But I've been using ... 35 percent all the way through for everything here ... So, anyway, it comes out to $72,280 for land, right?

THE WITNESS: 35 percent, right.

MR. SMITH: And ... Divided by 36.53 [acres], which gives you $1,978.65 [per acre], so this is on a comparative basis ...

THE WITNESS: ... The front acreage can be very valuable. ... So, you know, it's hard to divide the value by the acreage ...

MR. SMITH: Well, of course, with our Parcel 002, the frontage is actually residential. So, therefore, it would have a lower value, right? But, yet, you came up with a value for all the acreage of $9,470.66 an acre ...

MR. MURRAY: Do you have anything else you want to ask him?

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MR. SMITH: See, the thing that puzzles me is that the lady who was here on the 15th said there was a general reevaluation of commercial property on the east side of State Rte. 83.

THE WITNESS: You know what, Joyce could be right. You know, I -- believe me, if I'm not aware of that, you know, there are areas where we say, this needs to be re-looked at because for years and years that was mis-appraised because it's been zoned commercial for years and we didn't know it, because we don't do zoning. We do land use ...

If it's used residentially in a commercially zoned area -- like I say, if grandma was living there, we appraise it as residential. Even though there's malls on both sides of her, she's held out. You know, you could play hard ball with her and -- but that's not what we try to do ...

BY MR. MURRAY:

Q:: Steve, excuse me. You do say that it's based upon use, and if grandma lives on a commercial property, it will be -- it will be appraised residentially?

A:: Until grandma puts a for sale sign up. Then that changes.

Q:: Our point is that the use of our property has not changed. We had a sign up for 30 years ...

A:: ... Maybe you got a break for 30 years.

Q:: But there were no sewers; and I'm just --

A:: I'm saying --

Q:: How can you use it if there are no sewers? That's the other thing that confounds us. No sewers, whereas --

A:: Is there a sewer there today?

Q:: No.

A:: Is the -- is the deal closed yet?

MR. SMITH: No.

Q:: No.

A:: When's it -- is there going to be sewers in before you close the deal?

Q:: No ... But getting back to our final point, and that is that we think that the valuation was premature. Nothing has changed in the last 30 years ...

A:: ... You guys have made a great case here, you know ...

MR. MURRAY: ... we are glad that you were brought into this today. ...

MS. McCARTNEY: Are you glad I'm here today?

MR. SMITH: Yes, we're glad you're here today. Thank you for bringing that [records for Discount Drug Mart parcel 027101046] up.

THE WITNESS: I'm thrilled to death I'm here.

MR. TALAREK: Steve is happy as can be.

(Deposition concluded.)

[Mr. Talarek then volunteered to look up the 1997 real estate tax valuations on selected parcels east of SR-83 in Avon. This data was submitted to the Board of Revision on 10-6-99.]

See Related Story

More Documents Relating to the June 8, 1998, Decision Against Avon

Newspaper Record of XXXXX/Jacobs in Avon

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