[Cite as The Chapel v. Testa, 129 Ohio St.3d 21, 2011-Ohio-545.] 

THE CHAPEL, APPELLANT, v. TESTA, TAX COMMR., APPELLEE. 

[Cite as The Chapel v. Testa, 129 Ohio St.3d 21, 2011-Ohio-545.] 

Real property tax — Charitable-use exemption — R.C. 5709.12 — Holding land 

open to public for recreational use — Religious motivation not 

incompatible with charitable-use exemption. 

(No. 2010-0562 — Submitted February 2, 2011 — Decided February 10, 2011.) 

APPEAL from the Board of Tax Appeals, No. 2007-V-2. 

__________________ 

Per Curiam. 

{¶ 1} This is an appeal from a decision of the Board of Tax Appeals 

(“BTA”) in a real-property-tax-exemption case. Appellant, The Chapel, is a 

nonprofit corporation organized in 1953 that operates two churches: the older 

church at 35 Fir Hill Avenue in Akron and a newer one in the city of Green, south 

of Akron, built on property that was acquired in 2000 and 2001. The latter church 

and its surrounding acreage are the subject of The Chapel’s exemption 

application, which relied partly on the house-of-public-worship exemption at R.C. 

5709.07(A) and partly on the charitable-use exemption at R.C. 5709.12(B). The 

tax commissioner granted the portion of the application relating to the “house of 

public worship” pursuant to R.C. 5709.07(A)(2) and denied exemption to the 

remainder of the property. On appeal, the BTA affirmed the commissioner’s 

determination and modified the dividing line between taxable and exempt 

portions of the church-owned tract. 

{¶ 2} Specifically at issue in The Chapel’s appeal to this court is land 

improved for and devoted to recreational activities in which the general public 

participates. The BTA affirmed the commissioner’s denial of exemption for this 

land based on its finding that the use of the land was ancillary to the public 
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worship performed on the parcel that the commissioner held exempt pursuant to 

R.C. 5709.07(A). On appeal, The Chapel renews its contention that the 

recreational land should be split-listed and exempted under R.C. 5709.12(B) 

because holding the land open to the public for recreation constitutes a charitable 

use of real property. We agree, and we therefore reverse. 

Facts 

{¶ 3} Founded in 1934, The Chapel established itself as a nonprofit 

corporation in 1953 and holds certification as a tax-exempt entity pursuant to 

Section 501(c)(3) of the Internal Revenue Code. It moved its worship services to 

35 Fir Hill Avenue in Akron in 1953, and after many years of expanding its 

congregation and activities, The Chapel decided to open a second church. In 

2000 and 2001, it acquired property in the city of Green south of Akron for that 

purpose. That acquisition encompassed 79.8389 acres. 

{¶ 4} The Chapel then built a large church building with classrooms on 

part of the property in 2001. The original site plan prepared in 2000 indicates 

areas to be devoted to recreation, which currently include two softball diamonds, 

a soccer field, and a jogging path that follows the circumference of the property. 

The playing fields were developed some time after construction of the church 

building. The jogging path was available for use in the fall or late summer of 

2005. The recreational facilities were generally usable as of 2006. Although one 

area is intended to be developed into a ball field, it had not been developed as of 

the July 9, 2008 hearing before the BTA, because The Chapel was waiting for the 

settling of newly graded ground. 

{¶ 5} The Chapel views itself as conducting a sports ministry in 

connection with the recreational portions of the property and holds 14 events, 

including church-sponsored soccer teams and flag football games. Most of the 

participants in those events are community members who are not congregants of 

The Chapel. 
January Term, 2011 

3 

{¶ 6} The city of Green also has sports leagues that use the property. 

FedEx and Chick-Fil-A conduct company events on the fields. During the 

summer months, the church stages a day camp called Straight Street for children 

age six through eighth grade with several hundred participants. The jogging path 

is used by the general public without restriction. An estimated 3,000 people 

participated in activities on the recreational property (including use of the jogging 

path) in 2008, most of whom were not congregants of The Chapel. 

{¶ 7} The Chapel had paid all costs to develop and maintain the property 

but did not charge the public to use the recreational facilities. In the church’s 

softball league a $25 registration fee is required for uniforms and umpire fees. 

The property does not generate income for the church. The mayor of the city of 

Green testified that the city itself benefited because the church developed and 

made the property available for public use, thereby providing public recreational 

facilities that the city would otherwise have to pay for itself. 

{¶ 8} On December 30, 2002, The Chapel filed an application that 

sought to exempt three parcels that total 78.8963 acres. The application asked for 

an exemption of 57.9768 acres under R.C. 5709.07 as land associated with a 

house of public worship and sought exemption for another 20.9195 acres under 

R.C. 5709.12 as land used exclusively for a charitable use. In his final 

determination, the commissioner granted the exemption to part of the property 

pursuant to R.C. 5709.07(A)(2), but held that the recreational portion of the 

property did not qualify for a charitable-use exemption under R.C. 5709.12(B). 

The Chapel appealed, and the BTA affirmed the denial of the exemption to the 

recreational property. 

Analysis 

{¶ 9} When a BTA decision is appealed, this court looks to see if that 

decision was “reasonable and lawful.” R.C. 5717.04. Under this standard, we 

acknowledge that “ ‘[t]he BTA is responsible for determining factual issues and, 
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if the record contains reliable and probative support for these BTA 

determinations,’ ” we will affirm them. Satullo v. Wilkins, 111 Ohio St.3d 399, 

2006-Ohio-5856, 856 N.E.2d 954, ¶ 14, quoting Am. Natl. Can Co. v. Tracy

(1995), 72 Ohio St.3d 150, 152, 648 N.E.2d 483. On the other hand, we “ ‘will 

not hesitate to reverse a BTA decision that is based on an incorrect legal 

conclusion.’ ” Id., quoting Gahanna-Jefferson Local School Dist. Bd. of Edn. v. 

Zaino (2001), 93 Ohio St.3d 231, 232, 754 N.E.2d 789. 

{¶ 10} In the present case, the commissioner found that the primary use of 

the recreational property was by the public, not by The Chapel itself. The BTA 

did not disturb that factual finding, and it is supported by the record. We must 

therefore determine whether the property is exempt under R.C. 5709.12(B) in 

light of that finding. Our review of this question of law is not deferential but de 

novo. Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128 Ohio St.3d 

145, 2010-Ohio-5035, 942 n.E.2d 1042, ¶ 10. 

Under R.C. 5709.12(B), property owned by an institution that is accessible 

without charge to the public for recreational use is exempt 

{¶ 11} Under R.C. 5709.12(B), “[r]eal and tangible personal property 

belonging to institutions that is used exclusively for charitable purposes shall be 

exempt from taxation * * *.” In Highland Park Owners, Inc. v. Tracy (1994), 71 

Ohio St.3d 405, 644 N.E.2d 284, we held that to qualify for exemption under R.C. 

5709.12(B), the property must belong to an institution and be used exclusively for 

charitable purposes. Id. at 406. 

{¶ 12} It is undisputed that The Chapel qualifies as an “institution” for 

purposes of R.C. 5709.12(B). Nor is there dispute concerning the commissioner’s 

decision to grant the house-of-public-worship exemption under R.C. 

5709.07(A)(2) to approximately 57 acres of The Chapel’s contiguous parcels. 

{¶ 13} We have held that making property accessible to institution 

members and to the general public for recreational purposes without charge is a 
January Term, 2011 

5 

charitable use of property. Highland Park Owners at 407. According to the 

commissioner’s final determination in this case, the evidence shows that “the 

primary users of the recreation fields are outside parties, including independent 

sports leagues, baseball clinics, cycling clubs and youth sports programs 

conducted through the City of Green. Additionally, the applicant allows the 

public to use its walking and jogging trails.”1

 This factual finding describes a 

charitable use of property under Highland Park Owners. Because The Chapel is 

incontestably an institution, the commissioner’s own factual findings compel the 

conclusion that the property is exempt under Highland Park Owners. 

{¶ 14} Against this straightforward reasoning, the commissioner denied 

the exemption on the grounds that “merely holding the property open to the public 

and allowing various third parties to use it” is not a charitable use and “does not 

qualify [the property] for exemption under R.C. 5709.12.” The passage is a 

clear error of law under Highland Park Owners. 

{¶ 15} However, once his determination had been appealed to the BTA, 

the commissioner took a different tack by arguing that The Chapel “should be 

precluded from seeking exemption under R.C. 5709.12(B) [the charitable-use 

exemption] for property that would not otherwise qualify under R.C. 

5709.07(A)(2) [the public-worship exemption].” The Chapel v. Levin (Mar. 2, 

2010), BTA No. 2007-V-2, at 11. The BTA concluded that the commissioner had 

properly denied the exemption because the “recreational fields and jogging path 

are ancillary to appellant’s primary use for public worship” of the contiguous 

 

1. At oral argument the commissioner’s counsel suggested that the evidence at the BTA showed a 

division of use “about half” between recreational activities organized by The Chapel (which are 

aimed at involving the general public) and direct public use of the facilities. But the distinction 

plainly does not matter under the commissioner’s analysis, because making the property available 

for public use cannot, in the commissioner’s view, qualify the property for exemption so long as 

the “overarching” or primary purpose in doing so is to support The Chapel’s mission of spreading 

the Christian faith. 
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parcels owned by The Chapel. Id. at 13. Both the commissioner’s argument and 

the BTA’s decision are predicated on a misreading of the case law. 

Neither church ownership nor religious motivations defeat a claim of 

exemption for charitable use under R.C. 5709.12(B) 

{¶ 16} As already noted, the commissioner’s finding leads to the 

conclusion that the property is exempt pursuant to Highland Park Owners. 

Nonetheless, the BTA denied exemption because the property use was “ancillary” 

to the church’s public-worship use of adjacent acreage. The commissioner 

defends the BTA’s decision by arguing that church ownership and the church’s 

motivation to use its property in accordance with its faith-based sense of mission 

are consequential elements of the exemption claim. 

{¶ 17} The case law establishes that they are not. To be sure, we have 

stated that “uses which are merely supportive of public worship may not be 

exempted.” Faith Fellowship Ministries, Inc. v. Limbach (1987), 32 Ohio St.3d 

432, 436, 513 N.E.2d 1340; accord Moraine Hts. Baptist Church v. Kinney

(1984), 12 Ohio St.3d 134, 137, 12 OBR 174, 465 N.E.2d 1281. But that 

statement occurs only in the context of a claim of exemption under R.C. 

5709.07(A)(2), which exempts “[h]ouses used exclusively for public worship * * 

* and the ground attached to them that is not leased or otherwise used with a view 

to profit and that is necessary for their property occupancy, use, and enjoyment.” 

{¶ 18} “[M]erely supportive of public worship” characterizes land use that 

is not sufficiently linked by necessity to public worship and therefore does not 

qualify the land for the house-of-public-worship exemption under R.C. 

5709.07(A)(2). We have never employed that phrase to deny a charitable-use 

exemption where, as in this case, the use is of a kind that has already been held to 

constitute an exempt use under R.C. 5709.12(B). Quite simply, the fact that a 

church is the institution that owns property and that puts it to an established 
January Term, 2011 

7 

charitable use is usually irrelevant to a claim for exemption under R.C. 

5709.12(B). 

{¶ 19} Indeed, our recent cases have insisted that religious ownership and 

motives are not inimical to a charitable-use claim. In True Christianity 

Evangelism v. Tracy (1999), 87 Ohio St.3d 48, 716 N.E.2d 1154, we addressed a 

claim of exemption under R.C. 5709.12(B) with respect to a house used as an 

office for preparing tracts involving religious and spiritual themes that were 

distributed free of charge at various events. The BTA had affirmed the 

commissioner’s denial of the charitable-use exemption on the grounds that 

“appellant’s purpose is religious rather than charitable.” True Christianity 

Evangelism v. Tracy (Sept. 25, 1998), BTA No. 96-K-904, 1998 WL 683022, at 

*3. We reversed, holding that the BTA “went astray” when it predicated the 

denial of exemption on the appellant’s “purpose * * * to disseminate a religious 

message.” True Christianity, 87 Ohio St.3d at 51, 716 N.E.2d 1154. We rejected 

the BTA’s decision in light of the well-settled principle that an “institution need 

not be charitable to be eligible for exemption under R.C. 5709.12(B)” and that “ 

‘any institution, irrespective of its charitable or noncharitable character, may take 

advantage of a tax exemption if it is making exclusive charitable use of the 

property.’ [Emphasis sic.]” Id. at 51 and 50, quoting White Cross Hosp. Assn. v. 

Bd. of Tax Appeals (1974), 38 Ohio St.2d 199, 203, 67 O.O.2d 224, 311 N.E.2d 

862 (Stern, J., concurring). 

{¶ 20} On remand, the BTA acknowledged that “aspects of [the 

organization’s president’s] activities, and those of the institutions with which he is 

associated, may arguably be considered charitable in nature,” but nonetheless 

denied exemption because “the primary use to which the property is devoted is an 

evangelistic one.” True Christianity Evangelism v. Tracy (Jan. 14, 2000), BTA 

No. 96-K-904, 2000 WL 31781, at *2. Again we reversed. True Christianity 

Evangelism (2001), 91 Ohio St.3d 117, 742 N.E.2d 638. Because the case law 
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established that the “ ‘dissemination of useful information to benefit mankind is, 

traditionally, charity,’ ” and because the “information disseminated by appellant 

attempts to encourage people to read the Bible and to live up to its moral 

standards,” the use of the property qualified as charitable under R.C. 5709.12(B). 

Id. at 120, quoting Herb Soc. of Am., Inc. v. Tracy (1994), 71 Ohio St.3d 374, 

376, 643 N.E.2d 1132. 

{¶ 21} Taken together, our two decisions in True Christianity establish 

that religious institutions may not be discriminated against in the consideration of 

a claim for exemption under R.C. 5709.12(B). Namely, if the use to which 

property is put otherwise qualifies as charitable, neither the fact of ownership by a 

religious organization nor the existence of religious motives in connection with 

the charitable use will defeat the claim of exemption. See also First Baptist 

Church of Milford, Inc. v. Wilkins, 110 Ohio St.3d 496, 2006-Ohio-4966, 854 

N.E.2d 494, ¶ 17 (“Ownership by a religious institution does not disqualify 

property from being considered for exemption under R.C. 5709.12”); NBC-USA 

Hous., Inc.—Five v. Levin, 125 Ohio St.3d 394, 2010-Ohio-1553, 928 N.E.2d 

715, ¶ 17 (under R.C. 5709.12(B), “we have emphasized that the entitlement of a 

particular parcel to exemption depends on the use of the property, not the nature 

of the institution”). Indeed, in our recent decision in Church of God in N. Ohio v. 

Levin, 124 Ohio St.3d 36, 2009-Ohio-5939, 918 N.E.2d 981, ¶ 32, the majority 

opinion emphasized that a church “would stand on equal footing with any other 

institution in applying to exempt” property devoted to an activity that “actually 

constitutes charitable use.” 

{¶ 22} Given the reassertion of the True Christianity doctrine in Church 

of God, the commissioner’s attempted reliance on the latter case is anomalous. 

The commissioner charges that The Chapel has “strategically postured its claim” 

so as to avoid the limitations imposed with respect to R.C. 5709.07(A)(2). But 

unlike the applicant in Church of God, The Chapel actually puts the property at 
January Term, 2011 

9 

issue to a use that has been established to be charitable in other contexts. By 

contrast, the applicant in Church of God attempted to establish its claim of 

exemption by arguing that the administrative use of the building (not a charitable 

use in itself) was ancillary to another activity that was charitable: the publicworship activity of the denomination’s local congregations. In rejecting the 

exemption claim in Church of God, we held that public worship does not by itself 

constitute a charitable use. We predicated our holding on the longstanding 

distinction between the public-worship and charitable-use exemptions, as well as 

the doctrine that the limitations on the public-worship exemption ought not to be 

evaded by an expansive construction of the charitable-use exemption. Church of 

God, 124 Ohio St.3d 36, 2009-Ohio-5939, 918 N.E.2d 981, ¶ 26-30. 

{¶ 23} The exemption claim in this case is the opposite of what we 

confronted in Church of God. Here the applicant argues not that the property’s 

use is exempt by being ancillary to activities conducted elsewhere, but that the 

very activity on the property itself entitles it to exemption. And unlike the 

claimant in Church of God, The Chapel does not seek to expand the scope of the 

charitable-use exemption; it asks only to be granted the same exemption that any 

nonreligious entity would plainly qualify for pursuant to Highland Park Owners, 

71 Ohio St.3d 405, 644 N.E.2d 284. Because the denial of the exemption claim 

by the commissioner and the BTA rests upon legal error, the BTA’s decision must 

be reversed. 

The tax commissioner has waived his objections to The Chapel’s 

prospective-use argument, and the case will be remanded to the BTA 

{¶ 24} Reversing the decision below requires us to consider two 

additional matters. 

{¶ 25} First, the BTA acknowledged that it did not “reach the question of 

whether or not the contested acreage was used for an exempt purpose on January 

1 of the year for which exemption was requested, as the law requires.” The 
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Chapel v. Levin (Mar. 2, 2010), BTA No. 2007-V-2, at 1, fn. 1. As a general 

matter, the claimant must bear the burden to show that it meets the statutory 

prerequisites for the tax exemption or reduction. Key Servs. Corp. v. Zaino

(2002), 95 Ohio St.3d 11, 15-16, 764 N.E.2d 1015; accord Anderson/Maltbie 

Partnership v. Levin, 127 Ohio St.3d 178, 2010-Ohio-4904, 937 N.E.2d 547, ¶ 16, 

quoting Ares, Inc. v. Limbach (1990), 51 Ohio St.3d 102, 104, 554 N.E.2d 1310 

(in an exemption case “the onus is on the taxpayer to show that the language of 

the statute ‘clearly express[es] the exemption’ in relation to the facts of the 

claim”). 

{¶ 26} On the other hand, the commissioner’s final determination in this 

case did not make any findings concerning the relationship between the tax-lien 

date and when recreational use was intended or actually begun. The 

commissioner did not state that the time lapse constituted a ground for denying 

the exemption, nor did the commissioner mention the issue in his brief at the 

BTA. The latter omission is especially significant in light of the fact that The 

Chapel argued its entitlement under the prospective-use doctrine to the BTA.2

 

Moreover, we have observed that when the commissioner fails to raise a 

particular issue in a BTA brief, the BTA can reasonably conclude that the issue 

has been waived. See HealthSouth Corp. v. Levin, 121 Ohio St.3d 282, 2009-

Ohio-584, 903 N.E.2d 1179, ¶ 18, fn. 2. 

{¶ 27} Under all these circumstances, we hold that the commissioner has 

waived any reliance on arguments that the recreational use started at a later date 

than that requested in the exemption application. Once the commissioner’s final 

 

2. The commissioner’s counsel stated at oral argument that The Chapel mentioned prospective 

use for the first time in the reply brief at the court. That is mistaken. At page 18 in its brief before 

the BTA, The Chapel cited Episcopal School of Cincinnati v. Levin, 117 Ohio St.3d 412, 2008-

Ohio-939, 884 N.E.2d 561, and argued that the evidence showed that the prospective-use test was 

satisfied. 
January Term, 2011 

11 

determination omitted to address the issue as a ground for denying the exemption, 

that official incurred the burden to timely notify The Chapel that it must prove the 

existence of a previously unaddressed element of the exemption claim. Cf. Key 

Servs. Corp., 95 Ohio St.3d at 16, 764 N.E.2d 1015 (BTA could not refuse to 

consider elements of a tax-reduction claim where during the BTA appeal “the 

commissioner wanted to show that Key did not provide the services eligible for a 

refund under R.C. 5739.071” and “attempted to inquire into the facts to support 

his decision to deny the refund”). 3

 By omitting any mention of the issue in its 

BTA brief, the commissioner failed to give notice and thereby waived the 

argument. 

{¶ 28} As a result of his omissions the commissioner, not The Chapel, is 

bound by waiver. On remand, the exemption will be granted with respect to the 

recreational acreage as of the tax-lien date to which the original exemption 

application relates.4

 

3. At oral argument, the commissioner took the position that the tax-lien-date issue was 

jurisdictional and could not be waived. Apparently the commissioner relies on Sylvania Church of 

God v. Levin, 118 Ohio St.3d 260, 2008-Ohio-2448, 888 N.E.2d 408, in which we affirmed a 

decision of the BTA that upheld the commissioner’s denial of an exemption on the grounds that he 

lacked jurisdiction because the applicant neither owned nor used the property on the lien date. Id. 

at ¶ 9. That case is not apposite, because the focus in that case was ownership on the lien date, not 

use. See Sylvania Church of God v. Wilkins (May 4, 2007), BTA No. 2006-B-48, at 1, 4, 2007 

WL 1366327, affirmed, 118 Ohio St.3d 260, 2008-Ohio-2448, 888 N.E.2d 408. We have held that 

the applicant’s status as owner constitutes a jurisdictional prerequisite to filing an exemption 

claim. See Performing Arts School of Metro. Toledo, Inc. v. Wilkins, 104 Ohio St.3d 284, 2004-

Ohio-6389, 819 N.E.2d 649. By contrast, we are not aware of any case that has held that the issue 

of the use of property on the lien date poses a jurisdictional question. To the contrary: the issue of 

how the property is used on the tax-lien date is a substantive issue that constitutes part of the 

merits of the exemption claim. Accordingly, issues relating to that use can be waived. 

4. The application seeks exemption for three parcels for tax year 2002, with a tax-lien date of 

January 1, 2002. Remission is sought for two of the three parcels for tax years 2001 and 2000, 

and The Chapel did not seek additional remission beyond this. On remand, the BTA may furnish 

whatever additional clarification may be necessary concerning the amount of remission that 

pertains to the recreational acreage. 
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{¶ 29} The second remaining issue is that of the precise metes and bounds 

of the recreational acreage. The BTA concluded its decision with an extensive 

discussion of how to draw the line between taxable and exempt portions of The 

Chapel’s property. Based on its analysis and representations by the parties, the 

BTA stated that it would “treat the recreational areas as 18.6795 acres” but had no 

need to further delineate the acreage. We hold that 18.6795 acres are subject to 

exemption based on recreational use by the public, and we remand to the BTA to 

effectuate that holding. On remand, the BTA will have jurisdiction to perform 

whatever further delineation of the exempt acreage may be necessary. 

Conclusion 

{¶ 30} For the foregoing reasons, the BTA acted unreasonably and 

unlawfully when it affirmed the denial of The Chapel’s claim for charitable-use 

exemption. We therefore reverse the decision of the BTA and remand for further 

proceedings. 

Decision reversed 

and cause remanded. 

 O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. 

__________________ 

 Leiby, Hanna, Rasnick, Towne & Evanchan and Stephen P. Leiby, for 

appellant. 

 Michael DeWine, Attorney General, and Ryan P. O’Rourke and Sophia 

Hussain, Assistant Attorneys General, for appellee. 

______________________