I fully concur with Judge Brogan's analysis and opinion as I believe the statute and the facts before us compel the result reached. However, a further comment is appropriate in view of that result.
Section 36, Article II of the Ohio Constitution states that "laws may be passed to provide that land devoted exclusively toagricultural use be valued for real property tax purposes at the current value such land has for such agricultural use." (Emphasis added.) The provision was intended "to give relief to farmers whose land was slowly being engulfed by commercial land through the growth of towns and cities and who were being driven out of business by the soaring real property taxes attendant upon revaluation of their property under the ``highest and best use' rule." Bd. of Edn. v. Bd. of Revision (1979), 57 Ohio St.2d 62,66, 11 O.O.3d 220, 222, 386 N.E.2d 1113, 1116, fn. 4.
Under a test for exclusive use, an owner may be denied the exemption when any portion of his entire tract, parcel, or lot includes a purpose inconsistent with devotion of the entire tract to agricultural use. See Ohio Atty. Gen. Ops. Nos. 77-020 and 84-017. R.C. 5713.31 rejects this test and applies the agricultural use exemption to "lots, parcels, or tracts of land, or portions thereof, * * * that have been valued at the current value of such land for agricultural use in the preceding tax year." (Emphasis added.) The statute thus creates a type of grandfather provision for portions of tracts and preserves the tax exemption for the last corner of an owner's land on which an agricultural use is maintained. While this result protects those who wish to continue to farm, it also benefits other owners who convert substantial parts of their land to nonagricultural uses. That result is inconsistent with the exclusive use contemplated by Section 36, Article II, and unfairly benefits an owner while he holds ever-diminishing parts of his former agricultural land for the best price available for other uses.
The 5.16 acres owned by appellee is located at one of the busiest and most highly developed intersections of Montgomery County. The owner has already permitted a bank, a restaurant, and a nursery store and parking lot to be erected on 1.9 acres of his tract. Appellant advises that the taxable value of the remaining 3.2 acres without the exemption would be $158,480, while the
taxable value of the property with the exemption is $740. The unfairness to appellee's neighbors, and to its competitors who do not enjoy the exemption, is manifest.
The legislature should address seriously whether R.C.5731.31, in its current form, continues to serve the purposes of Section 36, Article II of the Ohio Constitution.