I was interviewed for a story on the local NPR station in Cleveland about a Northeast Ohio company that nearly went bankrupt because of confusion over Ohio's brownfield tax abatement law. The title of the story was "How a Poorly Worded Tax Rule Nearly Bankrupted Ohio's Oldest Company." Listen to the whole story by clicking here.
After reviewing the issue in preparation for the interview, it became readily apparent this was a law in serious need of a re-write. A company's future shouldn't hinge on a vague tax exemption law. I also learned that it was probably time to revisit some of the policy decisions made when writing the brownfield tax exemption law.
Background: Taylor Companies was debating whether to move out of Ohio. It decided to remain in Ohio, in part, due to incentives it would receive for building on a brownfield site. The principle incentive being a 10 year tax exemption for the increase in value of the property post-clean up. Here are some excerpts from the story on NPR:
The abatement was 87% less than what he expected. See, Taylor’s lawyers interpreted the state statute to mean that the tax exemption would cover the increase in value from before they did any clean-up to the new value after the company built and moved into its nice new building on what had been a brownfield. But Shelley Wilson of the Ohio Department of Taxation says they were wrong...
Instead of comparing the value of the land from its polluted days to its clean state…which seems most logical, tax officials compare the value of the land from one year before the tax abatement to its value after the improvements were made. The problem is that cleaning up the land and constructing a building may take longer than that narrow one-year time-frame. In Taylor’s case, he had already made most of the improvements by the time the tax commissioner made his assessment of the change in the land’s value. Shelley Wilson of the office of taxation concedes Taylor’s reading of the statute was probably the intent of the law.
Basically, the Ohio Department of Taxation responded to the controversy by saying- it may be the intent of the law to compare value pre-clean up to post-clean up, but that is not how the Ohio Legislature wrote the law.
At issue is the statutory provision set forth in R.C. 5709.87 "Exempting increase in assessed value of realty cleaned of contamination." The key language is as follows:
(C)(1)(a) Upon receipt by the tax commissioner of a certification for property under division (B) of this section, the commissioner shall issue an order granting an exemption from real property taxation of the increase in the assessed value of land constituting property that is described in the certification, and of the increase in the assessed value of improvements, buildings, fixtures, and structures situated on that land at the time the order is issued as indicated on the current tax lists.
The Ohio Department of Taxation looked at the bolded language and determined the valuation comes from when the tax exemption order was issued, rather than looking back at the value of prior to when clean up commenced. Triggering the exemption based on when an order is issued by Taxation really puts the squeeze on businesses redeveloping brownfield properties. Unless they time everything perfectly, they can lose out on potentially millions in tax abatement. (see example below)
The Department states this interpretation is supported by a decision issued by the Ohio Supreme Court- Columbus City School District v. Wilkens. Here is how Ohio EPA describes the process in its guidance document dealing with the brownfield tax exemption:
For example, if the covenant not to sue is issued by Ohio EPA in September, 2007, and the Tax Commissioner issues the tax exemption order in October, 2007, the property tax exemption granted will be for the increase in value of the land and buildings on the property from the value of the property as of January 1, 2006, the tax lien date for tax year 2006. Since real property taxes are collected a year in arrears (i.e., the 2006 taxes are based on a value as of January 1, 2006, but collected in 2007), the 2006 tax list would be the most current list available for the Tax Commissioner’s October 2007 exemption order. The tax exemption would begin for tax year 2007 which would affect taxes collected in 2008.
Even if businesses line up things in the right way, they are still dependent on two government agencies- Ohio EPA and the Ohio Department of Taxation- acting on a timely basis. One Cincinnati company lost out on a potential tax exemption on a $4 million dollar increase in the value of its property simply because paperwork was not issued by the government agencies in a timely fashion. See, Hamilton Brownfields Redevelopment LLC v. Zaino, Tax Commissioner of Ohio. In that case the Board of Tax Appeals states:
"The General Assembly has mandated the exemption period begin in the year in which the order is issued. The statute provides no latitude to consider or alter the commencement of the exemption."
It is time to fix the language in the tax exemption statute. The entire purpose of the tax abatement law is to provide an incentive to clean up brownfield sites. If we want to encourage redevelopment of brownfields versus building on greenfield sites, incentives must be significant and effective to overcome the increased costs of building on brownfield sites.
The best fix would be to simply take the tax valuation of the property that was issued immediately before the clean up was commenced (a date identified in the papers filed with Ohio EPA) and compare it to the valuation after clean up is completed.
New Construction- In or out?
The commencement of the tax exemption is not the only flaw in this law. There is also confusion regarding the extent of the tax exemption as it applies to new construction. As noted in Ohio EPA's guidance document:
The Department of Taxation interprets the exemption granted under ORC 5709.87 as limited to the increase in value of the land and the existing buildings on the NFA property, and not of new structures constructed at the NFA property.
Taxation has made it even a bit more complicated than simply limiting it to existing buildings at the property. Taxation has gone on to limit improvements to existing buildings that were not features of the building prior to the clean up. For example,
- If you replace an old swimming pool with a new swimming pool, the increased value attributable to the new pool is exempt.
- However, if the building never had a swimming pool, it would be considered a new improvement and not exempt.
(See, Seven Seventeen HB Philadelphia v. Franklin County Board of Revision)
Unfortunately, Ohio is blessed with thousands of brownfield sites. If we are going direct development towards these sites, we need strong incentives. Costs of cleaning up a brownfield can run into the millions of dollars.
Is it really good policy to restrict the tax exemption in such a fashion?
We also need the law to be clear on its face. Lets hope the last part of the NPR story is correct and the Ohio Legislature takes up fixing the brownfield tax exemption law soon.
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The Clean Ohio Council awarded half the available funds for brownfield redevelopment for fiscal year 2012 two weeks ago. As discussed in prior posts, available funding is running out in the next few months.
Under the VAP rules, current and "reasonably anticipated" exposure pathways must be addressed through a remedy. The remedy can be clean up of soil contamination, groundwater treatment, engineering controls or use restrictions. 
One of the issues that can complicate a clean up is if multiple environmental regulatory programs apply to the site. Even the same type of contamination may be required to be addressed under different programs and different processes.
In working on brownfield redevelopment projects, I find that addressing old underground storage tanks (USTs) or hazardous waste (RCRA) units can be one of the trickiest issues to address.
The Ohio Department of Development working with the Ohio Water Development Authority (OWDA) has released their policies for use of the revamped 
The Ohio House has introduced a bill that would provide a tax incentive to clean up contaminated properties. 
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In May 2010, 