Deer Creek Developers, Ltd. v. Harrison Township Assessor

ATTORNEY FOR PETITIONER:
TIMOTHY J. VRANA
SHARPNACK, BIGLEY, DAVID & RUMPLE
Columbus, IN
 
ATTORNEYS FOR THE RESPONDENT:
STEVE CARTER
ATTORNEY GENERAL OF INDIANA
Indianapolis, IN
 
LINDA I. VILLEGAS
DEPUTY ATTORNEY GENERAL
Indianapolis, IN _____________________________________________________________________
     IN THE INDIANA TAX COURT _____________________________________________________________________

DEER CREEK DEVELOPERS, LTD., ) ) Petitioner, ) ) v. ) Cause No. 49T10-0209-TA-115 ) HARRISON TOWNSHIP ASSESSOR, ) ) Respondent. )                                     
 
ON APPEAL FROM A FINAL DETERMINATION
OF THE INDIANA BOARD OF TAX REVIEW
                                 _____
 
NOT FOR PUBLICATION
June 3, 2003
FISHER, J.
Deer Creek Developers, Ltd. (Deer Creek) appeals the final determination of the Indiana Board of Tax Review (Indiana Board) valuing its real property for the 1994 assessment. The sole issue for the Court to decide is whether the Indiana Board erred in assessing Deer Creek's storage facility under the General Commercial Mercantile (GCM) Supermarket model. For the reasons stated below, the Court REVERSES the Indiana Board's final determination.
FACTS AND PROCEDURAL HISTORY
Deer Creek owns a shopping center (the Center), located in Harrison County, Indiana. In an appeal filed with this Court, Deer Creek argued that for the 1994 assessment, its 10,440 square-foot storage area adjoining the supermarket of the Center had erroneously been assessed as "finished open" under the GCM Supermarket model. Subsequently, this Court held that based on the undisputed facts, the storage area should have been assessed as "unfinished." See Deer Creek Developers, Ltd. v. Dep't of Local Gov't Fin., 769 N.E.2d 259, 268 (Ind. Tax Ct. 2002). The Court remanded the case to the Indiana Board and ordered that Deer Creek's storage area be assessed as "unfinished." See id. On remand, the Harrison Township Assessor (Assessor) assessed the storage area as "unfinished" and subtracted $2.64 from the storage area's per-square-foot base rate under the GCM Supermarket model. Nevertheless, because the GCM Supermarket model does not provide for the "unfinished" finish type, Deer Creek again appealed the assessment to the Indiana Board, arguing that the Assessor should have changed the model to that of the GCM Utility/Storage, which does provide for the "unfinished" finish type.
On August 14, 2002, the Indiana Board issued a final determination denying Deer Creek relief. On September 26, 2002, Deer Creek initiated an original tax appeal. On May 29, 2003, the Court heard oral arguments. Additional facts will be supplied as needed.
ANALYSIS AND OPINION
Standard of Review
This Court gives great deference to final determinations of the Indiana Board when it acts within the scope of its authority. Wittenberg Lutheran Vill. Endowment Corp. v. Lake County Prop. Tax Assessment Bd. of Appeals, 782 N.E.2d 483, 486 (Ind. Tax Ct. 2003). Consequently, the Court will reverse a final determination of the Indiana Board only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory jurisdiction, authority, or limitations; without observance of procedure required by law; or unsupported by substantial or reliable evidence. Id. at 48687 (citing Ind. Code § 33-3-5-14.8(e)(1)(5) (Supp. 2001) (quotation marks omitted)). The burden of showing that the Indiana Board's action was invalid is on the party asserting the invalidity. Ind. Code § 33-3-5-14.8(b) (Supp. 2002).
Discussion
The sole issue is whether the Indiana Board acted arbitrarily and capriciously when it affirmed the Assessor's reassessment of Deer Creek's storage area. Deer Creek contends that because the GCM Supermarket model does not have an "unfinished" finish type, and because the Court ordered the storage area to be assessed as "unfinished," the model used to assess the storage area must be changed to the GCM Utility/Storage model, which includes an "unfinished" finish type. The Assessor, on the other hand, argues that this Court's order only required the storage area to be assessed as "unfinished"; it did not require a different model be used to assess the storage area.
Improvements in Indiana are assessed using generally descriptive models. See Ind. Admin. Code tit. 50, r. 2.1-4-7 (1992). The finish type is a component of a model's base cost and denotes the extent to which interior finish is included in that cost. Ind. Admin. Code tit. 50, r. 2.1-4-3(a) (1992). The GCM Supermarket model, which was used to assess Deer Creek's storage area, allows for "finished open" finish types, but does not allow for "unfinished" finish types. Ind. Admin. Code tit. 50, r. 2.1-4-5 (Sched. C) (1992). The "finished open" finish type for the GCM Supermarket model is broken down into the following interior finish values: $14.70 per linear foot for walls; $0.90 per square foot for floors; and $1.45 per square foot for ceilings. Id. The GCM Utility/Storage model, on the other hand, allows for the "unfinished" finish type only and assigns a zero dollar value to the interior finish of improvements assessed with this model. Id.
On remand, the Assessor changed the finish type of the storage area to "unfinished" but still used the GCM Supermarket model. The Assessor also subtracted $2.64 from the storage area's per-square-foot base price but provided no explanation as to why or how he arrived at the $2.64 reduction. With no explanation to support his calculation, it is impossible for this Court to determine whether there is a reasonable basis for itparticularly in light of the fact that there is no "unfinished" finish type for the GCM Supermarket model. See footnote As a result, the Indiana Board acted arbitrarily and capriciously when it affirmed the Assessor's action. Accordingly, the Court REVERSES the Indiana Board's final determination on this matter.See footnote
Conclusion
For the aforementioned reasons, the Court REVERSES the Indiana Board's final determination. The Court REMANDS this issue to the Indiana Board and ORDERS it to instruct the Assessor to assess Deer Creek's storage area as "unfinished" using the GCM Storage/Utility model.

Footnote: After oral arguments, Counsel for the Harrison Township Assessor (Assessor) submitted a supplemental pleading attempting to explain how the Assessor arrived at his calculation. Because this explanation was not reflected in the administrative record before the Court at the time of oral arguments, the Court will not consider it. See Hoogenboom-Nofziger v. State Bd. of Tax Comm'rs, 715 N.E.2d 1018, 1022 (Ind. Tax Ct. 1999) (stating that "the Court is bound by the evidence . . . raised at the administrative level").
Footnote: Additionally, the Court AFFIRMS its prior order that the cost for air conditioning be subtracted from the base cost for Deer Creek's storage area. See Deer Creek Developers, Ltd. v. Dep't of Local Gov't Fin., 769 N.E.2d 259, 268 (Ind. Tax Ct. 2002).