ATTORNEY FOR PETITIONER:    ATTORNEYS FOR RESPONDENT:
JOSEPH D. GEESLIN, JR.    STEVE CARTER
Attorney at Law    ATTORNEY GENERAL OF INDIANA
Indianapolis, IN     Indianapolis, IN

     JOEL SCHIFF
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN
_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

EASTGATE ASSOCIATES,                                                                  ) 
                                                                                           )
    Petitioner,                                                                            )
                                                                                           )
    v.                                                                                     )   Cause Nos.    49T10-9611-TA-171
                                                                                           )            49T10-9611-TA-173
STATE BOARD OF TAX COMMISSIONERS,                                                          )
COMMISSIONERS, PEGGY BOEHM,                                                                )
Chairperson, WANDA K. WATTS, Member,                                                       )
GORDON E. MCINTYRE, Member,                                                                )
                                                                                           )
    Respondents.                                                                           )    
_____________________________________________________________________

ON APPEAL FROM FINAL DETERMINATIONS OF THE
STATE BOARD OF TAX COMMISSIONERS


NOT FOR PUBLICATION


March 6, 2001


FISHER, J.
    Petitioner Eastgate Associates (Eastgate) challenges the State Board of Tax Commissioners’ (State Board) assessed values for two of its parcels as of the March 1, 1989 assessment date and for one of its parcels as of the March 1, 1992 assessment date. Eastgate asserts that the State Board misapplied the 1989 Marion County Land Valuation Order (Land Order) in assessing the parcels. The sole issue before the Court is whether the State Board erroneously classified the parcels at issue under the Land Order and thereby assigned excessive base values to the contested parcels for the tax years under review.
FACTS AND PROCEDURAL HISTORY

    This original tax appeal involves two parcels of land in Warren Township of Marion County, Indiana: parcel numbers 7022779 (Main Parcel) and 7034285 (Out-Lot Parcel). These parcels are located along Shadeland Avenue. Eastgate owns the Eastgate Consumer Mall (Mall), which is located on the Main Parcel. The Out-Lot Parcel is adjacent to the Main Parcel and located just west of the Mall, between the Mall and Shadeland Avenue. The Marion County Board of Review (BOR) fixed the Main Parcel’s value at $1,492,900 as of the March 1, 1989 assessment date. On April 27, 1990, Eastgate filed a Form 131 Petition for Review with the county auditor, which the State Board received on May 14, 1990. The State Board conducted a hearing on this petition on April 27, 1994. The State Board issued no final determination on Eastgate’s petition. Therefore, Eastgate filed an original tax appeal with the Tax Court on November 25, 1996, pursuant to Ind. Code Ann. § 6-1.1-15-4(e) (West 1989) (amended 1993, 1995 & 1997). See footnote This appeal was assigned Cause No. 49T10-9611-TA-171 (Case 171).
    On April 27, 1990, Eastgate also filed a Form 131 Petition for Review challenging the BOR’s assessment of the Out-Lot Parcel, which it had valued at $34,970 for the March 1, 1989 assessment date. The State Board conducted a hearing on this petition on April 4, 1994. On October 16, 1996, the State Board issued a Final Determination, stating in part:
Upon visual inspection of the subject parcel and in consideration of 50 IAC 2.1-4-2(f), it is determined [that] the land is classified correctly[.] The base rates used to price the land are in accordance with the base rates established in the Marion County Land Valuation Order. The petitioner failed to submit specific evidence to show how the base rate of the land is excessive. No change is made as a result of this issue.

(Resp’t Ex. 3, Final Determination at 2.)
    On February 24, 1995, Eastgate filed a Form 131 Petition for Review challenging the BOR’s assessed value of $1,536,830 for the Main Parcel as of the March 1, 1992 assessment date.See footnote At some point, the State Board conducted an administrative hearing on this petition and issued a Final Determination.See footnote (Trial Tr. at 14-16, 34.) Therefore, on November 25, 1996, Eastgate filed a second original tax appeal with this Court, appealing the Final Determinations of the Out-Lot Parcel as of March 1, 1989 and the Main Parcel as of March 1, 1992. This second petition was assigned Cause No. 49T10-9611-TA-173 (Case 173).
    Per Eastgate’s request and the State Board’s agreement, the Court has treated Cases 171 and 173 as a consolidated case. The Court conducted a trial in this matter on January 25, 2000. At trial, the State Board moved to remand this consolidated case, contending that the record was incomplete. (Trial Tr. at 3.) The Court took the motion under advisement. (Trial Tr. at 6.) After hearing testimony and receiving evidence, the Court gave each party an opportunity to file a brief. Neither party elected to submit a brief. The Court took the case under advisement on March 14, 2000. Additional facts will be supplied where necessary.

ANALYSIS AND OPINION
Standard of Review

    The Court gives great deference to the State Board’s final determinations when the State Board acts within the scope of its authority. Wetzel Enters., Inc. v. State Bd. of Tax Comm’rs, 694 N.E.2d 1259, 1261 (Ind. Tax Ct. 1998). Accordingly, this Court reverses final determinations of the State Board only when those decisions are unsupported by substantial evidence, are arbitrary or capricious, constitute an abuse of discretion, or exceed statutory authority. Id. The taxpayer bears the burden of demonstrating the invalidity of the State Board’s final determination. Clark v. State Bd. of Tax Comm’rs, 694 N.E.2d 1230, 1233 (Ind. Tax Ct. 1998).
Discussion

    The issue to be resolved in each of the three claims is whether the parcels in question were properly classified and assessed under the Land Order. Land orders have the force of law. Indianapolis Historic Partners v. State Bd. of Tax Comm’rs, 694 N.E.2d 1224, 1229 (Ind. Tax Ct. 1998). Like administrative rules, land orders are subject to the same rules of construction as statutes. Poracky v. State Bd. of Tax Comm’rs, 635 N.E.2d 235, 236 (Ind. Tax Ct. 1994). The Court will construe and interpret a land order only if it is ambiguous. Indianapolis Historic Partners, 694 N.E.2d at 1227. “In construing a land order, the first and foremost rule of construction is to ascertain and give effect to the land commission’s intent, and the most reliable guide to that intent is the language of the land order itself.” Precedent v. State Bd. of Tax Comm’rs, 659 N.E.2d 701, 704 (Ind. Tax Ct. 1995). “In construing the language of a land order, courts must give words and phrases their plain, ordinary, and usual meaning, unless it is apparent that the land commission intended some other meaning.” Id. at 705. “The plain, ordinary, and usual meaning of a word is usually found in a dictionary.” Id.
    The relevant part of the Land Order at issue was submitted into evidence as Petitioner’s Exhibit 2. Eastgate maintains that both parcels should have been assessed under the category listed on page 67 of the Land Order at 3080. This category is described as “Shadeland Av[enue] – Shopping Centers” and has the following per square foot values for land:
    1)    Primary Land: low value = $1.50; high value = $2.00
    2)    Secondary Land: low value = $1.05; high value = $1.40
    3)    Usable Undeveloped Land: low value = $.45; high value = $.60
    4)    Unusable Undeveloped Land: low value = $.05; high value = $.05.

(Pet’r Ex. 2.) The Court will refer to these values as the “3080 Values.” According to Eastgate, the State Board incorrectly valued the land at $3.00 per square foot. Eastgate’s basic argument is that the Mall is a shopping center located on Shadeland Avenue, and therefore its parcels should be priced using the 3080 Values. The State Board counters that the parcels were classified properly pursuant to the category listed on page 67 of the Land Order at 3078, which is described as follows: “Shadeland Av[enue], S. of I-70 to Washington St. Intersection.” See footnote (Pet’r Ex. 2.) This category (the “3078 Values”) has significantly different price ranges for land than the 3080 Values. For example, primary land for this category has a low value of $3.00 per square foot and a high value of $4.00 per square foot—twice the base prices found in the 3080 Values. (Pet’r Ex. 2.)
    The Land Order is not ambiguous. The plain language of the Land Order requires parcels along Shadeland Avenue with shopping centers to be priced using the 3080 Values. See Precedent, 659 N.E.2d at 705-06 (applying plain, ordinary, and usual meaning of the phrase “Township—other” in 1989 Marion County Land Order); Indianapolis Historic Partners, 694 N.E.2d at 1227 (holding that Marion County Land Order’s Apartment Land schedule, as a matter of law, must be used to assess taxpayer’s land, upon which was located a three-story, twenty-four unit apartment building). Because the Main and Out-Lot Parcels are located along Shadeland Avenue, they must be priced using the 3080 Values if shopping centers are located upon them. (Pet’r Ex. 1.) See also supra n.4.
    Accordingly, the Court must decide whether the subject parcels have shopping centers located upon them. It is not clear whether the Marion County Land Valuation Commission (Land Commission) intended the Land Order to classify the Mall as a “shopping center.” The pages of the Land Order provided to the Court do not define the term “shopping centers” as the term is used to describe land to be assessed using the 3080 Values. In addition, the Land Order as submitted does not define the term “mall,” which is used on page 68 of the Land Order at 3092—a category listed as “S4 T15 R5 Washington Square Mall.” (Pet’r Ex. 2.) Neither party has advocated for a particular definition for the two terms. See CDI, Inc. v. State Bd. of Tax Comm’rs, 725 N.E.2d 1015, 1022 n.8 (Ind. Tax Ct. 2000) (stating that it is “generally helpful if the [party] at least attempts to provide a definition for the word or phrase” at issue). Thus, the Court must determine whether the Land Order considers a “mall” and a “shopping center” to be the same type of structure.
    The Court turns to the dictionary for assistance. Webster’s New World Dictionary 1316 (2d ed. 1982) defines “shopping center” as a “complex of stores, restaurants, etc. grouped together and having a common parking area.” Similarly, Webster’s Third New International Dictionary 2101 (1981) defines “shopping center” as a “concentration of retail stores and service establishments in a suburban area usu[ally] with generous parking space and usu[ally] planned to serve a community or neighborhood.” A “mall” may be defined as a “completely enclosed, air-conditioned shopping center.” Webster’s New World Dictionary 857 (2d ed. 1982). Thus, when applying the terms’ plain, ordinary and usual meanings, a “mall” may be defined in part as an enclosed “shopping center.”
    Nothing in the State Board’s regulations contradicts these plain language definitions. See footnote The regulations do have two models for shopping centers, the GCM Neighborhood and Regional Shopping Center Models. Ind. Admin. Code tit. 50, r. 2.1-4-7 (1992) (codified in present form at id., r. 2.2-11-1(39) to –(41) (1996)). Furthermore, the regulations’ grade photographs show examples of these two models. Ind. Admin. Code tit. 50, r. 2.1-4-6 (1992) (codified in present form at id., r. 2.2-11-4.1 (1996)). Finally, the regulations have a separate schedule for pricing a mall concourse area, with this schedule distinguishing between “open,” “covered,” and “enclosed” malls. Ind. Admin. Code tit. 50, r. 2.1-4-5 (1992) (Schedule H) (codified in present form at id., 2.2-11-6 (1996) (Schedule E)). The regulations appear to distinguish between a “mall” and a “shopping center,” but they do not appear to make the terms mutually exclusive. The Court is also persuaded on this point by what is not in the regulations—a separate and distinct model for an entire mall (not just its concourse). Thus, the State Board’s regulations do not contradict and may in fact be viewed as consistent with the plain language definitions of “mall” and “shopping center.” In other words, under the regulations, a mall may be considered in part to be an enclosed shopping center. The Court concludes that the Land Commission and State Board intended to apply the plain language definitions of “mall” and “shopping center” in developing and applying the Land Order.     

CONCLUSION

    As noted supra, the State Board at trial requested that the Court remand this consolidated case because of the “incompleteness of the record.” (Trial Tr. at 3.) The Court agrees that a remand of the entire case is an appropriate course of action. The Court hereby GRANTS the State Board’s motion for a remand. All three assessments (i.e., the 1989 assessments for both parcels and the 1992 assessment for the Main Parcel) are REMANDED to the State Board for further proceedings. The State Board is ORDERED to conduct a hearing on all three assessments and to accept any probative evidence from the taxpayer regarding the construction of the Mall and the improvements on the Out-Lot Parcel as of the assessment dates in question. The State Board must deal with any probative evidence in a meaningful manner. Kemp v. State Bd. of Tax Comm’rs, 726 N.E.2d 395, 404 (Ind. Tax Ct. 2000). Moreover, the State Board must support its final determination on the value of each parcel for the challenged tax years with substantial evidence. Damon Corp. v. State Bd. of Tax Comm’rs, 738 N.E.2d 1102, 1112 (Ind. Tax Ct. 2000). If, through the submission of probative evidence, the improvements on a subject parcel are found to be either a mall or shopping center at the time of assessment, that parcel must be priced using the 3080 Values in the Land Order. Otherwise, the 3078 Values must be applied.


Footnote:      This provision provided:
If the state board of tax commissioners fails to conduct a hearing and make a final determination required under [ Ind. Code § 6-1.1-15-4] within twelve (12) months after the state board received a petition for review in a non-reassessment year and twenty-four (24) months in a reassessment year, the person who petitioned for review may initiate an appeal under [Ind. Code § 6-1.1-15-5] in the same manner as if the state board had made a final determination affirming the county board of review’s action with respect to the assessment.
This provision was amended prior to 1996 when Eastgate filed the present original tax appeal. However, the Supreme Court has stated that it is the code provision in effect at the time that the Form 131Petition for Review is filed that controls, with respect to which version of section 6-1.1-15-4(e) applies. State Bd. of Tax Comm’rs v. Mixmill Mfg. Co., 702 N.E.2d 701, 703 n.3 (Ind. 1998). Thus, Section 6-1.1-15-4(e), in its 1990 form, allowed Eastgate to appeal the 1989 reassessment of the Main Parcel to the Tax Court in 1996, because the State Board had issued no decision within twenty-four months of having received the Petition for Review and because 1989 was a general reassessment year.


Footnote:      A second Petition for Review was filed for the 1992 assessment, with regard to the Out-Lot Parcel. This assessment is not an issue in the present appeal. (Trial Tr. at 35.)


Footnote:      Eastgate’s counsel indicated at trial that the State Board did issue a Final Determination for the appeal of the Main Parcel’s 1992 assessment. (Trial Tr. at 34.) The State Board did not deny or object to this statement. However, neither party submitted a copy of this Final Determination.


Footnote:      The $3.00 per square foot value assigned to the two parcels in theory may have been priced pursuant to the values listed on page 67 of the Land Order at 3079, which category is described as “Washington St. – Shadeland Av[enue] to I-465 Interchange.” (Pet’r. Ex. 2.) This category’s values mirror those of the 3078 Values. However, counsel for the parties at trial agreed that this category was not applicable. (Trial Tr. at 36 & 37.) The real issue, as the Court observed at trial, is whether the parcels in question should be valued from the 3078 or 3080 Values. (Trial Tr. at 36.) Therefore, the Court limits its analysis to these two categories.

Footnote:      The Land Order was drafted by the Land Commission and approved by the State Board. See Ind. Code Ann. § 6-1.1-4-13.6 (1989) (amended 1993, 1997) (requiring State Board to review county’s proposed land values under former version of statute). Thus, the regulations may properly be referenced for guidance in ascertaining the commission’s intent as to the definitions of the terms “mall” and “shopping center.”