ATTORNEY FOR PETITIONER:    ATTORNEYS FOR RESPONDENT:
DAVID B. HUGHES    STEVE CARTER
ATTORNEY AT LAW     ATTORNEY GENERAL OF INDIANA
Indianapolis, IN    Indianapolis, IN
    
    JOHN D. SNETHEN
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN
______________________________________________________________________
     IN THE INDIANA TAX COURT

COMMUNITY DEVELOPMENT CORP.,                                           )
                                                                            )
    Petitioner,                                                             )
                                                                            )
    v.                                                                      )   Cause No. 49T10-0210-TA-119
                                                                            )
PROPERTY TAX ASSESSMENT                                                     )
BOARD OF APPEALS OF                                                         )
MARION COUNTY, INDIANA,                                                     )
                                                                            )
    Respondent.                                                             )    

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.
Ind. Code Ann. § 33-3-5-14.8(e)(1)-(5) (West Supp. 2003). The party seeking to overturn the Indiana Board’s final determination bears the burden of proving its invalidity. See Osolo Township Assessor v. Elkhart Maple Lane Assocs., L.P., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003).

A tract of land is exempt from property taxation if:
it is purchased for the purpose of erecting a building which is to be owned, occupied, and used in such a manner that the building will be exempt under subsection (a) or (b);

(Cert. Admin. R. at 166.)
The Court agrees with the Indiana Board that CDC did not make a prima facie case demonstrating progress in the development of its parcel as required under Indiana Code § 6-1.1-10-16(d). However, as the CDC also alluded to, the Indiana Board failed to consider whether the entire parcel would qualify for exemption under Indiana Code § 6-1.1-10-16(c). CDC testified that its intended use of the parcel was as part of the campus of PAW and the College. Such an exemption would fall under subsection (c). Consequently, because the Indiana Board failed to consider CDC’s argument in its entirety, the Court finds that the Indiana Board’s final determination was arbitrary and capricious and must be reversed.

(Cert. Admin. R. at 94.) CDC also testified at the hearing that the tract is essentially a “little driveway” that provides an access to 38th Street. (Cert. Admin. R. at 789.)
    The Indiana Board denied CDC’s exemption application for this parcel because “there have been no plans developed to construct a building or any other improvement on the property.” (Cert. Admin. R. at 151-52.) Furthermore, the Indiana Board’s findings describe the parcel as: “2.5 acres is used for overflow parking[,]” and “15.217 acres [is] undeveloped[,]” and “the overflow parking area located on the .993 acre[.]” (Cert. Admin. R. at 146, 151.) CDC never asserted that its parcel was used as an overflow parking area; yet, the Indiana Board’s final determination also stated that “[t]he Petitioner states that the subject property has been used as a parking area for [the PAW buildings] since 1997[.]” (Cert. Admin. R. at 150.)
Thus, it appears to the Court that the Indiana Board confused the evidence presented by CDC with respect to this parcel with that in regard to Parcel I. The evidence clearly demonstrates that CDC’s parcel provides ingress or egress from 38th Street to the overflow parking area on Parcel I and the PAW buildings. The Indiana Board failed to consider whether CDC’s stated use of the parcel as an access route qualifies it for a charitable property tax exemption. See Alte Salems Kirche, Inc. v. State Bd. of Tax Comm’rs, 694 N.E.2d 810, 815 (Ind. Tax Ct. 1998) (finding that property “reasonably necessary” for an exempt purpose may qualify for exemption under Indiana Code § 6-1.1-10-16). Consequently, the Indiana Board’s final determination is not supported with substantial or reliable evidence and must be reversed.

In a nutshell, [CDC] has failed to submit sufficient evidence that their plan is more than a “mere dream[.]” The record is devoid of probative evidence of an organized viable short or long-term plan for renovation, including a proposed completion date. In addition, the record is silent as to an estimate of the amount of funds necessary to complete the renovation, or of the amount of funds currently escrowed solely for the subject renovation.

(Cert. Admin. R. at 228 (internal citation omitted).) In arriving at its determination, the Indiana Board relied on Indiana Code § 6-1.1-10-16(d)(3). (See supra.)
In reviewing the record, the Court agrees with the Indiana Board’s analysis that
Parcel III was not entitled to an exemption under subsection 16(d). See footnote Nevertheless, while the information CDC provided in its application and petition to the State Board was aimed at demonstrating progress toward renovating the vacant improvements on Parcel III, the Indiana Board again failed to consider the entirety of CDC’s claim. CDC also raised the issue of whether the parcel qualified for an exemption provided for under Indiana Code § 6-1.1-10-16(c). CDC referred to this provision with respect to exempt acreage as well as to the contiguity of its three parcels in relation to the PAW buildings. ( See Cert. Admin. R. at 787.) The Indiana Board did not address whether Parcel III qualified under subsection (c); therefore, its final determination was arbitrary and capricious and must be reversed.
In sum, the Indiana Board failed to consider that CDC – at the administrative hearing and without objection by the PTABOA –raised the issue of whether its parcel would qualify for exemption under subsection (c) of Indiana Code section 6-1.1-10-16. (See Cert. Admin. R. at 742-816.)