PETITIONER PRO SE:
JOSEPH G. HAMM
Indianapolis, IN

ATTORNEYS FOR THE RESPONDENT:
STEVE CARTER
ATTORNEY GENERAL OF INDIANA
Indianapolis, IN

TED J. HOLADAY
DEPUTY ATTORNEY GENERAL
Indianapolis, IN

JOSEPH G. HAMM,                                                           )
                                                                               )
    Petitioner,                                                                )
                                                                               )
    v.                                                                         )   Cause No. 49T10-9906-TA-131
                                                                               )
DEPARTMENT OF LOCAL                                                            )

50 IAC 2.2-4-13(c)(1).

Hamm bears the burden of proving that his neighborhood desirability rating is incorrect. See Corey, 674 N.E.2d at 1065–66. He argues that his neighborhood desirability rating should be “good.” The State Board’s rules define “good” as an “attractive and desirable area.” 50 IAC 2.2-7-7.1(f)(7)(C). More specifically, a “good” rating “indicates that the location is pleasant. Generally, this location is an improving area with good access to shopping, schools, and major roads. This location may be in proximity to recreational facilities.” 50 IAC 2.2-4-13(c)(3).
In an effort to meet his burden, Hamm submitted evidence showing that his neighborhood is subject to significant noise pollution. Indeed, his neighborhood is directly beneath the flight path of jets flying in and out of the Indianapolis International Airport. Air traffic passes over Hamm’s neighborhood and literally rattles his house from 1 a.m. to 6 a.m. Moreover, small planes from the Eagle Creek Airport at times fly approximately 200 feet over his house, creating significant noise. Additionally, noise from the automobile races at Raceway Park carries into Hamm’s neighborhood on Fridays. (Joint Exs. 16O, 16P, 17, & 64 at 2.)
Hamm also submitted evidence that access to public transportation that can take residents into major urban areas is ten miles away. Furthermore, his neighborhood can be reached only by a county road and West 46th Street. The latter is approximately sixteen feet wide and in need of shoulder repair. It cannot accommodate two lanes of traffic, has drainage problems, and is frequently impassable in the winter. Because there is no city snow removal in Hamm’s neighborhood, school buses will not negotiate West 46th Street on very snowy days, leaving neighborhood children stranded at home if their parents are unable to take them to school. If snow falls while the children are in school, the school buses will not drop them off at their homes. Instead, the buses drop the children off miles from the neighborhood where they have to be retrieved by their parents. (Joint Exs. 12C, 12D, 17, & 64 at 3.)
Hamm also submitted evidence showing that his neighborhood lacks city water, sewer, and electricity. It also lacks good phone lines and fire hydrants. Hamm draws water from a well, except during power surges and power outages, at which time he has no electricity to pump water. During some outages, people in Hamm’s neighborhood go up to three days without running water. Moreover, voice traffic on the phone lines often bleeds into other voice traffic, a situation the phone company states is caused by standing water on underground phone cables; the phone lines, however, are not repaired unless they cease working altogether. Also, the lack of fire hydrants in the neighborhood drives up the cost of homeowner’s insurance, and in some cases, homes cannot be insured at all. (Joint Exs. 17 & 64 at 3). Finally, Hamm submitted evidence indicating that wildlife destroys property in his neighborhood. Deer invade gardens, which has necessitated the erection of electric fences. Furthermore, beaver destroy trees, raccoons break into houses and garages, and coyotes threaten pets. (Joint Exs. 17 & 64 at 4.)
Given Hamm’s evidence showing the less than desirable aspects of his neighborhood, the Court concludes that Hamm’s evidence establishes a prima facie case that his neighborhood, on balance, is not “exceptional” and therefore does not deserve an “excellent” rating. Consequently, the burden shifted to the State Board to show that the neighborhood desirability rating of “excellent” was correct. See Corey, 674 N.E.2d at 1066. “While the determination of neighborhood desirability is largely a qualitative one, such a judgment still must be supported by substantial evidence.” Id.
The State Board claims that Hamm’s neighborhood desirability rating of “excellent” is justified by “Eagle Creek Reservoir, wooded areas and some manicured lawns.” (R. at 266.) Furthermore, the State Board concluded that “[t]he location of this development offers serenity while still in [a] somewhat . . . close proximity to major metropolitan areas.” Id. As for the noise, the State Board said that “[m]ajor airports . . . in large metropolitan areas are usually common. If a parcel were situated directly beside such an area, reducing the rating would be justifiable.” Id.
The State Board’s mere reference to various features of Hamm’s neighborhood does not tip the balance away from Hamm’s evidence and toward an “excellent” rating; rather, the State Board must offer evidence showing why these features outweigh the undesirable features. See Corey, 674 N.E.2d at 1065 (indicating that the neighborhood desirability rating requires a balancing of factors). More specifically, Eagle Creek Reservoir, “wooded areas,” and the “somewhat” close proximity of Hamm’s neighborhood to major metropolitan areas are not elements of a neighborhood desirability rating of “excellent”—a rating of “excellent” requires proximity to “high quality scenic views or natural or manmade recreational facilities” and “may include easy access to major urban areas[.]” 50 IAC 2.2-4-13(c)(1) (emphasis added). The State Board’s final determination does not address the quality of the view from Hamm’s neighborhood, nor does it address the proximity of Hamm’s neighborhood to the reservoir or whether the reservoir is used for recreation. Furthermore, Hamm’s evidence shows that he is ten miles from public transportation and at times cannot enter or exit his neighborhood because of weather. The State Board never rebutted these showings.
Also, the State Board’s rules do not simply refer to “manicured lawns.” Rather, the State Board’s rules refer to “estate settings of manicured lawns[.]” Id. (emphasis added). The State Board’s final determination says nothing about whether Hamm’s neighborhood is an estate setting. Finally, the State Board’s assertion that Hamm’s neighborhood “offers serenity” is nothing more than a conclusory statement, not substantial evidence rebutting Hamm’s showing of significant air traffic and race car noise, as well wildlife nuisances. See Park Steckley I v. Dep’t of Local Gov’t Fin., 779 N.E.2d 1270, 1274 (Ind. Tax Ct. 2002) (holding that a conclusory statement is not substantial evidence).
Without an evidentiary basis for a State Board final determination, the Court cannot properly review it. Corey, 674 N.E.2d at 1066. In this case, because the State Board provided no evidence to support its neighborhood desirability rating, the Court holds that the State Board’s assessment is not supported by substantial evidence. See id. Accordingly, the Court REVERSES the State Board’s final determination on this issue and REMANDS it to the Indiana Board of Tax Review (Indiana Board) See footnote for further consideration consistent with this opinion.