ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
BODIE J. STEGELMANN JEFFREY B. HARDING
CRAIG M. BUCHE CHARLES E. DAVIS
YODER AINLAY ULMER & SWIFT & FINLAYSON
BUCKINGHAM, LLP Fort Wayne, IN
IN THE INDIANA TAX COURT _____________________________________________________________________
OSOLO TOWNSHIP (ELKHART COUNTY ) ) ASSESSOR, ELKHART COUNTY, ) ) Petitioner, ) ) v. ) Cause No. 49T10-0203-TA-31 ) ELKHART MAPLE LANE ASSOCIATES ) L.P., Incorrectly named as ELKHART ) MAPLE LANE ASSOCIATION, ) ) Respondent. )_____________________________________________________________________
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory jurisdiction,
authority, or limitations;
(4) without observance of procedure required by law; or
(5) unsupported by substantial or reliable evidence.
Ind. Code § 33-3-5-14.8(e)(1)-(5) (Supp. 2002). Furthermore, the party seeking to overturn the Indiana Boards final determination bears the burden of proving its invalidity. See Clark v. State Bd. of Tax Commrs, 694 N.E.2d 1230, 1233 (Ind. Tax Ct. 1998). In order to meet that burden, the party seeking reversal must have submitted,
during the administrative hearing process, probative evidence
See footnote regarding the alleged assessment error.
See id. See also State Bd. of Tax Commrs v. Gatling Gun
Club, 420 N.E.2d 1324, 1329 (Ind. Ct. App. 1981) (stating that only that
evidence that was submitted at the administrative level is subject to judicial review).
Secondary commercial or industrial land refers to land utilized for purposes which are
secondary to the primary use of the land. The following are examples
of secondary land:
(A) Parking areas that are not used regularly.
(B) Yard storage that is not used regularly.
* * * * *
Unusable undeveloped commercial and industrial land means vacant land that is unusable for
commercial or industrial purposes.
Usable undeveloped commercial and industrial land means vacant land that is held for
future commercial or industrial development.
Ind. Admin. Code tit. 50, r. 2.2-4-1(18), (19), (23), (24) (1996) (emphasis added).
See also 50 IAC 2.2-4-17(b) (stating that primary land is the amount
of acreage necessary to support the existing facility and its purposes).
The Assessor contends that, under the regulations, the Indiana Board erred when it classified Maple Lanes wooded areas as usable undeveloped land. More specifically, the Assessor contends that, pursuant to the assessment regulations, Maple Lanes wooded areas are necessary support land and should therefore be classified as primary land because the wooded area[s] between the buildings allow Maple Lane to advertise itself as Maple Lane in the Woods and . . . [to] describe its complex as our wooded Maple Lane community. (Petr Br. at 7.) Accordingly, the Assessor argues that [t]h[ese] area[s] between the apartment buildings clearly support the existing facility under 50 IAC 2.2-4-17(b) and [are] part of the primary building site, under 50 IAC 2.2-4-1(18). See footnote Id. The Court, however, disagrees.
Duly promulgated property assessment regulations have the force of law and are therefore subject to the same rules of construction as statutes. See Western Select Properties, L.P. v. State Bd. of Tax Commrs, 639 N.E.2d 1068, 1073 (Ind. Tax Ct. 1994). The foremost goal of regulatory construction is to determine the intent of the [Indiana] Board by giving the words and phrases their plain, ordinary, and usual meaning and by reading the regulations within the context of the entire act of which they are a part. State Bd. of Tax Commrs v. Two Market Square Associates Ltd. Pship, 679 N.E.2d 882, 885-86 (Ind. 1997) (internal brackets, quotation, and punctuation omitted).
The portion of a parcel that is used as the primary building site is to be designated as primary land. 50 IAC 2.2-4-1(18). The regulation provides five examples of primary land: land located under buildings; land used as regular parking areas; land used for roadways; land used as regular yard storage; and land used as necessary support. Id. The regulations do not, however, define necessary support land. Therefore, the Court will give the phrase its plain, ordinary, and usual meaning as found in the dictionary. See Johnson County Farm Bureau Coop. v. Indiana Dept of State Revenue, 568 N.E.2d 578, 581 (Ind. Tax Ct. 1991), affd 585 N.E.2d 1336 (Ind. 1992).
Necessary is defined as that [which] cannot be done without . . . absolutely required: essential, indispensable. Websters Third New Intl Dictionary at 1511 (1981 ed.) Support is defined as a means of livelihood, sustenance, or existence. Id. at 2297. Thus, necessary support land, under 50 IAC 2.2-4-1(18) and in this context, is land that is absolutely required and essential to support the operation of, and the continued functioning as, an apartment complex. Here, incorporating the presence of trees into its name adds very little to the actual operation and function of Maple Lane in the Woods itself. Indeed, if the trees were removed, the property could still operate and function as an apartment complex. Consequently, Maple Lanes wooded areas do not constitute necessary support land under 50 IAC 2.2-4-1(18).
When the meaning of an administrative regulation is in question, the interpretation of the administrative agency is given great weight unless its interpretation would be inconsistent with the regulation itself. Two Market Square, 679 N.E.2d at 886 (citing Dept of State Revenue v. Bulkmatic Transport Co., 648 N.E.2d 1156, 1158 (Ind. 1995)). This Court cannot say that the Indiana Boards interpretation of necessary support land is inconsistent with its plain, ordinary, and usual meaning. Indeed, in its final determination, the Indiana Board states:
The determination of necessary support land should include consideration of . . . local building requirements, restrictions, and covenants. . . . Even though the wooded areas clearly contribute to the appeal of the buildings, this fact alone does not render the land necessary support land. . . . The  wooded areas [therefore] do not meet the definition of necessary support land, and thus do not meet the definition of primary land. The proper classification is usable undeveloped.
(Cert. Admin. R. at 78.) Thus, the Indiana Boards interpretation of necessary
support land, as evidenced in its final determination is consistent with the terms
plain, ordinary, and usual meaning. Consequently, the Assessor has failed to establish
a basis to reverse the Indiana Boards final determination.