CLAIMANT APPEARING PRO SE:        ATTORNEYS FOR RESPONDENT:
HOMER E. SCHNARR                JEFFREY A. MODISETT
Washington, Indiana                Attorney General of Indiana

                             VINCENT S. MIRKOV
                            Deputy Attorney General
                            Indianapolis, Indiana
__________________________________________

HOMER E. SCHNARR,                                                 )
                                                                           )
            Claimant,                                                      ) 
        v.                                                             ) Cause Nos.  82T10-9710-SC-00186
                                                                           )                      

82T10-9711-SC-00190
                                                       

STATE BOARD OF TAX COMMISSIONERS,                                          ) 
                                                                       )
            Respondent.                                                    )
                                                                           )                 

    Homer E. Schnarr appeals the final determination of the State Board of Tax Commissioners assessing his property as of the March 1, 1995 assessment date. Schnarr presents three issues for this Court's consideration:

    I. Whether more of Schnarr's land should receive a severe flooding influence factor.

    II. Whether Schnarr's dwelling is incorrectly graded.

    III. Whether Schnarr's garage and out buildings are incorrectly assessed.

Additional facts will be supplied as necessary.

Id. In support of this contention, Schnarr presented hearing officer Norris with various maps (Pet'r Ex. 2, 3, 4), records of river and climatological observations from the National Weather Service (Pet'r Ex. 6), and many photographs (Pet'r Group Ex. 9).
    The State Board rejected Schnarr's contention. The hearing officer determined that the flooding which occurred was not serious enough to be considered "severe." He determined that 9.67 acres of his tillable land is given an adjustment for occasional flooding and, because of the nature of the flooding that occurs, such an adjustment was all that Schnarr was entitled to.
    A plain reading of the regulation indicates that a deluge the like of which would make Noah question his faith is not necessary to qualify for the influence factor. Rather, the question is whether or not five or more damaging floods have occurred in a ten year period. If so, the land is given the classification of severely flooded. In other words, the question of whether or not the land is severely flooded for purposes of this regulation is primarily a quantitative question, rather than a qualitative one. See footnote 3
     Schnarr presented evidence at both the State Board level and before this Court to indicate that his land has been flooded, and damaged, more than 5 times over a ten year period. (Pet'r Ex. 6). The State Board, while considering this evidence, simply misapplied the regulation by looking to the severity of the floods themselves (referring to them as "flash flooding") and not looking to their frequency or the damage caused.

Schnarr presented photographs of damaged fields and damaged livestock feed. (Pet'r Group Ex. 9). He also testified to the fact that he lost livestock due to starvation. (Tr. at 40). The State Board's failure to consider Schnarr's evidence was a misapplication of the law. Cf. Vonnegut, 672 N.E.2d at 90; cf. Simmons v. State Bd. of Tax Comm'rs, 642 N.E.2d 559, 562 (Ind. Tax Ct. 1994). As such, the State Board's decision regarding the application of Ind. Admin. Code tit. 50, r. 2.2-5-2(2)(B) to Schnarr's acres classified as tillable (Type 4 or #4-WA) is reversed. This issue is REMANDED to the State Board with instructions to classify the land as severely flooded (Type 42) and to adjust Schnarr's assessment accordingly.

the hearing officer found that Schnarr's basement, in which he was living, was not included in the assessment of his house. The hearing officer added this to the TTV.
    In looking at the State Board's Final Assessment Determination (Resp. Ex. A) and the property record card (Resp. Ex. B), the Court notes that the hearing officer provided his reasoning for making the determinations in writing. Doing so makes it much easier for the Court to review a determination, because the Court is "able to determine from the record whether the assessed value was properly calculated." Corey v. State Bd. of Tax Comm'rs, 674 N.E.2d 1062, 1066 (Ind. Tax Ct. 1997). In this instance, the hearing officer provided detailed calculations regarding the lack of interior finish. (Resp. Ex. B).
    However, in comparing the photographs provided by Schnarr (Pet'r Group Ex. 9) with the property record card (Resp. Ex. B), the Court finds that a "D" Grade is not supported by the evidence. The regulations provide grade exemplars in Ind. Admin. Code 2.2-7-10 (1996). These exemplars are included for the purpose of allowing an assessor to compare the subject property in order to arrive at the correct assessment and should be followed. The "D Residential Dwellings" illustrated in the State Board regulations do not come close to mimicking Schnarr's fire-damaged, patchwork hovel. No reasonable person looking at Schnarr's home could conclude that it merits a grade as high as a "D." The Court finds that the State Board's determination of this issue is not supported by substantial evidence and is arbitrary and capricious. See Corey, 674 N.E.2d at 1066. The State Board's assessment of Schnarr's residential dwelling is therefore reversed and remanded.

application of an influence factor for flooding and grade. In all other respects and to all other issues, the State Board's final determination is AFFIRMED.

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