_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

BLACKBIRD FARMS APARTMENTS, LP,                                           )
                                                                               )
    Petitioner,                                                                )
                                                                               )
    v.                                                                         )   Cause No. 49T10-9812-TA-205
                                                                               )
DEPARMENT OF LOCAL                                                             )
GOVERNMENT FINANCE,                                                            )
             
                                                                              
                                                                              
                                                                              
                                                                 
    )
    Respondent.            )    
_____________________________________________________________________

ORDER ON MOTION TO CORRECT ERROR


NOT FOR PUBLICATION
October 31, 2002

FISHER, J.

    Comes now Blackbird Farms Apartments, LP (Blackbird) and files a Motion to Correct Error (Motion) under Indiana Trial Rule 59. In its Motion, Blackbird challenges this Court’s holding in Blackbird Farms Apartments, LP v. Department of Local Government Finance, 765 N.E.2d 711 (Ind. Tax Ct. 2002). Having reviewed Blackbird’s Motion and having held a hearing with regard thereto, the Court now DENIES Blackbird’s Motion for the reasons set forth below.


FACTS AND PROCEDURAL HISTORY See footnote


    Blackbird owns real property (thirteen acres of land and a 154-unit apartment complex) in Wabash Township, Tippecanoe County, Indiana. For the 1995 general reassessment, the State Board of Tax Commissioners (State Board) valued Blackbird’s land at $60,000 per acre pursuant to the portion of the Tippecanoe County Land Order (Land Order) applicable to Wabash Township. (See Stip. Ex. I).     
    Blackbird filed an original tax appeal with this Court on December 18, 1998, challenging the assessment. After conducting trial and oral argument, this Court issued an opinion affirming the State Board. Blackbird Farms, 765 N.E.2d at 716. On April 16, 2002, Blackbird timely filed a Motion to Correct Error, claiming that the Court’s decision was erroneous because it “misstate[d] the record, ignore[d] Petitioner[’]s evidence, improperly applie[d] the prima facie standard, and ma[de] numerous errors of law.” (Pet’r Mot. to Correct Error at 26.) Additional facts will be provided as necessary.
ANALYSIS & ORDER

    Essentially, Blackbird’s Motion focuses on two alleged errors: 1) the Court held Blackbird to a higher burden of proof than the required prima facie standard; and 2) the Court ignored Blackbird’s evidence. See footnote
I. Blackbird’s Burden of Proof

    Blackbird contends that while it presented a prima facie case and met its “minimal” showing, the Court “imposed a standard upon [it] far beyond that of making a prima facie case [and . . .] conceived of arguments or possible challenges which could be made to [the] evidence . . . and rejected [the] evidence because it did not disprove these possible challenges.” (Pet’rs Mot. to Correct Errors at 2-3) (emphasis in original.) The Court disagrees.
    This Court accords great deference to the State Board when it 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, the Court will reverse a State Board final determination only if it is unsupported by substantial evidence, constitutes an abuse of discretion, exceeds statutory authority, or is arbitrary and capricious. Id.     
    Because Blackbird was the party challenging the propriety of the State Board’s final determination, it bore the burden of demonstrating the final determination’s invalidity. See Clark v. State Bd. of Tax Comm’rs, 694 N.E.2d 1230, 1233 (Ind. Tax Ct. 1998). To meet its burden, Blackbird was required to present a prima facie case, or one in which the evidence is “‘sufficient to establish a given fact and which if not contradicted will remain sufficient.’” See id. (quoting GTE N., Inc. v. State Bd. of Tax Comm’rs, 634 N.E.2d 882, 887 (Ind. Tax Ct. 1994)). See footnote In other words, Blackbird was required to offer probative evidence concerning the alleged assessment error. See Herb v. State Bd. of Tax Comm'rs, 656 N.E.2d 890, 893 (Ind. Tax Ct.1995). In this particular case, in order for Blackbird to establish a prima facie case that its land was improperly assessed under the Land Order, it was required to make a two-prong showing that: 1) comparable properties 2) were assessed and taxed differently. Blackbird Farms, 765 N.E.2d at 714 (citing Zakutansky v. State Bd. of Tax Comm’rs, 691 N.E.2d 1365, 1369-70 (Ind. Tax Ct. 1998); Vonnegut v. State Bd. of Tax Comm’rs, 672 N.E.2d 87, 89-90 (Ind. Tax Ct. 1996); Poracky v. State Bd. of Tax Comm’rs, 635 N.E.2d 235, 237 (Ind. Tax Ct. 1994)).
II. Blackbird’s Evidence

    At the administrative hearing, Blackbird submitted evidence showing that seven other apartment complexes in Tippecanoe County were assessed between $30,000 and $36,000 per acre. (See Stip. Ex. H.) The apartment complexes, however, were not in Wabash Township, but rather in Fairfield Township, which is on the other side of the Tippecanoe River. The Court reviewed the evidence and determined that it did not make a prima facie showing that the properties were comparable. Blackbird Farms, 765 N.E.2d at 715. Specifically, the Court held that because these properties were not subject to the same part of the land order as Blackbird, they could not be presumed comparable. Id. at 714-15 (emphasis added) (citing State Bd. of Tax Comm’rs v. Indianapolis Racquet Club, 743 N.E.2d 247, 251-52 (Ind. 2001)). Absent that presumption, the Court stated that Blackbird was required to show something else as indicia of comparability:
Whether or not properties are similar enough to be considered ‘comparable’ depends on a number of factors including (but not limited to) size, shape, topography, accessibility, [and] use[.]

Id. (emphasis added) (quoting Beyer v. State, 280 N.E.2d 604, 607 (Ind. 1972) (internal punctuation omitted)). See also Ind. Admin. Code tit. 50, r. 2.2-4-4. The Court, after reviewing the administrative record, determined that it was void of such a showing. Upon Blackbird’s Motion, the Court reviewed the administrative record again, and arrives at the same conclusion: Blackbird failed to show how the seven other apartment complexes were comparable to its own. See footnote Thus, while Blackbird presented evidence, it was not probative evidence, and therefore Blackbird failed establish a prima facie case.
    Blackbird also submitted evidence at the administrative hearing showing that at about the time Blackbird’s land was purchased in 1990 for $10,000 an acre, six other land sales were made in the County, with an average sale price of $22,000 per acre. (Stip. Ex. G.) “Blackbird maintains that because the ‘assessed value [of a piece of land] is the raw price of land plus the cost of development, and using the comparable assessments presented, these figures clearly support a calculation of developmental costs at $8,000 per acre with an average assessed value of $30,000 per acre.’” Blackbird Farms, 765 N.E.2d at 715 (citing Pet’r Br. at 7).
    Under Indiana’s true tax value system, the assessed value of nonagricultural land is based, theoretically, on its approximate market value. Town of St. John et. al v. State Bd. of Tax Comm’rs, 665 N.E.2d 965, 967 (Ind. Tax Ct. 1996) (St. John I) rev’d on other grounds by Boehm v. Town of St. John, 675 N.E.2d 318 (Ind. 1996). Those values are compiled and reflected in the county land orders and are applied to various geographic areas, subdivisions, or neighborhoods based on distinguishing characteristics or boundaries. Ind. Code § 6-1.1-4-13.6; Ind. Admin Code tit. 50, r. 2.2-4-4.
    Once again, Blackbird’s alleged comparable land sales all occurred outside Wabash Township (see Stip. Ex. G.) and were not subject to the same part of the Land Order. Thus, they will not merely be presumed comparable. Blackbird Farms, 765 N.E.2d at 714-15 (citing Indianapolis Racquet Club, 743 N.E.2d at 251-52). Instead, Blackbird was required to show how those properties were comparable to its own, and the record reveals it did not. See footnote Furthermore, Blackbird provided no evidence to substantiate its claim that developmental costs were indeed $8,000.

Conclusion

    This Court originally found that Blackbird did not meet its initial burden of proof. Blackbird Farms, 765 N.E.2d at 716. Upon review and for the foregoing reasons, this Court again finds the same. Petitioner’s Motion to Correct Error is hereby DENIED.
SO ORDERED this 31st day of October, 2002.

     _________________________
     Thomas G. Fisher, Judge
Indiana Tax Court

DISTRIBUTION:

James W. Beatty
James F. Beatty
Stephen M. Terrell
LANDMAN & BEATTY
1150 Market Square Center
151 North Delaware Street
P.O. Box 44953
Indianapolis, IN 46244-0953

Steve Carter
Attorney General of Indiana
By: Ted J. Holaday
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, IN 46204-2770


Footnote: The Court has previously reviewed the facts of this case. See Blackbird Farms Apartments, LP v. Department of Local Government Finance, 765 N.E.2d 711, 712 (Ind. Tax Ct. 2002). Therefore, this Court will briefly review only the relevant factual and procedural history of this case in order to provide insight as to its current posture.


Footnote:      Blackbird’s Motion asserts the Court committed the following errors of law:

1. [It] erroneously ignored large amounts of the evidence presented by Petitioner, mischaracterized the nature and extent of evidence submitted by the Petitioner, and misstated the Record . . . .
2. [It] . . . missappl[ied] the law regarding a prima facie case . . . .
3. [It] improperly imposed a burden upon Petitioner, as part of Petitioner’s prima facie case, to disprove possible arguments by the Respondent[].
4. [It] improperly required Petitioner as part of its prima facie case to place into evidence certain portions of an administrative rule, where matters of law are subject of judicial notice[.]
5. [It] incorrectly ignored summaries which [sic] were admitted under Ind. R. Evid. 1006, and effectively require[d] that exhibits be read verbatim into the Record before they may be considered by the Court, all of which is contrary to Ind. Rules of Evidence . . . .

(Pet’r Mot. to Correct Error at 1-2.)


Footnote: Although the burden of proof never shifts, once the taxpayer presents a prima facie case, the duty to go forward with the evidence shifts, and it is incumbent on the State Board to rebut the taxpayer’s evidence and support its decision with substantial evidence. Clark v. State Bd. of Tax Comm’rs, 694 N.E.2d 1230, 1233-35 (Ind. Tax Ct. 1998). If the taxpayer does not present a prima facie case, however, the State Board’s duty to support its decision with substantial evidence is not triggered. Id.

Footnote: Blackbird’s evidence with respect to the seven apartment complexes did not address shape or topography. With respect to size, Blackbird did submit the record cards on the seven properties, but the Court (and presumably the State Board) had to make the mathematical calculations to determine their sizes. The State Board, and the Court, will not make Blackbird’s case for it. See Clark v. State Bd. of Tax Comm’rs, 694 N.E.2d 1230, 1237 n.10 (Ind. Tax Ct. 1998). At any rate, the sizes of these properties ranged from less than one acre to more than fifteen acres. “Size is generally a less important element of comparison . . . [as m]ost types of development have an optimal site size; if the site is larger, the value of the excess land tends to decline at an accelerating rate. . . . [A]ppraisers ordinarily give more weight to comparables that are approximately the same size as the subject property.” Appraisal Institute, The Appraisal of Real Estate 303 (10th ed. 1992).
Blackbird also refers the Court to pages 17 through 19 in the Trial Transcript for its testimony comparing the accessibility of its land with the accessibility of the alleged comparables. (Pet’r Mot. to Correct Error at 7). The testimony contained in the transcript compares the proximity of the alleged comparable apartment complexes to Blackbird Farms and Purdue University with phrases like “close to Purdue,” “hop on a bus and you’re there,” “by way of bus you’re about the same,” and “as the crow flies.” (Trial Tr. at 17-23.) Unlike evidence of actual mileage, this testimony is not probative evidence of proximity.

Footnote: Again, no evidence was submitted comparing shape, topography and accessibility. ( See Stip Ex. G.) Furthermore, with respect to size, the evidence indicates a spread from one acre to seventy-three.