ATTORNEYS FOR PETITIONER:                        ATTORNEYS FOR RESPONDENT:
BRIAN CUSIMANO                                   BRENT A. AUBERRY
ATTORNEY AT LAW                                  BENJAMIN A. BLAIR
Indianapolis, IN                                  DAVID A. SUESS
                                                 FAEGRE BAKER DANIELS LLP
                                                 Indianapolis, IN

MARILYN S. MEIGHEN                     MICHAEL B. SHAPIRO
ATTORNEY AT LAW                        HONIGMAN MILLER SCHWARTZ
Carmel, IN                             AND COHN LLP
                                       Detroit, MI
___________________________________________________________________

                               IN THE
                                                                           FILED
                         INDIANA TAX COURT                            Feb 08 2019, 3:28 pm
___________________________________________________________________
                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                      )                                     and Tax Court

CLARK COUNTY ASSESSOR,                )
                                      )
     Petitioner,                      )
                                      )
                 v.                   ) Cause No. 18T-TA-00003
                                      )
MEIJER STORES LP,                     )
                                      )
     Respondent.                      )
___________________________________________________________________

                ON APPEAL FROM A FINAL DETERMINATION OF
                    THE INDIANA BOARD OF TAX REVIEW

                                FOR PUBLICATION
                                 February 8, 2019
WENTWORTH, J.

      The Clark County Assessor has challenged the Indiana Board of Tax

Review’s final determination that lowered the assessed value of the Meijer store in

Jeffersonville, Indiana for each of the 2008 through 2016 assessment years. Upon

review, the Court affirms the Indiana Board’s final determination.
                       FACTS AND PROCEDURAL HISTORY

         Meijer Stores LP owns and operates a 180,000 square foot retail store and a

2,432 square foot gas station/convenience store, both situated on one 32.42 acre

parcel of land in Jeffersonville, Indiana (the subject property). Meijer constructed the

stores in 1998/1999.

         During the years at issue, the Assessor assigned the following assessed

values to the subject property:

                            2008:         $12,160,100

                            2009:         $12,167,000

                            2010:         $11,732,600

                            2011:         $11,732,600

                            2012:         $10,017,000

                            2013:         $ 9,904,400

                            2014:         $10,021,000

                            2015:         $ 9,966,000

                            2016:         $ 9,969,100

(See Cert. Admin. R. at 1-2, 13-14, 26-27, 40-41, 52-53, 72-73, 86-87, 105-06, 142-

43.) Believing those values to be too high, Meijer filed appeals first with the Clark

County Property Tax Assessment Board of Appeals and then with the Indiana

Board.

         In November of 2017, the Indiana Board conducted one administrative

hearing on all of Meijer’s appeals. For purposes of the hearing, however, Meijer and

the Assessor agreed to litigate only the subject property’s 2012 assessment,



                                           2
stipulating that the other years’ assessments could be determined by applying an

agreed-upon trending formula to the finally-determined 2012 assessed value. (See

Cert. Admin. R. at 128-29.)

                    The Indiana Board Hearing: Meijer’s Evidence

         During the Indiana Board hearing, Meijer presented, among other things, an

Appraisal Report, completed in conformance with the Uniform Standards of

Professional Appraisal Practice (USPAP), that valued the subject property as of

March 1, 2012. Meijer also presented the testimony of Laurence Allen, a member of

the Appraisal Institute (MAI), who prepared the Appraisal Report (“Meijer Appraisal”).

         To value the subject property, Allen first employed the sales comparison

approach.1 Under this approach, he examined data relating to the fee simple sales

of numerous other big-box stores that had occurred throughout the Midwest between

2006 and 2013.        (See, e.g., Cert. Admin. R. at 389, 431-40, 1633-44.)                After

adjusting the sales prices of those properties to account for differences in the age

and condition of their improvements, their location, as well as the condition of the

market at the time of sale, Allen used the data to determine a probable sales price

for the subject property of $7,570,000. (See Cert. Admin. R. at 450-98, 1645-54,

1658.)




1
  The sales comparison approach, one of the three generally accepted appraisal techniques
for valuing real property, “estimates the total value of the property directly by comparing it to
similar, or comparable, properties that have sold in the market.” 2002 REAL PROPERTY
ASSESSMENT MANUAL (2004 Reprint) (“Manual”) (incorporated by reference at 50 IND. ADMIN.
CODE 2.3-1-2 (2002 Supp.) (repealed 2010)) at 3; 2011 REAL PROPERTY ASSESSMENT
MANUAL (“2011 Manual”) (incorporated by reference at 50 IND. ADMIN. CODE 2.4-1-2 (2011))
at 2.


                                               3
       Allen also employed the income approach to value the subject property.2

Under this approach, Allen first estimated the subject property’s net operating

income using market-based rental rates, occupancy rates, and operating expense

levels. (See, e.g., Cert. Admin. R at 1659-66.) Allen explained that he used the

market-based rental rates from existing big-box stores rather than rates from big-box

properties with “built-to-suit” leases in place, because the former were more

representative of both occupant expectations and improvement age.               (See, e.g.,

Cert. Admin. R. at 564-69.) Allen then considered investor surveys and comparable

property sales and performed a band-of-investment analysis to determine the

capitalization rate to apply against his net operating income estimate. (See, e.g.,

Cert. Admin. R. at 580-84, 1666-68.) Under his income approach, Allen estimated

the 2012 value of the subject property to be $7,610,000. (See Cert. Admin. R. at

1668-69.)

       Ultimately, Allen reconciled his sales comparison and income approach

values into a final value conclusion for 2012 of $7,600,000. (See Cert. Admin. R. at

1676-77.) In concluding this final value, Allen explained that he did not consider the

third generally accepted appraisal technique, the cost approach,3 to be a reliable

method of valuing the subject property for two reasons. First, he stated that buyers

and sellers of big-box stores typically do not rely on the cost approach to determine


2
  The income approach, another generally accepted appraisal technique for valuing real
property, applies to “income producing properties that are typically rented[ and] converts an
estimate of income, or rent, [a] property is expected to produce into value through a
mathematical process known as capitalization.” Manual at 3; 2011 Manual at 2.
3
  The cost approach “estimates the value of [any] land as if vacant and then adds the
depreciated cost new of the improvements to arrive at a total estimate of value.” Manual at
3; 2011 Manual at 2.
                                             4
value. (See, e.g., Cert. Admin. R. at 430-31, 1631.) Second, he stated that the use

of the cost approach to value the subject property is redundant because like most

big-box retail properties, it suffered from significant obsolescence that “is difficult, if

not impossible, to estimate without extracting from the other approaches to value.”

(See Cert. Admin. R. at 590-601, 1631.) (See also Cert. Admin. R. at 415-17, 421-

24, 430-31, 592-94, 597-98 (where Allen explains that big-box properties suffer from

obsolescence immediately upon construction because they are built for their users’

exact specifications; subsequent users will never pay “cost” for these properties

because they must incur extensive expenditures to adapt the properties to their own

use).)

                 The Indiana Board Hearing: The Assessor’s Evidence

         During the Indiana Board hearing, the Assessor offered her own USPAP-

certified appraisal that valued Meijer’s property for the 2012 tax year (“Assessor’s

Appraisal”) at $11,200,000. (See, e.g., Cert. Admin. R. at 1728-32.) In addition, she

presented the testimony of David Hall, MAI, the primary author of the Assessor’s

Appraisal.

         In his testimony, Hall first stated that he disagreed with Allen regarding the

propriety of using the cost approach. Indeed, Hall reasoned that the cost approach

was the best approach to value the subject property because it was depreciating at a

rate consistent with its age and suffered from no obsolescence whatsoever. (See,

e.g., Cert. Admin. R. at 892-94, 919-20, 1849 (stating there could be no functional

obsolescence because “the subject has been continuously occupied since

completion of construction, and [] the buildings are consistent with market norms in



                                            5
construction quality, size, utility, and design”), 1850 (stating there could be no

economic obsolescence because local and national economic trends “were

positively impacting [the] demand” for properties like Meijer’s).)      Under his cost

approach, Hall estimated that the subject property’s 2012 market value-in-use was

$11,300,000. (See Cert. Admin. R. at 1845-51.)

       Hall also performed an income approach to value the subject property. In

calculating net operating income, Hall, unlike Allen, used rental, occupancy, and

expense rates derived from built-to-suit leases (i.e., leases to first-generation users).

(See Cert. Admin. R. at 971-74, 1877-80, 1882-85.)           Like Allen, however, Hall

considered investor surveys and comparable property sales and performed a band-

of-investment analysis to determine the capitalization rate to apply against his net

operating income estimate. (See, e.g., Cert. Admin. R. at 1888-91.) Ultimately,

under his income approach, Hall estimated the 2012 value of the subject property

was $11,200,000. (Cert. Admin. R. at 1891.)

       Finally, Hall valued the subject property using two separate sales comparison

approaches. In his first sales comparison valuation, Hall used the leased-fee sales

of occupied big-box properties as his comparables. (See Cert. Admin. R. at 1751-

52, 1853 (asserting that the leased-fee properties best reflected Meijer’s utility

because they were 100% occupied as retail space at the time of their sale).) Hall

maintained that The Appraisal of Real Estate, 14th edition, instructed that because

the leased-fee properties were all leased at market rates, no adjustments were

necessary to account for the difference in the type of property rights conveyed.

(See, e.g., Cert. Admin. R. at 922-24, 928-37, 1746, 1853-55, 1857, 1876.) Based



                                           6
on this analysis, Hall determined a probable sales price for the subject property of

$11,200,000. (Cert. Admin. R. at 946, 1863.)

      For his second sales comparison valuation, Hall relied on fee simple sales of

vacant big-box properties as his comparables. (Cert. Admin. R. at 1751-52, 1853

(explaining that these comparables transferred fee simple property rights and were

not new construction, just like the subject property).) Hall adjusted the sales prices

of these comparables by 45% to account for the fact that they, unlike the subject

property, were vacant. (See, e.g., Cert. Admin. R. at 787-91, 927, 958-69, 1748-51

(explaining that “[v]acancy adversely impacts a property’s utility” because it might

indicate atypical motivations to sell, such as excess supply or duress, that adversely

influence sale price).) From this analysis, Hall determined a probable sales price for

the subject property was $10,900,000. (See Cert. Admin. R. at 2251-52.)

      Hall reconciled all four values into one final value conclusion of $11,200,000.

(Cert. Admin. R. at 1898.) His reconciliation gave his second sales comparison

approach value the least amount of weight. (See Cert. Admin. R. at 1899.)

                     The Indiana Board’s Final Determination

      The Indiana Board issued its final determination on December 1, 2017. In it,

the Indiana Board explained that because both Meijer and the Assessor presented

USPAP-compliant appraisals from qualified experts, it needed to weigh the

competing appraisals and determine which one was more persuasive. (See Cert.

Admin. R. at 2423 ¶ 78.) Ultimately, the Indiana Board determined that Meijer’s

Appraisal was more persuasive than the Assessor’s Appraisal.




                                          7
      With respect to the parties’ income approaches, the Indiana Board’s analysis

was rather brief, stating that while each party’s income approach suffered from some

infirmities that detracted from its overall reliability, each one was still somewhat

probative. (See Cert. Admin. R. at 2427-29 ¶¶ 92-97, 2431 ¶¶ 102-04.) In reviewing

the parties’ sales comparison approaches, the Indiana Board stated that the Meijer

Appraisal presented a sufficient quantity and quality of data to arrive at the subject

property’s March 1, 2012, value of its fee simple interest. (See, e.g., Cert. Admin. R.

at 2398 ¶ 1, 2403 ¶ 19, 2425 ¶ 85, 2426 ¶ 87, 2427 ¶ 91.) In contrast, the Indiana

Board found neither of the Assessor’s sales comparison approaches probative at all:

         In [its first] sales analysis, we find that [the Assessor’s Appraisal]
         actually measured the leased[-]fee value of the subject property.
         In [its second] sales analysis, we find [the] vacancy adjustment
         entirely unsupported. These two errors render [the Assessor’s]
         sales-comparison approaches entirely unreliable[.]

(Cert. Admin. R. at 2431-32 ¶ 105.) In fact, the Indiana Board held that these two

errors were so significant and fundamental that they effectively undermined any

probative value overall that the Assessor’s Appraisal may have had otherwise. (See

Cert. Admin. R. at 2398 ¶ 1, 2435 ¶ 114.)

      Finally, in addressing the use of the cost approach to value the subject

property, the Indiana Board explained that it was not necessary to apply the cost

approach because deriving an obsolescence adjustment from the sales comparison

and income approaches alone was appropriate. (Cert. Admin. R. at 2425 ¶ 85, 2430

¶ 100.) Thus, the Indiana Board found that the fact that Allen did not perform a cost

approach to value the subject property was not improper. (See Cert. Admin. R. at

2425 ¶ 85, 2430 ¶ 100.)       The Indiana Board reasoned that due to the “large



                                            8
discrepancy” between the Meijer Appraisal’s values computed under its sales

comparison and income approaches and the Assessor Appraisal’s cost approach,

the subject property suffered from obsolescence that the Assessor’s Appraisal failed

to account for. (Cert. Admin. R. at 2435 ¶ 114.) Accordingly, the Indiana Board

deemed the Assessor’s cost approach unreliable. (Cert. Admin. R. at 2435 ¶ 114.)

       Finding that the Meijer Appraisal was more persuasive than the Assessor’s

Appraisal, the Indiana Board reduced the subject property’s 2012 assessment

consistent with the Meijer Appraisal’s reconciled value of $7,600,000. (Cert. Admin.

R. at 2435-36 ¶¶ 114-15.) The Assessor subsequently initiated this original tax

appeal on January 12, 2018, and the Court conducted oral argument on the matter

on July 19, 2018. Additional facts will be supplied as necessary.

                              STANDARD OF REVIEW

       The party seeking to overturn an Indiana Board final determination bears the

burden of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane

Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). Accordingly, the Assessor must

demonstrate to the Court that the Indiana Board’s final determination in this matter is

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

contrary to constitutional right, power, privilege, or immunity; in excess of or short of

statutory jurisdiction, authority, or limitations; without observance of the procedure

required by law; or unsupported by substantial or reliable evidence. See IND. CODE §

33-26-6-6(e)(1)-(5) (2019).




                                           9
                                       ANALYSIS

       The Assessor claims the Indiana Board’s final determination must be

reversed because it is contrary to law, not supported by substantial evidence, and

constitutes an abuse of discretion.       More specifically, she asserts that the final

determination is contrary to law because in accepting Meijer’s valuation over hers,

the Indiana Board ignored the generally accepted appraisal practices that 1)

required Allen to adjust his sales comparables to account for expenditures incurred

after those properties were purchased, and 2) permitted Hall to use leased-fee sales

as comparable properties. (Pet’r Br. at 7-15; Oral Arg. Tr. at 4-6, 25-27.) The

Assessor also argues that the final determination must be reversed because there is

no evidence to support the Indiana Board’s conclusion that 1) the leased-fee sales

used in her first sales comparison valuation were not credible and reliable, and 2)

Meijer’s property suffered from obsolescence. (Pet’r Br. at 15-20; Oral Arg. Tr. at

29, 35-37.) Finally, the Assessor argues that the Indiana Board’s final determination

constitutes an abuse of discretion because it “failed to apply a consistent burden of

proof[.]” (Pet’r Br. at 20-21; Oral Arg. Tr. at 39-41.)

                                    Contrary to Law

                  1) Post-Purchase Adjustments to Sales Comparables

       On appeal, the Assessor explains that she presented evidence demonstrating

that several properties used as comparables in the Meijer Appraisal’s sales

comparison approach incurred large post-purchase expenditures. (See Pet’r Br. at

4-5 (citing Cert. Admin. R. at 705, 1294, 1301, 1310, 1326); Pet’r Reply Br. at 2.)

The Assessor contends that pursuant to The Appraisal of Real Estate, 14th edition,



                                            10
Allen was required to adjust the sales prices of those comparable properties to

account for those expenditures. (Pet’r Br. at 10.) Because he did not, the Assessor

claims that the final determination that ultimately adopted the Meijer Appraisal’s final

value conclusion is contrary to law and must be reversed. (See Pet’r Br. at 7-11;

Oral Arg. Tr. at 4-19.) The Court finds the Assessor’s argument unpersuasive for

the following reasons.

       First, the two pages of The Appraisal of Real Estate that the Assessor cites

do not mandate adjustments for post-purchase expenditures. (Compare Pet’r Br. at

10 with APPRAISAL INSTITUTE, THE APPRAISAL OF REAL ESTATE 412-13 (14th ed.

2013).) Rather, they (along with a few other pages) indicate that adjustments for

certain types of post-purchase expenditures may be appropriate but only after the

terms of the sale transaction have been verified through interviews with the

transaction’s participants. See THE APPRAISAL OF REAL ESTATE at 404-05, 412-14.

(See also Oral Arg. Tr. at 18 (where the Assessor concedes that The Appraisal of

Real Estate does not mandate the adjustments but then “clarifies” that an appraiser

should, at a minimum, consider whether a post-purchase expense adjustment is

appropriate).)

       Notwithstanding, both the Assessor and Meijer have indicated that

adjustments for post-purchase “re-imaging” costs are not necessary.4 (Compare

Pet’r Reply Br. at 3 with Cert. Admin. R. at 454-77, 592-93 and Resp’t Resp. Br. at

11-12.) The evidence to which the Assessor cites indicates how much the owners of

4
 “Re-imaging” refers to the types of renovations a second-generation user would make to a
property to align its layout and appearance with a specific business plan or model. (See,
e.g., Cert. Admin. R. at 415-17, 421-24, 592-94 (describing generally how a Meijer store is
different from a K-Mart, Walmart, or Target store).)


                                            11
the comparable properties incurred in post-purchase expenditures but does not

show what the expenditures were for. (See Pet’r Br. at 4-5; Cert. Admin. R. at 705,

1294, 1301, 1310, 1326.) Nonetheless, Meijer’s appraiser, Allen, testified that the

costs presented by the Assessor were all attributable to re-imaging and that

adjustments were therefore unnecessary.5 (See, e.g., Cert. Admin. R. at 476-77.)

       Second, and more importantly, a final determination of the Indiana Board

is contrary to law only if it violates a statute, constitutional provision, legal principle,

or rule of substantive or procedural law. Shelbyville MHPI, LLC v. Thurston, 978

N.E.2d 527, 529 (Ind. Tax Ct. 2012). The Appraisal of Real Estate is not a statute,

constitutional provision, legal principle, or rule of substantive or procedural law; it is a

textbook, used by the appraisal profession, to instruct its members on the “principles

of appraisal and the sound application of recognized valuation methodology.”

THE APPRAISAL OF REAL ESTATE at ix.        To the extent an appraiser relies on the

guidance provided in The Appraisal of Real Estate to complete an appraisal

assignment, the result, his appraisal, is still merely his opinion.        See Stinson v.

Trimas Fasteners, Inc., 923 N.E.2d 496, 502 (Ind. Tax Ct. 2010) (explaining that the

appraisal of property is not a science). Consequently, the Assessor has not shown

that the Indiana Board’s final determination is contrary to law on this basis.




5
  The Assessor argued that her evidence of expenditures shifted the evidentiary burden to
Meijer to demonstrate the purpose of those expenditures was something other than re-
imaging. (See Pet’r Br. at 10-11.) The Assessor, however, bore the burden of
demonstrating that Allen’s testimony was wrong, and her claim that Allen “should have done
more” regarding her evidence (see Pet’r Br. at 10 (arguing that more investigation by Allen
“could have significantly affected his value conclusions”)) does not suffice.
                                            12
              2) Use of Leased-Fee Sales in Sales Comparison Approach

       As previously indicated, the Indiana Board rejected the Assessor’s sales

comparison approach analysis that used leased-fee sales of occupied big-box

properties as comparables because it failed to measure the fee simple value. The

Assessor contends, however, that the Indiana Board’s rejection of that analysis was

contrary to law because it ignored the generally accepted appraisal practice noted in

The Appraisal of Real Estate that permits the use of leased-fee sales as comparable

properties in the sales comparison approach. (See Pet’r Br. at 11-15; Oral Arg. Tr.

at 20-27.) The Assessor’s claim fails because, as the Court just explained, The

Appraisal of Real Estate is not law.

       Furthermore, the Court notes that the Indiana Board rejected the Assessor’s

first sales comparison approach as unreliable because it was not supported by the

evidence. (See Cert. Admin. R. at 2433 ¶ 108.) Indeed, the final determination

acknowledged that the leased-fee sales may be used as comparables, but only if

they are properly adjusted to put them on “a level playing field” with the subject

property.6 (See Cert. Admin. R. at 2426 ¶ 87.) Hall did not make any adjustments,

however, to account for the differences in the type of property rights conveyed

between the subject property and the leased-fee sales comparables; instead, he

asserted that his leased-fee sales comparables did not require adjustment because

they were all leased at market rates. (See Cert. Admin. R. at 922-24, 928-37, 1746,

1853-57, 1876.) The Indiana Board found that even if his assertion that market rate

leases relieved the requirement to adjust were correct, Hall failed to prove that the

6
 The Indiana Board stated that when a sufficient number of fee simple sales exists for use
as comparisons, however, “it is not necessary to resort to leased fee sales.” (Cert. Admin.
R. at 2426 ¶ 87.)
                                            13
leased-fee properties were in fact leased at market rates. (See Cert. Admin. R. at

2432-33 ¶ 107 (stating that Hall’s claim that the comparables were leased at market

rents was based largely on “circular reasoning”).) (See also Cert. Admin. R. at

2415-16 ¶ 56 (where, in relaying Hall’s testimony, the Indiana Board indicates that

Hall’s sole support for asserting his comparables were leased at market rates “was

the data and conclusions from his own income approach,” which itself used the

same leased-fee properties as comparables), 2432 ¶ 107.)

                      Not Supported by Substantial Evidence

       Next, the Assessor argues on appeal that the final determination must be

reversed because it is not supported by substantial evidence.       Specifically, she

maintains that there is no evidence to support the Indiana Board’s conclusion that 1)

the leased-fee sales comparables she used in her first sales comparison approach

were not credible and reliable, and 2) Meijer’s property suffered from obsolescence.

(Pet’r Br. at 15-20; Oral Arg. Tr. at 29, 35-37.)

          1) The Credibility and Reliability of the Assessor’s Leased-Fee Sales

       As previously discussed, the Indiana Board gave no weight to Hall’s first sales

comparison analysis because the Assessor did not prove that his leased-fee sales

comparables were leased at market rents.            The Assessor claims on appeal,

however, that “the evidence, facts, and circumstances surrounding th[ose] sales . . .

undoubtedly support the conclusion that the[y] . . . were leased[] at market rent” and

therefore the first sales comparison approach “provided a reliable and credible

opinion of value [that] should have been adopted by the [Indiana] Board.” (Pet’r Br.

at 11-12, 15.)



                                            14
       The Assessor’s claim asks the Court to reweigh the evidence that was

presented to the Indiana Board in her favor. The Court cannot reweigh the evidence

absent a showing that the Indiana Board has abused its discretion. See Trimas

Fasteners, 923 N.E.2d at 498-99. See also Hubler Realty Co. v. Hendricks Cty.

Assessor, 938 N.E.2d 311, 315 n.5 (Ind. Tax Ct. 2010) (explaining that the Indiana

Board abuses its discretion when it either misinterprets the law or when its final

determination is clearly against the logic and effect of the facts and circumstances

before it). To demonstrate an abuse of discretion, the Assessor first points out that

in her first sales comparison approach, four of Hall’s six comparable properties were

leased at rates between $5.13 and $6.90 per square foot. (See Pet’r Br. at 14 (citing

Cert. Admin. R. at 1862, 2415).) (See also Cert. Admin. R. at 1854-55.) She then

maintains that there was “no logical path” for the Indiana Board to determine those

rental rates were not at market levels because “[t]here’s no evidence that . . .

suggests these properties were leased at above market rents”; moreover, “all [the

rates] fall within the range of [] rents [that were] provided by Allen [in the Meijer

Appraisal.]” (Pet’r Br. at 14-15; Oral Arg. Tr. at 27-28, 31.) The Assessor’s argument

does not, however, rise to the level of demonstrating an abuse of discretion.

       First of all, her argument is argumentum ad ignorantiam, meaning that she

claims “a proposition is true simply on the basis that it has not been proved false[.]”

PHILOSOPHY 103:        INTRODUCTION    TO   LOGIC ARGUMENTUM        AD   IGNORANTIAM,

https://philosophy.lander.edu/logic/ignorance.html (last visited Feb. 6, 2019). This

“logical fallacy” is a type of argument used to shift the burden of proof improperly

from   the    one   who     actually   bears    it.   ARGUMENT    FROM     IGNORANCE,



                                          15
https://en.wikipedia.org/wiki/Argument_from_ignorance.html (last visited Feb. 6,

2019).

         Second, the final determination states that the only evidence Hall relied on to

support his conclusion that the rental rates were at market levels was his own

income approach analysis. (See, e.g., Cert. Admin. R. at 2415-16 ¶ 56 (citing Cert.

Admin. R. at 931, 934), 2432 ¶ 107 (noting that Hall’s reasoning was circular

because he used the same comparables in both his income approach and his first

sales comparison approach analysis).)           If, however, the Assessor wanted the

Indiana Board to follow a specific path to conclude that the leased-fee rental rates

were at market levels (e.g., comparing her rental rates to with those used by Allen in

the Meijer Appraisal), she needed to walk the Indiana Board down that path during

the administrative process. Because the Assessor failed to do so, she cannot now

rectify her misstep. See, e.g., Blesich v. Lake Cty. Assessor, 46 N.E.3d 14, 17 (Ind.

Tax Ct. 2015); Long v. Wayne Twp. Assessor, 821 N.E.2d 466, 471 (Ind. Tax Ct.

2005), review denied; Davidson Indus. v. Indiana State Bd. of Tax Comm’rs, 744

N.E.2d 1067, 1071 (Ind. Tax Ct. 2001) (all indicating that this Court has repeatedly

reminded litigants that they have a duty to walk the Indiana Board, and ultimately

this Court, through every element of their analyses; they cannot assume that the

evidence speaks for itself).

         Based on its review of the evidence in the administrative record, the Court is

not persuaded that the Indiana Board’s determination that the Assessor failed to

demonstrate that the rents used in her first sales comparison approach were at

market levels was against the logic and effect of the facts and circumstances before



                                           16
it. Accordingly, the Court will not reverse the Indiana Board’s final determination on

this basis.

                                   2) Obsolescence

       The Assessor also argues that there is no evidence in the administrative

record to support the Indiana Board’s conclusion that the subject property suffers

from obsolescence. (Pet’r Br. at 15-17.) She asserts that simply because sales

prices were much lower per square foot than the per square foot value under the

cost approach does not prove obsolescence has occurred. (See Pet’r Br. at 16;

Pet’r Reply Br. at 8.) As a result, she concludes that Meijer failed to both identify

and quantify the amount of obsolescence it claimed was present in its property.

(See Pet’r Br. at 15-18; Oral Arg. Tr. at 35-36.) See also Hometowne Assocs. v.

Maley, 839 N.E.2d 269, 273-74 (Ind. Tax Ct. 2005) (explaining that a taxpayer must

support its claim that obsolescence has diminished the value of its property with

probative evidence that 1) identifies the causes of the alleged obsolescence and 2)

quantifies the amount of obsolescence to be applied to its improvements).

       Under   the   substantial   evidence   standard,   this   Court   reviews   the

administrative record to determine whether, when viewed as a whole, it provides a

reasonably sound basis of evidentiary support for the Indiana Board’s decision.

Switzerland Cty. Assessor v. Belterra Resort Indiana, LLC, 101 N.E.3d 895, 904

(Ind. Tax Ct. 2018), review denied. See also Starke Cty. Assessor v. Porter-Starke

Servs., Inc., 88 N.E.3d 814, 820 (Ind. Tax Ct. 2017) (defining substantial evidence

as “more than a scintilla”; it is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion). Because the substantial evidence



                                         17
standard is a highly deferential one, the Court will uphold the Indiana Board’s final

determination unless, based upon the evidence presented, the Assessor can show

that a reasonable person would be compelled to reach a different result.         See

Belterra Resort, 101 N.E.3d 904.

      Allen testified at length about what he believed had a diminishing effect on the

value of Meijer’s property.   Indeed, he explained numerous times that big-box

properties generally, and the subject property specifically, suffer from obsolescence

immediately upon construction because they are built for first-generation users to

their exact specifications, and in turn, subsequent users will never pay “cost” for

these properties because they must incur extensive expenditures to adapt the

properties to their own use. (See Cert. Admin. R. at 415-17, 421-24, 430-31, 592-

94, 597-98.) Allen’s testimony adequately identifies the cause of the obsolescence

and is consistent with a paradigm this Court has long accepted as valid. See, e.g.,

Meijer Stores Ltd. P’ship v. Smith, 926 N.E.2d 1134, 1137-39 (Ind. Tax Ct. 2010)

(indicating that a newly constructed Meijer store was adversely impacted by

obsolescence).

      Furthermore, Meijer’s Appraisal quantifies the amount of obsolescence Allen

claimed was the result of that cause. As this Court has previously explained, all

three approaches to valuation quantify obsolescence, they just do it differently.

Indeed, while the cost approach to valuation accounts for the obsolescence

explicitly, the sales comparison and income approaches account for it implicitly.

Millennium Real Estate Inv., LLC v. Benton Cty. Assessor, 979 N.E.2d 192, 197-98

(Ind. Tax Ct. 2012), review denied. Allen’s conclusion is buttressed by the fact that,



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as the final determination stated, there was a very large difference between the

values computed under the Meijer Appraisal’s sales comparison and income

approaches and the Assessor Appraisal’s cost approach. (Compare Cert. Admin. R.

at 2435 ¶ 114 with Hometowne Assocs., 839 N.E.2d at 275 (explaining that “the

difference [between a property’s valuations under the income/sales comparison

approaches and the cost approach is] attributable to the obsolescence present in the

property”).)

       The Court holds that there is a reasonably sound basis of support in

administrative record for the Indiana Board’s conclusion that the subject property

suffered from obsolescence. Accordingly, the Court will not reverse the Indiana

Board’s determination on this issue either.

                                Abuse of Discretion

       Finally, the Assessor contends that the Indiana Board’s final determination

constitutes an abuse of discretion because it failed to apply a consistent burden of

proof. Specifically, she complains that “[p]articularly as to rebuttal evidence and the

credibility of the data and witnesses, the [Indiana] Board’s expectations and the

burden of proof fluctuated without any apparent authority.” (Pet’r Br. at 20.)

       In essence, the Assessor’s complaint is a restatement of the burden-shifting

arguments already peppered throughout her appeal presentation. (See Pet’r Br. at

20-21 (claiming Meijer bore the burden of proof on the issue relating to adjustments

to account for post-purchase expenditures as well as on the issue whether the rental

rates for Hall’s leased fee sales were not at market levels).) The Court has already




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addressed and rejected these claims. See supra note 5, pp. 15-16. As a result, the

Court will not reverse the Indiana Board’s final determination on this basis.

                                    CONCLUSION

       The Assessor has not demonstrated to the Court that the Indiana Board’s

final determination is contrary to law, unsupported by substantial evidence, or

constitutes an abuse of discretion.         Accordingly, the Indiana Board’s final

determination in this matter is AFFIRMED.




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