ATTORNEYS FOR PETITIONER:                         ATTORNEYS FOR RESPONDENT:
TORREY J. BAUER                                   GREGORY F. ZOELLER
BAUER LAW OFFICE, P.C.                            ATTORNEY GENERAL OF INDIANA
Warsaw, IN                                        EVAN W. BARTEL
                                                  DEPUTY ATTORNEY GENERAL
JEFFREY T. JONES                                  Indianapolis, IN
JONES LAW, PC
Warsaw, IN
_____________________________________________________________________

                               IN THE
                         INDIANA TAX COURT
_____________________________________________________________________
                                                      Feb 19 2015, 2:54 pm

MARINELAND GARDENS COMMUNITY          )
ASSOCIATION, INC.,                    )
                                      )
     Petitioner,                      )
                                      )
             v.                       )   Cause No. 45T10-1210-TA-00065
                                      )
KOSCIUSKO COUNTY ASSESSOR,            )
                                      )
     Respondent.                      )
_____________________________________________________________________

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

                                  FOR PUBLICATION
                                   February 19, 2015

WENTWORTH, J.

      The Indiana Board of Tax Review denied Marineland Gardens Community

Association, Inc.’s 2009 and 2010 property tax exemptions because it failed to make a

prima facie case that it was established for the purpose of retaining and preserving its

land and water for their natural characteristics. The Court affirms the Indiana Board.

                        FACTS AND PROCEDURAL HISTORY

      Marineland is the homeowners’ association for a subdivision located on a lake in
Kosciusko County. (Cert. Admin. R. at 469, 506.) Marineland was organized as a

domestic, non-profit corporation in 1967. (Cert. Admin. R. at 452.) Marineland owns

and maintains ten non-contiguous parcels of land within the subdivision. During the

2009 and 2010 tax years, Marineland applied for a property tax exemption on each

parcel claiming that it “maintains these [parcels] for the purpose of retaining and

preserving land and water for their natural characteristics[.]” (Cert. Admin. R. at 11, 23.)

The Kosciusko County Property Tax Assessment Board of Appeals (PTABOA) denied

the exemption applications. (Cert. Admin. R. at 6-8, 18-20.)

       Marineland timely appealed each of the exemption denials to the Indiana Board.

(See Cert. Admin. R. at 63-330.) The Indiana Board consolidated the appeals and held

a hearing on June 13, 2012. At the hearing, Marineland presented, among other things,

the testimony of both its president and a subdivision homeowner.            The president

testified that although one parcel contains gravel, the other nine parcels are

unimproved. (Cert. Admin. R. at 528.) He stated that some parcels had narrow walking

paths allowing access to the water and the piers from the road. (See Cert. Admin. R. at

506, 550-56.) (See also Cert. Admin. R. at 460-66.) Moreover, he explained that one of

the parcels was a long and narrow (600 feet by 60 feet) strip that separated homes from

the water’s edge. (See Cert. Admin. R. at 495-96, 537-38.) (See also Cert. Admin. R.

at 458-59.) This parcel has a seawall running along its length, interrupted by a boat

ramp. (See Cert. Admin. R. at 544, 546.) (See also Cert. Admin. R. at 459.) In

addition, the president pointed out that several parcels contained utility poles with

lighting and possibly utility service. (Cert. Admin. R. at 555.) (See also Cert. Admin. R.

at 456, 458.) He also indicated that Marineland permits the public to access all ten



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parcels, the piers, and the lake for recreational purposes such as fishing, walking, and

picnicking. (See Cert. Admin. R. at 522, 533, 549, 559-61.) He further stated that

Marineland does not conduct any business activity or allow outside vendors on the land.

(Cert. Admin. R. at 529.) Finally, he explained that Marineland remains one of the few

areas on Lake Wawasee where geese and other wildlife can still access the land

because it is not fenced. (Cert. Admin. R. at 561-62.)

      A homeowner from the subdivision testified that Marineland purchased one of the

ten parcels specifically to prevent commercial buildings from being built on it. (See

Cert. Admin. R. at 567-70.) He continued that Marineland later improved the parcel by

adding gravel so that it could be used as a parking lot for the boat ramp. (See Cert.

Admin. R. at 570.) (See also Cert. Admin. R. at 462.)

      On September 7, 2012, the Indiana Board issued its final determination affirming

all of the PTABOA’s exemption denials. The Indiana Board found that Marineland failed

to make a prima facie case that it was established for the purpose of retaining and

preserving its land and water for their natural characteristics as required by Indiana

Code § 6-1.1-10-16(c)(3). (Cert. Admin. R. at 432 ¶¶ 24-25.)

      On February 13, 2013, Marineland initiated an original tax appeal. The Court

conducted oral argument on June 21, 2013. Additional facts will be supplied when

necessary.

                                  STANDARD OF REVIEW

      This Court gives great deference to final determinations of the Indiana Board

when it acts within the scope of its authority. Tipton Cnty. Health Care Found. v. Tipton

Cnty. Assessor, 961 N.E.2d 1048, 1050 (Ind. Tax Ct. 2012). The Court will reverse a



                                           3
final determination of the Indiana Board only if it is:

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

              (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 § 33-26-6-6(e)(1)-(5) (2015).         The party seeking to overturn the Indiana

Board’s final determination bears the burden of establishing its invalidity. Osolo Twp.

Assessor v. Elkhart Maple Lane Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003).

Moreover, the Court will not reweigh any evidence presented or reassess the credibility

of any witnesses who testified at the administrative hearing. Shelby Cnty. Assessor v.

CVS Pharmacy, Inc. #6637-02, 994 N.E.2d 350, 353 (Ind. Tax Ct. 2013).

                                   LAW AND ANALYSIS

       Indiana Code § 6-1.1-10-16(c)(3) exempts a tract of land from property tax if it “is

owned by a nonprofit entity established for the purpose of retaining and preserving land

and water for their natural characteristics[.]” IND. CODE § 6-1.1-10-16(c)(3) (2009).1 The

Indiana Board denied Marineland’s exemption applications because it failed to show

that it was established for the purpose of retaining and preserving the natural

characteristics of its land. (See Cert. Admin. R. at 431-32 ¶¶ 20-24.) On appeal,

1
  The statute also requires that the tract of land not exceed five hundred acres and not be used
by the nonprofit entity to make a profit. See IND. CODE § 6-1.1-10-16(c)(3)(B), (C) (2009). At
the hearing, Marineland stated it did not use its parcels to make a profit and the parcels’ total
acreage is less than 500 acres. (See Cert. Admin. R. at 527, 529, 576.) The Assessor did not
challenge these statements and they, therefore, are not in dispute now.


                                               4
Marineland asserts that because the Indiana Board gave no weight to its evidence

showing that the subject parcels were maintained and preserved for their natural

characteristics, its final determination constitutes an abuse of discretion and is

unsupported by substantial evidence.2 (See Pet’r Pet. Judicial Review at 3-4.)

       To be eligible for the exemption, Marineland had to show that it was established

for the purpose of retaining and preserving its land for its natural characteristics. The

record reveals that Marineland did not submit any organizational documents to the

Indiana Board that laid out the purpose for which it was established. (See generally

Cert. Admin. R. at 438-66 (indicating what evidence Marineland submitted at the

administrative hearing).) (See also Cert. Admin. R. at 431-32 ¶¶ 20, 23.) Instead,

Marineland’s president simply presented evidence demonstrating how Marineland has

and continues to use the land.3




2
   Marineland also argues that the Indiana Board abused its discretion by not granting it exempt
status when “one other [homeowner’s] association on a lake in Indiana with similar facts [was]
granted exemption status[.]” (See Pet’r Mem. Supp. Pet. Judicial Review at 9, n. 3 (referring to
the Court’s decision Kosciusko County Property Tax Assessment Board of Appeals v. Hime’s –
Miller’s & Strombeck’s 3rd Additions, Inc., No. 49T10-0605-TA-50, slip op. (Ind. Tax Ct. June
26, 2007).) The argument, however, fails for two reasons. First, the Court’s opinion in Hime’s is
a memorandum decision and therefore cannot be regarded as precedent. See Ind. Tax Court
Rule 17. Second, Hime’s is distinguishable from this case because the sole issue there was
whether the exemption statute was constitutional as applied, while the issue in the present case
is whether the evidence supports the Indiana Board’s finding. See Kosciusko Cnty. Prop. Tax
Assessment Bd. of Appeals v. Hime’s – Miller’s & Strombeck’s 3rd Additions, Inc., No. 49T10-
0605-TA-50, slip op. at 4-5 (Ind. Tax Ct. June 26, 2007). Accordingly, neither the decision nor
the reasoning in Hime’s is persuasive in deciding this case.
3
  The president also testified that Marineland applied for a state grant on January 15, 2012, to
dredge the channel, claiming that dredging is indicative of Marineland’s effort to preserve the
waterway. (See Cert. Admin. R. at 563-64.) This fact, however, is not relevant to the present
case because Marineland applied for the grant after the assessment years at issue. (See Cert.
Admin. R. at 563-64.) See also Quality Stores, Inc. v. State Bd. of Tax Comm’rs, 740 N.E.2d
939, 942 (Ind. Tax Ct. 2000) (explaining that each tax year stands alone).


                                               5
       Even if evidence of a property’s current or long-standing use could prove why an

organization was established, much of the evidence that Marineland presented is

contradictory. The Indiana Board recognized that some of Marineland’s evidence might

indicate that it was preserving and retaining its land and water for their natural

characteristics.4 (See Cert. Admin. R. at 431-32 ¶ 21.) For instance, nine of its parcels

were unimproved, geese and people had access to the land because it was not fenced

in, and trees and grass were present on the parcels. (See Cert. Admin. R. at 522, 531-

32, 561-62.) In addition, Marineland does not conduct any business activity or permit

outside vendors on the land. (See Cert. Admin. R. at 529.) Nonetheless, the Indiana

Board pointed out that other evidence showed that Marineland’s land was used in a

manner inconsistent with being established for the purpose of retaining and preserving

the natural characteristics of its land. (See Cert. Admin. R. at 431 ¶ 21.) For example,

several parcels contained improvements: one parcel was a gravel lot used for parking;

another parcel had a long cement seawall, a boat ramp, and boat docks; and several

parcels had utility poles with lighting. (See, e.g., Cert. Admin. R. at 520-21, 531-32,

542, 544, 546-47, 554.) In addition, much of Marineland’s evidence focused on the use

of the parcels for recreational activities such as walking, fishing, and boating. (Cert.

Admin. R. at 506, 522, 532-34, 535-36, 546-47, 549, 554, 559-60.)                 Marineland,

however, failed to explain to the Indiana Board how these uses furthered the exempt

purpose.

4
   Indiana Code § 6-1.1-10-16(c)(3) does not define the words “retaining” or “preserving.” The
Court therefore gives those words their plain and ordinary meaning as found in a dictionary.
See Methodist Hospitals, Inc. v. Lake Cnty. Prop. Tax Assessment Bd. of Appeals, 862 N.E.2d
335, 338 (Ind. Tax Ct. 2007) review denied. The word “retaining” means “to hold secure or
intact (as in a fixed place or condition)[.]” See WEBSTER’S THIRD NEW INT’L DICTIONARY 1938
(2002 ed.). The word “preserving” means “to keep safe from injury, harm, or destruction” or “to
remain fresh or in original state[.]” See id. at 1794.
                                              6
      This Court will find that a final determination of the Indiana Board is supported by

substantial evidence if a reasonable person could view the record in its entirety and find

enough relevant evidence to support the Indiana Board’s determination. See Amax Inc.

v. State Bd. of Tax Comm’rs, 552 N.E.2d 850, 852 (Ind. Tax Ct. 1990).            Here, a

reasonable person viewing the record would find enough relevant evidence to support

denying the exemption because Marineland did not explain how its evidence indicates

that it was established for the purpose of retaining and preserving the land and water for

its natural characteristics under Indiana Code § 6-1.1-10-16(c)(3). See Long v. Wayne

Twp. Assessor, 821 N.E.2d 466, 471 (Ind. Tax Ct. 2005) (stating that in order to make a

prima facie case, a taxpayer must walk the Indiana Board and this Court through every

element of its analysis) review denied.

                                     CONCLUSION

      For the foregoing reasons, the Court finds that the Indiana Board’s final

determination is supported by substantial evidence and is not an abuse of discretion.

Accordingly, the Court AFFIRMS the Indiana Board’s final determination in this matter.




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