ATTORNEYS FOR PETITIONER:                       ATTORNEYS FOR RESPONDENT:
JAMES F. BEATTY                                 GREGORY F. ZOELLER
JESSICA L. FINDLEY                              ATTORNEY GENERAL OF INDIANA
DONALD D. LEVENHAGEN                            JESSICA R. GASTINEAU
MEGAN M. PIAZZA                                 WINSTON LIN
KATHRYN M. MERRITT-THRASHER                     DEPUTY ATTORNEYS GENERAL
LANDMAN BEATTY, LAWYERS, LLP                    Indianapolis, IN
Indianapolis, IN
                                                                      FILED
ATTORNEY FOR AMICI CURIAE:                                       Oct 05 2016, 12:29 pm
PAUL M. JONES, JR.
                                                                      CLERK
PAUL JONES LAW, LLC                                               Indiana Supreme Court
                                                                     Court of Appeals
Indianapolis, IN                                                       and Tax Court




                                IN THE
                          INDIANA TAX COURT

HAMILTON SQUARE INVESTMENT, LLC,              )
                                              )
      Petitioner,                             )
                                              )
                     v.                       ) Cause No. 49T10-1505-TA-00018
                                              )
HAMILTON COUNTY ASSESSOR,                     )
                                              )
      Respondent.                             )


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

                                 FOR PUBLICATION
                                  October 5, 2016

FISHER, Senior Judge

      Indiana’s property tax caps provide taxpayers with credits against their Indiana

property tax liabilities. See, e.g., IND. CODE § 6-1.1-20.6-7.5 (2016). The amount of a

credit depends on, among other things, a property’s classification (e.g., homestead,

residential, agricultural, or nonresidential) and its overall gross assessed value. See
I.C. § 6-1.1-20.6-7.5. This case concerns Hamilton Square Investment, LLC’s claim that

the Indiana Board of Tax Review erred in upholding the classification of its real property

and, thus, the allocation of its tax cap credits for the 2012 tax year. Hamilton Square is

correct.

                           FACTS AND PROCEDURAL HISTORY

         Hamilton Square owns a 200-unit apartment complex situated on approximately

20 acres of land in Westfield, Indiana. (See Cert. Admin. R. at 87, 102-45, 152.) For

the 2012 tax year, the Hamilton County Assessor assigned the property an overall gross

assessed value of $5,030,900 ($1,411,000 for land and $3,619,900 for improvements).

(See Cert. Admin. R. at 102.) In arriving at this valuation, the Assessor classified about

70% of the property as residential (i.e., the apartment buildings, attached balconies, and

land thereunder) and 30% as nonresidential (i.e., the paving, storage/utility sheds, pool,

clubhouse, and all remaining land). (See Cert. Admin. R. at 149, 199-242.) Pursuant to

Indiana Code § 6-1.1-20.6-7.5, a 2% tax cap credit was then applied to the overall gross

assessed value of Hamilton Square’s residential property and a 3% tax cap credit was

applied to the gross assessed value of its nonresidential property. 1 (See Cert. Admin.

R. at 149-51.)

         Believing the Assessor had erred in classifying its property, Hamilton Square filed

a Notice of Review with the Hamilton County Property Tax Assessment Board of

1
    Indiana Code § 6-1.1-20.6-7.5 provided that the amount of a person’s tax cap credit was:

            the amount by which the person’s property tax liability attributable to the
            person’s . . . residential property exceed[ed] two percent (2%)[ or its] . . .
            nonresidential real property exceed[ed] three percent (3%) . . . of the
            gross assessed value of [its] property that [was] the basis for
            determination of property taxes for that calendar year.

IND. CODE § 6-1.1-20.6-7.5(a)(2), (5) (2012).
                                                  2
Appeals (PTABOA) in May of 2013.             The PTABOA, however, took no action on

Hamilton Square’s appeal. (See Cert. Admin. R. at 28.) As a result, on April 7, 2014,

Hamilton Square filed a Petition for Review with the Indiana Board.               The parties

subsequently determined that the Indiana Board could resolve the matter by means of

summary judgment without an administrative hearing. (See Cert. Admin. R. at 28.)

       On August 1, 2014, the parties filed their briefs and designated evidence2 with

the Indiana Board to support their motions for summary judgment. In its brief, Hamilton

Square claimed that it was entitled to judgment as a matter of law because the

Assessor’s classification of its property and the allocation of its 2012 tax cap credits

contravened Indiana Code §§ 6-1.1-20.6-4 and 6-1.1-20.6-7.5. (See, e.g., Cert. Admin.

R. at 90-97, 277-79.) More specifically, Hamilton Square asserted that the Assessor

misclassified some of its residential property by “limit[ing] the term ‘common areas’ to

those areas shared only by the actual dwelling units, such as common hallways, and

not those areas shared by the residents.”          (See Cert. Admin. R. at 90-91.)        The

Assessor, on the other hand, asserted that she was entitled to judgment as a matter of

law because her classification of Hamilton Square’s property and the allocation of its tax

cap credits comported with both statutes. (See, e.g., Cert. Admin. R. at 185-90, 267-

68.)

       On April 1, 2015, the Indiana Board issued its final determination upholding the

Assessor’s classification of Hamilton Square’s property and the allocation of its tax cap

credits for the 2012 tax year. (See Cert. Admin. R. at 35.) In so doing, the Indiana


2
    The Indiana Board’s final determination provides that the Assessor submitted, but did not
designate, her own affidavit as evidence. (See Cert. Admin. R. at 29.) The certified
administrative record, however, reveals otherwise. (See Cert. Admin. R. at 193 (designating the
affidavit of the Assessor as Exhibit A).)
                                              3
Board explained that the Assessor’s classification of Hamilton Square’s property

comported with both statutes because under Indiana Code § 6-1.1-20.6-4, “common

areas shared by the dwelling units” were limited to the land and improvements within

the footprint of a multi-unit apartment building.       (See Cert. Admin. R. at 34-35.)

Hamilton Square subsequently filed a petition for rehearing, but the Indiana Board

declined to rehear the matter. (Cert. Admin. R. at 36-46.)

       On May 15, 2015, Hamilton Square initiated this original tax appeal. The Court

heard oral argument on January 22, 2016. Additional facts will be supplied if necessary.

                                 STANDARD OF REVIEW

       The party seeking to overturn a final determination of the Indiana Board bears

the burden of demonstrating its invalidity.       Hubler Realty Co. v. Hendricks Cnty.

Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct. 2010). The Court will reverse a final

determination if it 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

procedure required by law; or unsupported by substantial or reliable evidence. IND.

CODE § 33-26-6-6(e)(1)-(5) (2016).

                                            LAW

       Indiana Code § 6-1.1-20.6 governs the computation and allocation of property tax

cap credits. See generally IND. CODE §§ 6-1.1-20.6-0.3 to -12 (2016). During the 2012

tax year, Indiana Code § 6-1.1-20.6-4 (hereinafter, “the Residential Property Statute”)

defined “residential property,” for purposes of this statutory scheme, as:

          (1) A single family dwelling that [was] not part of a homestead and
              the land, not exceeding one (1) acre, on which the dwelling

                                              4
              [was] located.

           (2) Real property that consist[ed] of:
               (A) a building that include[d] two (2) or more dwelling units;
               (B) any common areas shared by the dwelling units; and
               (C) the land, not exceeding the area of the building footprint,
                  on which the building [was] located.

           (3) Land rented or leased for the placement of a manufactured
               home or mobile home, including any common areas shared
               by the manufactured homes or mobile homes.

IND. CODE § 6-1.1-20.6-4 (2012) (amended 2013).               “Nonresidential property” was

defined as real property that was 1) not a homestead or residential property and that 2)

consisted of a building, any other land improvement, and the land under the footprint of

the building or improvement.        See IND. CODE § 6-1.1-20.6-2.5(1) (2012).           Certain

undeveloped land was also included in the definition of “nonresidential property.” See

I.C. § 6-1.1-20.6-2.5(2).

                                         ANALYSIS

       On appeal, Hamilton Square claims that the Indiana Board erred when it limited

the term “common areas,” as used in the Residential Property Statute, to solely the land

and improvements within the footprint of a multi-unit apartment building (e.g., hallways

and stairways).3 (See Pet’r Br. at 13 n.8.) Hamilton Square maintains that for purposes

of the Residential Property Statute, common areas should also include land and

improvements beyond an apartment building’s footprint. (See, e.g., Pet’r Br. at 15-18.)

(See also Amici Curiae Br. of Gene B. Glick Co., Dominion Realty, Inc., Samaritan Co.,

& Stygall Co. at 5-7.)

3
   Hamilton Square has also claimed that the Indiana Board’s final determination violates the
Indiana Constitution’s “uniform and equal” requirement. (See Pet’r Br. at 25-27; Pet’r Reply Br.
at 13-15.) The Court, however, need not address that issue because this case is resolved on
statutory grounds. See, e.g., Bethlehem Steel Corp. v. Indiana Dep’t of State Revenue, 597
N.E.2d 1327, 1330 (Ind. Tax Ct. 1992), aff’d by 639 N.E.2d 264 (Ind. 1994).
                                               5
       The Assessor, on the other hand, claims that the language of the Residential

Property   Statute   unambiguously     limited   common     areas    to   rental   “building

improvements” (e.g., stairways and hallways) and excluded “standalone structures” and

their supporting land (e.g., clubhouses and sheds) just as the Indiana Board

determined. (See Oral Arg. Tr. at 13-15; Resp’t Br. at 7-8.) The Assessor explains that

this is so because in using the restrictive phrase “shared by the dwelling units” to modify

the phrase “any common areas,” the Residential Property Statute focused on the actual

dwelling units themselves and required the common areas to be “in physical proximity

with the dwelling units.”   (See Resp’t Br. at 5-8.)     (See also Resp’t Br. at 12-15

(asserting that another restrictive phrase, “not exceeding the area of building footprint,”

corroborated the physical proximity requirement).) The Court does not find persuasive

the Assessor’s argument that the terms “common area” and “footprint,” as used in the

Residential Property Statute, are interchangeable.

       When a statute is susceptible to more than one interpretation, as it is here, it is

ambiguous and subject to judicial construction. City of Carmel v. Steele, 865 N.E.2d

612, 618 (Ind. 2007). In construing a statute, the Court’s primary goal is to determine

and implement the intent of the Legislature in enacting the statute. See Bd. of Comm’rs

of Cnty. of Jasper v. Vincent, 988 N.E.2d 1280, 1282 (Ind. Tax Ct. 2013). Generally,

the best evidence of this intent is found in the actual language of the statute itself, as

chosen by the Legislature. Washington Park Cemetery Ass’n v. Marion Cnty. Assessor,

9 N.E.3d 271, 273 (Ind. Tax Ct. 2014). Consequently, the Court will strive to give

meaning to each and every word used in the Residential Property Statute because it will

not be presumed that the Legislature intended to enact a statutory provision that is



                                            6
superfluous, meaningless, or a nullity. See id.

       As mentioned, Subsection (2) of the Residential Property Statute provides that “a

building that includes two (2) or more dwelling units” is residential property. See I.C. §

6-1.1-20.6-4(2)(A). Logic dictates that the multi-unit apartment building referred to in

Subsection (2) already consists of the building’s hallways and stairways.                       Thus,

confining common areas to the hallways and stairways of a multi-unit apartment building

would render the portion of the Residential Property Statute concerning common areas

superfluous (i.e., redundant).        Accordingly, to give effect to the entire Residential

Property Statute, “common area” must be understood to include land and improvements

that are both attached to, and separated from, a multi-unit apartment building so long as

the area is available for the shared use of tenants.4                 See, e.g., Cyril M. Harris,

DICTIONARY    OF   ARCHITECTURE & CONSTRUCTION 214 (3d ed. 2000) (defining “common

area” as “[a]n area either within a building or outside a building which is intended for use

of all occupants of the building or a group of buildings, but not for the free use of the

general public”).

       Moreover, when the sections of the Residential Property Statute are read in

conjunction with one another rather than piecemeal, it is apparent that the Assessor has

misconstrued the import of the restrictive phrase, “not exceeding the area of the building

footprint” in Subsection 2(C) of the Residential Property Statute. (See Resp’t Br. at 12-

15.) See also Washington Park Cemetery, 9 N.E.3d at 273 (providing that statutes

containing multiple parts should be read as a whole rather than piecemeal). Indeed, the


4
  In 2013, the Legislature amended Indiana Code § 6-1.1-20.6-4 and adopted Indiana Code §
6-1.1-20.6-1.2, which defined “common areas.” See P.L. 288-2013 §§ 21-22 (eff. Jan. 1, 2014).
While the parties dispute the applicability of these statutory provisions, (see, e.g., Pet’r Br. at 19-
25; Resp’t Br. at 8-13), the Court need not address the issue to resolve this matter.
                                                  7
phrase in Subsection 2(C), “the land, not exceeding the area of the building footprint, on

which the building is located[,]” is linked to the rental dwelling unit (i.e., the building

containing at least two dwelling units), not the common areas. See I.C. § 6-1.1-20.6-

4(2). Similarly, the land restriction in Subsection (1), the acre of land surrounding “[a]

single family dwelling that is not part of a homestead[,]” is linked to a single-family rental

home that is not part of a homestead.        See I.C. § 6-1.1-20.6-4(1). In turn, the land

restriction in Subsection (3), “[l]and rented or leased for the placement of a

manufactured home or mobile home,” is linked to the manufactured home or mobile

home rental.     See I.C. § 6-1.1-20.6-4(3).      Consequently, the actual structure and

language of the Residential Property Statute does not limit common areas to an

apartment building’s footprint as the Assessor has argued. See Indiana Dep’t of State

Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994) (stating that “[n]othing

may be read into a statute which is not within the manifest intention of the legislature as

gathered from the statute itself” (citation omitted)).

                                       CONCLUSION

       For the foregoing reasons, the final determination of the Indiana Board is

REVERSED. This matter is REMANDED to the Indiana Board so that it may instruct

the appropriate assessing officials to take actions consistent with this opinion.




                                              8
