American Planning Association Indiana Chapter

Transcription

1 American Planning Association Indiana Chapter 2013 Spring Professional Development Conference TODD A. LEETH Zoning Appeals under New 1600 Series

2 APPEAL PROCEDURE NEW vs. OLD 1600 Series patterned after Administrative Orders and Procedures Act (I.C ). More similarities than differences. Neither process is de novo. Except code interpretation but some deference is given.

3 INITIATION OF JUDICIAL REVIEW The Old Series Certiorari Procedure Certiorari to call up the records. Portions of the 1000 Series did not apply to Plan Commission decisions - awkward wording. Referred to BZA throughout case law said you had to substitute Plan Commission into statute for appeals applying to Plan Commission jurisdiction. Didn t envision an appeal from a favorable decision appeal by remonstrators.

4 INITIATION OF JUDICIAL REVIEW cont d. Petition filed with Clerk of Court ( 1005(a)). ( presentation removed in PL ). Service Notice to adverse parties by Sheriff (defined 1005(b)) ( 1005(a)).

5 INITIATION OF JUDICIAL REVIEW cont d. Court directed BZA to show cause why Writ of Certiorari should not issue within 20 days of filing of petition. BZA could only object for technical reasons such as timeliness of filing or procedural deficiencies ( 1006). Errors were fatal because not enough time to correct within 30 day deadline.

6 INITIATION OF JUDICIAL REVIEW Cont d. Court issues Writ if BZA fails to show cause to satisfaction of the court why Writ should not Issue. ( 1006). Writ issues to BZA to return the record to the Court. BZA had to concisely set forth such facts and data as may be pertinent and present material to show grounds of the decision. ( 1008). Writ must state when it shall be returned not less than 10 days from issuance.

7 INITIATION OF JUDICIAL REVIEW cont d. A hearing may or may not be held ( 1009).

8 INITIATION OF JUDICIAL REVIEW cont d. The New 1600 Series Petition filed with Clerk of Court. Service pursuant to Trial Rules ( 1606 Venue).

9 INITIATION OF JUDICIAL REVIEW cont d. Within 30 days of filing petition, the petitioner shall transmit the original or certified copy of the board record to the court. Extension of time allowed for petitioner s inability to obtain the record from the responsible board. ( 1613(b)). Failure to timely file record is cause for dismissal. Gateway West Townhouse v. SF Industrial, 2013 Ind. App. Unpub. LEXIS 286 (March 8, 2013)

10 INITIATION OF JUDICIAL REVIEW cont d. Board shall prepare record for petitioner after written request. ( 1613(c)). No time limit for board to respond to request for record to be prepared. Board shall charge petitioner with reasonable cost of preparing any necessary copies for court ( 1613(d)).

11 TIME TO FILE 30 days after the date of the zoning decision ( 1605). 30 days after decision of BZA ( 1003(b)). Problem - when is a staff decision made to start the clock? - when communicated orally? - must it be in writing? When sent or received?

12 STANDING ( 1603) Much more detailed in the statute. A person to whom the zoning decision is specifically directed. A person aggrieved by the zoning decision who participated in the hearing. A person aggrieved or adversely affected by the zoning decision. There are limitations to these general broad statements.

13 STANDING ( 1603) cont d Series - developed over time through case law. Any property owner whose interests are opposed to the petitioner for the Writ of Certiorari and who appeared at the hearing Before the Board of Zoning Appeals. ( 1005(b) An aggrieved person is one who has suffered a Substantial grievance, a denial of some personal or Property right, or the imposition of a burden or obligation. 975 N.E.2d 853 (Ind. Ct. App. 2012). The petitioner must show some special injury other than that sustained by the community as a whole. Stuckman v. Kosciusko County BZA, 975 N.E.2d 853 (Ind. App. 2012).

14 JUDICIAL REVIEW Review is limited to the board record for the zoning decision. ( 1611). Bucko Construction Co. v. INDOT, 850 N.E.2d 1008 (Ind.App. 2006) Quoted by Gateway West Townhouse. 1613(a) Defines what the record consists of: (1) any board documents expressing the decision; (2) other documents identified by the board as having been considered by the board before its decision decision and used as a basis for its decision; and (3) any other material described by law as the board record.

15 EXCLUSIVE MEANS FOR JUDICIAL REVIEW 1601(a) 1601(b) - Applies to zoning decisions of BZA; legislative body, plan commission, preservation commission or zoning administrators. - Legislative acts are not subject to judicial review Series - Applicability was not well defined and was silent about legislative action but case law decided this too. A plan commission recommendation is not reviewable. (Hammond v. Pielet, 338 N.E.2d 648 (Ind. App. 1975).

16 1000 SERIES STILL LIVES! Only 1004 through 1011 were repealed by HB These sections still retain effective: 1001 Stay of work pending appeal Restraining Order 1002 Enforcement of stay 1003 Review of decisions 1012 Violations as common nuisance 1013 Investigation and prosecution of violation 1014 Enforcement Remedies 1015 Commitments 1016 Review of decisions 1017 Status of structures erected in violation 1018 Penalty 1019 Burden of proof 1020 Presumption of validity of ordinances judicial notices

17 SUBMISSION OF RECORD Series BZA must submit record not less than 10 days pursuant to Order of Court Series - Petitioner has duty to submit to court within 30 days of filing of petition. ( 1613(a)). Petition must make written request of board to prepare record. ( 1613(c)). Extension of time allowed for good cause. Inability to obtain record is good cause. Parties may stipulate to a shortened, summarized or organized record. ( 1613(e)).

18 THANK YOU Todd A. Leeth Hoeppner Wagner & Evans, LLP 103 E. Lincolnway Valparaiso, Indiana 46383