MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 10 2019, 8:39 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Thomas J. Lantz TERESA THOMPSON
Montgomery, Elsner & Pardieck, LLP Ann C. Coriden
Seymour, Indiana Coriden Glover, LLC
Columbus, Indiana
ATTORNEY FOR APPELLEE
JACKSON COUNTY BOARD OF
ZONING APPEALS
Susan D. Bevers
Lorenzo Bevers Braman & Connell
Seymour, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lake & Forest Club, Inc., December 10, 2019
Appellant, Court of Appeals Case No.
19A-MI-1695
v. Appeal from the Jackson Circuit
Court
Beulah Hamilton, et al., The Honorable Roger L. Duvall,
Appellees. Special Judge
Trial Court Cause No.
36C01-1810-MI-68
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-1695 | December 10, 2019 Page 1 of 7
Case Summary
[1] Lake & Forest Club, Inc. (“the Club”) appeals the dismissal of its petition for
judicial review of a decision of the Jackson County Board of Zoning Appeals
(“the BZA”). We affirm.
Issues
[2] The Club presents two consolidated and restated issues for review:
I. Whether the trial court properly dismissed the petition for
judicial review for failure to timely file a record of the BZA
decision; and
II. Whether the trial court properly struck the amended
petition for judicial review.
Facts and Procedural History
[3] On August 13, 2018, Teresa Thompson (“Thompson”) and Beulah Hamilton1
applied for a special zoning exception from the BZA, for the purpose of housing
no more than four horses on a 6.34-acre parcel of property zoned Lake
Residential. At a meeting on September 11, 2018, the BZA voted to approve
the special exception. On October 4, 2018, the Club filed a Petition for Judicial
1
Beulah Hamilton is now deceased.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-1695 | December 10, 2019 Page 2 of 7
Review (“the Petition”). On October 9, 2018, the BZA adopted findings of fact
supporting the September 11, 2018 decision.
[4] On November 20, 2018, the BZA filed a motion to dismiss the Petition. Three
days later, Thompson filed her motion to dismiss the Petition. On November
29, 2018, the Club filed the BZA Record of Proceedings. On December 5,
2018, while the motions to dismiss were pending, the Club filed an Amended
Petition for Judicial Review (“the Amended Petition”). The BZA and
Thompson moved to strike the Amended Petition.
[5] On May 28, 2019, following a hearing upon the pending motions, the trial court
dismissed the Petition, concluding that the Record of Proceedings was not filed
in compliance with the thirty-day requirement of Indiana Code Section 36-7-4-
1613. The trial court also granted the motions to strike the Amended
Complaint. The Club filed a motion to correct error, which was deemed denied
on July 19, 2019. The Club now appeals.
Discussion and Decision
Dismissal
Standard of Review
[6] “We review de novo a court’s ruling on motions to dismiss for failure to timely
file necessary agency records where the court ruled on a paper record.”
Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ., 20 N.E.3d 149, 151 (Ind.
2014).
Court of Appeals of Indiana | Memorandum Decision 19A-MI-1695 | December 10, 2019 Page 3 of 7
Analysis
[7] Effective July 1, 2011, Indiana Code section 36-7-4-1600 (“the 1600 Series”)
establishes the exclusive means for judicial review of zoning decisions. Carmel
Bd. of Zoning Appeals v. Bidgood, 120 N.E.3d 1045, 1049 (Ind. Ct. App. 2019).
The 1600 Series now prescribes the following process for seeking
judicial review of a board of zoning appeals’ decision:
• A petitioner must have standing. Ind. Code § 36-7-4-1603.
• The petitioner must have exhausted administrative remedies.
Ind. Code § 36-7-4-1604.
• The petitioner must file the petition for review not later than
thirty days after the zoning decision. Ind. Code § 36-7-4-
1605.
• The petitioner must comply with section 1613 concerning the
time for filing the board record. Ind. Code § 36-7-4-1613(a).
Id.
[8] The motions to dismiss herein alleged a lack of compliance with Indiana Code
Section 36-7-4-1613(a), which provides:
Within thirty (30) days after the filing of the petition, or within
further time allowed by the court, the petitioner shall transmit to
the court the original or a certified copy of the board record for
judicial review of the zoning decision, consisting of:
(1) any board documents expressing the decision;
Court of Appeals of Indiana | Memorandum Decision 19A-MI-1695 | December 10, 2019 Page 4 of 7
(2) other documents identified by the board as having been
considered by the board before its decision and used as a basis
for its decision; and
(3) any other material described in this chapter or other law as
the board record for the type of zoning decision at issue,
subject to this section.
[9] Subsection (b) provides in relevant part:
Failure to file the record within the time permitted by this
subsection, including any extension period ordered by the court,
is cause for dismissal of the petition for review by the court, on its
own motion, or on petition of any party of records to the
proceeding.
[10] The Club filed the Petition on October 4, 2018 and filed the Record of
Proceedings on November 29, 2018, outside the thirty-day window. The Club
did not request an extension of time. The failure to file the Record of
Proceedings or request an extension of time within the thirty-day period
precludes judicial review. See Town of Pittsboro Advisory Plan Comm’n v. Ark Park,
LLC, 26 N.E.3d 110, 119 (Ind. Ct. App. 2015) (holding that the petitioner is not
entitled to judicial review where it failed to comply with I.C. § 36-7-4-1613(a)
requirement to timely transmit a board record); Teaching Our Posterity Success, 20
N.E.3d at 155 (setting forth a “bright line rule” that “a petitioner for [judicial]
review cannot receive consideration of its petition where the statutorily-defined
agency record has not been filed”); Howard v. Allen Cnty Bd. of Zoning, 991
N.E.2d 128, 131 (Ind. Ct. App. 2013) (holding that the 1600 Series requires
Court of Appeals of Indiana | Memorandum Decision 19A-MI-1695 | December 10, 2019 Page 5 of 7
dismissal where no materials supporting judicial review are timely filed and an
extension is not timely granted). The Petition was properly dismissed.
Amended Complaint
[11] The Club contends that it may avoid mandatory dismissal for failure to timely
file the Record of Proceedings because it filed an Amended Petition on
December 5, 2018. The Club argues it is entitled to application of the relation
back doctrine pursuant to Indiana Trial Rule 15(C).
[12] Trial Rule 15(A) provides in pertinent part:
A party may amend his pleading once as a matter of course at
any time before a responsive pleading is served or, if the pleading
is one to which no responsive pleading is permitted, and the
action has not been placed upon the trial calendar, he may so
amend it at any time within thirty [30] days after it is served.
Otherwise a party may amend his pleading only by leave of court
or by written consent of the adverse party; and leave shall be
given when justice so requires.
Because a responsive pleading was permitted but had not been filed, the Club
need not have sought permission from the trial court to file an amended
petition. Trial Rule 15(C) provides in relevant part, “[w]henever the claim or
defense asserted in the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the original pleading the
amendment relates back to the date of the original pleading.”
[13] Nonetheless, relation “back to the date of the original pleading,” id., provides
the Club with no relief from the duty to timely file the Record of Proceedings
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and it does not expand the time for doing so. “After a filing deadline has
elapsed, a party is not permitted to amend a petition to cure its procedural
defects.” Corcoran v. State, 845 N.E.2d 1019, 1022 (Ind. 2006). The Record of
Proceedings is not before the trial court and amending the petition could not
cure the deficiency. The trial court did not err in striking the Amended
Petition.
Conclusion
[14] The trial court did not err in dismissing the Petition. The Club could not
circumvent the requirement for timely filing the board record by filing an
Amended Petition.
[15] Affirmed.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-1695 | December 10, 2019 Page 7 of 7
Lake & Forest Club, Inc. v. Beulah Hamilton (mem. dec.)
Combined Opinion