Whether a law suit involves a zoning dispute, property appeal or business litigation question, the Indiana law firm handling the matter must be familiar with the unique procedural aspects of Indiana law. Two decisions issued this week by the Indiana Appellate Courts focus on questions of Indiana procedure when a property owner initiates a court challenge to a decision by a local Board of Zoning Appeals.
In Thomas v. Blackford County Area Board of Zoning Appeals and Oolman Dairy, LLC, the Indiana Supreme Court affirmed the trial court’s conclusion that Thomas, a property owner who remonstrated against locating a confined animal feeding operation one-third of a mile from Remonstrator Thomas’ property, failed to show she had standing to challenge a Board of Zoning Appeals’ (“BZA’s”) decision granting a special exception for the feeding operation.
The standing question itself and the Indiana Supreme Court’s affirmance of the trial court’s findings are neither novel nor surprising to an Indiana appellate lawyer. The interesting aspect of the decision is the Supreme Court’s approval of the procedure followed by the trial court to reach the result.
The question of Thomas’ standing was first raised by the owner of the feed operation in a motion to dismiss under Indiana Trial Rule 12(B)(6). The trial court correctly denied that motion because it was based on matters outside the four corners of the Complaint. The trial court, nevertheless, held an evidentiary hearing on the question of whether Thomas had standing as an aggrieved party. Based on the testimony and evidence at the hearing (principally relating to the impact of the feeding operation on the value of Thomas’ property), the trial court determined that Thomas failed to establish she had standing to challenge the BZA’s decision.
The decision was first reviewed by the Indiana Court of Appeals, which reversed the trial court’s decision. The Court of Appeals reasoned that the trial court should have treated the Motion to Dismiss as a Motion for Summary Judgment. See Ind. Trial Rule 12(B) (when “matters outside the pleading are presented to and not excluded by the court” on a motion under Rule 12(B)(6), “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.”). That procedural determination by the Court of Appeals was outcome determinative because the evidence as to Thomas’ standing (i.e., the impact the feeding operation would have on her property’s value) was conflicting, thereby creating genuine issues of material fact.
The Indiana Supreme Court granted transfer, vacated the Indiana Court of Appeals decision, and affirmed the trial court’s decision finding Thomas lacked standing. The Indiana Supreme Court agreed with the trial court and Court of Appeals that dismissal was not appropriate under Indiana Trial Rule 12(B)(6). However, departing from the Court of Appeals’ analysis, the Supreme Court concluded that the procedure for summary judgment under Trial Rule 56 did not apply. Instead, the Supreme Court compared the situation to a motion to dismiss for lack of personal jurisdiction in which a trial court may hold an evidentiary hearing to determine the jurisdictional question. Thus, the Supreme Court approved of the procedure followed by the trial court in holding an evidentiary hearing and deciding whether the Plaintiff had standing based on the conflicting evidence presented.
There is no specific provision in Trial Rule 12(B) that the Indiana Supreme Court relied upon in holding that the trial court may determine the Plaintiff’s standing on a motion to dismiss. Implicit in that result is the notion that standing is a legal issue for the judge, not the jury, to decide.
A novel procedural issue was also addressed in Edward Rose of Indiana, LLC v. Metropolitan Board of Zoning Appeals, Indianapolis-Marion County. In Edward Rose, an apartment owner challenged the Indianapolis-Marion County BZA’s denial of a variance sought by the apartment owner to maintain a pole sign on the premises of the apartment complex. Like Thomas, the decision is noteworthy for the Indiana property law attorney not because of the Court’s conclusion that the variance was properly denied to the apartment owner, but rather for the Court of Appeals’ dictum regarding the procedure followed by the trial court.
Specifically, the Indiana Court of Appeals addressed under what circumstances a landowner who had unsuccessfully petitioned for a variance in the local BZA may challenge that decision based on evidence the landowner failed to offer in the zoning hearing. The issue hinged on an Indiana statute that provides in relevant part: “If the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence to supplement the evidence and facts disclosed by the return to the writ of certiorari, but the review may not be by trial de novo.” Indiana Code section 36-7-4-1009. The apartment owner sought to buttress its case in court with testimony and evidence that had not been submitted to the BZA. The trial court admitted that testimony and evidence, but ruled nevertheless that the BZA’s decision was not clearly erroneous or illegal.
Although the Indiana Court of Appeals affirmed the trial court’s decision on the merits finding no clear error in the BZA’s decision, the Court disagreed with the trial court’s decision to hear new evidence offered by the apartment owner. The Indiana Court of Appeals reasoned that allowing the apartment owner to present new evidence was “tantamount to conducting a trial de novo” — in essence relitigating the merits of the variance petition from scratch. Such an approach would directly violate Indiana Code section 36-7-4-1009’s proscription that the trial court’s review of BZA decisions “may not be a trial de novo.”
The Indiana Court of Appeals elaborated to provide guidance in future cases by listing circumstances when it may be appropriate for a trial court reviewing a BZA decision to consider new evidence. Such situations arise, for example:
1) when the record before the BZA is incomplete because the aggrieved party was refused an opportunity to be fully heard or the BZA excluded relevant evidence;
2) when good and sufficient cause is shown for the failure to have offered the evidence to the BZA;
3) when the record presented to the trial court does not contain all the evidence actually presented to the BZA;
4) when the BZA’s record fails to present the hearing in sufficient scope to determine the merits of the appeal; and
5) when new evidence is discovered after the BZA’s proceedings.
An Indiana litigation law firm’s understanding of Indiana procedure can be as important as knowledge of the substantive law in obtaining a positive outcome in Indiana litigation matters. The Indiana appellate decisions summarized above guide Indiana lawyers on important procedural questions in Indiana property appeals.