                                                                                FILED
                                                                          Jun 05 2020, 7:41 am

                                                                                CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Terry K. Hiestand                                          Adam J. Mindel
      Hiestand Law Office, LLC                                   Mindel & Associates
      Chesterton, Indiana                                        Hobart, Indiana

                                                                 Dan L. Whitten
                                                                 Whitten & Whitten
                                                                 Portage, Indiana




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Central States Tower IV, LLC,                              June 5, 2020
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 19A-PL-3046
              v.                                                 Appeal from the Porter Superior
                                                                 Court
      Board of Zoning Appeals of the                             The Honorable Jeffrey W.
      City of Portage,                                           Clymer, Judge
      Appellee-Respondent.                                       Trial Court Cause No.
                                                                 64D02-1903-PL-3013



      Sharpnack, Senior Judge.


                                       Statement of the Case
[1]   Appellant-Petitioner Central States Tower IV, LLC (“CST”) appeals the trial

      court’s order denying its petition for writ of certiorari. CST challenges whether

      Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020                            Page 1 of 15
      the trial court erred in affirming Appellee-Respondent Board of Zoning Appeals

      of the City of Portage’s (“BZA” or “Board”) denial of CST’s application for a

      special exception for the location of a cell tower. We reverse the trial court’s

      decision and remand with instructions to dismiss CST’s petition for writ of

      certiorari.


                                                           Issue
[2]   CST raises several issues for our review. However, we find that resolution of

      the following issue leads to reversal of the trial court’s judgment, that is,

      whether CST’s failure to file the BZA record with the trial court, or request an

      extension of time to do so within the timeframe provided by applicable Indiana
                                                                                                 1
      statutes, requires dismissal of CST’s petition for writ of certiorari.


                                    Facts and Procedural History
[3]   This court has previously stated the relevant facts in this matter in a prior

      appeal involving Central States Tower III, LLC (a predecessor of Central States

      Tower IV, LLC) and the Plan Commission of the City of Portage. The relevant

      facts are as follows:


                 Portage Township Multi-School Building Corporation (the
                 School Building Corporation) owns approximately thirty-five
                 acres of land (the Property) in Portage on which Willowcreek
                 Middle School is located. On November 13, 2015, the School
                 Building Corporation and CST executed a lease agreement (the



      1
          Finding this issue dispositive, we need not address the four issues that CST raised.


      Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020                               Page 2 of 15
        Lease), pursuant to which CST would rent a 7,961-square-foot
        parcel (the Site) on the Property.[2] CST planned to construct and
        operate a telecommunications tower on the Site.
        The Lease granted CST unrestricted access to the Site in
        accordance with Exhibit 2 to the Lease[, which] . . . conveyed an
        access and utility easement (the Easement) . . . . The Lease also
        contained [a] provision regarding access [over the Property and
        to the Site.]
        CST filed a petition for a special zoning exception for the Site
        with the Portage Board of Zoning Appeals (the Board). . . . On
        April 25, 2016, the Board voted to approve the special exception
        on [certain conditions, including erecting a fence around the
        Site.]
        ***
        Under Portage’s zoning ordinance, anyone seeking to erect a
        telecommunications tower must first obtain an improvement
        location permit, which requires a site plan review. Only after an
        improvement location permit is obtained may the party apply for
        a building permit. CST submitted its site plan proposal to the
        [Plan Commission of the City of Portage (the Plan Commission)]
        on June 23, 2016. Before being considered by the entire Plan
        Commission, however, the site plan was reviewed by the Plan
        Commission’s Development Review Committee (DRC).
        When the DRC reviewed CST’s site plan proposal, [it
        determined that, based upon a proposed change in the traffic
        flow] between the middle and nearby elementary schools and to
        consolidate the schools into a single campus . . . , CST would
        need a new easement from the School Building Corporation to be
        able to access the Site.




2
  Central States Tower III, LLC, a predecessor of Appellant-Petitioner Central States Tower IV, LLC, was
the entity that entered into the November 2015 Lease with the School Building Corporation. In this appeal,
we refer to both Central States Tower entities collectively as “CST.”

Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020                               Page 3 of 15
        Notwithstanding the uncertainty regarding CST’s ability to
        access the Site, the DRC approved CST’s site plan on three
        conditions: (1) CST would need to acquire a new access
        easement to the Site; (2) the Board’s landscaping and fencing
        conditions would have to appear in the site plan; and (3) the
        revised site plan would have to be re-submitted for final approval.
        On October 28, 2016, CST submitted a new site plan. . . . [T]he
        plan showed[, among other things,] a new access point going
        south and west of the Site to a north-south access road (the
        Alternative Easement).
        On November 15, 2016, the DRC convened a special meeting to
        consider CST’s new site plan. The DRC questioned CST as to
        whether the School Building Corporation had approved the
        Alternative Easement; CST stated that an “agreement for site
        access would be worked out at a later time.” [Appellant’s App.
        Vo. II p. 84]. Because of the lack of an agreement for the
        Alternative Easement, the DRC recommended that the Plan
        Commission deny CST’s site plan.
        On December 5, 2016, the Plan Commission held a final hearing
        on CST’s site plan. CST introduced multiple documents into
        evidence, including two emails from people affiliated with the
        School Building Corporation[, indicating that the School
        Building Corporation was reluctant to enter into a new
        agreement with CST regarding an easement to the Site]. . . .
        ***
        CST argued that under the Lease, the School Building
        Corporation was obligated to grant CST access to the Site. But a
        member of the Plan Commission did not find that argument
        persuasive:
                 . . . The real point is, that [the proposed new easement] is
                 not a recorded access easement. So as we sit here, there is
                 no access to this site. In my opinion, the Plan
                 Commission is being put in a position between somebody
                 who wants to build a tower and their landlord, the school
                 system. . . . I think the Plan Commission—I think we
Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020            Page 4 of 15
                       should stay out of that fight. This is not our fight, and I
                       think we—I don’t think that there’s any way we can
                       approve this plan as it exists.
              Id. at 157. At the conclusion of the hearing, the Plan
              Commission unanimously denied CST’s site plan. . . .
              On May 19, 2017, CST filed a petition seeking judicial review of
              the Plan Commission’s denial of its site plan proposal.
              Following submission of written materials and argument, the
              trial court denied CST’s request to overturn the Plan
              Commission’s decision on October 3, 2017. Ultimately, the trial
              court found that “[t]he Plan Commission was justified in denying
              site plan approval because the [School Building Corporation] had
              neither given its approval to [CST] for the [A]lternative
              [E]asement, nor was there an Access Easement in recordable
              form as to the new permanent access proposed.” Id. at 11.


      Central States Tower III, LLC v. Plan Comm’n of City of Portage, 99 N.E.3d 665,

      666-69 (Ind. Ct. App. 2018), trans denied. CST appealed and, on April 4, 2018,

      a panel of this court issued an opinion affirming the judgment of the trial court.

      Id. at 670.


[4]   On April 20, 2018, CST forwarded to the School Building Corporation a

      proposal for a new easement, which was the Alternative Easement that had

      been submitted to the Plan Commission in December 2016. When the School

      Building Corporation failed to execute the Alternative Easement, CST filed suit

      on September 11, 2018, in the Porter Superior Court. CST sought specific

      performance of the School Building Corporation’s obligations to provide access

      to the Site according to the Lease and to also provide a recordable easement.




      Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020               Page 5 of 15
[5]   On December 28, 2018, CST filed a summary judgment motion. A little over a

      week later, on January 7, 2019, the School Building Corporation provided CST

      with the Alternative Easement, which was recorded in the Porter County

      Recorder’s Office on January 11, 2019.


[6]   On January 17, 2019, a representative of CST delivered a copy of the recorded

      Alternative Easement to the office of Kurt S. Knutsen, Development Review

      Planner for the City of Portage, and requested a building permit. On January

      29, 2019, Knutsen denied the request, memorialized as follows:


              The new easement appears to be the same access that was
              presented previously to the DRC and Plan Commission, but
              which had not at that time been approved by [the School
              Building Corporation]. I told you that it was my opinion that
              Central States Tower would have to submit a new application for
              a special exception because by the terms of City ordinance . . . , a
              special exception for a specific use ceases to be authorized and is
              void if that use is not fifty percent (50%) established within a
              twelve (12) month period of the date the special exception was
              granted. The [S]pecial [E]xception was granted April 25, 2016,
              and well more than twelve (12) months have passed since
              without the use be[ing] at all established. . . .


              I have checked to see if there might be any other options, but see
              none. The ordinance is quite clear. [CST] will need to again
              apply to the BZA for a special exception.


      Appellant’s App. Vol. 2, p. 72.


[7]   On February 5, 2019, CST appealed Knutsen’s decision to the BZA,

      challenging the denial of the building permit. At its meeting held on February

      Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020             Page 6 of 15
      25, 2019, the BZA denied CST’s request to overturn Knutsen’s decision and

      advised CST that it would need to file a new application for a special exception

      for the Site.


[8]   CST filed a new application for a special exception on March 6, 2019 “(Second

      Special Exception”), seeking approval to construct a 175-foot cell tower on the

      Site. The matter was taken up at a public hearing held during the BZA’s

      meeting that took place on March 25, 2019. At the conclusion of the hearing, a

      motion was made and seconded to approve CST’s Second Special Exception.

      However, the motion failed by a vote of three to two. Representatives of CST

      pointed out to the BZA that the failure of the motion to approve the application

      for the Second Special Exception did not amount to a vote to deny the Second

      Special Exception, as such a vote would require findings pursuant to Indiana
                                                     3
      Code section 36-7-4-919(f) (1983). The BZA took no further action at that

      time, and the meeting was adjourned. The following day, on March 26, 2019,

      CST filed in the Porter Superior Court a verified petition for writ of certiorari,
                                                 4
      contesting the BZA’s decision.




      3
        Indiana Code section 36-7-4-919(f) reads: “Within five (5) days after making any decision under the 900
      series, the board of zoning appeals shall file in the office of the board a copy of its decision.”
      4
        CST filed a petition for writ of certiorari but should have sought judicial review instead, as the certiorari
      process has been repealed, and Indiana Code sections 36-7-4-1600 through 36-7-4-1616 (2011) (the “1600
      Series”) “establish[ ] the exclusive means for judicial review of zoning decisions as described in section 1003
      or 1016 of this chapter, made by a board of zoning appeals . . . .” Ind. Code § 36-7-4-1601(a) (2011); see also
      Carmel Bd. of Zoning Appeals v. Bidgood, 120 N.E.3d 1045, 1050 (Ind. Ct. App. 2019).



      Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020                                    Page 7 of 15
[9]    At the BZA meeting held on April 22, 2019, the BZA determined that it needed

       additional time to review new materials that CST had submitted, including a

       proposal to lower the height of the proposed tower from 175 feet to 150 feet. At

       its next meeting, held on May 28, 2019, the BZA voted 4-1 to deny the

       application for the Second Special Exception. Chairperson Denise Little

       recognized that written findings of fact were required, and the proposed

       findings were subsequently prepared by the BZA’s counsel and provided to the

       Board members.


[10]   At the following BZA meeting, held on June 24, 2019, the findings of fact were

       not adopted. Instead, Chairperson Little stated that she would review the

       proposed findings and then confer with the BZA’s counsel. At the July 22,

       2019 BZA meeting, the BZA finally adopted the findings of fact in support of its

       decision, made at its May 28, 2019 meeting, to deny approval of CST’s

       application for the Second Special Exception.


[11]   On July 2, 2019, CST filed with the trial court an amended verified petition for

       writ of certiorari. That same day, the trial court issued an order directing the

       parties to submit proposed findings of fact, and the parties timely submitted

       their findings of fact and conclusions thereon. However, CST did not file the

       BZA record with the trial court within thirty days of filing its petition or request

       an extension of the filing deadline, as required by Indiana Code sections 36-7-4-

       1613(a) and (b) (2011). The BZA did not file a motion to dismiss the petition,

       under Indiana Code section 36-7-4-1613(b), on grounds that CST had failed to

       timely file the BZA record or timely request an extension to do so, and the trial

       Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020           Page 8 of 15
       court did not dismiss the petition on its own motion. Instead, on November 26,

       2019, the trial court entered its Order and Findings of Fact and Conclusions of

       Law, upholding the BZA’s decision to deny CST’s application for the Second

       Special Exception. This appeal ensued.


                                     Discussion and Decision
                                              Motion to Strike
[12]   Initially, we must address the BZA’s motion to strike that it has filed with this

       Court. CST included in its appendix a copy of the BZA record. The BZA

       argues that the record should be stricken from CST’s appendix because the

       record was never filed with the trial court. According to the BZA, the unfiled

       record constitutes new evidence that may not be introduced on appeal. By

       separate order issued contemporaneously with this opinion, and for reasons

       more clearly set forth below, we grant the BZA’s motion to strike. We now

       address the dispositive issue before us after first setting forth the standard of

       review.


                                            Standard of Review
[13]   When reviewing a decision of a zoning board, the trial court must determine if

       the board’s decision was incorrect as a matter of law. Bd. of Zoning Appeals v.

       Elkins, 659 N.E.2d 681, 683 (Ind. Ct. App. 1996), trans. denied. Also, the trial

       court may not conduct a trial de novo or substitute its decision for that of the

       board. Id. “The Court of Appeals’ review of a trial court’s ruling on review of

       such a decision is governed by the same considerations. Unless the Board’s

       Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020            Page 9 of 15
       decision was illegal, it must be upheld.” Bd. of Zoning Appeals of Evansville and

       Vanderburgh Cty. v. Kempf, 656 N.E.2d 1201, 1203 (Ind. Ct. App. 1995), trans.

       denied (internal citations omitted). However, findings of fact are required to

       ensure adequate judicial review of administrative decisions. Brownsburg

       Conservation Club, Inc. v. Hendricks Cty. Bd. of Zoning Appeals, 697 N.E.2d 975,

       978 (Ind. Ct. App. 1998).


                           Failure to Timely File the BZA Record
[14]   The dispositive issue is whether CST’s failure to, within thirty days of filing its

       amended petition for writ of certiorari, either file the BZA’s record or file a

       motion for extension of time in which to file the record requires dismissal of its

       petition.


[15]   CST concedes that it did not file the BZA record within thirty days of the filing

       of its petition. Its argument, however, is that it did not do so because the BZA

       failed to compile the record and provide it to CST for filing, as required by

       Indiana Code section 36-7-4-1613(c). The section reads in relevant part:

       “Upon a written request by the petitioner, the board making the zoning

       decision being reviewed shall prepare the board record for the petitioner.” CST

       also intimates that the burden was on the BZA to file the record with the trial

       court. Regarding its decision to include the unfiled record in its appendix, CST

       explains that, “[a]s [it] was preparing [its appendix for this appeal], [it]

       discovered that [the BZA] had not filed the [record] with the Trial Court and

       that the counsel for the BZA[, that was] responsible for that apparent


       Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020           Page 10 of 15
       oversight[,] no longer represents the BZA.” Appellant’s Br. p. 7. CST

       “constructed the BZA [r]ecord and submitted it as Volume 3 of [CST’s

       a]ppendix so that the documents cited in the pleadings and the decision of the

       Trial Court c[ould] be referenced.” Id.


[16]   Indiana Code sections 36-7-4-1600 through 36-7-4-1616 (the “1600 Series”)

       “establish[ ] the exclusive means for judicial review of zoning decisions . . . .”

       Ind. Code § 36-7-4-1601(a). At issue in this case is section 1613, which provides

       that the board shall prepare the board record for the petitioner upon the

       petitioner’s written request. Ind. Code § 36-7-4-1613(c). The section further

       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 . . . .” Ind. Code § 36-7-4-1613(a) (emphasis added). If the record

       cannot be filed within the thirty-day timeframe, section 1613 provides for an

       extension of time, specifically: “An extension of time in which to file the record

       shall be granted by the court for good cause shown[,]” and the “[i]nability to

       obtain the record from the responsible board within the time permitted by this

       section is good cause.” Ind. Code § 36-7-4-1613(b). Finally, a petitioner’s

       “[f]ailure 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 record to

       the proceeding.” Id.




       Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020                Page 11 of 15
[17]   In our Supreme Court’s evenly divided decision in Indiana Family & Social

       Services Administration v. Meyer, 927 N.E.2d 367, 368 (Ind. 2010), a case

       involving a Medicaid claimant’s appeal of the Family and Social Services

       Administration’s (FSSA) decision to deny her benefits, the Court examined

       whether the trial court had the authority to grant an extension of time to file the

       record in a petition for review of a FSSA’s decision, under the Indiana

       Administrative Orders and Procedures Act (“AOPA”), where the record was

       not filed within the required statutory period (thirty days) or any authorized
                                        5
       extension of this period. All four justices agreed as follows regarding the

       relevant provisions of the AOPA:


                We believe the statute is clear. The statute places on the
                petitioner the responsibility to file the agency record timely.
                Although the statute allows a petitioner to seek extensions of
                time from the trial court, and requires that extensions be granted
                if the petitioner demonstrates “good cause” for a delay in filing
                the record, the statute does not excuse untimely filing or allow
                nunc pro tunc extensions. . . . It is well settled that a reviewing
                court may grant a request for an extension under [the] AOPA
                only if the request is made during the initial thirty days following
                the filing of the petition for review or within any previously
                granted extension.




       5
         The provisions of the AOPA that govern judicial review of agency decisions and the filing of an agency
       record are materially identical to like provisions of the 1600 Series. In Howard v. Allen Cty. Bd. of Zoning
       Appeals, 991 N.E.2d 128, 130 (Ind. Ct. App. 2013), this court noted that because the judicial review
       provisions of the 1600 Series are materially identical to those found in the AOPA, and “the legislature had
       the same intent in enacting both[,]” we could “interpret these respective provisions in the same manner and
       rely on AOPA case law” in interpreting the 1600 Series. Id.

       Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020                                Page 12 of 15
       Meyer, 927 N.E.2d at 370 (internal citations omitted).


[18]   In Howard v. Allen County Board of Zoning Appeals, 991 N.E.2d 128, 129 (Ind. Ct.

       App. 2013), the question before this court was whether section 1613 required

       dismissal of Howard’s petition for judicial review where Howard had not timely

       filed the board record and had failed to timely request an extension of the filing

       deadline. The trial court had granted the respondents’ motion to dismiss

       Howard’s petition. In affirming the trial court’s judgment, we looked to Meyer

       and determined that section 1613 required dismissal of Howard’s petition. Id.

       at 131. Also, we rejected Howard’s suggestion that the trial court had

       discretion to accept the belatedly filed board record where the extension of time

       had not been granted. Id.


[19]   In Teaching Our Posterity Success, Inc. v. Indiana Department of Education, 20

       N.E.3d 149, 155 (Ind. 2014)—a case interpreting the AOPA—our Supreme

       Court established a “bright-line approach” regarding the “requirement that the

       official agency record must be filed with the trial court in order for judicial

       review to proceed.” The Court held that “a petitioner for review cannot receive

       consideration of its petition where the statutorily-defined agency record has not

       been filed.” Id. (emphasis added) (footnote omitted); see also First Am. Title Ins.

       Co. v. Robertson, 19 N.E.3d 757, 762-63 (Ind. 2014).


[20]   Turning to the case before us, we first note that, regarding CST’s assertion that

       the BZA failed to compile the record and provide it to CST for filing, caselaw

       and statute have established that reliance on the board to timely prepare its


       Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020           Page 13 of 15
       record does not relieve the petitioner of the statutory requirement to timely seek

       an extension of time in which to file the record. See Meyer, 927 N.E.2d at 371

       (Court noted AOPA statute governing filing of agency record “acknowledges

       possible difficulties” in preparing and submitting agency record but places

       burden on the petitioner to file or seek an extension within statutory period or

       any previously granted extension); see also Carmel Bd. of Zoning Appeals v.

       Bidgood, 120 N.E.3d 1045, 1046 (Ind. Ct. App. 2019) (where remonstrators

       assumed, rightly or wrongly, that it was “taking the Board’s staff some time to

       put the Record . . . together[,]” remonstrators were not excused from their

       failure to timely comply with statutory requirements for filing the board record);

       and Ind. Code § 36-7-4-1613(b) (“An extension of time in which to file the

       record shall be granted by the court for good cause shown[,]” and the

       “[i]nability to obtain the record from the responsible board within the time

       permitted by this section is good cause.”).


[21]   Secondly, section 1613(a) is clear: CST, not the BZA, was required to file the

       BZA’s record within thirty days of filing its amended petition for writ of

       certiorari. Ind. Code § 36-7-4-1613(a). CST failed to do so; it did not timely

       seek an extension of the deadline in which to file the record, as required by

       section 1613(b); and, the trial court did not have the discretion to accept an

       untimely filing of the BZA’s record where an extension of time was not timely

       sought and granted. See Howard, 991 N.E.2d at 131.


[22]   However, a distinguishing factor, procedurally, between the instant case and

       the Meyer, Howard, and Teaching Our Posterity Success, Inc. cases is that, here, no

       Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020          Page 14 of 15
       motion to dismiss CST’s petition was filed. Specifically, upon the expiration of

       the time period in which to file the record or seek an extension of time to do so,

       the BZA did not file a motion to dismiss CST’s petition, and the trial court did

       not, on its own motion, dismiss the petition. Instead, the trial court issued its

       findings of fact and conclusions, even though it had no record before it on

       which to base its findings and conclusions. Nevertheless, even under these

       circumstances, we find that the “bright-line approach[,]” that our Supreme

       Court set forth in Teaching Our Posterity Success, Inc., applies, and CST could not

       receive consideration of its petition. 20 N.E.3d at 155. As such, CST’s petition

       should have been dismissed—if not by a motion filed by the BZA then by the

       trial court’s own motion.


                                                  Conclusion
[23]   Finding that CST’s failure to timely file the record, or request an extension of

       time in which to do so, required dismissal of its petition for writ of certiorari,

       we reverse the decision of the trial court and remand for dismissal of CST’s

       petition.


[24]   Reversed and remanded.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020           Page 15 of 15
