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
       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1695 | December 10, 2019   Page 6 of 7
       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
