MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                May 14 2020, 9:16 am

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                                   ATTORNEYS FOR APPELLEE
Jacob R. Cox                                             FALL CREEK OWNER, LLC
Cox Law Office                                           Bryan H. Babb
Indianapolis, Indiana                                    Alan S. Townsend
                                                         Sarah T. Parks
                                                         Bose McKinney & Evans LLP
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Fifty Six LLC, individually and,                         May 14, 2020
alternatively, in the Name of the                        Court of Appeals Case No.
State of Indiana ex rel. Fifty Six                       19A-PL-1662
LLC,                                                     Appeal from the Marion Superior
Appellant-Petitioner,                                    Court
                                                         The Honorable Michael D. Keele,
        v.                                               Special Judge
                                                         Trial Court Cause No.
Metropolitan Board of Zoning                             49D07-1812-PL-049756
Appeals of Marion County and
Fall Creek Owner LLC,
Appellees-Respondents.



Mathias, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020                      Page 1 of 11
[1]   Fifty Six LLC (“Fifty Six”) appeals the Marion Superior Court’s order

      dismissing its petition for judicial review of a decision of the Marion County

      Metropolitan Board of Zoning Appeals (“the Board”) granting a zoning

      variance requested by Fall Creek Owner LLC (“Fall Creek”).


[2]   We affirm.


                                 Facts and Procedural History
[3]   Fifty Six and Fall Creek Owner LLC (“Fall Creek”) own adjoining parcels of

      real estate. On November 20, 2018, the Board issued a decision granting Fall

      Creek’s request for a zoning variance. Fifty Six objected to Fall Creek’s request

      for a variance. On December 19, 2018, Fifty Six filed a petition for judicial

      review of the Board’s decision.


[4]   On December 20, 2018, Fifty Six requested that the Board compile the record of

      proceedings. After Fifty Six was informed that the Board’s court reporter

      needed additional time to compile the record, it filed a request for an extension

      of time. The trial court granted the request and set a February 19, 2019 deadline

      for filing the record.


[5]   On February 13, 2019, Fifty Six received a mailed copy of the transcript of the

      variance proceedings. The transcript was scanned and e-filed with the trial court

      by February 19, 2019. On February 21, 2019, Board staff notified Fifty Six that

      there were additional documents from the variance proceedings that it needed

      to compile to complete the record of the proceedings. Fifty Six obtained and



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020   Page 2 of 11
      filed the documents on February 28, 2019, designating the documents as a

      supplement to the previously filed transcript.


[6]   On March 13, 2019, the Board and Fall Creek filed a motion to dismiss Fifty

      Six’s petition for judicial review, arguing that Fifty Six failed to timely file the

      required copy of the Board record. Fifty Six responded on April 1, 2019, filing a

      motion asking the trial court to remand to the Board with instructions to

      complete an adequate record.


[7]   The trial court held a hearing on these matters on April 12, 2019. And on May

      2, 2019, the trial court entered an order granting the motion to dismiss and

      denying the motion to remand. This order provides in relevant part:


              4. Fifty Six failed to transmit the record, as that term is defined
              by Ind. Code § 36-7- 4-1613(a), within the required time. Instead,
              Fifty Six only transmitted a transcript of the hearing before the
              [Board] within the required time.

              5. The [Board]’s Findings of Facts expressly relied on other
              materials including a site plan dated July 12, 2018, an email
              dated July 24, 2018 from the Department of Public Works Traffic
              Engineer, findings submitted by the traffic engineer, and findings
              submitted by the appraiser. Also, both Fifty Six and Fall Creek
              presented documents to the [Board] at the hearing on November
              20, 2018. Each of these, at a minimum, should have been
              transmitted, within the required time, as part of the record
              pursuant to § 1613(a)(2).

              6. Under Indiana law, “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.” Ind.
              Code § 36-7-4-1613(b). The Indiana Court of Appeals has
              clarified that the trial court does not have the discretion to accept
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020   Page 3 of 11
        untimely filing of the zoning board record when an official
        extension has not been granted. Howard v. Allen County Board of
        Zoning Appeals, 991 N.E.2d 128, 131 (Ind. Ct. App. 2013).

        7. On February 28, 2019, Fifty Six filed a “supplement” to the
        record, but the deadline had already passed, and Indiana law
        prohibits nunc pro tunc extensions. Howard, 991 N.E.2d at 131
        quoting Ind. Fam. & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367,
        370–71 (Ind. 2010). Further, this Court cannot weigh the equities
        because the Indiana Supreme Court has imposed a “bright line
        rule.” Teaching Our Prosperity Success, Inc. v. Ind. Dept. of Educ., 20
        N.E.3d 149, 155 (Ind. 2014).

        8. Because Fifty Six failed to transmit the statutorily-defined
        record within the time allowed by the Court, the Petition must be
        dismissed.

        9. In its Motion to Remand, Fifty Six asks this Court, pursuant
        to Ind. Code § 36-7-4-1612, to remand this matter to the [Board]
        “with direction to prepare an adequate and complete record that
        does not omit or exclude evidence. . . .” Motion to Remand, p. 3.
        This is not an appropriate case for remand because the [Board]
        did not fail to prepare or preserve an adequate record or
        improperly exclude or omit evidence from the record. To the
        contrary, the [Board] completed the record as certified by its
        custodian of records. Therefore, any order to remand for the
        [Board] to prepare an adequate and complete record is
        unnecessary.


Appellant’s App. Vol. 2, pp. 10–11. Thereafter, Fifty Six filed a motion to

correct error, which the trial court denied on June 19, 2019. Fifty Six now

appeals the dismissal of its petition for judicial review.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020   Page 4 of 11
                                               Standard of Review
[8]    Fifty Six argues that the trial court erred in granting Fall Creek’s motion to

       dismiss Fifty Six’s petition for judicial review. The standard of appellate review

       for motions to dismiss depends on whether the trial court resolved disputed

       facts, and if so, whether there was an evidentiary hearing. Teaching Our Posterity

       Success, 20 N.E.3d at 151. Where, as here, the trial court ruled on a paper

       record, we review its ruling on a motion to dismiss for failure to timely file

       necessary agency records de novo.1 Id.


                                          Discussion and Decision
[9]    The trial court granted Fall Creek’s motion to dismiss on grounds that Fifty Six

       failed to timely file the administrative record. Indiana Code sections 36-7-4-

       1600 through 1616 are designated as the “1600 series” governing judicial

       review of zoning decisions.2 See Ind. Code § 36-7-4-1600 (“This series (sections

       1600 through 1699 of this chapter) may be cited as follows: 1600 SERIES—

       JUDICIAL REVIEW.”). At issue here are sections 1612 and 1613.


[10]   Section 1613 provides:


                  (a) Within thirty (30) days after the filing of the petition, or
                  within further time allowed by the court, the petitioner shall




       1
           The timing of filing the agency record does not implicate jurisdiction. Howard, 991 N.E.2d at 131.
       2
         The 1600 series governs judicial review of “a board of zoning appeals, legislative body, plan commission,
       preservation commission, or zoning administrator,” but not a legislative act. Ind. Code § 36-7-4-1601.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020                        Page 5 of 11
        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;

             (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.

        (b) An extension of time in which to file the record shall be
        granted by the court for good cause shown. Inability to obtain
        the record from the responsible board within the time
        permitted by this section is good cause. 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 record to the proceeding.

        (c) Upon a written request by the petitioner, the board making
        the zoning decision being reviewed shall prepare the board
        record for the petitioner. If part of the record has been preserved
        without a transcript, the board shall, if practicable, prepare a
        transcript for inclusion in the record transmitted to the court,
        except for parts that the parties to the judicial review proceeding
        stipulate to omit in accordance with subsection (e).

                                               ***

        (e) By stipulation of all parties to the review proceedings, the
        record may be shortened, summarized, or organized.

                                               ***

        (g) Additions to the record concerning evidence received under
        section 1612 of this chapter must be made as ordered by the

Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020   Page 6 of 11
               court. The court may require or permit subsequent corrections or
               additions to the record.


       Ind. Code § 36-7-4-1613 (emphasis added).


[11]   Section 1612 provides in relevant part:


               (b) The court may remand a matter to the board before final
               disposition of a petition for review with directions that the
               board conduct further factfinding or that the board prepare an
               adequate record, if:

                    (1) the board failed to prepare or preserve an adequate
                    record;

                    (2) the board improperly excluded or omitted evidence from
                    the record; or

                    (3) a relevant law changed after the zoning decision and the
                    court determines that the new provision of law may control
                    the outcome.


       Ind. Code § 36-7-4-1612 (emphasis added).


[12]   Here, when the Board’s reporter indicated that he needed more time to compile

       the record, Fifty Six requested an extension of time. The trial court, as it was

       required to do, granted this request, see I.C. § 36-7-4-1613(b), and extended the

       filing deadline to February 19, 2019.


[13]   On February 13, 2019, Fifty Six received a mailed copy of the transcript of the

       variance proceedings. This copy of the transcript was not certified by the Board

       and was signed only by the court reporter. This copy of the transcript also did


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020   Page 7 of 11
       not contain any of the exhibits presented at the hearing. Despite this, Fifty Six

       did not contact the Board and inquire as to when the rest of the record would be

       completed or request an additional extension of time, to which it would have

       been entitled. Instead, Fifty Six scanned and e-filed the uncertified transcript

       with the trial court.


[14]   Fifty Six argues that filing the incomplete record before the February 19

       deadline was sufficient and that any deficiencies in the record could be

       remedied by the remand procedure contained in Section 1612(b). We disagree.


[15]   Section 1613(a) requires a petitioner to file, within thirty days or by the

       modified deadline where an extension is granted by the trial court, “the original

       or a certified copy of the board record.” This “board record” is defined to

       include “any board documents expressing the decision,” “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 “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.” Id.


[16]   Here, Fifty Six’s filing of a bare transcript, without certification, and containing

       none of the material considered by the board, does not meet the requirements of

       Section 1613(a). As noted by the trial court, the Board’s decision explicitly

       relied on certain materials, including a site plan, an email from a traffic

       engineer, and findings submitted by the traffic engineer and an appraiser. And

       both parties submitted documentary evidence to the Board at the hearing. These


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020   Page 8 of 11
       materials were part of the Board record, as the term is defined by statute, that

       Fifty Six was required to submit to the trial court within the statutory deadline

       or any extension of this deadline granted by the trial court. See I.C. § 36-7-4-

       1613(a). By submitting only the uncertified transcript by the February 19

       deadline, Fifty Six did not submit the “board record” as required by Section

       1613(a).


[17]   We observed in Howard, 991 N.E.2d at 131, that Section 1613 “‘does not excuse

       untimely filing or allow nunc pro tunc extensions.’” (quoting Meyer, 927 N.E.2d

       at 370–71). Instead, an extension must be granted by the trial court for a

       petitioner to transmit the board record more than thirty days after the petition

       for judicial review is filed. Id. (citing Lebamoff Enterprises, Inc. v. Ind. Alcohol &

       Tobacco Comm’n, 987 N.E.2d 525, 528 (Ind. Ct. App. 2013)). And such an

       extension may be granted only if it is requested during the initial thirty days

       following the filing of the petition for review or within any previously granted

       extension. Id. (citing Wayne Cty. Prop. Tax Assessment Bd. of Appeals v. United

       Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 927 (Ind. 2006)).3

       Although Fifty Six did request and receive one extension of time, it did not file




       3
         We have noted before that “the judicial review provisions applicable to zoning decisions ‘are interpreted in
       the same manner as the relevant provisions of the AOPA [Administrative Orders and Procedures Act] and
       rely on case law established under the AOPA.” Allen Cty. Plan Comm’n v. Olde Canal Place Ass’n, 61 N.E.3d
       1266, 1270 n.6 (Ind. Ct. App. 2016) (quoting Dunmoyer v. Wells Cty., Ind. Area Plan Comm'n, 32 N.E.3d 785,
       786 n.9 (Ind. Ct. App. 2015)).

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020                       Page 9 of 11
       the certified board record within this extended period of time or request

       additional time to file a copy of the certified board record.


[18]   Fifty Six contends that any failings in the materials it submitted to the trial

       court could have been remedied by the remand procedure set forth in Section

       1612(b). This subsection provides that a trial court may remand a matter to the

       Board before the final disposition of a petition for judicial review “with

       directions that the board . . . prepare an adequate record, if . . . the board failed

       to prepare or preserve an adequate record[.]” Here, however, the Board did not

       fail to prepare an adequate record. As noted by the trial court in its findings of

       fact and conclusions of law, the Board did ultimately prepare and certify its

       record. When Fifty Six received the uncertified copy of the transcript on

       February 13, it should have recognized that this was not the entire board record

       and proactively inquired as to whether the Board needed more time to prepare

       the certified record. Fifty Six did not seek an additional extension of time in

       which to file the certified, completed record. Having failed to seek an additional

       extension of time, Fifty Six’s failure could not have been remedied by the trial

       court remanding the matter to the Board.


[19]   We have repeatedly explained that our supreme court has adopted a bright line

       approach to the filing of an agency record, i.e., “‘a petitioner for review cannot

       receive consideration of its petition where the statutorily-defined agency record

       has not been filed.’” Carmel Bd. of Zoning Appeals v. Bidgood, 120 N.E.3d 1045,

       1050 (Ind. Ct. App. 2019) (quoting Teaching Our Posterity Success, 20 N.E.3d at

       155). We do not read Section 1612 as a means of side-stepping this bright line

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020   Page 10 of 11
       rule. Rather, it provides for remand to the board only where the board has

       failed to preserve or prepare the record, which did not occur here.


[20]   For all of these reasons, we affirm the judgment of the trial court.


[21]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1662 | May 14, 2020   Page 11 of 11
