Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR INTERVENOR:
A. DOUGLAS STEPHENS                                 BRIAN J. TUOHY
Speedway, Indiana                                   JOHN J. MOORE
                                                    Doninger Tuohy & Bailey, LLP
PRO SE APPELLANTS:                                  Indianapolis, Indiana
BARRY STERN
JUDY STERN
Indianapolis, Indiana

                                                                      Mar 08 2013, 9:23 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

GATEWAY WEST TOWNHOUSE                         )
ASSOCIATION, BARRY J. STERN and                )
JUDY C. STERN,                                 )
     Appellants-Petitioners,                   )
                                               )
               vs.                             )   No. 49A02-1208-MI-680
                                               )
METROPOLITAN DEVELOPMENT                       )
COMMISSION OF MARION COUNTY,                   )
    Appellee-Respondent,                       )
                                               )
               vs.                             )
                                               )
SF INDUSTRIAL PROPERTIES-                      )
INDIANAPOLIS, LLC,                             )
      Appellee-Intervening Respondent          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Michael D. Keele, Judge
                              Cause No. 49D07-1202-MI-4519
                                       March 8, 2013

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge



                                     Case Summary

       Gateway West Townhouse Association (“the Association”) and Barry J. and Judy C.

Stern (“the Sterns”) (collectively, “Gateway”) appeal the trial court’s dismissal of their

petition for judicial review of a zoning variance the Metropolitan Planning Commission of

Marion County (“the Commission”) granted to SF Industrial Properties – Indianapolis, LLC

(“SF Industrial”).

       We affirm.

                                           Issue

       Gateway presents several issues for our review. We reframe these as whether the trial

court erred when it dismissed Gateway’s petition for judicial review of the Commission’s

zoning decisions because:

         I.   Gateway received an extension of time to submit the Commission’s
              record;

        II.   Gateway’s submission of materials provided a sufficient record upon
              which the trial court could conduct judicial review; and

       III.   The trial court prematurely granted SF Industrial’s motion to dismiss
              before the expiration of a fifteen-day response period provided by local
              court rules.




                                             2
                               Facts and Procedural History

       The Sterns own townhouses that are part of a neighborhood near 38th Street and I-465

on the northwest side of Indianapolis. The Sterns, as well as other residents in the same area,

are members of the Association. Many of the townhouses, including those owned by the

Sterns, are located within one mile of a lot that held a big-box home improvement retail store

(“the lot”). The store closed in 2010, and the lot remained vacant for some time afterward.

       On September 20, 2011, SF Industrial sought rezoning of the lot to allow the operation

of a business that would store and distribute portable storage containers for customers who

required temporary storage of goods. SF Industrial also sought a variance to permit stacking

of the portable containers above the top of a ten-foot fence on part of the property.

       On September 28, 2011, David Hittle (“Hittle”), a member of the Commission’s staff,

informed SF Industrial that the staff was concerned that certain of SF Industrial’s proposed

uses would best conform to a different zoning classification than that requested in its petition.

Hittle indicated that if SF Industrial amended its petitions to reflect that change, there would

be no requirement to re-advertise the contents of the petition. SF Industrial amended its

petitions on November 18, 2011.

       The Commission’s staff recommended that the Commission approve the requests in

the amended petitions. The Commission approved the amended petitions on January 18,

2012. The Commission’s ordinance was referred to the Indianapolis-Marion County City-

County Council for review on February 1, 2011. The Counsel did not schedule a hearing on

the ordinance reflecting SF Industrial’s requested zoning changes, and the ordinance was


                                               3
thus deemed adopted by the Council.

        On February 3, 2012, Gateway filed a petition in Marion Superior Court No. 5 for

judicial review of the Commission’s approval of SF Industrial’s amended petitions. On

February 6, 2012, the trial court entered an order requiring the Commission to show cause no

later than 9 a.m. on April 4, 2012, as to why judicial review should not move forward on

Gateway’s petition. The order further instructed the Commission to identify those portions of

its record of proceedings that would be relevant to Gateway’s petition for review.1

        On March 7, 2012, SF Industrial moved to intervene in the case, and further moved to

transfer the case from Marion Superior Court No. 5 to Marion Superior Court No. 7. SF

Industrial was granted status as an intervenor, and on March 13, 2012, the matter was

transferred from Marion Superior Court No. 5 to Marion Superior Court No. 7.

        On April 3, 2012, SF Industrial filed a motion to dismiss Gateway’s petition (“first

motion to dismiss”), which addressed the merits of Gateway’s petition.

        On June 8, 2012, the trial court conducted a hearing on the first motion to dismiss.

The same day, SF Industrial filed a second motion to dismiss. The second motion contended

that the trial court lacked jurisdiction to hear Gateway’s petition for judicial review because

Gateway had not complied with the requirements of Indiana Code section 36-7-4-1613 for

timely submission of the Commission’s record. During the hearing, the trial court heard

argument on both motions to dismiss. At the conclusion of the hearing, the trial court took

1
 This order appears intended to conform to the requirements of a now-repealed provision of our statutes,
Indiana Code section 36-7-4-1006 (West 2006), repealed by P.L. 126-2011, sec. 68, which required trial
courts to order the Commission to show cause as to why a writ of certiorari should not issue in the course
of a petition challenging a zoning decision.

                                                     4
SF Industrial’s motions under advisement, and later that day ordered Gateway’s petition

dismissed.

       On June 12, 2012, several days after the trial court dismissed the case, Gateway filed a

response to the second motion to dismiss. On July 9, 2012, Gateway filed a motion to correct

error, which the trial court denied on July 27, 2012.

       This appeal ensued.

                                 Discussion and Decision

                                    Standard of Review

       In its petition for judicial review and again on appeal, Gateway raises several due

process-related challenges to the Commission’s grant of SF Industrial’s petitions for rezoning

and a variance. We think the dispositive issue, however, is whether the trial court erred when

it dismissed Gateway’s petition for review in light of Gateway’s failure to provide a record.

       When reviewing a trial court’s order dismissing a petition for judicial review on

jurisdictional grounds, our standard of review:


       [D]epends on whether the trial court resolved disputed facts, and if so, whether
       the trial court conducted an evidentiary hearing or ruled on a paper record.
       GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). We review de novo a
       ruling on a motion to dismiss for lack of jurisdiction if the facts are not
       disputed or … the court rules on a paper record. Id.

Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-

Grove No. 29, 847 N.E.2d 924, 926 (Ind. 2006). Here, only a paper record and argument of

counsel were presented to the trial court. We therefore review de novo the trial court’s order

dismissing Gateway’s petition challenging the Commission’s decision.

                                              5
                         Timely Filing of the Commission’s Record

       Judicial review of a decision by the Commission is governed by Indiana Code section

36-7-4-1 et seq., which applies to the decisions of “the department of metropolitan

development of the consolidated city,” I.C. § 36-7-4-202, a definition that includes

Indianapolis. The present judicial review provisions of these statutes were first enacted in

2011 and largely parallel the provisions of the Indiana Administrative Orders and

Proceedings Act (“AOPA”). Compare I.C. § 36-7-4-1601 et seq., with I.C. § 4-21.5-5-1 et

seq. Under the statutes applicable to the Commission and judicial review of its decisions, a

petitioner must challenge the Commission’s decision “not later than thirty (30) days after the

date of the zoning decision that is the subject of the petition for judicial review.” I.C. § 36-7-

4-1605. The statutes go on to provide:

       (a) 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;

               (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.


                                                6
       (c) Upon a written request by the petitioner, the board making the zoning
       decision being reviewed shall prepare the board record for the petitioner….

I.C. § 36-7-4-1613.

       A party challenging the validity of a zoning decision bears the burden of proof. I.C. §

36-7-4-1614(a). Relief may be granted only where the court determines that the challenger

has been prejudiced by a zoning decision that is:

       1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
       with law;

       (2) contrary to constitutional right, power, privilege, or immunity;

       (3) in excess of statutory jurisdiction, authority, or limitations, or short of
       statutory right;

       (4) without observance of procedure required by law; or

       (5) unsupported by substantial evidence.

I.C. § 36-7-4-1614(d).

       Judicial review of a zoning board decision under these statutes is limited “to the board

record for the zoning decision.” I.C. 36-7-4-1611. A petitioner may introduce to the court

evidence beyond that presented to the zoning board only where the evidence “relates to the

validity of the zoning decision at the time the decision was made and is needed to decide

disputed issues” as to the constitution or membership of the board or as to lawfulness of the

proceedings or the decision-making process itself. I.C. § 36-7-4-1612(a). However, even in

those circumstances, any additional evidence a challenger seeks to introduce must be of a sort

that “could not, by due diligence, have been discovered and raised in the board proceeding

giving rise to a proceeding for judicial review.” Id. Further, issues not previously raised


                                              7
before the zoning board may only be raised during judicial review where the issue raised

concerns whether there was substantial compliance with notice requirements, or where an

issue arises concerning a change in controlling law after the board’s zoning decision has been

made. I.C. § 36-7-4-1610.

       Finally, the judicial review statutes provide that “only a person who qualifies under”

the provisions concerning standing, exhaustion of administrative remedies, timely filing of a

petition for review, and timely filing of the Commission’s record is entitled to judicial review

of a zoning decision. I.C. § 36-7-4-1602(b)(4). Our supreme court has held that failure to

comply with provisions in AOPA, the wording of which are nearly identical to Sections 36-7-

4-1602 and 36-7-4-1613, is “jurisdictional” to the extent that failure to comply with the

statutory requirements for filing the record precludes a court from considering a particular

petition for review from an administrative agency decision. See Wayne Cnty., 847 N.E.2d at

926 (interpreting I.C. § 4-21.5-5-13 and identifying filing the agency record as “a statutory

prerequisite to the docketing of an appeal in the Tax Court”). In a case interpreting the

AOPA analog to section 36-7-4-1613, the Indiana Supreme Court also observed that the

statute “places on the petitioner the responsibility to file the agency record timely,” does not

allow for extension of time absent good cause, and “does not excuse untimely filing or allow

nunc pro tunc extensions.” Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 370

(Ind. 2010).

       SL Industrial argues that Gateway failed to comply with the requirements for timely

filing of the Commission’s record with the trial court and that, as a result, the trial court


                                               8
correctly dismissed Gateway’s petition for judicial review. Gateway responds that the trial

court’s show cause order amounts to an extension of the time required for filing of the

Commission’s record.

       Gateway’s argument fails for three reasons. First, the statutes at issue here provide

that it is a petitioner’s duty (here, Gateway) to obtain and submit the Commission’s record.

Gateway did not do so, and makes no argument that the Commission or SL Industrial were

obligated to step into the breach. Second, the trial court entered no finding of good cause,

which is a statutory requisite to the grant of an extension of time to obtain a copy of the

record. Third, even assuming the show cause order extended the time available to Gateway

to obtain and file the record, Gateway had failed to do so by the June 2012 hearing.

       Here, Gateway filed its petition for judicial review on February 3, 2012, within the

statutory time limit. Gateway did not, however, request a copy of the record from the

Commission or submit the original record. This omission came in apparent reliance on the

trial court’s February 8, 2012 show cause order, which instructed the Commission to

designate portions of the record pertinent to judicial review by April 4, 2012. This order

apparently conformed to the required conduct of proceedings for judicial review prior to the

legislature’s 2011 adoption of the current statutory scheme. See supra, note 1. Counsel for

the Association acknowledged as much in argument before the trial court, but argued that

“we thought that [the pre-2011 procedure requiring petition respondents to show cause] was

the best way to handle it.” (Tr. at 27.)

       Yet, as the trial court observed, the statutes enacted in 2011 governed Gateway’s


                                             9
petition for judicial review. Those statutes put the burden upon a petitioner to obtain and

submit the Commission’s record. Our review of the trial court’s CCS does not reveal that

Gateway ever filed a copy of the record or moved for an extension of time to obtain a copy of

the record of the Commission proceedings, let alone that there was evidence to show good

cause for the grant of an extension.2 Thus, Gateway did not meet the statutory requirements

for obtaining judicial review of the Commission’s decision. Gateway’s failure to comply

with these requirements precluded the trial court from considering the challenge to the

Commission’s decision to grant SL Industrial’s petition for a variance.

                                  Substantial Compliance under Meyer

          Gateway goes on to argue that, noncompliance with the statutory requirements aside,

there was a sufficient record before the trial court for judicial review of the Commission’s

decision to proceed. Gateway directs us to the Meyer case, supra, in support of its

contention. But our supreme court in Meyer was evenly divided on whether an incomplete-

but-sufficient record may satisfy the requirements of the AOPA statute that corresponds to

Section 36-7-4-1613. Meyer, 927 N.E.2d at 371-73.

          Yet, assuming without deciding that an incomplete record may amount to substantial

compliance with the statutory requirements for providing a record for judicial review, we

cannot agree with Gateway’s claim that its submissions amount to that substantial

compliance. Gateway’s contentions on the merits of its due process claim in its petition for

judicial review and on appeal are essentially factual in nature: Gateway claims that SL


2
    Indeed, that record is not provided to this Court upon appeal.

                                                       10
Industrial misrepresented the nature of its business to the Commission and, having done so,

Gateway was deprived of due process in the form of notice as to the nature of the activities

for which SL Industrial sought rezoning and a variance.

       Yet Gateway submitted no record from the Commission to support the petition for

judicial review. Rather, the petition makes a bald assertion that SL Industrial misrepresented

its activities, and Gateway provided the trial court copies of SL Industrial’s petitions to the

Commission. To supplement these materials, Gateway submitted to the trial court affidavits

with photographs and advertisements concerning the use of the lot for which SL Industrial

had sought zoning changes. The affidavits and other items appear to have been located or

produced after Gateway filed the petition. Gateway makes no argument that it could not have

obtained some or all of these materials for the Commission’s review, and without the

Commission’s record—the provision of which is Gateway’s duty under the statute—we are

unable to determine whether or how the Commission considered that evidence.

       Simply put, these few materials provided to the trial court were not sufficient to allow

judicial review of the Commission’s findings concerning the nature of SL Industrial’s

business on the property, for they do not provide “‘all that is necessary … to accurately

assess the challenged agency [here, Commission] action.’” Meyer, 927 N.E.2d at 372

(quoting Izaak Walton League of Amer., Inc. v. DeKalb Cnty. Surveyor’s Office, 850 N.E.2d

957, 965 (Ind. Ct. App. 2006), trans. denied). Thus, even assuming the Meyer court’s

decision opens the door for judicial review of administrative and zoning decisions where an

agency record has not been provided to the court—a conclusion we decline to reach today—


                                              11
we cannot agree with Gateway’s contention that its failure to provide a copy of the

Commission’s record on the zoning decision was unnecessary because there were sufficient

additional materials to conduct judicial review.

                                Compliance with Local Rules

       Finally, Gateway contends that even if the trial court’s order of dismissal is not

otherwise in error, nevertheless the order should not have been entered because the court

failed to adhere to the timing provisions of Marion County Local Rule LR49-TR5-203.B.

That rule provides that where one party has filed a motion to which another party in the

litigation may object, the objecting party “shall have 15 days from the date of filing to file a

response to said motion.” Marion LR49-TR5-203.B.

       Though the trial court granted SL Industrial’s second motion before the close of the

fifteen-day period specified by the rule, we find this of no event. That is because there was

already a pending motion to dismiss when SL Industrial filed the second motion and because

the judicial review statute at issue here provides that a trial court may sua sponte dismiss a

petition for review where the petitioner has failed to timely submit a record of the

Commission’s proceedings relevant to the case. I.C. § 36-7-4-1613(b). Thus, any error in

dismissing the petition prior to the close of the fifteen-day period provided for response by

the local rule was harmless, and is thus not a basis for reversal of the trial court’s order

dismissing the case. See Ind. Trial Rule 61 (providing that errors that do not prejudice the

substantial rights of a party will not support the reversal of judgment on appeal).

                                         Conclusion


                                              12
       Gateway failed to timely submit the Commission’s record to the trial court, and the

trial court’s show-cause order did not constitute an extension of time in which to do so.

Assuming, without deciding, that failure to file a copy of the record may be excused where a

party provides an incomplete-yet-sufficient record for review, Gateway’s submissions failed

to meet such a standard. The trial court’s order dismissing Gateway’s petition could properly

be granted sua sponte, and thus the order’s issuance prior to the local rule’s specified fifteen-

day response period is at most harmless error.

       Affirmed.

VAIDIK, J., and BROWN, J., concur.




                                               13
