                                                                                      FILED
                                                                                 May 30 2017, 10:24 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




ATTORNEYS FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Matthew T. Albaugh                                          TOWN OF LONG BEACH,
Shawn M. Doorhy                                             INDIANA1
Faegre Baker Daniels LLP                                    L. Charles Lukmann, III
Indianapolis, Indiana                                       Charles F.G. Parkinson
                                                            Julie A. Paulson
                                                            Connor H. Nolan
                                                            Harris Welsh & Lukmann
                                                            Chesterton, Indiana
                                                            ATTORNEYS FOR APPELLEE
                                                            LONG BEACH COMMUNITY
                                                            ALLIANCE, INC.
                                                            Kurt R. Earnst
                                                            Braje, Nelson & Janes, LLP
                                                            Michigan City, Indiana
                                                            Patricia F. Sharkey
                                                            Environmental Law Counsel,
                                                            P.C.
                                                            Chicago, Illinois
                                                            ATTORNEY FOR APPELLEE
                                                            JAMES NEULIEB
                                                            Gregory S. Colton
                                                            Law Office of Gregory S. Colton
                                                            Valparaiso, Indiana
                                                            ATTORNEYS FOR AMICUS CURIAE,
                                                            INDIANA ASSOCIATION OF CITIES
                                                            AND TOWNS AND




1
  The attorneys identified as counsel for Town of Long Beach, Indiana also represent the Town Council,
Building Commission, Advisory Plan Commission, Board of Zoning Appeals, and the following people in
their respective official capacities: Jane Starr Neulieb, Peter Byvoets, Robert Lemay, Larry Wall, John Wall,
Joseph Jogmen, Patrick Cannon, Michael Gorman, and Aaron Tomsheck.

Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                               Page 1 of 40
                                                          INDIANA MUNICIPAL LAWYERS
                                                          ASSOCIATION
                                                          Brian W. Welch
                                                          Melissa J. Buckley
                                                          Bingham Greenebaum Doll LLP
                                                          Indianapolis, Indiana
                                                          ATTORNEY FOR AMICUS CURIAE
                                                          CONSERVATION LAW CENTER
                                                          Jeffrey B. Hyman
                                                          Conservation Law Center
                                                          Bloomington, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

John C. & Maureen G. Osborne                              May 30, 2017
Revocable Family Trust;                                   Court of Appeals Case No.
Timothy J. and Anna Voortman;                             46A03-1607-PL-16983
Christopher Lyons; and                                    Appeal from the
Duneland Development, LLC,                                LaPorte Superior Court
Appellants/Cross-Appellees-Plaintiffs,                    The Honorable
                                                          Richard R. Stalbrink, Jr., Judge
        v.                                                Trial Court Cause No.
                                                          46D02-1602-PL-204
The Town of Long Beach,
Indiana; The Long Beach,
Indiana Town Council; The
Building Commission of the
Town of Long Beach, Indiana;
The Advisory Plan Commission



3
 This appeal was consolidated with Case No. 46A03-1607-PL-1725, a separate appeal filed by The Long
Beach Community Alliance, Inc. and James Neulieb. Following consolidation, this court directed that The
Long Beach Community Alliance and Neulieb would be considered appellees/cross-appellants for purposes
of the appeal.

Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                      Page 2 of 40
of the Town of Long Beach; The
Board of Zoning Appeals of the
The Town of Long Beach,
Indiana; Jane Starr Neulieb;
Peter Byvoets; Robert Lemay;
Larry Wall; John Wall; Joseph
Jogmen; Patrick Cannon;
Michael Gorman; and Aaron
Tomsheck, all in their official
capacities as members of the
Long Beach, Indiana Town
Council, Advisory Plan
Commission, Board of Zoning
Appeals, Building Commission,
and Building Commissioner,2
Appellees/Cross-Appellants-
Defendants,

and

The Long Beach Community
Alliance, Inc., an Indiana not-
for-profit corporation; and
James Neulieb, an Individual,
Appellees/Cross-Appellants-
Defendants.



Kirsch, Judge.




2
  Town of Long Beach, its Town Council, its Building Commission, and office of Building Commissioner
filed a Notice of Succession in Office and a Motion to Substitute Party pursuant to Appellate Rule 17(C).
This court accepted the Notice and granted the Motion, ordering that Larry Wall replaced Aaron Tomsheck
as the Building Commissioner and as an Appellee in this case.

Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                       Page 3 of 40
[1]   John C. & Maureen G. Osborne Revocable Family Trust, Timothy J. & Anna

      Voortman, and Christopher Lyons (together, “Homeowners”) each own a

      residence along the Lake Michigan shoreline in Long Beach, Indiana. Each

      Homeowner sought to construct a seawall due to concern about a possible

      breach of their respective septic systems by Lake Michigan waters. After

      building permits were issued to Homeowners for the seawalls, The Long Beach

      Community Alliance, Inc. (“LBCA”)4 and James Neulieb5 (“Neulieb”) each

      filed an administrative appeal of the building permits with the Board of Zoning

      Appeals of the Town of Long Beach (“BZA”), and, thereafter, stop work orders

      were issued, which prevented construction on the seawalls from proceeding.

      Homeowners and their contractor, Duneland Development, LLC (“Duneland”

      and, together with Homeowners, “Plaintiff Owners”) filed in the trial court a

      twelve-count complaint for declaratory and injunctive relief (“the Complaint”)

      against The Town of Long Beach, Indiana, the Town Council, the Building

      Commission, the Advisory Plan Commission, the BZA, certain individuals in

      their official capacities as members of the aforementioned municipal entities

      (collectively, “Town Defendants”), as well as LBCA and Neulieb. Thereafter,

      the Town Defendants, LBCA, and Neulieb each filed a motion to dismiss,




      4
       LBCA describes itself as “a 501(c)(3) not-for-profit community organization, representing over 400 families
      who live and/or own homes in the Town of Long Beach, including some who own property on the lakefront
      and/or in close proximity to the proposed seawall locations. LBCA’s mission includes preserving the
      character of the Lake Michigan shore in the Town of Long Beach, on behalf of its members.” LBCA Br. at
      22.
      5
        James Neulieb is member of and provides financial support to the LBCA; his wife, Jane Starr Neulieb, also
      a named defendant, is a member of the Long Beach Town Council.

      Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                         Page 4 of 40
      which the trial court denied by orders on April 8 and April 19, 2016 (together,

      “the April Orders”). On July 5, 2016, the trial court issued an “Order Denying

      [Plaintiff Owners’] Motions for Injunctive Relief and Declaratory Judgment”

      (“the July 5 Order”).


[2]   On July 29, 2016, Plaintiff Owners filed, pursuant to Indiana Appellate Rule

      14(A) or 14(D), an appeal as of right of the July 5 Order, which Plaintiff

      Owners view as an interlocutory order. On or near the same time, LBCA and

      Neulieb, who view the July 5 Order as a final order that disposed of all claims,

      filed an appeal of the April 19 Order that denied their respective motions to

      dismiss. This court consolidated LBCA’s and Neulieb’s appeal with Plaintiff

      Owners’ appeal.6


[3]   Numerous issues are raised by the consolidated appeal. We first address the

      following preliminary issue:


              I. Whether this court has subject matter jurisdiction to hear the
              cross-appeal issues raised by appellees LBCA, Neulieb, and
              Town of Long Beach concerning the trial court’s denial of their
              respective motions to dismiss in the April Orders.


      We next address the following dispositive cross-appeal issue:




      6
       Following consolidation, Plaintiff Owners filed a motion to dismiss the appeal filed by LBCA and Neulieb,
      and LBCA filed a motion to dismiss the appeal filed by Plaintiff Owners. LBCA and Neulieb also filed a
      motion for a temporary stay of appellate proceedings and remand for limited purpose. This court denied
      both of the motions to dismiss, and it denied the motion for stay of proceedings.

      Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                       Page 5 of 40
              II. Whether the trial court erred when it denied the motions to
              dismiss filed, separately, by Town Defendants, LBCA, and
              Neulieb, each of which asserted that the trial court lacked subject
              matter jurisdiction because Plaintiff Owners failed to exhaust
              their administrative remedies.


[4]   We reverse the trial court’s April 8 Order that denied the motions to dismiss

      filed by Town Defendants, LBCA, and Neulieb.


                                  Facts and Procedural History
[5]   This litigation stems from Homeowners’ desire to build a seawall on each of

      their respective lakefront residential lots, which are located on Lake Shore

      Drive in the Town of Long Beach, at the southern shore of Lake Michigan.7

      Homeowners maintain that storms and waves have damaged their properties

      and have put their septic systems in imminent peril of being breached; they

      assert that construction of the seawalls is necessary to avoid discharge of septic

      contents onto the beach and into Lake Michigan and to protect their properties.

      Homeowners also claim that, without the seawalls, their homes could be

      damaged to the point of being uninhabitable, and no new septic field could be

      constructed given the size of their lots. Before applying for building permits,

      the Homeowners filed applications in May and July, 2015 with the BZA, asking

      for a variance from the view protection ordinance found in the Town Code at




      7
        The John C. and Maureen G. Osborne Revocable Family Trust owns 2822 Lakeshore Drive, Timothy J.
      and Anna Voortman own 2826 Lakeshore Drive, and Christopher Lyons owns 2900 Lakeshore Drive, all in
      the Town of Long Beach, Indiana.

      Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                  Page 6 of 40
      154.060.8 The BZA held public hearings on the proposed development

      standards variances on August 13, October 13, November 10, November 24,

      and December 8, 2015.


[6]   During the public hearings, Homeowners presented testimony from a

      contractor, a surveyor, an engineer, and an appraiser regarding Homeowners’

      claim that there was an urgent need for the seawalls. Neulieb and LBCA,

      among others, posed oral and written objections to the seawalls asserting,

      among other things, that the seawalls would be located in fragile dune and

      floodplain locations and could accelerate or cause beach erosion of Lake

      Michigan beaches and dunes that, according to LBCA, “are held in trust for

      Long Beach residents as members of the public by the State of Indiana and as

      Long Beach homeowners by the Town of Long Beach,” as well as those

      beaches and dunes “which are owned by neighboring private property owners,

      including LBCA members.” LBCA Br. at 22-23; LBCA Addendum at 30. In

      November 2015, Homeowners’ engineer, in response to the erosion concerns,

      wrote a letter to the BZA stating that “[t]he seawalls as proposed will not

      adversely affect the surrounding areas” and “do not present [] erosion risks[.]”

      Appellants’ App. Vol. II at 89-90. At the conclusion of the December 8, 2015

      hearing, the BZA granted Homeowners’ requested variance from the view




      8
       Section 154.060 prohibits the placement or erection of a “dwelling, accessory use, building, or structure”
      beyond a “view protection line” that lies 106.60 feet north of the northern boundary of the public right-of-
      way for Lake Shore Drive.

      Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                            Page 7 of 40
      protection ordinance, Long Beach Ordinance 154.060.9 Id. at 56. The BZA’s

      December 8, 2015 decision included findings that “construction of the proposed

      seawall[s] is an absolute necessity to avoid discharge of septic contents . . . as

      well as to protect the [Homeowners’] propert[ies]” and that “[t]he proposed

      design of the seawall[s] is the minimum design (size, location, height, etc.)

      necessary to prevent a septic discharge and other property damage.” Id. at 97-

      98, 104-05, 111-12. No party appealed that decision.


[7]   On December 14, 2015, each of the three Homeowners filed an application

      with the Building Commission for a building permit for a proposed seawall. On

      December 30, 2016, the then-Building Commissioner, Aaron Tomsheck,

      approved the applications and issued a building permit to each of the three

      Homeowners (“Building Permits”). The next day, Homeowners commenced

      construction efforts, which continued for the next month and included bringing

      in equipment, purchasing steel sheet piling, excavating, and driving sheet piles

      into the ground.




      9
       At the November 24, 2015 hearing, counsel for Homeowners confirmed that “the ordinance for which
      we’re asking a variance is the view protection ordinance. It’s not the beach protection ordinance or the sand
      erosion ordinance. It’s designed to protect . . .the views from adjacent properties of the lake. Nothing else.”
      LBCA Br. at 23 (citing to LBCA Addendum at 8 (transcript of Nov. 24, 2015 BZA hearing)); see also Neulieb
      App. at 139, 192.

      Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                            Page 8 of 40
[8]   On January 25, 2016, LBCA filed administrative appeals to the BZA, pursuant

      to Indiana Code section 36-7-4-918.110 and Long Beach Ordinance 154.15311

      challenging the legality of the three Building Permits issued on December 30,

      2015. LBCA challenged the legality of the issuance of the three Building

      Permits on the basis that not all Long Beach ordinances had been complied

      with and Homeowners had not obtained all needed variances including those to

      comply with the following Long Beach Ordinances: 154.072 regarding

      accessory uses and structures; 154.112 regarding changes in dune topography;

      154.091 regarding special BZA approval of construction within a regulated

      floodplain; Chapter 155 governing construction in floodplains, including

      specifically the requirements to obtain a floodplain permit and comply with the




      10
           Indiana Code section 36-7-4-918.1 provides, in part:

                 The board of zoning appeals shall hear appeals from and determine appeals from and
                 review: (1) any order, requirement, decision, or determination made by an administrative
                 official, hearing officer, or staff member under the zoning ordinance; . . . (3) any order,
                 requirement, decision, or determination made by an administrative board or other body
                 except a plan commission in relation to the enforcement of an ordinance adopted under
                 this chapter requiring the procurement of an improvement in relation to location or
                 occupancy permit.


      11
           Long Beach Ordinance 154.153(A)(1) states:

                 The Board of Zoning Appeals shall have the following powers and it shall be its duty to . .
                 . hear and determine appeals from and review any order, requirement, decision, or
                 determination made by an administrative official or staff member made in relation to the
                 enforcement of the zoning ordinance, subdivision ordinance, and the enforcement of the
                 building and occupancy permits as adopted under IC 36-7 et seq. and all sections therein
                 applicable.




      Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                             Page 9 of 40
       General Standards in 155.50; and Chapter 156 governing storm water

       management planning to avoid diversion of floodwater onto neighboring

       properties, acceleration of erosion, and sediment transport and disposition.

       Appellants’ App. Vol. II at 174-215.


[9]    The same day, Neulieb also filed an administrative appeal challenging the three

       building permits, asserting that the permits were issued in violation of the side-

       yard setback requirement of Long Beach Ordinance 154.077, which requires

       that structures be placed no closer than six feet from the side property lines; the

       Homeowners’ building plans indicated that their proposed seawalls would be

       built within one foot of the side property lines, contrary to the ordinance. Id. at

       217-18.


[10]   On January 26, 2016, the then-Building Commissioner Aaron Tomsheck

       (“Tomsheck”) issued a stop work order for each of the building permits

       pursuant to automatic stay provisions of Indiana Code section 36-7-4-1001(a)

       triggered by the filing of the administrative appeals.12


[11]   On February 2, 2016, Plaintiff Owners filed the Complaint in the trial court

       against the Town Defendants, LBCA, and Neulieb (together, “the




       12
          Indiana Code section 36-7-4-1001(a) states, in relevant part: When an appeal from the decision of an
       official or board has been filed with the BZA, proceedings and work on the premises affected shall be stayed
       unless the official or board certifies to the BZA that, by reason of the facts stated in the certificate, a stay
       would cause imminent peril to life or property.



       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                            Page 10 of 40
Defendants”). Appellants’ App. Vol. II at 46-82. The Complaint contained six

counts for declaratory judgment and six counts for injunctive relief:

        Count I: Declaratory judgment that the BZA lacked authority to
        consider LBCA’s January 26, 2016 administrative appeal
        regarding the propriety of the building permits issued to
        Homeowners;


        Count II: Declaratory judgment that LBCA lacked standing to
        file its administrative appeals;


        Count III: Injunction to enjoin the BZA from taking any action
        on LBCA’s administrative appeal;


        Count IV: Declaratory judgment that the BZA lacked authority
        to consider Neulieb’s January 26, 2016 administrative appeal
        regarding the propriety of the building permits issued to
        Homeowners;


        Count V: Declaratory judgment that Neulieb lacked standing to
        file his administrative appeal;


        Count VI: Injunction to enjoin the BZA from taking any action
        on Neulieb’s administrative appeal;


        Count VII: Declaratory judgment that the stop work orders
        (issued pursuant to Indiana Code section 36-7-4-1001(a) upon the
        filing of the administrative appeals) were invalid;


        Count VIII: Injunction to enjoin Town Defendants from
        enforcing allegedly invalid stop work orders;




Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 11 of 40
        Count IX: Declaratory judgment that certain individually named
        defendants (Jane Starr Neulieb, Larry Wall, John Wall, Peter
        Byvoets, Robert Lemay, Patrick Cannon, Joseph Jogmen, and
        Michael Gorman) each had conflicts of interest with the Plaintiffs
        due to association with LBCA and were disqualified from
        participating in municipal activities relating to Plaintiffs’
        construction of their seawalls, including participating in BZA,
        APC, and Town Council proceedings related to the
        administrative appeals;


        Count X: Injunction to enjoin defendants Jane Starr Neulieb
        Larry Wall, John Wall, Peter Byvoets, Robert Lemay, Patrick
        Cannon, Joseph Jogmen, and Michael Gorman, from
        participating in their official capacities in any municipal activities
        relating to Plaintiffs’ construction of their seawalls, including
        participating in the administrative appeals or the appointment of
        new or replacement members on the BZA;


        Count XI: Injunction to enjoin the Defendants from
        communicating with the BZA regarding proceedings related to
        the construction of seawalls or to the building permits, if
        communications would violate Town of Long Beach Zoning
        Ordinance § 154.153(B); and


        Count XII: Injunction to enjoin the Defendants from unlawfully
        interfering with the construction of Homeowners’ seawalls.


See Appellants’ Br. at 34-35 (summarizing counts). The next day, Plaintiff

Owners filed an Application for Temporary Restraining Order and Preliminary

Injunction (“Application”).




Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017     Page 12 of 40
[12]   At the BZA’s February 9, 2016 meeting, three members13 of the BZA recused

       themselves from considering the administrative decision appeals filed by

       LBCA, citing a possible conflict of interest pursuant to Indiana Code section

       36-7-4-909(A)(1). Appellants’ App. Vol IX at 89-93 (transcript reflecting that

       Michael Gorman, John Kocher, and Meg Kanyer recused themselves); see also

       LBCA Addendum at 24. In March 2016, individuals were appointed to replace

       those who had recused themselves, pursuant to Indiana Code section 36-7-4-

       907 and -909 and Long Beach Ordinance 154.153. Id. at 157.


[13]   On February 26, 2016, LBCA filed with the trial court a motion to dismiss,

       asserting that the Plaintiff Owners’ lawsuit sought to prevent LBCA and its

       members from exercising their constitutionally protected rights to petition for

       review of the building permits, and, therefore, it constituted a Strategic Lawsuit

       Against Public Participation (“SLAPP”) brought to deter public opposition to

       the proposed seawalls. LBCA asked the trial court to dismiss the Complaint

       pursuant to Indiana’s Anti-SLAPP statutes, Indiana Code chapter 34-7-7.

       LBCA’s motion to dismiss also sought dismissal of the Complaint (1) pursuant

       to Trial Rule 12(b)(6) for failure to state an actionable claim against LBCA or

       any other defendant and (2) for lack of jurisdiction due to the Plaintiff Owners’

       “attempt to circumvent [the] pending administrative proceeding” and failure to




       13
         It appears that, at some point, John Wall also recused himself, for a total of four recusals. Appellants’ App.
       Vol. IX at 157 (March 21, 2016 Town Council minutes reflecting that John Wall also previously recused).

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                            Page 13 of 40
       exhaust administrative remedies as required by Indiana Code 36-7-4-1604 and

       36-7-4-1016(a). LBCA App. Vol. III at 2.


[14]   Neulieb also filed a motion to dismiss the Complaint, similar in substance to

       that filed by LBCA, asking the trial court to dismiss the Complaint pursuant to

       Indiana’s Anti-SLAPP statutes and alleging that the trial court lacked

       jurisdiction over the subject matter due to Homeowners’ failure to exhaust

       administrative remedies.


[15]   On March 14, 2016, the Town Defendants filed a motion to dismiss pursuant to

       Indiana Trial Rule 12(B)(1) and 12(B)(6). With regard to T.R. 12(B)(1), Town

       Defendants argued that the trial court lacked subject matter jurisdiction because

       the Homeowners had failed to exhaust their administrative remedies. Town’s

       App. Vol. II at 7-9, 14-17. With regard to T.R. 12(B)(6), the Town Defendants

       argued that the Complaint failed to state a cause of action against certain Town

       Defendants, including the Town Council, the Advisory Plan Commission, Jane

       Starr Neulieb, and Patrick Cannon. Id. at 8-9, 17-20.


[16]   Meanwhile, in the BZA proceedings, Tomsheck issued on March 16, 2016,

       Certificates of Imminent Peril and rescinded the stop work orders, but the next

       day, Tomsheck issued a second set of stop work orders, one for each property,

       on the basis that “the plans submitted for the seawall[s] do not comply with the

       6 ft. side yard setbacks required in the R-2 zone[,]” and the seawalls required an

       additional variance from the side-yard setback regulations found in Town Code




       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 14 of 40
       section 154.057. 14 Neulieb App. Vol. II 83-85; Appellants’ App. Vol. VI at 108-

       110.


[17]   On March 24, 2016, the Homeowners filed with the trial court an Emergency

       Application for Immediate Entry to Temporary Restraining Order Without a

       Hearing, which sought temporary injunctive relief to resume construction of the

       seawalls, asserting that relief was necessary to avoid irreparable harm to

       Homeowners and their properties.


[18]   On April 8, 2016, the trial court entered an Order Denying Motion to Dismiss

       for Lack of Subject Matter Jurisdiction (“April 8 Order”), which concerned the

       arguments that Plaintiff Owners failed to exhaust administrative remedies

       before filing their Complaint. Thereafter, on April 19, 2016, the trial court

       entered an Order Denying LBCA’s and Neulieb’s Motions to Dismiss Relating

       to the Indiana Anti-SLAPP Statute. LBCA and Neulieb asked the trial court to

       certify the April 19 Order for appeal.


[19]   The trial court held evidentiary hearings on March 18, April 8, May 2, and

       June 2-3 on the pending motions. On July 5, 2016, the trial court entered

       three separate orders, two of which are pertinent to this appeal. One was

       the July 5 Order, titled “Order Denying Plaintiffs’ Motions for Injunctive




       14
          Plaintiff Owners state that Tomsheck disagreed with the application of the setback ordinance to seawalls,
       and that Tomsheck issued statements to Homeowners and to the Town’s Advisory Plan Commission that the
       setback requirement had not been applied in the past to seawalls in the Town of Long Beach and this
       interpretation would not be consistent with the manner in which the ordinance had been applied to other
       landowners. Appellants’ Br. at 38.

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                        Page 15 of 40
       Relief and Declaratory Judgment,” which addressed claims in the

       Complaint and denied the declaratory and injunctive relief sought.

       Regarding the Plaintiff Owners’ requests for declaratory relief, the trial

       court concluded that “because Defendants have a clear vested right to

       appeal ‘[a]ny decision of the Building Commission concerning the issuance

       of an improvement location permit . . . when the decision in question[]

       involves a permit issued in conflict with another existing provision of the

       Zoning Code . . .’ pursuant to Long Beach Ordinance Section 151.04, this

       Court cannot grant declaratory judgment.” Appellants’ App. Vol. II at 41. It

       further stated that granting declaratory judgment would “abridge

       Defendants’ right to appeal to the BZA” and granting the Plaintiff Owners’

       requested relief “would be unjust[.]” Id. at 42.


[20]   With regard to the injunctive relief sought by Plaintiff Owners, the trial court

       addressed the requests for injunctive relief in the Complaint and stated,

       “Nothing presented precludes the Defendants from exercising their right to

       appeal the decision of a Building Commissioner concerning the issuance of a

       permit that is in conflict with another existing provision of the zoning

       ordinance.” Id. at 44. It explained that it would not grant injunctive relief

       because:


               (1) Plaintiffs’ remedies at law are adequate because they have a
               chance to litigate the issues to the BZA and to subsequently file
               for judicial review of the BZA’s findings of the Appeals if the
               findings are not in their favor; (2) Plaintiffs cannot currently
               demonstrate a reasonable likelihood of success on the merits as
               this Court has not been presented with the full and complete
       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017     Page 16 of 40
               facts, namely the findings of the pending BZA hearing of the
               Appeals; (3) the threatened injury to the Plaintiffs does not
               outweigh the threatened harm a grant of relief would occasion
               upon the defendant [sic], namely the harm resulting from
               abridging the Defendants’ right to appeal; and (4) the public
               interest would be disserved because granting injunctive relief is
               not in the public interest to deny the Defendants’ right to appeal.


       Id. at 44-45.


[21]   The trial court also issued the second pertinent order titled, “Order Denying

       Long Beach Community Alliance’s and James Neulieb’s Respective

       Motions to Request Certification for Interlocutory Appeal” (“Order

       Denying Certification”), which denied LBCA and Neulieb’s request for

       certification of the trial court’s April 19 order that denied their respective

       motions to dismiss. LBCA and Neulieb had requested certification

       primarily on the issue of the trial court’s rejection of their claim that the

       Complaint constitutes a SLAPP lawsuit and should be dismissed under

       Indiana’s Anti-SLAPP statutes. In the Order Denying Certification, the

       trial court rejected LBCA’s and Neulieb’s claims that (1) if the April 19

       order was not certified, each would suffer substantial expense and damage,

       and (2) the April 19 order involves a substantial question of law. The trial

       court stated that because its July Order “renders the Interlocutory Appeal

       request irrelevant[,]” “the remedy by appeal is not otherwise inadequate.”

       Town’s App. Vol. II at 94.




       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 17 of 40
[22]   Meanwhile, as proceedings on Plaintiff Owners’ Complaint progressed in the

       trial court, including discovery and briefing and hearings on various motions,

       the BZA continued to move forward with LBCA’s and Neulieb’s administrative

       appeals. Hearings were held, and the parties presented argument, evidence,

       and testimony. On June 29, 2016, the BZA entered an Order with specific

       Findings and Decisions rescinding the Building Commissioner’s issuance of the

       three Building Permits on the basis of failure to demonstrate compliance with

       Long Beach Ordinances 154.191 and 154.112. Appellants’ App. Vol. IX at 122-

       46. In July 2016, Homeowners filed a petition for judicial review of the BZA’s

       June 29 Findings and Decision.15 Id. at 2-27.


[23]   On July 29, 2016, Plaintiff Owners filed with this court their notice of appeal,

       identified as an interlocutory appeal as of right pursuant to Trial Rule 14(A) or

       14(D), appealing the trial court’s July Order that denied injunctive and

       declaratory relief. LBCA and Neulieb each filed with this court a notice of

       appeal, on July 28 and August 3, 2016, respectively, appealing the April 19




       15
          Initially, the Plaintiff Owners filed their petition for judicial review in the trial court under the same cause
       number as their Complaint; however, in August 2016, they filed “a separate but virtual[ly] identical” petition
       for judicial review under a new cause number, in response to objections that it could not be filed in the
       ongoing trial court cause. Appellants’ Br. at 42. At an August 25, 2016 hearing on pending motions
       (including Plaintiff Owners’ motion to reconsider the July 5 Order), counsel for James Neulieb voiced
       opposition to “being brought into” the petition for judicial review case, because Neulieb had withdrawn his
       administrative appeal and was not a necessary party and because it possibly could have delayed his appeal of
       the anti-SLAPP issues. Appellants’ Suppl. App. Vol. VI at 193-94; Appellants’ App. Vol. X at 39-40, 51. The
       record reflects that Neulieb withdrew his administrative appeal on June 14, 2016. Appellants’ App. Vol. VIII
       at 202. On September 13, 2016, Plaintiff Owners filed an Indiana Trial Rule 41(A)(2) Motion to Dismiss
       James Neulieb, which the trial court granted the next day. Appellants’ Suppl. App. Vol. VI at 197-98.



       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                              Page 18 of 40
       Order that denied their Anti-SLAPP motions to dismiss the Plaintiff Owners’

       Complaint. They maintain that the April Order was rendered a final order (and

       was no longer interlocutory) by virtue of the trial court’s July Order and the

       Order Denying Certification. This court consolidated the appeals.


                                        Discussion and Decision
                                         Overview of Parties’ Positions

[24]   Appellants/Plaintiff Owners (Homeowners and Duneland) and the three

       Appellees (Town Defendants, LBCA, and Neulieb), together, raise a number of

       issues and cross-issues.16 Very generally summarized, the claims of the various

       parties are as follows: Plaintiff Owners assert that they “had no choice but to

       seek a declaration . . . [and] narrowly tailored injunctive relief . . . to prevent

       immediate irreparable harm” and that the trial court erred when, in the July

       Order, it denied their request for injunctive and declaratory relief. Appellants’

       Reply Br. at 17. In support of their claims, the Plaintiff Owners also raise and

       address related issues of standing, res judicata, and conflicts of interest. The

       Town of Long Beach, LBCA, and Neulieb contend that the trial court erred

       when, in the April Orders, it denied their respective motions to dismiss the

       Complaint, which sought dismissal on various bases, including that (1) Plaintiff

       Owners failed to exhaust administrative remedies when they filed their




       16
          We note the extensive volume of the appellate record in this case. Between all the parties, a combined ten
       briefs, totaling approximately 420 pages, and twenty-seven appendices were filed, in addition to exhibits and
       transcripts.

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                         Page 19 of 40
       Complaint and, therefore, the trial court lacked subject matter jurisdiction, (2)

       the Complaint violated Indiana’s prohibition against lawsuits that are Strategic

       Lawsuits Against Public Participation, and (3) Plaintiff Owners failed to state a

       cause of action against some of the named defendants.


[25]   Amicus Curiae Indiana Association of Cities and Towns (“IACT”) and Indiana

       Municipal Lawyers Association (“IMLA”) filed a brief in support of Appellee

       Town Defendants. IACT and IMLA asserted that they an interest in the

       outcome of the present case, not particularly because of the subject seawalls, but

       because of the presence of zoning issues and procedures that IACT and IMLA

       membership regularly encounter. IACT and IMLA argue that the trial court

       erred when, in its April 8 Order, it denied the Town Defendants’ motion to

       dismiss that alleged that Plaintiff Owners’ failed to exhaust administrative

       remedies. IACT and IMLA urge that Plaintiff Owners “filed suit for

       declaratory judgment and sought preliminary injunctive relief before the

       administrative process was complete” and that, by doing so, Plaintiff Owners

       attempted to circumvent Indiana’s “orderly, statutorily prescribed [zoning]

       process.” IACT and IMLA Br. at 6. Alternatively, IACT and IMLA request

       that we affirm the trial court’s July 5 Order that declined to grant the requested

       injunctive or declaratory relief to Plaintiff Owners. Amicus Curiae

       Conservation Law Center filed a brief in support of Appellee LBCA,

       maintaining that the Plaintiff Owners’ Complaint constitutes a SLAPP suit and

       that the trial court should have granted LBCA’s motion to dismiss under

       Indiana’s Anti-SLAPP statute.


       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 20 of 40
                               I. Jurisdiction and the July Order
[26]   We first address whether we possess subject matter jurisdiction over the cross-

       appeal issues that challenge the trial court’s April Orders that denied

       Defendants’ respective motions to dismiss.


[27]   Subject matter jurisdiction is “‘the power to hear and determine cases of the

       general class to which any particular proceeding belongs.’” HRC Hotels, LLC v.

       Metro. Bd. of Zoning Appeals Div. II of Marion Cty., 8 N.E.3d 203, 206 (Ind. Ct.

       App. 2014) (quoting K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006)). The

       authority of our appellate courts to exercise jurisdiction is generally limited to

       appeals from final judgments. Ind. Appellate Rules 4(A)(1), 5(A); Ramsey v.

       Moore, 959 N.E.2d 246, 253 (Ind. 2012). “Whether the order was a final

       judgment governs the appellate courts’ subject matter jurisdiction[.]” Georgos v.

       Jackson, 790 N.E.2d 448, 451 (Ind. 2003).


[28]   Plaintiff Owners assert that there has been no final judgment, and, therefore,

       this court does not have subject matter jurisdiction over the cross-appeal issues

       raised by Town Defendants, LBCA, and Neulieb, which challenge the trial

       court’s April Orders that denied their respective motions to dismiss. Plaintiff

       Owners maintain that the July 5 Order is an interlocutory order, and thus Town

       Defendants, LBCA, and Neulieb cannot appeal the prior, interlocutory and

       uncertified April Orders. LBCA, Neulieb, and Town Defendants each assert,

       separately from each other but in similar fashion, that the July 5 Order is a final




       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 21 of 40
       judgment, and therefore, they may appeal the trial court’s earlier April 8 and

       April 19 orders that denied their respective motions to dismiss.17


[29]   We note that the issue of whether this court has jurisdiction over the cross-

       appeals of Town Defendants, LBCA, and Neulieb has been presented to this

       court, when after filing the appeal, but before briefing, the Plaintiff Owners

       moved to dismiss the appeal filed by LBCA and Neulieb. Plaintiff Owners

       asserted that the July 5 Order was interlocutory, not final, and LBCA and

       Neulieb could not appeal the prior, April 19 uncertified order. The motions

       panel of this court denied the Plaintiff Owners’ motion to dismiss.


[30]   As we have recognized, “‘It is well established that we may reconsider a ruling

       by the motions panel.’” Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407

       (Ind. Ct. App. 2007) (quoting Cincinnati Ins. Co. v. Young, 852 N.E.2d 8, 12 (Ind.

       Ct. App. 2006), trans. denied). Thus, “Even though our motions panel has

       already ruled on this issue,” Plaintiff Owners are “not precluded from

       presenting [their] arguments to us.” Id. Although we are reluctant to overrule

       orders decided by the motions panel, we have inherent authority to reconsider

       any decision while an appeal remains in fieri. Id.




       17
         We note that during the pendency of this appeal, Town Defendants, LBCA, and Neulieb filed a Joint
       Motion for Temporary Stay of Appeal Proceedings and Remand to Trial Court for Limited Purpose, to
       remand for the limited purpose of clarifying whether the July 5 Order was or was not a final judgment that
       disposed of all relief requested by Plaintiff Owners. The motions panel of this court denied the Joint Motion.

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                          Page 22 of 40
[31]   “Succinctly stated, a final judgment ‘disposes of all issues as to all parties

       thereby ending the particular case’” and “[i]t leaves nothing for future

       determination.” Georgos, 790 N.E.2d at 451 (quoting Doperalski v. City of

       Michigan City, 619 N.E.2d 584, 585 (Ind. Ct. App. 1993)). “This doctrine is

       now formalized in Indiana Rule of Appellate Procedure 2(H), which provides

       that a judgment is final if, “it disposes of all claims as to all parties[.]” Id.

       (citing Ind. Appellate Rule 2(H)).


[32]   In support of their position that we do not have subject matter jurisdiction over

       the cross-appeal issues concerning the April Orders, Plaintiff Owners assert

       that, here, the July 5 Order stated that it was denying a motion, it used a

       preliminary (not permanent) injunction standard, and it did not enter final

       judgment. Appellants’ App. Vol. II at 31-45. Plaintiff Owners also argue that the

       July 5 Order did not dispose of all claims, as it made no findings regarding the

       claim that LBCA lacked standing or regarding conflicts of interest of and

       disqualification of certain defendants.


[33]   LBCA, Neulieb, and the Town Defendants maintain that the July 5 Order,

       although captioned as a denial of motions for injunctive and declaratory relief,

       was a final order and should be considered a final judgment under Indiana

       Appellate Rule 2(H), which lists four different types of final judgments, along

       with a “catch-all” provision for “all judgments otherwise deemed final by law.”

       They further assert that, although Plaintiff Owners characterize the July 5

       Order as denying their Application for temporary injunctive relief, the July

       Order never even mentions the Application; rather, it expressly and repeatedly

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017      Page 23 of 40
       references the Complaint, expressly walks through the counts of the Complaint,

       and denies the relief requested. They point out that the trial court’s “Analysis”

       tracks the Complaint claims and is divided into a section titled “A. Declaratory

       Judgment” and a section titled “B. Injunctive Relief.” Id. In the “Declaratory

       Judgment” section of the July 5 Order, the trial court paraphrased the

       declaratory relief sought in Counts I, II, IV, V, VII and IX of the Complaint.

       After doing so, it stated:


               32. This Court finds that . . . because Defendants have a clear
               vested right to appeal “[a]ny decision of the Building
               Commission concerning the issuance of an improvement location
               permit. . . when the decision in question[] involves a permit
               issued in conflict with another existing provision of the Zoning
               Code[]” pursuant to Long Beach Ordinance Section 151.04, this
               Court cannot grant declaratory judgment.


               ....


               34. Moreover, “[t]he determinative factor of this [granting
               declaratory judgment] is whether the declaratory judgment will
               result in a just and more expeditious and economical
               determination of the entire controversy.” . . . Since granting
               declaratory judgment would abridge Defendants’ right to appeal
               to the BZA, this Court believes that granting Plaintiff [Owners]’
               requested relief would be unjust, regardless of how expeditious or
               economic.


       Appellants’ App. Vol. II at 41-42.


[34]   Then the July Order paraphrased the language in Counts III, VI, VIII, X, XI,

       and XII of the Complaint for injunctive relief and stated:

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 24 of 40
               41. This Court echoes its findings above. Nothing presented
               precludes the Defendants from exercising their right to appeal the
               decision of a Building Commissioner concerning the issuance of
               a permit that is in conflict with another existing provision of the
               zoning ordinance.


       Id. at 44. The trial court determined that Plaintiff Owners failed to meet any of

       the four factors necessary to obtain injunctive relief, concluding, “This Court

       will not grant injunctive relief.” Id. Town Defendants, LBCA, and Neulieb

       argue that, considering the trial court’s manner of analysis and reference to the

       Complaint, the July Order “disposes of all claims as to all parties” and is a final

       judgment as defined under Appellate Rule 2(H)(1).


[35]   They urge that their “final order” interpretation is supported by the Order

       Denying Certification, also issued on July 5, which denied LBCA’s and

       Neulieb’s request asking the trial court to certify the April 19 Order that denied

       their anti-SLAPP motions to dismiss. The Order Denying Certification stated

       that the July Order rendered their request for certification “irrelevant[.]” LBCA

       App. Vol. V at 16. “The only way to interpret that statement is that the trial

       court considered its July 5 Judgment Order to be final.” Town Defendants’ Br. at

       21. That is, Defendants contend, certification was no longer necessary in order

       for LBCA and Neulieb to bring their Anti-SLAPP appeals.


[36]   We agree with LBCA, Neulieb, and Town Defendants that the July 5 Order

       “disposes of all claims as to all parties” and thus constitutes a final judgment as




       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 25 of 40
defined under Appellate Rule 2(H)(1).18 We are not persuaded by the Plaintiff

Owners’ arguments, including that, because the trial court referred in the July 5

Order to a preliminary injunction standard of review, the trial court only ruled

on Plaintiff Owners’ Application for injunctive relief. The language of the July

5 Order, along with the accompanying Order Denying Certification, indicate

that the trial court intended to address and deny the claims of the Complaint,

not the relief sought in the Application, and that the Defendants had the right to

appeal the issuance of the permits to the BZA.19 Accordingly, we find that we

have subject matter jurisdiction to hear the cross-appeal issues concerning the

trial court’s April Orders that denied the motions to dismiss filed by LBCA,

Neulieb, and Town Defendants.20




18
  Alternatively, Town Defendants assert that the July Order is final and appealable pursuant to section 1 of
Indiana’s Uniform Declaratory Judgment Act, which states:

         Courts of record within their respective jurisdictions have the power to declare rights,
         status, and other legal relations whether or not further relief is or could be claimed. No
         action or proceeding is open to objection on the ground that a declaratory judgment or
         decree is prayed for. The declaration may be either affirmative or negative in form and
         effect. The declaration has the force and effect of a final judgment or decree.


Ind. Code § 34-14-1-1. See Town Defendants’ Br. at 20. Because we resolve the issue under Appellate Rule
2(H)(1), we do not reach the UDJA argument.


19
   To the extent that Plaintiff Owners argue that the trial court, without notice, improperly converted a
preliminary injunction hearing to a hearing on the merits and that they were thereby denied due process, we
find that the trial court conducted at least five hearings on the matter of injunctive and declaratory relief and
that the Plaintiff Owners were not denied due process.
20
  LBCA asserts that, if we determine that the July 5 Order is a final order, then we should dismiss Plaintiff
Owners’ appeal, given that they sought appeal of the July 5 Order pursuant to Indiana Appellate Rule 14(A),
an appeal as of right from an interlocutory order denying preliminary injunctive relief. Our motions panel
denied to dismiss LBCA’s motion to dismiss Plaintiff Owners’ appeal on this basis, as do we.

Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                               Page 26 of 40
            II. Orders Denying Cross-Appellants’ Motions to Dismiss
[37]   Having found that this court has jurisdiction, we next address the trial court’s

       April Orders ruling on the motions to dismiss.21 The Town Defendants’ motion

       to dismiss alleged that the trial court lacked subject matter jurisdiction because

       Plaintiff Owners failed to exhaust administrative remedies before filing their

       Complaint for declaratory and injunctive relief in the trial court, and it asked

       the trial court to dismiss Plaintiff Owners’ Complaint under Trial Rule 12(B)(1).

       LBCA’s and Neulieb’s respective motions to dismiss argued primarily that

       Plaintiff Owners’ Complaint should be dismissed because it constituted a

       SLAPP lawsuit and should be dismissed on that basis, but argued, alternatively,

       that the Complaint should be dismissed for Plaintiff Owners’ failure to exhaust

       administrative remedies.


[38]   In their motion, Town Defendants argued that Plaintiff Owners’ Complaint

       was filed “in a clear attempt to usurp the BZA’s statutory authority.” Town

       Defendants’ App. Vol. II at 14-15 (citing Advantage Home Health Care, Inc. v. State

       Dept. of Health, 829 N.E.2d 499, 503 (Ind. 2005)). They urged that it was not

       appropriate for Plaintiff Owners to seek declaratory and injunctive relief in the

       trial court at that stage of the proceedings, and rather, the “correct procedure”




       21
          Town Defendants suggest that, before addressing the propriety of the trial court’s denial of LBCA’s and
       Neulieb’s anti-SLAPP claims of their motions to dismiss, and before addressing the Plaintiff Owners’
       allegations of error concerning the denial of injunctive and declaratory relief, this court should, in the interest
       of judicial economy, first address the cross-appeal issues asserting that Plaintiff Owners failed to exhaust
       administrative remedies “because resolution of the preliminary jurisdictional issues will . . . conserve judicial
       resources.” Town Br. at 21. We agree.

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                              Page 27 of 40
       was for Plaintiff Owners to have the BZA consider the administrative appeals

       that had been filed by LBCA and Neulieb:


               Plaintiff [Owner]s are entitled to make all of their arguments
               regarding the deficiencies of the administrative appeals they have
               enumerated in their Verified Complaint directly to the BZA.
               While the Plaintiff [Owner]s claim that the administrative
               appeals contain various defects, those claimed defects must be
               first considered by the BZA. After the BZA has made a final
               decision on the administrative appeals, if the Plaintiff [Owner]s
               disagree with the decisions at that time they would be entitled to
               file a petition for judicial review of the decision pursuant to Ind.
               Code 36-7-4-1604(a).


       Id. at 16 (Town Defendants’ memorandum of law in support of motion to

       dismiss).


[39]   On April 8, the trial court issued its Order Denying Motion to Dismiss for Lack

       of Subject Matter Jurisdiction and denied the three motions to dismiss with

       regard to the allegations that the trial court lacked jurisdiction because Plaintiff

       Owners had failed to exhaust administrative remedies.22 In its decision, the trial

       court relied on Plaintiff Owners’ arguments that: (1) the variance that they

       applied for and received was for them to build a seawall; (2) the BZA

       considered Plaintiff Owners’ plans and applications and granted the variance on

       December 8, 2015; (3) and because none of the Defendants appealed the




       22
         The April 8 Order addressed only the failure to exhaust arguments, and not the anti-SLAPP arguments
       that had been raised by LBCA and Neulieb; the trial court denied the anti-SLAPP claims by separate order
       on April 19.

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                      Page 28 of 40
       December 8, 2015 findings, those findings are res judicata and cannot be

       attacked by LBCA’s and Neulieb’s administrative appeals. See Appellants’ App.

       Vol. V at 193; LBCA App. Vol. IV at 67. Plaintiff Owners argued that “requiring

       them to return to the processes of the BZA would be allowing an ultra vires

       action.” Appellant’s App. Vol. V at 193. In the April 8 Order, the trial court

       reasoned that it possessed jurisdiction because Plaintiff Owners’ Complaint was

       challenging the BZA’s authority to act on the administrative appeals, citing to

       Indiana Department of Environmental Management v Twin Eagle LLC, 798

       N.E.2d 839 (Ind. 2003), where our Supreme Court had carved out an

       exception to the exhaustion requirement “if an action is brought upon the

       theory that [an] agency lacks the jurisdiction to act in a particular area.” Id.

       at 844; Town Defendants’ App. Vol. II at 4.


[40]   The standard of appellate review of a trial court’s grant or denial of a motion to

       dismiss pursuant to Trial Rule 12(B)(1) is a function of what occurred in the

       trial court. Cmty. Hosp. v. Avant, 790 N.E.2d 585, 586 (Ind. Ct. App. 2003).

       The standard of appellate review is dependent upon whether the trial court

       resolved disputed facts. Id. If the facts before the trial court are not in dispute,

       then the question of subject matter jurisdiction is purely one of law, and no

       deference is afforded to the trial court’s conclusion. Id. Where, as here, the

       relevant facts are not in dispute, we review the trial court’s April 8 Order and its

       determination regarding subject matter jurisdiction de novo.


[41]   On appeal, Town Defendants argue that the trial court erred in denying their

       motion to dismiss because Indiana law required Plaintiff Owners to fully

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017    Page 29 of 40
       participate in the BZA’s administrative decision appeal process before asking

       for declaratory and injunctive relief via the Complaint: “[Plaintiff Owners’]

       proper course was to participate in the BZA hearing, receive a decision, and

       then file a petition for judicial review of any adverse decision[.]” Town

       Defendants’ Br. at 22-23. Town Defendants assert, “Ultimately, the trial court

       recognized this” in the subsequent July 5 Order, but “it was error to deny the

       [Motions] to Dismiss.” Town Defendants’ Reply Br. at 8-9.


[42]   Amicus IACT and IMLA maintain that Plaintiff Owners’ Complaint was an

       attempt to circumvent Indiana’s zoning laws. They urge, “The existing zoning

       statutes have been enacted to promote uniformity among planning and zoning

       powers in Indiana in addressing the myriad issues which arise” and that

       allowing an end-run around the zoning administrative process would

       “undermine[] the zoning administrative process upon which municipal

       governments throughout this State rely and invites parties wary of presenting an

       appeal before a [BZA] to directly sue municipalities to attain the outcome

       desired.” Amicus IACT and IMLA Br. at 9, 16-17.


[43]   Under Indiana law, “It is well-established that, if an administrative remedy is

       available, it must be pursued before a claimant is allowed access to the courts,”

       as “failure to exhaust administrative remedies deprives the trial court of subject

       matter jurisdiction.” Town Council of New Harmony v. Parker, 726 N.E.2d 1217,

       1224 (Ind. 2000). As stated by the Indiana Supreme Court in Twin Eagle:




       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 30 of 40
               We have repeatedly emphasized the value of completing
               administrative proceedings before resorting to judicial review.
               The reasons for this requirement are well established:


               (1) premature litigation may be avoided; (2) an adequate
               record for judicial review may be compiled; and (3) agencies
               retain the opportunity and autonomy to correct their own
               errors. Even if the ground of the complaint is the
               unconstitutionality of the statute, which may be beyond the
               agency’s power to resolve, exhaustion of administrative
               remedies may still be required because administrative action
               may resolve the case on other grounds without confronting
               broader legal issues.


       798 N.E.2d at 844 (citations omitted).


[44]   Town Defendants, LBCA, and Neulieb, as well as Amicus IACT and IMLA,

       argue that Indiana Code section 36-7-4-918.1 (“Section 918.1”) and Long

       Beach Ordinance 154.153(A)(1) not only authorized but also required the BZA

       to review the administrative appeals. Section 918.1 states:

               [A] board of zoning appeals shall hear and determine appeals
               from and review:


                    (1) any order, requirements, decision, or determination
               made by an administrative official, hearing officer, or staff
               member under the zoning ordinance;


                     (2) any order, requirement, decision, or determination
               made by an administrative board or other body except a plan
               commission in relation to the enforcement of the zoning
               ordinance; or


       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 31 of 40
                     (3) any order, requirement, decision, or determination
               made by an administrative board or other body except a plan
               commission in relation to the enforcement of an ordinance
               adopted under this chapter requiring the procurement of an
               improvement location or occupancy permit.


       Long Beach Ordinance 154.153(A)(1) similarly provides:

               The Board of Zoning Appeals shall have the following powers
               and it shall be its duty to: (1) hear and determine appeals from
               and review any order, requirements, decision, or determination
               made by an administrative official or staff member made in
               relation to the enforcement of the zoning ordinance, subdivision
               ordinance, and the enforcement of the building and occupancy
               permits as adopted under IC 36-7 et seq. and all sections therein
               applicable.


       Neulieb App. Vol. II at 67.


[45]   They further contend that Indiana Code sections 37-7-4-1600 through -1616,

       sometimes referred to as the “1600 series,” provide the method for appealing

       decisions of zoning boards. Indiana Code section 37-7-4-1601(a) states that it

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

       Code § 36-7-4-1601(a). Under section 1605, a petitioner must challenge a final

       zoning decision within thirty days of the zoning decision. I.C. § 36-7-4-1605.

       “[Failure] to timely object to a zoning decision or timely petition for review of a

       zoning decision within [30 days] waives the person’s right to judicial review[.]”

       I.C. § 36-7-4-1604.




       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 32 of 40
[46]   Both sides of the divide – Plaintiff Owners on one side and Town Defendants,

       LBCA, and Neulieb on the other– cite to the 1600 series as providing an orderly

       review of zoning decisions, alleging that the other failed to follow it. Plaintiff

       Owners claim that seawall objectors, including LBCA and Neulieb, filed

       administrative appeals of the issuance of building permits rather than properly

       appealing the December 8, 2015 final order of the BZA that approved the view

       variance. According to Plaintiff Owners, the time to challenge the BZA’s

       December 8, 2015 decision expired on January 7, 2016, which Defendants

       failed to do so, and, thus, the December 8 decision is res judicata and cannot be

       relitigated; Plaintiff Owners characterize the administrative appeals as

       “collateral attacks” on the “final” December 2015 BZA decision. See Appellants’

       Br. at 10, 27, 44.


[47]   Town Defendants, LBCA, and Neulieb maintain, however, that the December

       2015 BZA decision approved only a view variance for each property and that

       none of the Defendants opposes the grant of the view variance. Hence, they did

       not appeal it. Rather, their challenge is to the subsequently-issued building

       permits on the basis that the permits were required to, but did not, comply with

       all Long Beach ordinances, and administrative appeals of Building Permit

       decisions to local BZAs are authorized by Section 918.1 and Long Beach

       Ordinance 154.153(A)(1). They argue that their administrative appeals address

       entirely different ordinances than those addressed by the December 2015

       variance and, thus, are not “collateral attacks” on a previously issued variance.




       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017    Page 33 of 40
[48]   Furthermore, Town Defendants, LBCA, and Neulieb argue, and Amicus IACT

       and IMLA agree, Plaintiff Owners should have, but did not, follow the 1600

       series to appeal the issuance of stop work orders and, instead, filed the

       Complaint. That is, on March 17, 2016, the Building Commissioner issued a

       second set of stop work orders, which prevented the construction of a

       “structure” in the area of the side-yard setback, and Plaintiff Owners did not file

       an administrative decision appeal of the stop work orders or apply for a

       developmental standards variance, which are remedies that Town Defendants

       maintain should have been exhausted before filing the Complaint. Amicus

       IACT and IMLA contend, “[Plaintiff Owners] filed suit for declaratory

       judgment and sought preliminary injunctive relief before the administrative

       process was complete and entirely outside of [the] orderly, statutorily prescribed

       process[,]” and by doing so, they “attempt[ed] to circumvent the process

       required by Indiana’s zoning scheme — a process administered in one fashion

       or another by virtually every municipal government in Indiana with planning

       and zoning jurisdiction.” IACT and IMLA Br. at 6. Therefore, they argue,

       Plaintiff Owners’ Complaint should have been dismissed.


[49]   Town Defendants suggest to us that a case “squarely on point,” and in support

       of their position, is Barnette v. U.S. Architects LLP, 15 N.E.3d 1 (Ind. Ct. App.

       2014). Town Defendants’ Br. at 23. In Barnette, homeowners Albert and Julie

       Bowen hired U.S. Architects to design what the Carmel Department of

       Community Services (“the Department”) called an “accessory building” on

       their residential property in Carmel, Indiana. Barnette, 15 N.E.3d at 3. U.S.


       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017     Page 34 of 40
Architects designed the building and submitted plans for a building permit, and

the Department issued a building permit in February 2010.23 The Bowens

constructed the accessory building, and in October 2010, the Department issued

a certificate of occupancy. Id. at 4. After construction was complete, the

Barnettes, who were the next-door neighbors of the Bowens, complained to the

Department about the height of the building because they believed it was too

tall in violation of the zoning code ordinance applicable to accessory buildings.

Id. at 4-5. The Department reviewed the complaint and sent the Bowens a letter

in March 2011 that read in part, “Upon review, it has come to our attention this

complaint is valid. We believe the original building permit was issued in error.

According to the building permit plans that were submitted the structure is eight

feet taller than is permitted. In order to comply . . . it will be necessary for you

to file an application for a Developmental Standards Variance.” Id. at 5. The

Bowens applied for a variance with the BZA, and after a public hearing, the

BZA denied the variance request. Id. The Bowens did not administratively

appeal the Department’s March 2011 determination that their building was too

tall nor did they appeal the BZA’s April 2011 denial of a variance. In June

2011, the Department notified the Bowens that their building violated the




23
  The building permit contained the following language: “THE BUILDING OFFICIAL IS PERMITTED
TO SUSPEND OR REVOKE THIS CERTIFICATE OF OCCUPANCY BASED ON ANY OF THE
FOLLOWING: 1. WHEN THE CERTIFICATE HAS BEEN ISSUED IN ERROR; 2. WHEN THE
INCORRECT INFORMATION IS SUPPLIED; 3. WHEN THE BUILDING IS IN VIOLATION OF
THE CODE.” Barnette v. U.S. Architects, LLP, 15 N.E.3d 1, 4 (Ind. Ct. App. 2014).



Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017          Page 35 of 40
       height ordinance and that the Department would be withdrawing the certificate

       of occupancy. The Bowens did not appeal that decision.


[50]   In September 2011, the Bowens and U.S. Architects filed a complaint for

       declaratory relief against the Department and the BZA (together, “the City of

       Carmel”), seeking an interpretation of the ordinance at issue and a

       determination that their building complied with it. Id. at 6. The City of Carmel

       filed a motion for judgment on the pleadings, asserting, among other things,

       that the Bowens failed to exhaust administrative remedies; the Barnettes

       intervened and joined the City of Carmel’s motion. The Bowens and U.S.

       Architects filed a motion for summary judgment.


[51]   The trial court denied the City of Carmel’s motion for judgment on the

       pleadings, and it granted the Bowens’ requested relief, finding that the

       Department violated their due process rights and that the Department should be

       estopped from revoking the certificate of occupancy. Id. at 7. The trial court

       ordered the City of Carmel to immediately reissue the Certificate of Occupancy

       or to provide just compensation because of the due process violation. Id.


[52]   The Barnettes appealed and asserted that the declaratory judgment action

       should be dismissed for lack of subject matter jurisdiction because the Bowens

       failed to exhaust their administrative remedies. This court agreed. After noting

       that, instead of filing a motion for judgment on the evidence, “[T]he City

       should have filed a motion to dismiss for lack of subject matter jurisdiction

       pursuant to Indiana Trial Rule 12(B)(1)” the Barnette court held that the trial


       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017    Page 36 of 40
       court should have dismissed the Bowens’ declaratory judgment complaint

       because they failed to exhaust their administrative remedies. Id. at 8. In doing

       so, the Barnette court stated, “[T]he Bowens had two opportunities to appeal

       from and be heard on the [Department]’s determination that their accessory

       building is too tall and an opportunity to appeal from and be heard on the

       BZA’s denial of a variance, and they failed to take advantage of any of those

       opportunities.” Id. at 11.


[53]   In this appeal, Town Defendants maintain that, “consistent with this [c]ourt’s

       holding in Barnette,” the Plaintiff Owners’ “failure to exhaust administrative

       remedies should have resulted in a dismissal under Trial Rule 12(B)(1).” Town

       Defendants’ Br. at 26. We agree and find it was error for the trial court in the

       present case not to dismiss Plaintiff Owners’ Complaint on this basis.


[54]   Plaintiff Owners do not dispute the exhaustion doctrine, but argue that they

       should nevertheless be excused from exhausting their administrative remedies

       based on limited exceptions to the exhaustion doctrine. For instance, Plaintiff

       Owners maintain that the trial court, when determining in its April 8 Order that

       it had jurisdiction, properly referred to and relied upon Twin Eagle, which

       carved out an exception to the exhaustion requirement. The Twin Eagle Court

       determined that “[t]o the extent the issue turns on statutory construction,

       whether an agency possesses jurisdiction over a matter is a question of law

       for the courts[,]” and “[I]f an action is brought upon the theory that the agency

       lacks the jurisdiction to act in a particular area, exhaustion of remedies is not

       required.” 798 N.E.2d at 844. We disagree that, pursuant to Twin Eagle,

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 37 of 40
       Plaintiff Owners were not required to exhaust administrative remedies. In Twin

       Eagle, the trial court was asked a pure question of statutory construction,

       namely whether IDEM possessed authority to regulate the types of waters at

       issue; here, there was no issue of statutory construction, and, in fact, Section

       918.1 grants the BZA the power and duty to hear administrative appeals

       and the 1600 series provide the method for appealing decisions of zoning

       boards. We therefore find that Twin Eagle is distinguishable and not

       controlling of our decision.


[55]   Plaintiff Owners also contend that exhaustion of administrative remedies

       was excused because it would have been futile for them to resort to the

       administrative process. See Johnson v. Celebration Fireworks, Inc., 829 N.E.2d

       979, 984 (Ind. 2005) (exhaustion of administrative remedies may be excused

       if the exercise would be futile, which requires showing that “administrative

       agency was powerless to affect a remedy or that it would have been

       impossible or fruitless and of no value under the circumstances”). Plaintiff

       Owners’ claim, among other things, is that participating in the BZA

       administrative process would have been futile because the BZA is

       comprised of or includes members that are biased against it due to conflicts

       of interest. Whether conflicts exist is a fact-sensitive matter, to be brought

       to the attention of the BZA and, in the face of an adverse decision, taken up

       on judicial review. See New Trend Beauty Sch. v. Ind. State Bd. of Beauty Culturist

       Exam’rs, 518 N.E.2d 1101, 1105 (Ind. Ct. App. 1988) (remedy for claims of bias

       is to proceed before administrative body and make a record, which will give


       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 38 of 40
       agency opportunity to correct or prevent error, without judicial interference).

       To the extent that Plaintiff Owners’ claim is that they are sure the BZA would

       rule against them, “[T]he mere fact that an administrative agency might refuse

       to provide the relief requested does not amount to futility.” Johnson, 829

       N.E.2d at 984.


[56]   As the Barnette court observed, “‘[w]here an administrative remedy is readily

       available, filing a declaratory judgment action is not a suitable alternative.’”

       Barnette, 15 N.E.3d at 9 (quoting Carter v. Nugent Sand Co., 925 N.E.2d 356, 360

       (Ind. 2010)). Similarly, Indiana courts have recognized that a trial court has no

       jurisdiction to enter a preliminary injunction where a party has failed to exhaust

       his or her administrative remedies. See Lake Cty. Sheriff’s Corr. Merit Bd. v. Peron,

       756 N.E.2d 1025, 1029 (Ind. Ct. App. 2001) (trial court lacked subject matter

       jurisdiction to issue preliminary injunction where parties failed to exhaust

       administrative remedies).


[57]   We conclude that Plaintiff Owners failed to exhaust their administrative

       remedies before filing their Complaint for declaratory and injunctive relief, and,

       therefore, we reverse the trial court’s April 8 Order that denied the motions to

       dismiss.24




       24
         Because we find that the trial court lacked subject matter jurisdiction, we do not reach LBCA’s and
       Neulieb’s other cross appeal issues asserting that the trial court should have dismissed the Complaint under
       Indiana’s anti-SLAPP statutes, nor do we reach Plaintiff Owners’ appellate claims challenging the July 5
       Order denying injunctive and declaratory relief.

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017                          Page 39 of 40
[58]   Reversed.


[59]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1698 | May 30, 2017   Page 40 of 40
