                                                                              FILED
                                                                          Mar 12 2019, 8:52 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEES
AL-SALAM FOUNDATION, INC.                                Michael J. Andreoli
Patrick R. Hess                                          Zionsville, Indiana
Brian C. Heck
Beckman Lawson, LLP
Fort Wayne, Indiana
Johnathan J. Smith
Juvaria Khan
Nimra H. Azmi
Washington, D.C.

ATTORNEYS FOR APPELLANT
CARMEL BOARD OF ZONING APPEALS
Robert W. Eherenman
Melanie L Farr
Haller & Colvin, P.C.
Fort Wayne, Indiana
John R. Molitor
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Carmel Board of Zoning                                   March 12, 2019
Appeals, and Al-Salam                                    Court of Appeals Case No.
Foundation, Inc.,                                        18A-MI-2098
Appellants-Respondent and                                Appeal from the Hamilton
Respondent-Intervenor,                                   Superior Court
                                                         The Honorable Steven R. Nation,
        v.                                               Judge
                                                         Trial Court Cause No.
David Bidgood, Sheila M.                                 29D01-1803-MI-2761
Graves, Salvatore Papalardo,


Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019                            Page 1 of 14
      David J. Reeves, and Angelo R.
      Stanco,
      Appellees-Petitioners.




      Robb, Judge.



                                Case Summary and Issue
[1]   The Al-Salam Foundation, Inc. (the “Foundation”) sought and obtained from

      the Carmel Board of Zoning Appeals (the “Board”) a special use zoning permit

      to establish an Islamic Life Center for use by the Muslim community for

      worship and community gatherings. David Bidgood, Sheila M. Graves,

      Salvatore Pappalardo, David J. Reeves, and Angelo R. Stanco (collectively, the

      “Remonstrators”) filed a “Petition for Writ of Certiorari, Judicial Review and

      Declaratory Judgment” in the Hamilton County Superior Court challenging the

      Board’s decision. The Board filed a motion to dismiss when the Remonstrators

      did not file the Board record within thirty days of filing their petition. After a

      hearing, the trial court denied the motion to dismiss. The Board and the

      Foundation now appeal the trial court’s order, raising one issue for our review:

      whether the trial court erred in denying the motion to dismiss the

      Remonstrators’ petition for judicial review because the Remonstrators failed to

      timely file the Board record or request an extension of time to do so within the

      timeframe provided by Indiana Code section 36-7-4-1600 (the “1600 Series).


      Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019         Page 2 of 14
      Concluding the Remonstrators failed to timely file the Board record or request

      an extension of time for filing, we reverse.



                            Facts and Procedural History
[2]   On February 26, 2018, the Board, by a 3-2 vote, approved the special use

      application by the Foundation. On March 28, the Remonstrators filed their

      “Petition for Writ of Certiorari, Judicial Review and Declaratory Judgment”

      and notice of filing of the same, in which the Remonstrators requested that the

      trial court “issue an Order to Show Cause why a Writ of Certiorari should not

      be issued.” Joint Appellant’s Appendix, Volume 2 at 36. According to the

      1600 Series, the Board record was then due by April 27, thirty days after the

      petition was filed. See Ind. Code § 36-7-4-1613(a). On April 4, the trial court

      signed an order purporting to require the Board “to show cause why a writ of

      certiorari should not issue” at a hearing set for May 25. Id. at 37.


[3]   On May 23, the Board filed a response to the Remonstrators’ petition in which

      it noted that it was not required by the 1600 Series to file an answer or other

      responsive pleading to the Remonstrators’ petition for judicial review but it

      nonetheless responded and noted that the Board record had not been filed by

      the Remonstrators within the time required by Indiana Code section 36-7-4-

      1613(a). On May 25, the Remonstrators filed a motion for an extension of time

      to file the Board record. In that motion, the Remonstrators stated that on April

      5, they had contacted the Board regarding the status of the Board record by

      letter in which they noted “it may take longer to put the record together so if

      Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019        Page 3 of 14
      you could just let [counsel] know, [they would] ask the Court for additional

      extensions . . . .” Id. at 47. Hearing nothing in return, the Remonstrators

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

      put the Record of Proceeding together.” Id. at 44. The Remonstrators did

      nothing more regarding the Board record until receiving the Board’s response

      on May 23 which referenced their failure to file the Board record. At that time,

      they again checked on the status of the Board record and then filed the motion

      for extension of time. On May 29, the trial court granted the extension of time

      and allowed the Remonstrators until June 20 to file the Board record.


[4]   The Board filed a motion to reconsider the order granting the Remonstrators

      additional time to file the Board record, alleging the Remonstrators’ motion

      “sought relief from a statutory requirement that [the trial court] cannot grant.”

      Id. at 49. The Board also filed a motion to dismiss the petition for judicial

      review because the Remonstrators had not timely filed the Board record or

      timely requested an extension to do so.1 In their response to the Board’s

      motion, the Remonstrators relied on the trial court’s April 4 order that

      scheduled a hearing for May 25: “The date is tantamount to setting a date for

      making a Return of the Writ and filing the Record of Proceedings.” Id. at 59.2




      1
       The Board also alleged the petition should be dismissed for failure to join an indispensable party. The trial
      court addressed this ground in its order denying the motion to dismiss, but it is not at issue in this appeal.
      2
       As will be discussed below, the gist of this argument is that the trial court setting a hearing for May 25 was
      equivalent to setting a date for the Board record to be filed.

      Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019                                  Page 4 of 14
[5]   At the hearing on the pending motions, the trial court granted the

      Remonstrators’ motion for additional time to file the Board record,3 and on

      June 26, entered a written order, recounting the above procedural history and

      stating in relevant part:


               7. That the statute I.C. 36-7-4-1613(a) provides [the Board record
               shall be filed] “within 30 days after filing of the petition, or
               within further time allowed by the court”.


               8. That as of the hearing on June 11, 2018, the Record of
               Proceedings had not been completed and in fact, at that time it
               had not been determined when the Record of Proceedings could
               be completed or the possible costs. Thus, it would be an
               impossibility for the [Remonstrators] to comply with the
               statutory requirements to file the Record of Proceedings without
               the Court providing an extension of time to file. The
               [Remonstrators] were not late but properly asked for the Court to
               extend the time set as provided by statute. As set forth above,
               and prior to the date which was set by the Court, the
               [Remonstrators] have requested an extension of time to file the
               Record of Proceedings.


               9. That therefore, the Court finds the [Board’s] Motion to
               Reconsider Order Granting an Extension of Time to File Record
               … should be and is hereby denied.




      3
        In the appealed order, the trial court stated that it granted the Remonstrators’ motion for additional
      extension of time during the hearing and it set a telephonic pre-trial conference for July 19 at which the
      parties “shall be prepared to discuss when the Record of Proceedings shall be prepared so that it may be
      filed[.]” Id. at 13.

      Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019                                 Page 5 of 14
      Id. at 70-71. At the Board’s request and over the Remonstrators’ objection, the

      trial court certified its order for interlocutory appeal 4 and this court thereafter

      accepted jurisdiction. The Board now appeals.



                                    Discussion and Decision
                                         I. Standard of Review
[6]   “We review de novo a court’s ruling on motions to dismiss for failure to timely

      file necessary agency records where the court ruled on a paper record.” 5

      Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ., 20 N.E.3d 149, 151 (Ind.

      2014).


                                 II. Process of Judicial Review
[7]   We begin by discussing the procedure the Remonstrators have attempted to

      employ. As stated in their response to the Board’s motion to dismiss,


               The [Remonstrators] assert that the [Board’s] reliance on Indiana
               Code 36-7-4-1613 and the cases that discus [sic] the filing of the
               Record of Proceedings is misplaced and should be denied. While
               the [Board] sites [sic] cases that deal with the “bright light” [sic]




      4
        Up to this point, the Foundation had not participated in the trial court proceedings. After the trial court’s
      order denying the Board’s motion to dismiss and after the Board filed its motion to certify the order for
      interlocutory appeal, the Foundation moved to intervene and to join in the Board’s motion. Henceforth,
      references to “the Board” include the Foundation unless otherwise noted.
      5
        Although the trial court held a hearing on the Board’s motion, the Board did not request a transcript of the
      hearing and there is nothing in the record to suggest the hearing was anything other than legal argument on
      the parties’ respective positions. See Joint Brief of Appellants at 13 (representing that the trial court did not
      conduct an evidentiary hearing).

      Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019                                   Page 6 of 14
              timeline established for the filing of the Record of Proceedings,
              the [Board] failed to distinguish what actually occurred in this
              case verses [sic] those cases sited [sic]. In this case, the
              [Remonstrators] submitted, and the Court entered an Order to
              Show Cause Why Writ of Certiorari Should Not Issue and
              established show cause for the 25th day of May, 2018 . . . . This
              in essence established a “bright light” [sic] timeline for the filing
              of the Record of Proceedings.


      Jt. Appellant’s App., Vol. 2 at 61. Quoting Indiana Code section 36-7-4-1613—

      “Within thirty (30) days after the filing of the Petition, or within further time

      allowed by the court, the petitioner shall transmit [the Board record]” (emphasis

      added)—the Remonstrators then argued the Court “had jurisdiction to, and did,

      establish a timeline that could be relied upon by the [Remonstrators] in this

      case.” Id.; see also Appellees’ Brief at 8 (arguing that “before the thirty (30) day

      period expired, the [trial court] had set a date certain for the Return of the Writ,

      i.e. filing of the Board Record”).


[8]   Prior to 2011, a petitioner initiated judicial review of a board of zoning appeals’

      decision by filing a petition for a writ of certiorari. Town of Darmstadt v. CWK

      Investments-Hillsdale, LLC, 114 N.E.3d 11, 15 n.5 (Ind. Ct. App. 2018), trans.

      denied; compare Ind. Code § 36-7-4-1003 (2003) (“Each decision of the legislative

      body under section 918.6 of this chapter or the board of zoning appeals is

      subject to judicial review by certiorari.”) with Ind. Code § 36-7-4-1003(a) (2014)

      (“Each decision of the legislative body under section 918.6 of this chapter is

      subject to judicial review in the same manner as that provided for the appeal of

      a final decision of the board of zoning appeals under section 1016(a) of this


      Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019              Page 7 of 14
chapter.” ). In Shipshewana Convenience Corp. v. Bd. of Zoning Appeals of LaGrange

Cty., 656 N.E.2d 812 (Ind. 1995), our supreme court set forth the statutory

procedure applicable at that time:


        1. A party aggrieved by a decision of a Board of Zoning Appeals
        must file (a) a verified petition; (b) for a writ of certiorari to the
        Board of Zoning Appeals; (c) in a circuit or superior court in the
        county in which the premises are located; (d) within thirty days
        after the date of the Board of Zoning Appeal’s decision; (e)
        setting forth that the decision of the Board of Zoning Appeals is
        illegal in whole or in part and specifying grounds of the illegality.


        2. The aggrieved party must have notice served by the sheriff on
        each “adverse party” as defined by the statute.


        3. Upon the filing of a petition for a writ of certiorari, the court is
        required to direct the Board of Zoning Appeals, within twenty
        days after the date of the petition, to show cause why the writ of
        certiorari should not issue.


        4. If the Board of Zoning Appeals makes no or an inadequate
        showing that the writ should not issue, the court may issue the
        writ, prescribing a deadline for response not less than ten days
        from the date the writ is issued.


Id. at 812-13 (footnotes omitted) (citing Ind. Code § 36-7-4-1003, -1005, and

-1006 (1981)). In response to the writ (“the return”), the Board would prepare

various documents and transcripts called for by the writ and file them with the

trial court within the time prescribed by the writ. Ind. Code § 36-7-4-1008

(1981).



Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019            Page 8 of 14
[9]    In 2011, Indiana Code sections 36-7-4-1005 to -1011 were repealed. P.L. 126-

       2011, sec. 68. Effective July 1, 2011, the 1600 Series “establishes the exclusive

       means for judicial review of zoning decisions[.]” Ind. Code § 36-7-4-1601(a).

       In other words, filing a petition for writ of certiorari, issuing a show cause order

       and a writ of certiorari, and the Board making a return on the writ are no longer

       the appropriate process for seeking judicial review of a Board decision. We will

       discuss the import of the trial court’s order pursuant to this repealed process

       below.


                                               III. Timeliness
[10]   The 1600 Series now prescribes the following process for seeking judicial review

       of a board of zoning appeals’ decision:


           • A petitioner must have standing. Ind. Code § 36-7-4-1603.

           • The petitioner must have exhausted administrative remedies. Ind. Code

                § 36-7-4-1604.

           • The petitioner must file the petition for review not later than thirty days

                after the zoning decision. Ind. Code § 36-7-4-1605.

           • The petitioner must comply with section 1613 concerning the time for

                filing the board record.6 Ind. Code § 36-7-4-1613(a).




       6
         Section 1613(a) also describes the contents of the board record. The petitioner must submit a written
       request to the board to prepare the record. Ind. Code § 36-7-4-1613(c).

       Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019                                Page 9 of 14
       See Town of Pittsboro Advisory Plan Comm’n v. Ark Park LLC, 26 N.E.3d 110, 117

       (Ind. Ct. App. 2015).


[11]   The Board does not challenge the Remonstrators’ standing or argue that they

       have not exhausted their administrative remedies. There is no question but that

       the petition was timely filed, as the zoning decision was issued on February 26,

       2018, and the petition for judicial review was filed on March 28, thirty days

       later. The question to be answered is, when did the Board record need to be

       filed and did the Remonstrators comply? The Board contends the record

       needed to be filed or an extension sought by April 27, and the Remonstrators

       did not file their motion for extension of time until May 25. The Remonstrators

       contend the trial court’s order set the time for filing the record or seeking an

       extension as May 25, they filed their motion for extension of time on that date,

       the trial court granted their motion, and therefore they have not missed the

       deadline for filing the Board record.


[12]   In Howard v. Allen Cty. Bd. of Zoning Appeals, we noted that because the judicial

       review provisions of the 1600 Series are identical in all material respects to the

       judicial review provisions of the Administrative Orders and Procedures Act

       (“AOPA”),7 we could look to cases interpreting the AOPA judicial review




       7
         See Ind. Code § 4-21.5-5-1 (establishing this chapter as the exclusive means for judicial review of agency
       action); § 4-21.5-5-5 (requiring a petition for judicial review to be filed within thirty days of the agency
       action); § 4-21.5-5-13 (requiring the agency record to be filed within thirty days or “within further time
       allowed by the court or by law” and stating failure to file the record within the time permitted is cause for
       dismissal).

       Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019                                 Page 10 of 14
       process in interpreting the 1600 Series. 991 N.E.2d 128, 130 (Ind. Ct. App.

       2013). Accordingly, in determining whether the trial court should have granted

       a belated extension request for filing of the board record, the Howard court

       looked to Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367 (Ind. 2010),

       in which our supreme court interpreted the AOPA requirement of filing the

       agency record. In Meyer, our supreme court stated, “The statute places on the

       petitioner the responsibility to file the agency record timely. Although the

       statute allows a petitioner to seek extensions of time from the trial court . . ., the

       statute does not excuse untimely filing or allow nunc pro tunc extensions.” Id. at

       370. Moreover, the trial court may grant a request for an extension of time

       under this section “only if the request is made during the initial thirty days

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

       extension.” Id. at 370-71.


[13]   Applying these rules to the case before it, the court in Howard held that where

       the petitioner had neither filed the board record nor requested an extension of

       the filing deadline within thirty days after filing his petition, section 1613

       required dismissal. 991 N.E.2d at 131. The court also rejected the petitioner’s

       suggestion that the trial court has discretion with respect to untimely filings. Id.

       Thereafter, our supreme court clearly established in an AOPA case a bright-line

       approach to the filing of an agency record: “a petitioner for review cannot

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

       has not been filed.” Teaching Our Posterity Success, 20 N.E.3d at 155 (internal




       Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019         Page 11 of 14
       footnote omitted); see also First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757,

       762-63 (Ind. 2014) (holding the same).


[14]   Thus, the answer to the question before us is plain from the statute itself and

       from prior cases: the 1600 Series is the exclusive means for seeking judicial

       review, replacing the former certiorari process; the board record or a motion for

       an extension of time must be filed within thirty days of the petition; and aside

       from granting a timely motion for extension of time, the trial court may not

       otherwise alter the timeline or retroactively grant an extension.


[15]   The Remonstrators’ argument is essentially one of equity: they assert the trial

       court “had the ability and responsibility to manage its own docket and

       timelines” and, referencing Teaching Our Posterity Success, argues that the court

       set its own “[b]rightline filing date” of May 25, within which timeline they

       acted appropriately. Appellees’ Brief at 7-8. They also note that the Board

       record had not yet been prepared at the trial court’s deadline, it was unclear

       when it would be prepared, and requiring Remonstrators to abide by the

       statutory timeline instead of the court’s would “create a series of procedural

       landmines” for them. Id. at 8.


[16]   As to the trial court managing its own docket, the Remonstrators’ argument

       continues to hinge on the availability of the certiorari process as an “alternate”

       process to the 1600 Series. In the certiorari process, the court could set

       deadlines. See Ind. Code § 36-7-4-1006 (2003) (when court issues a writ of

       certiorari, it prescribes the time in which the Board is to file the record). But the


       Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019           Page 12 of 14
       certiorari process has been repealed for nearly a decade, and the Remonstrators

       are required to abide by the provisions of the 1600 Series. We would be remiss

       if we did not also note that the trial court is required to abide by those provisions

       as well. The trial court signed an order that is meaningless, as it is directed to

       the requirements of a now-repealed statutory process, and in doing so,

       unnecessarily furthered the procedural confusion at the heart of this case. 8


[17]   As to the unavailability of the Board record at the time it was required to be

       filed, the court in Meyer noted that the statute acknowledges “possible

       difficulties” in preparing and submitting the agency record but nonetheless

       “places the burden on the petitioner to file or seek an extension within the

       statutory period or any [previously granted] extension.” 927 N.E.2d at 371. See

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

       shall be granted by the court for good cause shown. Inability to obtain the

       record from the responsible board within the time permitted by this section is

       good cause.”).


[18]   In sum, the Remonstrators timely filed their petition for judicial review on

       March 26, and under the 1600 Series, the Board record or a motion for




       8
         The Remonstrators’ position is somewhat inconsistent, in that it submitted to the trial court an Order to
       Show Cause Why Writ of Certiorari Should Not Issue. Under the former certiorari process, that order would
       set a date for the board to show cause why a writ of certiorari should not issue and if it failed to do so, then
       the court would issue the writ and set a time for the record to be filed. In other words, if the Remonstrators
       were committed to this as the appropriate process, they would not believe there was a deadline for filing the
       record as the trial court has not yet issued a writ directing the Board to do so. We also note that under the
       former process, the Board would be responsible for filing the record, and yet the Remonstrators acknowledge
       that filing the record in this case is their responsibility.

       Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019                                Page 13 of 14
       extension of time was therefore required to be filed by April 27. The

       Remonstrators did not file the Board record by that date and did not request an

       extension of time until May 25. To the extent the Remonstrators and the trial

       court believe the April 4 order set May 25 as the “further time allowed by the

       court” for filing the Board record, see Ind. Code § 36-7-4-1613(a), we note first

       that the order was procedurally meaningless for being issued under a repealed

       statute; and second, that it was not made in response to a motion for extension

       of time. The Remonstrators’ first and only motion for extension of time was

       made outside the thirty days allowed for action with regard to filing the Board

       record, and the trial court had no discretion to grant it as it was untimely.

       Accordingly, because the Remonstrators have failed to comply with the

       statutory requirements for filing the Board record, they cannot receive

       consideration of their petition, and the trial court erred in denying the Board’s

       motion to dismiss.



                                               Conclusion
[19]   The Remonstrators’ failure to file the Board record with the trial court in

       accordance with the provisions of the 1600 Series precludes judicial review and

       the Board’s motion to dismiss should have been granted. The trial court’s

       judgment to the contrary is reversed.


[20]   Reversed.


       Riley, J., and Kirsch, J., concur.

       Court of Appeals of Indiana | Opinion 18A-MI-2098 | March 12, 2019        Page 14 of 14
