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COA affirms trial court dismissal of judicial review but differs on reasoning

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An Allen Superior judge’s determination that the court lacked jurisdiction to hear a zoning issue, thus requiring dismissal, was erroneous, the Indiana Court of Appeals ruled. But the judges affirmed the lower court’s dismissal of the case because of a lack of supporting materials and a late request for a filing deadline extension.

Michael Howard sought judicial review of the Allen County Board of Zoning Appeals decision to grant a use variance allowing property owned by Alvin Schmucker to be used for the operation of a tire business. The men’s properties were near each other.

Howard asked the zoning board to produce a certified record of all materials relevant to its decision, and he had until Sept. 17, 2012, to file the record or seek an extension of the filing deadline. He did neither as of the deadline date, so Schmucker asked for Howard’s request for judicial review to be dismissed. Howard later filed an amended petition asking for the extension. In December, Judge Stanley Levine dismissed Howard’s petition with prejudice, holding the trial court lacked jurisdiction based on his failure to timely file the board record or timely request an extension of the filing deadline.

“Because the timing of filing the board record does not implicate matters of jurisdiction, we conclude that the trial court’s determination was clearly erroneous. But, because we interpret Indiana Code section 36-7-4-1613 to require dismissal where no materials supporting judicial review of the petitioner’s claim are timely filed and an extension of the filing deadline is not timely requested, we affirm the trial court’s judgment,” Judge Cale Bradford wrote in Michael Howard v. Allen County Board of Zoning, Appeals and Alvin Schmucker, 02A04-1301-PL-27.

The judges rejected Howard’s suggestion that under the COA’s April decision in  Lebamoff Enterprises Inc. v. Indiana Alcohol & Tobacco Commission, the trial court’s discretion with regard to untimely filings allows the court to accept a belated record even where an official extension hasn’t been granted. They also rejected his claim under Trial Rule 15 that the relation back doctrine forgives the tardiness of Howard’s second belated extension request. Plus, after a filing deadline has passed, a party is not allowed to amend a petition to cure procedural defects.

 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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