ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

ADVERTISEMENT