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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. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

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