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COA: Court should hear petition involving pet daycare

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The Indiana Court of Appeals Thursday ordered a Marion County court to hear the merits of a hotel’s petition for judicial review of the zoning board’s decision to grant a variance to a develop a pet daycare facility next door to the hotel.

The Marion County Metropolitan Development Commission Board of Zoning Appeals granted Myers Y. Cooper Corp.’s request for a variance to build the pet daycare in Indianapolis. I-465 LLC, owner of an adjacent Hilton Homewood Suits Hotel, protested, arguing noise caused by the pets would disrupt guests. I-465 LLC’s parent company, HRC Hotels LLC, timely filed a petition for judicial review.

Myers Cooper claimed the parent company lacked standing to file the petition for judicial review. After the 30-day deadline to file a review petition had passed, HRC Hotels filed a motion to amend the petition to substitute I-465 LLC as the real party in interest. The trial court dismissed the petition, concluding HRC Hotels lacked standing to file the petition for judicial review, so the court lacked subject-matter jurisdiction.

The Court of Appeals reversed in HRC Hotels, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company, 49A04-1307-PL-313.

“Here, the fact that HRC Hotels lacks standing because it did not appear before the BZA is not a ‘real jurisdictional problem.’ We understand real jurisdictional problems to be when the trial court renders a decision in a case that it has not been granted the power to decide,” Chief Judge Nancy Vaidik wrote.

The lack of standing at the time the petition is filed is a procedural error, she continued, that does not deprive the court of jurisdiction to hear the petition. The trial court had subject-matter jurisdiction over HRC Hotels’ petition independent of whether HRC Hotels may have lacked standing when it filed its petition.

“Here, I-465 LLC, as the owner of the hotel adjacent to the Property, is a true owner of the right sought to be enforced. Moreover, HRC Hotels filed its motion to amend its petition and substitute I-465 LLC as the real party in interest exactly thirty days after Myers Cooper filed its motion to dismiss for lack of standing,” she wrote. “Because this Court allowed a substitution under Trial Rule 17(A)(2) sixty-four days after the defendant objected, we find a substitution after thirty days to be reasonable.”

 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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