ILNews

Opinion explains use of supplemental evidence

Back to TopCommentsE-mailPrintBookmark and Share

In affirming a trial court's decision to uphold a board of zoning appeals' denial of a petition for a variance, the Indiana Court of Appeals also addressed the trial court's admission of supplemental evidence pursuant to Indiana Code Section 36-7-4-1009.

In Edward Rose of Indiana, LLC v. Metropolitan Board of Zoning Appeals, Division II, Indianapolis-Marion County, Ind., No. 49A02-0809-CV-812, the company Edward Rose of Indiana, which owns an apartment complex in Indianapolis, appealed the denial of its petition for a variance regarding a sign located near Interstate 65. Edward Rose received notice in 2007 the sign was in violation of the consolidated city and county zoning ordinance. After the denial of its petition, Edward Rose filed a petition for writ of certiorari with the trial court, at which the court received supplemental evidence in the form of testimony from a professional land use planner and three employees of the apartment complex. The trial court affirmed the denial of the petition for variance.

Before addressing the appeal, the Court of Appeals examined the trial court's use of supplemental evidence. The statute in question states the trial court's review of a petition for writ of certiorari is limited to determining the legality of the BZA's decision, but also states the court may take evidence to supplement the evidence and facts disclosed by the return of the writ of certiorari. It also states the review by the trial court may not be de novo.

During the certiorari proceeding, Edward Rose used a great deal of supplemental evidence to try to support its contention from the BZA proceeding that a "significant" amount of leases were attributable to the sign and removal of it will result in practical difficulties.

It appears in this case the trial court didn't make its decision using the evidence presented during the BZA proceeding, but instead used the supplemental evidence to make its decision, wrote Judge Margret Robb. The trial court should have concluded that its admission of the company's supplemental evidence was inconsistent with certiorari review under I.C. Section 36-7-4-1009.

The Court of Appeals did provide examples of when supplemental evidence may be admitted without running afoul of the trial de novo prohibition, including when new evidence is discovered after the BZA's proceedings and when the record presented to the trial court doesn't contain all the evidence actually presented to the BZA.

Edward Rose failed to prove as a matter of law that removal of the sign will result in practical difficulties in the use of the property, the appellate court ruled. Because the evidence can't establish a more precise estimate of the increase in the advertising budget of the company because of the removal of the sign, it failed to show it will suffer significant economic injury as a matter of law. The injury is self-created because the company knew for more than 15 years its sign was in violation of the ordinance, wrote the judge. In addition, there are feasible alternatives for the company to attract business, such as advertising on a nearby billboard.

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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

  3. No, Ron Drake is not running against incumbent Larry Bucshon. That’s totally wrong; and destructively misleading to say anything like that. All political candidates, including me in the 8th district, are facing voters, not incumbents. You should not firewall away any of voters’ options. We need them all now more than ever. Right? Y’all have for decades given the Ds and Rs free 24/7/365 coverage of taxpayer-supported promotion at the expense of all alternatives. That’s plenty of head-start, money-in-the-pocket advantage for parties and people that don’t need any more free immunities, powers, privileges and money denied all others. Now it’s time to play fair and let voters know that there are, in fact, options. Much, much better, and not-corrupt options. Liberty or Bust! Andy Horning Libertarian for IN08 USA House of Representatives Freedom, Indiana

  4. A great idea! There is absolutely no need to incarcerate HRC's so-called "super predators" now that they can be adequately supervised on the streets by the BLM czars.

  5. One of the only qualms I have with this article is in the first paragraph, that heroin use is especially dangerous because it is highly addictive. All opioids are highly addictive. It is why, after becoming addicted to pain medications prescribed by their doctors for various reasons, people resort to heroin. There is a much deeper issue at play, and no drug use should be taken lightly in this category.

ADVERTISEMENT