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Opinion explains use of supplemental evidence

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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.

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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