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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

ADVERTISEMENT