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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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