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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hello currently just withdrew from laporte county drug court and now I have lost the woman I love which also was in drugcourt and was put in jail without a,lawyer presentfor her own safety according to the judge and they told her she could have a hearing in two weeks and now going on 30days and still in jail no court date and her public defender talks like he,s bout to just sell her up the river.

  2. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  3. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  4. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  5. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

ADVERTISEMENT