Failure to file board record dooms claim for judicial review

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A company that did not file the board record or request an extension of time to file the record within 30 days as required by the applicable judicial review statute should not have been allowed to proceed with its request for judicial review, the Indiana Court of Appeals held. The judges reversed the denial of the town of Pittsboro’s request to dismiss Ark Park LLC’s claims.

Ark Park had its land zoned as a planned unit development under the 2004 town ordinance. But because Ark Park did not submit a master plan pursuant to Section 13 of the zoning ordinance within two years, it was required to again ask for the town council to rezone Ark Park’s real estate to a PUD zoning classification. Seven years later, Ark Park submitted its master plan, but had to submit a concept again because of the time lapse. This time, the plan commission denied zoning the land as PUD.

That’s when Ark Park filed a complaint against the town council and plan commission seeking judicial review and declaratory judgment. But Ark Park did not file the board record nor seek an extension within 30 days in order to do so as required by I.C. 36-7-4-1613. In June, the trial court denied the town’s motion to dismiss and granted Ark Park’s motion for leave to file an amended complaint.

The town appealed, and while the appeal was pending, the Indiana Supreme Court decided Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ., 20 N.E.3d 149 (Ind. 2014) and First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014). These cases established a bright-line rule that a petitioner seeking judicial review cannot receive consideration of its petition where it has not timely filed the statutorily defined record.

Because Ark Park failed to comply with the statutory requirements, it was not entitled to judicial review of the town council’s decision, Judge Rudolph Pyle III wrote in Town of Pittsboro Advisory Plan Commission and Town of Pittsboro Town Council v. Ark Park, LLC, 32A01-1308-PL-363.

The judges also reversed the denial of the town’s motion to dismiss Ark Park’s first claim for declaratory judgment, which sought a zoning status declaration, because it presented no facts in its complaint on which the trial court could have granted relief under the Declaratory Judgment Act. They also reversed the denial of the town’s motion to dismiss Ark Park’s second claim for declaratory judgment because the claim challenging the constitutionality of a section of the zoning ordinance as applied to its property was not a proper claim for declaratory judgment.

The COA ordered the trial court to strike the claims for judicial review and declaratory judgment that are also contained in Ark Park’s motion for leave to file its first amended verified complaint for judicial review, declaratory judgment and permanent injunction, which the trial court granted leave to file through a June 2013 order. That order is not before the COA on appeal.

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