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Opponents of proposed Carmel mosque lose zoning appeal

March 12, 2019

The Carmel zoning board’s approval of the construction of an Islamic community center was affirmed Tuesday as an appeals court determined opponents of the planned mosque failed to timely file the board’s record.

More than a month after the Carmel Board of Zoning Appeals granted a special use zoning permit to the Al-Salam Foundation, Inc., to build an Islamic community and worship center, several opponents filed a “petition for writ of certiorari, judicial review and declaratory judgment” against the board.

Remonstrators David Bidgood, Sheila M. Graves, Salvatore Papalardo, David J. Reeves and Angelo R. Stanco sought court review of the board’s 3-2 vote permitting the special use, but failed to file the board’s record within 30 days as required under Indiana Code § 36-7-4-1613(a). Subsequently, the remonstrators twice filed for an extension of time in order to file the record, both of which were granted by the trial court.

Now-retired Hamilton Superior Judge Steve Nation later denied the board’s motion to dismiss the remonstrators’ petition despite the board’s argument that its record was untimely filed and that no extensions of time to file were requested by the remonstrators pursuant to the statutory timeframe.

On appeal, the board argued the record needed to be filed or an extension sought by April 27, and that the remonstrators did not file their motion for extension of time until May 25. On the other hand, the remonstrators contended the trial court’s order set the date as May 25, and because they were granted their motion to extend the time, they had not missed the deadline.

The Indiana Court of Appeals ultimately found that under I.C. 36-7-4-1600 (the “1600 Series”), the exclusive means for seeking judicial review, the remonstrators failed to file the board record within by April 27 and thus precluded itself from judicial review.

“As to the trial court managing its own docket, the Remonstrators’ argument continues to hinge on the availability of the certiorari process as an ‘alternate’ process to the 1600 Series. In the certiorari process, the court could set deadlines. But the certiorari process has been repealed for nearly a decade, and the Remonstrators are required to abide by the provisions of the 1600 Series,” Judge Margret Robb wrote for the panel.

“We would be remiss if we did not also note that the trial court is required to abide by those provisions as well. The trial court signed an order that is meaningless, as it is directed to the requirements of a now-repealed statutory process, and in doing so, unnecessarily furthered the procedural confusion at the heart of this case.”

Therefore, the appellate court determined the board’s motion to dismiss should have been granted and reversed the trials’ court’s judgment in Carmel Board of Zoning Appeals, and Al-Salam Foundation, Inc. v. David Bidgood, Sheila M. Graves, Salvatore Papalardo, David J. Reeves, and Angelo R. Stanco,18A-MI-2098.

 

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