Benton Cty. v. Board of Zoning Appeals

Citation905 N.E.2d 1090
Decision Date15 May 2009
Docket NumberNo. 04A03-0811-CV-559.,04A03-0811-CV-559.
CourtCourt of Appeals of Indiana
PartiesBENTON COUNTY REMONSTRATORS (Dennis Foster, David Geswein, et al.), Appellants-Petitioners, v. BOARD OF ZONING APPEALS OF BENTON COUNTY; Brian Martin; David Martin; North Fork Farms, LLC; Bruce Buchanan; and Connie Frey, Appellees-Respondents.

John T. Casey, Rensselaer, IN, Attorney for Appellants.

Alan S. Townsend, Bryan H. Babb, Daniel P. McInerny, Suzanna Hartzell-Baird, Bose McKinney & Evans, LLP, Indianapolis, IN, Attorneys for Appellees.



The Benton County Remonstrators ("Remonstrators") appeal from a dismissal of their verified petition, complaint, and application for writ of certiorari, declaratory judgment and judicial review. The Remonstrators appeal and argue:

1. Whether the trial court erred when it rescinded an order appointing a special judge;

2. Whether the special judge erred when it denied Remonstrators' motion for change of venue;

3. Whether the Remonstrators have standing to challenge the Board of Zoning Appeals' decision; and

4. Whether the trial court erred when it determined that inadequate notice was provided to landowners.

Brian Martin, David Martin, and North Fork Farms, LLC ("North Fork") cross appeal, alleging that the verification by Remonstrators' attorney of the appeal is not allowed under Indiana Code section 36-7-4-1003(a). We affirm in part, reverse in part, and remand to the trial court for proceedings consistent with this opinion.

Facts and Procedural History

In early December 2006, North Fork filed an application with the Indiana Department of Environmental Management ("IDEM") to develop a confined animal feeding operation ("CAFO"). In late February 2007, North Fork filed two Applications for Special Exception with the Benton County Board of Zoning Appeals ("BZA"). The applications were named the East and West Applications, respectively. The East Application sought permission to place a CAFO on land owned by Bruce A. Buchanan and Connie Frey. The West Application sought permission to place a CAFO on land owned in part by Bruce and Virginia Buchanan and in part by Steve Jobst.

Following allegations of conflicts of interest among the BZA, the BZA filed a complaint for declaratory judgment with the Benton Circuit Court to review the conflict of interest issue, the validity of the BZA procedure for determining and dealing with conflicts of interest, and any violation of the Open Door Law. The Benton Circuit Court approved of and confirmed the actions of the BZA. The Remonstrators appealed. In an unpublished memorandum decision, we determined that the declaratory judgment was premature in that the BZA and the Remonstrators failed to show that an actual, justiciable controversy existed at the time they requested a declaratory judgment.1 We ordered the trial court to dismiss the declaratory judgment.

On March 10, 2008, the BZA granted both of North Fork's applications, the East and West Applications. On April 8, 2008, the Remonstrators filed a verified petition, complaint and application for writ of certiorari, declaratory judgment and judicial review ("Petition") appealing both applications. The Remonstrators attached their original remonstrance to the Petition as an exhibit. The original Remonstrance defines the Remonstrators as a group of Benton County residents; however, only Dennis Foster and Dave Geswein signed the remonstrance, and no other list of additional remonstrators was included. Also, counsel for the Remonstrators signed the Petition on behalf of the Remonstrators.

On April 9, 2008, the Honorable Rex W. Kepner recused himself and appointed the Honorable Jeryl Leach as Special Judge. On April 25, 2008, Judge Kepner rescinded his prior order appointing Judge Leach and appointed the Honorable John Rader because Judge Leach was not listed as an option for appointment as special judge under the applicable local rule.

On May 6, 2008, the Remonstrators filed a Motion for Change of Judge. On May 8, 2008, Judge Rader entered an order appointing a panel of judges from which the parties would strike ("Order"). On May 9, 2008, the Order was file-stamped by the clerk's office. On May 12, 2008, the Remonstrators' counsel left on vacation, allegedly without receiving the Order. Between May 12, 2008 and May 21, 2008, the Remonstrators' counsel received a message from his office that the order had been received. On May 15, 2008, counsel for North Fork sent the Remonstrators' counsel an email asking if he had stricken anyone from the panel. On May 22, 2008, North Fork's counsel sent a second email asking who had been stricken because he had not received anything from the court.

On May 21, 2008, the Remonstrators' counsel returned from vacation. On May 23, 2008, the Remonstrators' counsel filed a strike. On May 30, 2008, North Fork filed a Motion to Strike or, in the alternative, Notice of Striking, arguing that the Remonstrators' notice of striking was untimely. On June 2, 2008, the BZA filed its strike. On June 19, 2008, the Remonstrators filed a response, also raising, for the first time, the issue of the validity of Judge Kepner's appointment of Judge Rader. Judge Rader determined that the Remonstrators failed to timely strike and resumed jurisdiction of the case.

On July 24, 2008, the Remonstrators filed a Motion to Amend Pleadings with an Amended Petition. On August 26, 2008, the trial court held a hearing on various issues. On October 7, 2008, the trial court denied the Remonstrators' motion to amend and dismissed its Petition. The Remonstrators now appeal.

I. Verification by Attorney

North Forks first argues that the Remonstrators' Petition is invalid because it was not properly verified since it was only signed by the Remonstrators' counsel. An appeal from a decision of the BZA is initiated by filing a verified petition for writ of certiorari:

Each decision of ... the board of zoning appeals is subject to review by certiorari. Each person aggrieved by a decision of the board of zoning appeals ... may present, to the circuit or superior court of the county in which the premises affected are located, a verified petition setting forth that the decision is illegal in whole or in part and specifying the grounds of the illegality.

Ind.Code § 36-7-4-1003(a) (2006). In order for a reviewing court to acquire jurisdiction under Indiana Code section 36-7-4-1003(a), the petition must be verified. Williams-Woodland Park Neighborhood Ass'n v. Bd. of Zoning Appeals, 638 N.E.2d 1295, 1297-98 (Ind.Ct.App.1994). "The essential purpose of a verification is that the statements be made under penalty for perjury." Austin v. Sanders, 492 N.E.2d 8, 9 (Ind.1986).

Our supreme court has directed that Indiana Trial Rule 11(B) is the verification standard by which a petition "for review of the action of an administrative body" should be judged. Id. Indiana courts consider the BZA an administrative body. See Evansville Outdoor Adver., Inc. v. Bd. of Zoning Appeals, 757 N.E.2d 151, 158 (Ind.Ct.App.2001), trans. denied (referring to the BZA of Evansville and Vanderburgh County as an "administrative body"). "`It must be emphasized that the board, as an administrative body, presumably expert in the land use problems of its particular jurisdiction, has wide discretion in the granting or denying of zoning variances.'" Metro. Bd. of Zoning Appeals v. Rumple, 261 Ind. 214, 220, 301 N.E.2d 359, 363 (1973) (quoting Metro. Bd. of Zoning Appeals v. Standard Life Ins. Co., 145 Ind.App. 363, 251 N.E.2d 60, 61 (1969)).

In verifying a petition for certiorari review, according to Trial Rule 11(B):

it shall be sufficient if the subscriber simply affirms the truth of the matter to be verified by an affirmation or representation in substantially the following language:

"I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true.

(Signed) ___________"

Trial Rule 11(B). Trial Rule 11(B) complies with the Indiana Code language for verified pleadings. In a definition applicable "to the construction of all Indiana statutes," "`[v]erified,' when applied to pleadings, means supported by oath or affirmation in writing." Indiana Code § 1-1-4-5 (2008).

Our supreme court emphasized in Austin that verification need only substantially comply with Trial Rule 11(B). 492 N.E.2d at 9. Indeed, Trial Rule 11(B) itself requires only that the verification be "in substantially the following language." (emphasis added). As Trial Rule 11(B) makes clear, the standard for "any civil or special statutory proceeding" is the same. Strict compliance with the certiorari review statute requires only substantial compliance with Trial Rule 11(B). Bd. of Zoning Appeals of Porter County v. Lake County Trust Co., 783 N.E.2d 382, 385 (Ind.Ct. App.2003), trans. denied.

As our supreme court stated, a belief that a representation is true "may arise from personal observation, from sight or from sound, from information derived from others, or as the result of a logical conclusion from other known facts." Austin, 492 N.E.2d at 10. Here, the Remonstrators' counsel could have rested his belief that the representations were true on the basis of someone else's personal knowledge and reasonable inferences based on that personal knowledge. Therefore, the trial court properly determined that the Petition can be verified by an attorney.

II. Special Judge Appointment

The Remonstrators next argue that the original trial judge, Judge Kepner, did not have the authority to rescind his order appointing Judge Leach as special judge. This argument is without merit. When Judge Kepner recused himself pursuant to Trial Rule 79(C), the selection of the special judge fell under Trial Rule 79(H), which provides that, "[i]n the event ... a judge disqualifies and recuses under Section (C), the appointment of an eligible special judge shall be made pursuant to a local rule approved by the Indiana Supreme Court[.]"...

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