Carmel Board of Zoning Appeals, and Al-Salam Foundation, Inc. v. Bidgood, 031219 INCA, 18A-MI-2098

Docket Nº:18A-MI-2098
Opinion Judge:ROBB, JUDGE.
Party Name:Carmel Board of Zoning Appeals, and Al-Salam Foundation, Inc., Appellants-Respondent and Respondent-Intervenor, v. David Bidgood, Sheila M. Graves, Salvatore Papalardo, David J. Reeves, and Angelo R. Stanco, Appellees-Petitioners.
Attorney:ATTORNEYS FOR APPELLANT AL-SALAM FOUNDATION, INC. Patrick R. Hess Brian C. Heck Beckman Lawson, LLP Fort Wayne, Indiana Johnathan J. Smith Juvaria Khan Nimra H. Azmi Washington, D.C. ATTORNEY FOR APPELLEES Michael J. Andreoli Zionsville, Indiana ATTORNEYS FOR APPELLANT CARMEL BOARD OF ZONING APPE...
Judge Panel:Riley, J., and Kirsch, J., concur.
Case Date:March 12, 2019
Court:Court of Appeals of Indiana
 
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Carmel Board of Zoning Appeals, and Al-Salam Foundation, Inc., Appellants-Respondent and Respondent-Intervenor,

v.

David Bidgood, Sheila M. Graves, Salvatore Papalardo, David J. Reeves, and Angelo R. Stanco, Appellees-Petitioners.

No. 18A-MI-2098

Court of Appeals of Indiana

March 12, 2019

Appeal from the Hamilton Superior Court The Honorable Steven R. Nation, Judge Trial Court Cause No. 29D01-1803-MI-2761

ATTORNEYS FOR APPELLANT AL-SALAM FOUNDATION, INC. Patrick R. Hess Brian C. Heck Beckman Lawson, LLP Fort Wayne, Indiana Johnathan J. Smith Juvaria Khan Nimra H. Azmi Washington, D.C.

ATTORNEY FOR APPELLEES Michael J. Andreoli Zionsville, Indiana

ATTORNEYS FOR APPELLANT CARMEL BOARD OF ZONING APPEALS Robert W. Eherenman Melanie L Farr Haller & Colvin, P.C. Fort Wayne, Indiana John R. Molitor Indianapolis, Indiana

ROBB, JUDGE.

Case Summary and Issue

[¶1] The Al-Salam Foundation, Inc. (the "Foundation") sought and obtained from the Carmel Board of Zoning Appeals (the "Board") a special use zoning permit to establish an Islamic Life Center for use by the Muslim community for worship and community gatherings. David Bidgood, Sheila M. Graves, Salvatore Pappalardo, David J. Reeves, and Angelo R. Stanco (collectively, the "Remonstrators") filed a "Petition for Writ of Certiorari, Judicial Review and Declaratory Judgment" in the Hamilton County Superior Court challenging the Board's decision. The Board filed a motion to dismiss when the Remonstrators did not file the Board record within thirty days of filing their petition. After a hearing, the trial court denied the motion to dismiss. The Board and the Foundation now appeal the trial court's order, raising one issue for our review: whether the trial court erred in denying the motion to dismiss the Remonstrators' petition for judicial review because the Remonstrators failed to timely file the Board record or request an extension of time to do so within the timeframe provided by Indiana Code section 36-7-4-1600 (the "1600 Series). Concluding the Remonstrators failed to timely file the Board record or request an extension of time for filing, we reverse.

Facts and Procedural History

[¶2] On February 26, 2018, the Board, by a 3-2 vote, approved the special use application by the Foundation. On March 28, the Remonstrators filed their "Petition for Writ of Certiorari, Judicial Review and Declaratory Judgment" and notice of filing of the same, in which the Remonstrators requested that the trial court "issue an Order to Show Cause why a Writ of Certiorari should not be issued." Joint Appellant's Appendix, Volume 2 at 36. According to the 1600 Series, the Board record was then due by April 27, thirty days after the petition was filed. See Ind. Code § 36-7-4-1613(a). On April 4, the trial court signed an order purporting to require the Board "to show cause why a writ of certiorari should not issue" at a hearing set for May 25. Id. at 37.

[¶3] On May 23, the Board filed a response to the Remonstrators' petition in which it noted that it was not required by the 1600 Series to file an answer or other responsive pleading to the Remonstrators' petition for judicial review but it nonetheless responded and noted that the Board record had not been filed by the Remonstrators within the time required by Indiana Code section 36-7-4-1613(a). On May 25, the Remonstrators filed a motion for an extension of time to file the Board record. In that motion, the Remonstrators stated that on April 5, they had contacted the Board regarding the status of the Board record by letter in which they noted "it may take longer to put the record together so if you could just let [counsel] know, [they would] ask the Court for additional extensions . . . ." Id. at 47. Hearing nothing in return, the Remonstrators "assumed, rightly or wrongly, that it was taking the Board's staff some time to put the Record of Proceeding together." Id. at 44. The Remonstrators did nothing more regarding the Board record until receiving the Board's response on May 23 which referenced their failure to file the Board record. At that time, they again checked on the status of the Board record and then filed the motion for extension of time. On May 29, the trial court granted the extension of time and allowed the Remonstrators until June 20 to file the Board record.

[¶4] The Board filed a motion to reconsider the order granting the Remonstrators additional time to file the Board record, alleging the Remonstrators' motion "sought relief from a statutory requirement that [the trial court] cannot grant." Id. at 49. The Board also filed a motion to dismiss the petition for judicial review because the Remonstrators had not timely filed the Board record or timely requested an extension to do so.[1] In their response to the Board's motion, the Remonstrators relied on the trial court's April 4 order that scheduled a hearing for May 25: "The date is tantamount to setting a date for making a Return of the Writ and filing the Record of Proceedings." Id. at 59.[2]

[¶5] At the hearing on the pending motions, the trial court granted the Remonstrators' motion for additional time to file the Board record, 3 and on June 26, entered a written order, recounting the above procedural history and stating in relevant part: 7.That the...

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