991 N.E.2d 128
Ind. Ct. App.2013Background
- Board granted a use variance for Schmucker’s tire repair business in an Agricultural Zoning District on July 19, 2012.
- Howard, a nearby property owner, filed a petition for judicial review on August 17, 2012.
- Howard requested the Board’s record under Indiana Code § 36-7-4-1613 on August 27, 2012.
- By September 17, 2012, Howard had not filed the record or sought an extension.
- The trial court later dismissed Howard’s petition for lack of timely filing, which the Court of Appeals affirmed on non-jurisdictional grounds while affirming dismissal under § 36-7-4-1613.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court lacked jurisdiction due to untimely board record | Howard argues lack of jurisdiction from filing timing | Board/Schmucker argues timely filing required | Not jurisdictional; dismissal proper under § 36-7-4-1613 |
| Whether § 1600 Series requires dismissal when no timely materials are filed | Howard contends court has discretion | Record insufficiency mandates dismissal | Dismissal required under § 36-7-4-1613 |
| Whether Lebamoff controls whether belated extensions are allowed | Lebamoff allows court to accept belated record | Extensions must be granted within initial 30 days or during extensions | Lebamoff does not permit nunc pro tunc extensions; extension must be timely requested |
Key Cases Cited
- Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924 (Ind. 2006) (timing of agency record filing not jurisdictional)
- Magness v. Ind. Dep’t of Envtl. Mgmt., 744 N.E.2d 397 (Ind. 2001) (jurisdictional analysis; review standards for remedies under 1600 Series)
- Habig v. Bruning, 613 N.E.2d 61 (Ind. Ct. App. 1993) (interpretation of 1600 Series; consistency with AOPA precedents)
- Ind. Family & Social Servs. Admin. v. Meyer, 927 N.E.2d 367 (Ind. 2010) (extension must be court-granted; cannot rely on relation back for untimely extensions)
- Corcoran v. State, 845 N.E.2d 1019 (Ind. 2006) (after deadline, amendments do not cure procedural defects)