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Planning and Zoning: What a new judicial review process means for your business

A new process for appeals of planning and zoning decisions in Indiana may impact your business. In July, several changes to Indiana’s planning and zoning law enacted by the Indiana General Assembly went into effect. The most significant of these was a change in the way planning and zoning decisions are appealed. The new law moves from certiorari, or court of appeals review, to a standard judicial review process.

What is the new standard judicial review process?

Indiana Code now establishes five standards of judicial review for planning and zoning decisions. The petition for review may be filed within 30 days of the final decision, with the burden of proof falling upon the petitioner. To overturn the decision, the petitioner must demonstrate that the zoning decision satisfies one or more of the following five standards of review:

  • arbitrary and capricious;
  • contrary to a constitutional right, power, privilege, or immunity;
  • in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
  • in violation of procedure; or
  • unsupported by substantial evidence

What types of decisions can be reviewed?
The change in law establishes a list of zoning matter types which may be subject to judicial review. For example, a board of zoning appeals may reach decisions concerning administrative appeals, exceptions, uses, variances, or appeals of commitment modification or terminations. These board of zoning appeals decisions constitute final zoning decisions which may be reviewed.

Likewise, a plan commission may reach decisions concerning subdivision control, appeal of a commitment modification or termination, development plans, and planned unit development. These plan commission decisions constitute final zoning decisions which may be reviewed.

Who has authority to make planning and zoning decisions?

In areas where the final planned unit development decision is not delegated to a plan commission, the final zoning decision for the planned unit development is made by the legislative body.

For example, Indiana counties with populations ranging between 400,000 and 700,000, or 200,000 and 300,000, provide for the legislative body to approve or disapprove special exceptions, special uses and use variances, while many jurisdictions provide for such decisions, and other zoning-related decisions, to be approved by a board of zoning appeals. Certain determinations made by an historic preservation commission are also now afforded a judicial review.

How might these changes impact Indiana businesses?
These changes to the planning and zoning law may result in an increase in legal action against zoning decisions by plan commissions or boards of zoning appeals. These changes appear to facilitate legal challenges, rather than deter them. Whether pursued by development advocates following a denial, or development opponents following an approval, it appears these changes to Indiana law will likely result in an increase in legal challenges following contested zoning decisions. Businesses seeking variances or other planning and zoning decisions should be prepared in case of increased appeals.

For more information on how to prepare you business for these changes, contact us.

  • Partner

    Mary is experienced in all aspects of real estate development, zoning and planning law, as well as government services and is the former chair of the firm's Real Estate practice group. She is a 1982 graduate of Indiana University ...

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