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Turf Wars: Zoning Battles May Be Won or Lost Based on Procedural Hurdles
Posted in Litigation

As the old saying goes, the one thing about land is that they aren’t making any more of it.  That might explain why legal battles over real estate are often among the fiercest.  One type of real estate dispute – zoning– focuses on how a particular piece of land may be used by the owner, e.g., for residential, agricultural or industrial purposes. Like other legal battles, the tide may turn based on how well the combatant can navigate the procedural waters.

One recent example is the case of Michael Howard v. Allen County Board of Zoning Appeals and Alvin Schmucker.  In 2012, Schmucker petitioned the Allen County Board of Zoning Appeals for a use variance that would permit him to operate a tire repair business on his property, which was located in an Agricultural Zoning District.  After that petition was granted, Howard petitioned the Allen County Superior Court for judicial review of the Board’s decision, claiming that Schmucker had failed to show an “unnecessary hardship” that would support the granting of the use variance.

After filing his petition, Howard had thirty (30) days, as required by statute, to file with the court a record of the hearing transcript and other materials that the Board had considered in making its decision.  However, when that period expired, Howard had not filed the materials and had not requested additional time to do so.  Schmucker then moved to dismiss Howard’s petition based on this failure. Ultimately, the court granted the motion on the basis that it lacked jurisdiction to hear Howard’s petition because he didn’t file all of the necessary paperwork on time.  Howard then appealed the dismissal of his petition.  The Indiana Court of Appeals recently held that although the trial court erred when it ruled that it lacked jurisdiction to hear the petition, it still properly granted the motion to dismiss because of Howard’s failure to comply with the statute.

This case is a good illustration of how an important dispute can be lost simply by failing to comply with, or even know about a deadline or other procedural requirement.  A good rule of thumb is that if a legal dispute is worth fighting about, it’s worth hiring an attorney to fight it with you. Especially if the dispute involves land – after all, they aren’t making any more of it.



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