APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Michael D. Keele, Judge. Cause No. 49D07-1212-PL-47644.
ATTORNEYS FOR APPELLANT: LIBBY Y. GOODKNIGHT, Krieg DeVault LLP, Indianapolis, Indiana; BLAKE P. HOLLER, Krieg DeVault LLP, Carmel, Indiana.
ATTORNEYS FOR JEFFREY R. BAUMGARTH AND THE MYERS Y. COOPER COMPANY, APPELLEES: BRIAN J. TUOHY, JOHN J. MOORE, Doninger Tuohy & Bailey LLP, Indianapolis, Indiana.
ATTORNEY FOR METROPOLITAN BOARD OF ZONING APPEALS DIVISION II OF MARION COUNTY INDIANA: BETH A. GARRISON, Indianapolis, Indiana.
VAIDIK, Chief Judge. RILEY, J., and MAY, J., concur.
VAIDIK, Chief Judge
Myers Y. Cooper Corporation (" Myers Cooper" ) requested a variance for its property to build a pet day-care facility. At the hearing, I-465 LLC, the owner of an adjacent Hilton Homewood Suites Hotel, protested due to the noise that would be caused by pets staying so close to its hotel. After the Marion County Metropolitan Development Commission Board of Zoning Appeals (" BZA" ) granted the variance, HRC Hotels, LLC (" HRC Hotels" ), the parent company of I-465 LLC, filed a petition for judicial review in the trial court. Myers Cooper responded, arguing that HRC Hotels lacked standing to file the petition for judicial review. After the deadline to file a review petition, HRC Hotels filed a motion to amend the petition for judicial review to substitute I-465 LLC as the real party in interest. The trial court dismissed HRC Hotels's petition concluding that HRC Hotels lacked standing to file a petition for judicial review and therefore the trial court lacked subject-matter jurisdiction to consider HRC Hotels's motion to substitute the real party in interest. HRC Hotels now appeals.
We conclude that the standing requirements under Indiana Code section 36-7-4-1603 are procedural rather than jurisdictional. Therefore, HRC Hotels's alleged lack of standing when the petition was filed does not deprive the trial court of subject-matter jurisdiction. Because the trial court does have subject-matter jurisdiction to consider HRC Hotels's motion to amend its petition for judicial review, it should substitute I-465 LLC as a real party in interest and hear the merits of the petition for judicial review. We reverse the trial court's decision and remand for further proceedings.
Facts and Procedural History
In September 2012 Myers Cooper filed a petition for a variance with the BZA for 4048 West 94th Street in Indianapolis (" the Property" ). Appellant's App. p. 24. In its petition, it requested permission to establish " a domestic canine and feline boarding and day-care facility also providing grooming services with fenced outdoor exercise area for supervised daytime use, operating under the name PetSuites" on the Property. Id. The Property is located in a C-6 zone, which does not allow kennel or dog-boarding services to be established.
At the November 13, 2012 BZA meeting, Raymond Cooper presented Myers Cooper's
petition. I-465 LLC, which owns the Hilton Homewood Suites Hotel immediately to the west of the Property, appeared at the hearing to contest the variance petition. Specifically, I-465 LLC was concerned about the noise of the animals that would be staying adjacent to its hotel and believed that its hotel would be substantially and adversely affected if the BZA granted Myers Cooper's proposed variance. Id. at 73.
The BZA approved the variance at the November meeting on the condition that animals would be permitted in the outside play area only between 7:00 a.m. and 8:00 p.m. Only I-465 LLC and not its parent company--HRC Hotels--appeared or participated in the November BZA public hearing. Id. at 68-80. Moreover, HRC Hotels did not present any evidence opposing the variance before, during, or ...