Town of Pittsboro Advisory Plan Commission and Town of Pittsboro Town Council, Appellants-Defendants,
Ark Park, LLC, Appellee-Plaintiff
Appeal from the Hendricks Superior Court. The Honorable Mark A. Smith, Judge. Cause No. 32D04-1212-PL-142.
ATTORNEYS FOR APPELLANT: James A.L. Buddenbaum, Travis W. Montgomery, Parr Richey Obremskey Frandsen & Patterson, LLP, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: William O. Harrington, Harrington Law, PC, Danville, Indiana.
Pyle, Judge. Friedlander, J., and Mathias, J., concur.
Statement of the Case
[¶ 1] In this interlocutory appeal, Appellants-Respondents, Town of Pittsboro Advisory Plan Commission (" Plan Commission" ) and Town of Pittsboro Town Council (" Town Council" ) (collectively, " the Town" ), appeal the trial court's order that: (1) denied the Town's motion to dismiss Appellee-Petitioner's, Ark. Park, LLC (" Ark. Park" ), claim for judicial review of the Town Council's denial of Ark. Park's concept plan for development of real property owned by Ark. Park and Ark. Park's claims for declaratory judgment; and (2) granted Ark. Park's motion for leave to amend its complaint.
[¶ 2] Ark Park filed a complaint against the Town, seeking judicial review of the Town Council's zoning decision and requesting a declaratory judgment regarding both the zoning status of Ark. Park's property and the constitutionality of a zoning ordinance. Ark. Park attached some documents to its complaint but did not file the board record or request an extension of time to file the record within thirty days as required by the applicable judicial review statute. The Town then filed a motion to dismiss Ark. Park's claim for judicial review and Ark. Park's claims for declaratory judgment. Thereafter, Ark. Park filed a motion to amend it complaint. The trial court denied the Town's motion to dismiss, allowed Ark. Park to amend its complaint, and gave Ark. Park additional time to transmit the board record.
[¶ 3] The Town argues that the trial court should have dismissed Ark. Park's claim for judicial review because Ark. Park failed to timely file the board record or request an extension of time to file that record and because the documents attached to Ark. Park's complaint do not support judicial review. The Town also argues that the claims for declaratory judgment should have be dismissed under Trial Rule 12(B)(6) because there was no justiciable controversy regarding Ark. Park's zoning classification and because Ark. Park's alleged constitutional claim was merely an attempt to circumvent the judicial review process.
[¶ 4] Our Indiana Supreme Court has recently established a bright-line rule that a petitioner seeking judicial review cannot receive consideration of its petition where it has not timely filed the statutorily-defined record. Because Ark. Park failed to comply with the statutory requirements concerning the time for filing the board record for judicial review, it was not entitled to judicial review of the Town Council's decision. Thus, we reverse the trial court's denial of the Town's motion to dismiss Ark. Park's claim for judicial review.
[¶ 5] We also reverse the trial court's denial of the Town's motion to dismiss Ark. Park's first claim for declaratory judgment, which sought a zoning status declaration, because Ark. Park presented no facts in its complaint on which the trial court could have granted relief under the Declaratory Judgment Act. Additionally, we reverse the trial court's denial of the Town's motion to dismiss Ark. Park's second claim for declaratory judgment because Ark. Park's claim challenging the constitutionality of a section of a zoning ordinance as applied to its property was not a proper claim for declaratory judgment.
[¶ 6] Accordingly, we reverse the trial court's denial of the Town's motion to dismiss and the trial court's grant of Ark. Park's motion for leave to file its amended complaint.
[¶ 7] We reverse and remand.
[¶ 8] Whether the trial court erred by denying the Town's motion to dismiss Ark. Park's claim for judicial review and claims for declaratory judgment and by granting Ark. Park's motion to file an amended complaint.
[¶ 9] In 2004, the Town Council adopted an ordinance that set forth the zoning for the Town of Pittsboro (" 2004 Zoning Ordinance" ). This ordinance contained a section--Section 13--relating to a Planned Unit Development (" PUD" ). A provision in this section explained that one of the purposes of Section 13 was " to provide a means of achieving innovative and creative design and flexibility of development through an alternative zoning procedure when sufficiently justified under the provisions of this Section." (App. 33). Section 13 set forth the specific requirements and process for applying for a PUD, which included, among others, submitting a concept plan and a master plan for the development.
[¶ 10] Ark Park owns 124 acres of real property in Pittsboro (" the Real Estate" ). In June 2005, Ark. Park filed a petition to rezone the Real Estate to PUD, and it submitted a concept plan pursuant to Section 13 of the 2004 Zoning Ordinance. That same month, the Town Council adopted an ordinance, which amended the 2004 Zoning Ordinance. (" 2005 Ordinance" ). Within this 2005 Ordinance, the Town Council rezoned Ark. Park's Real Estate to a PUD zoning classification and approved Ark. Park's concept plan for One West Business Park, which was the name designated to Ark. Park's PUD.
[¶ 11] As set forth in Section 13.5(C)(4) of the 2004 Zoning Ordinance, approval of Ark. Park's concept plan " d[id] not constitute development approval, but authorize[d] submission of a master plan for approval." (App. 41). This section of the ordinance also provided that approval of a concept plan was valid for two years from the date of the Town Council's approval and explained that if a party did not submit
an application for a master plan within that two-year period, then that party would be required to resubmit an application for the concept plan.
[¶ 12] Approximately seven years after the approval of Ark. Park's concept plan, on February 7, 2012, Ark. Park submitted a PUD master plan application to the Town Council. Because Ark. Park submitted this master plan application more than two years after the approval of its concept plan, Ark. Park was required, pursuant to Section 13(C)(4) of the 2004 Zoning Ordinance, to resubmit its concept plan for approval.
[¶ 13] On March 22, 2012, Ark. Park submitted another PUD concept plan application (" 2012 PUD Concept Plan Application" ). On September 25, 2012, after holding a public hearing, the Plan Commission issued a resolution (" Plan Commission's 2012 Resolution), which recommended that Ark. Park's 2012 PUD Concept Plan Application be denied because it was " not in the best interest of the entire Town." (App. 77). In its resolution, the Plan Commission recognized that Ark. Park's property was zoned PUD. On November 20, 2012, the Town Council, after holding a public meeting, issued a decision to deny Ark. Park's 2012 PUD Concept Plan Application (" Town Council's 2012 Decision" ).
[¶ 14] Thereafter, on December 19, 2012, Ark. Park filed a complaint against the Town Council and the Plan Commission, seeking both judicial review and declaratory judgment. Specifically, Ark. Park asserted four counts: (1) judicial review of the Plan Commission's 2012 Resolution; (2) judicial review of the Town Council's 2012 Decision; (3) declaratory judgment to establish the current zoning classification of the Real Estate; and (4) declaratory judgment to declare that Section 13 of the 2004 Zoning Ordinance was unconstitutional. Ark. Park attached copies of various documents as exhibits to its complaint. Ark. Park did not file the board record ...