Tipton County Board of Commissioners, Appellant-Intervening Respondent Below,
Robert and Gayle Prather, Appellees-Petitioners. and City of Tipton Board of Zoning Appeals, Respondent below,
from the Tipton Circuit Court The Honorable Steven R. Nation,
Special Judge Trial Court Cause No. 80C01-1607-MI-220
Attorneys for Appellant Michael A. Wukmer Sean T. Dewey
Attorneys for Appellee Steven C. Shockley Blake J. Burgan
The Tipton County Board of Commissioners and the City of
Tipton (collectively, "Commissioners") appeal the
trial court's denial of their motion for a bond in a
judicial review action brought by Robert and Gayle Prather.
We affirm and remand.
The Commissioners raise several issues, which we consolidate
and restate as whether the trial court properly found that
the Indiana Public Lawsuit Statute was inapplicable to the
Prather's petition for judicial review.
The Prathers reside in Tipton. The Commissioners determined
that 886 West Jefferson Street in Tipton would be the
location of a newly-constructed Tipton County Law Enforcement
Center, which would house the Tipton County Sheriffs
governmental and administrative offices, training facilities,
and the Tipton County Jail. According to the Prathers, their
property is eighty-nine feet from the property line of the
In May 2016, the Commissioners sought a special exception
from the Tipton County Board of Zoning Appeals
("BZA") to construct the facility on the Jefferson
Street property. The Prathers remonstrated against the
special exception, but the BZA granted the Commissioners'
request for a special exception. The Prathers then filed a
petition for judicial review in July 2016. They argued that
construction of the facility on the Jefferson Street property
would reduce the value of their real estate by up to twenty
percent, that the intersection was dangerous and additional
traffic would be problematic, that the BZA's written
findings failed to include a condition that the structure be
placed no closer than 245 feet from the nearest
neighbor's property line, and that a fair hearing was not
conducted because one person was improperly allowed to
deliberate and vote on the petition. The trial court granted
the Commissioners' request to intervene in the petition
for judicial review.
In August 2016, the Commissioners filed a Motion to Set Bond
pursuant to the Indiana Public Lawsuit Statute, Indiana Code
Chapter 34-13-5, and requested an expedited hearing. The
Commissioners argued that the petition for judicial review
qualified as a public lawsuit and that the Prathers were
required to post a bond. After a hearing, the trial court
denied the Commissioners' request to set a bond. The
trial court found that, "based on this factual
situation, the additional statutory requirements of a Public
Lawsuit as set forth in Title 34 should not apply."
Appellant's App. Vol. II p. 200. The Commissioners filed
a motion to reconsider, which the trial court also denied.
The Commissioners now appeal.
The Commissioners argue that the trial court erred when it
found that the Public Lawsuit Statute was inapplicable to the
Prathers' petition for judicial review of the BZA's
decision. The Public Lawsuit Statute requires a plaintiff to
post a bond or face dismissal of the lawsuit, see
Indiana Code ...