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Tipton County Board of Commissioners v. Prather

Court of Appeals of Indiana

April 12, 2017

Tipton County Board of Commissioners, Appellant-Intervening Respondent Below,
v.
Robert and Gayle Prather, Appellees-Petitioners. and City of Tipton Board of Zoning Appeals, Respondent below,

         Appeal 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 Chou-il Lee

          Barnes, Judge.

         Case Summary

         [¶1] 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.

         Issue

         [¶2] 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.

         Facts

         [¶3] 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 proposed facility.

         [¶4] 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.

         [¶5] 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.

         Analysis

         [¶6] 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 ...


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