Carmel Board of Zoning Appeals, and Al-Salam Foundation, Inc., Appellants-Respondent and Respondent-Intervenor,
David Bidgood, Sheila M. Graves, Salvatore Papalardo, David J. Reeves, and Angelo R. Stanco, Appellees-Petitioners.
from the Hamilton Superior Court The Honorable Steven R.
Nation, Judge Trial Court Cause No. 29D01-1803-MI-2761
ATTORNEYS FOR APPELLANT AL-SALAM FOUNDATION, INC. Patrick R.
Hess Brian C. Heck Beckman Lawson, LLP Fort Wayne, Indiana
Johnathan J. Smith Juvaria Khan Nimra H. Azmi Washington,
ATTORNEY FOR APPELLEES Michael J. Andreoli Zionsville,
ATTORNEYS FOR APPELLANT CARMEL BOARD OF ZONING APPEALS Robert
W. Eherenman Melanie L Farr Haller & Colvin, P.C. Fort
Wayne, Indiana John R. Molitor Indianapolis, Indiana
Summary and Issue
The Al-Salam Foundation, Inc. (the "Foundation")
sought and obtained from the Carmel Board of Zoning Appeals
(the "Board") a special use zoning permit to
establish an Islamic Life Center for use by the Muslim
community for worship and community gatherings. David
Bidgood, Sheila M. Graves, Salvatore Pappalardo, David J.
Reeves, and Angelo R. Stanco (collectively, the
"Remonstrators") filed a "Petition for Writ of
Certiorari, Judicial Review and Declaratory Judgment" in
the Hamilton County Superior Court challenging the
Board's decision. The Board filed a motion to dismiss
when the Remonstrators did not file the Board record within
thirty days of filing their petition. After a hearing, the
trial court denied the motion to dismiss. The Board and the
Foundation now appeal the trial court's order, raising
one issue for our review: whether the trial court erred in
denying the motion to dismiss the Remonstrators' petition
for judicial review because the Remonstrators failed to
timely file the Board record or request an extension of time
to do so within the timeframe provided by Indiana Code
section 36-7-4-1600 (the "1600 Series). Concluding the
Remonstrators failed to timely file the Board record or
request an extension of time for filing, we reverse.
and Procedural History
On February 26, 2018, the Board, by a 3-2 vote, approved the
special use application by the Foundation. On March 28, the
Remonstrators filed their "Petition for Writ of
Certiorari, Judicial Review and Declaratory Judgment"
and notice of filing of the same, in which the Remonstrators
requested that the trial court "issue an Order to Show
Cause why a Writ of Certiorari should not be issued."
Joint Appellant's Appendix, Volume 2 at 36. According to
the 1600 Series, the Board record was then due by April 27,
thirty days after the petition was filed. See Ind.
Code § 36-7-4-1613(a). On April 4, the trial court
signed an order purporting to require the Board "to show
cause why a writ of certiorari should not issue" at a
hearing set for May 25. Id. at 37.
On May 23, the Board filed a response to the
Remonstrators' petition in which it noted that it was not
required by the 1600 Series to file an answer or other
responsive pleading to the Remonstrators' petition for
judicial review but it nonetheless responded and noted that
the Board record had not been filed by the Remonstrators
within the time required by Indiana Code section
36-7-4-1613(a). On May 25, the Remonstrators filed a motion
for an extension of time to file the Board record. In that
motion, the Remonstrators stated that on April 5, they had
contacted the Board regarding the status of the Board record
by letter in which they noted "it may take longer to put
the record together so if you could just let [counsel] know,
[they would] ask the Court for additional extensions . . .
." Id. at 47. Hearing nothing in return, the
Remonstrators "assumed, rightly or wrongly, that it was
taking the Board's staff some time to put the Record of
Proceeding together." Id. at 44. The
Remonstrators did nothing more regarding the Board record
until receiving the Board's response on May 23 which
referenced their failure to file the Board record. At that
time, they again checked on the status of the Board record
and then filed the motion for extension of time. On May 29,
the trial court granted the extension of time and allowed the
Remonstrators until June 20 to file the Board record.
The Board filed a motion to reconsider the order granting the
Remonstrators additional time to file the Board record,
alleging the Remonstrators' motion "sought relief
from a statutory requirement that [the trial court] cannot
grant." Id. at 49. The Board also filed a
motion to dismiss the petition for judicial review because
the Remonstrators had not timely filed the Board record or
timely requested an extension to do so. In their response
to the Board's motion, the Remonstrators relied on the
trial court's April 4 order that scheduled a hearing for
May 25: "The date is tantamount to setting a date for
making a Return of the Writ and filing the Record of
Proceedings." Id. at 59.
At the hearing on the pending motions, the trial court
granted the Remonstrators' motion for additional time to
file the Board record,  and on June 26, entered a written
order, recounting the above procedural history and stating in
7.That the statute I.C. 36-7-4-1613(a) provides [the Board
record shall be filed] "within 30 days after filing of
the petition, or within further time allowed by the
8. That as of the hearing on June 11, 2018, the Record of
Proceedings had not been completed and in fact, at that time
it had not been determined when the Record of Proceedings
could be completed or the possible costs. Thus, it would be
an impossibility for the [Remonstrators] to comply with the
statutory requirements to file the Record of Proceedings
without the Court providing an extension of time to file. The
[Remonstrators] were not late but properly asked for the
Court to extend the time set as provided by statute. As set
forth above, and prior to the date which was set by the
Court, the [Remonstrators] have requested an extension of
time to file the Record of Proceedings.
9. That therefore, the Court finds the [Board's] Motion
to Reconsider Order Granting an Extension of Time to File
Record … should be and is hereby denied.
Id. at 70-71. At the Board's request and over
the Remonstrators' objection, the trial court certified
its order for interlocutory appeal and this court thereafter