Posted by: Patricia Salkin | May 31, 2014

IN Appeals Court Review Procedural Issues Before ZBA Over Variance for Pet Day Care Facility

Myers Y. Cooper Corporation (“Myers Cooper”) requested a variance for its property to build a pet day-care facility. 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. The Superior Court dismissed the petition, and parent company appealed.
HRC Hotels contended that that the trial court improperly granted Myers Cooper’s motion to dismiss for lack of subject-matter jurisdiction. The Court of Appeals noted that all circuit courts have original and concurrent jurisdiction in all civil cases and in all criminal cases; this fact alone, was sufficient to establish that the trial court had subject-matter jurisdiction to consider HRC Hotels’s petition. Even though HRC Hotels may have lacked standing when it filed its petition, the lack of standing at the time the petition is filed was a procedural error. It did not deprive the court of jurisdiction to hear the petition for judicial review. Furthermore, HRC Hotels was permitted to amend its petition to replace I–465 LLC as the real party in interest, Myers Cooper would not be prejudiced as the amended petition still involves the same defendant and the same claim.

Accordingly, this court reversed and remanded, finding that the trial court erred in its determination that it lacked subject-matter jurisdiction over HRC Hotels’s petition for judicial review. Because the trial court had subject-matter jurisdiction, it should allow I–465 LLC, a real party in interest, to be substituted the plaintiff and hear the merits of the petition for judicial review.

HRC Hotels, LLC v Metropolitan Board of Zoning Appeals, 2014 WL 1388280 (IN App. 4/10/2014)

The opinion can be accessed at:

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