Developer’s cert petition dismissed in cell tower dispute

An appellate panel has reversed the denial of a cell site developer’s petition for writ of certiorari, only to find its failure to timely file a record or request an extension of time required dismissal of the petition.

Central States Tower IV LLC, also known as CST, challenged on appeal whether the Porter Superior Court erred in affirming the Portage Board of Zoning Appeals’ denial of its application for a special exception for the location of a cell tower.

Issues began after the Portage Township Multi-School Building Corporation and CST executed a lease agreement for CST to construct and operate a telecommunications tower on property owned by the school corporation. But after CST submitted its second site plan to the Portage Plan Commission’s Development Review Committee, the DRC recommended the plan be denied because of a lack of agreement regarding an easement for the property.

After CST filed a petition seeking judicial review of the plan commission’s denial of its site plan proposal, the trial court ultimately denied CST’s request to overturn the decision. Later, CST filed suit seeking specific performance of the School Building Corporation’s obligations to provide access to the site according to the lease and to also provide a recordable easement.

Although it was provided with the alternative easement, a building permit was ultimately denied. CST faced several more struggles with its requested special exceptions, prompting it to file a verified petition for writ of certiorari contesting the BZA’s decision.

The Indiana Court of Appeals reversed the trial court’s denial of the cert petition but found that CST’s failure to timely file the record, or request an extension of time in which to do so, required dismissal of the petition.

“CST concedes that it did not file the BZA record within thirty days of the filing of its petition. Its argument, however, is that it did not do so because the BZA failed to compile the record and provide it to CST for filing, as required by Indiana Code section 36-7-4-1613(c),” Senior Judge John Sharpnack wrote for the appellate panel.

“Turning to the case before us, we first note that, regarding CST’s assertion that the BZA failed to compile the record and provide it to CST for filing, caselaw and statute have established that reliance on the board to timely prepare its record does not relieve the petitioner of the statutory requirement to timely seek an extension of time in which to file the record,” Sharpnack continued.

Secondly, the appellate panel found CST, not the BZA, was required to file the BZA’s record within 30 days of filing its amended petition for writ of certiorari. CST failed to do so, the panel held, and did not timely seek an extension of the deadline in which to file the record, as required by section 1613(b).

Additionally, the trial court did not have the discretion to accept an untimely filing of the BZA’s record where an extension of time was not timely sought and granted.

The COA further found that no motion to dismiss CST’s petition was filed, and instead, the trial court issued its findings of fact and conclusions even though it had no record before it on which to base its findings and conclusions.

“Nevertheless, even under these circumstances, we find that the ‘bright-line approach[,]’ that our Supreme Court set forth in (Teaching Our Posterity Success, Inc. v. Indiana Department of Education, 20 N.E.3d 149, 155 (Ind. 2014)), applies, and CST could not receive consideration of its petition. As such, CST’s petition should have been dismissed — if not by a motion filed by the BZA then by the trial court’s own motion,” Sharpnack concluded.

Thus, the panel reversed the decision of the trial court and remanded for dismissal of CST’s petition in Central States Tower Iv, LLC v. Board of Zoning Appeals of The City of Portage, 19A-PL-3046.