Darmstadt apartment zoning approval splits appellate court

A controversial proposed apartment complex in the Vanderburgh County community of Darmstadt is poised to proceed after a divided panel of the Indiana Court of Appeals upheld the trial court’s rejection of two petitions contesting the zoning board’s approval.

The Indiana Court of Appeals on Tuesday affirmed the dismissal of two petitions challenging the zoning approval in Town of Darmstadt and Bob Stoops, Town Council President v. CWK Investments-Hillsdale, LLC, C. Wayne Kinney, and the Evansville-Vanderburgh County Board of Zoning Appeals, 18A-MI-150. However, a dissenting judge would have ruled differently and sent the matter back to the trial court in Evansville for further proceedings.

The matter began in December 2016 when CWK Investments-Hillside, LLC filed a loan permit application with the Town of Darmstadt, about 12 miles north of Evansville, to build four apartment buildings. According to the Evansville Courier & Press, the project's first phase called for four, three-story buildings with 96 apartment units. The paper reported that the developer eventually planned to build more than 350 units. Neighbors opposed the project.

So did the Evansville Area Plan Commission Site Review Committee, which denied CWK’s application in February 2017. But CWK appealed to the Evansville-Vanderburgh County Board of Zoning Appeals, which on June 15, 2017, reversed the plan commission and approved CWK’s application.

On July 11, the town of Darmstadt filed its first petition for judicial review, but the BZA had not by that time issued its written findings of fact supporting the board’s decision to approve CWK’s application. Then On Aug. 21, 2017, CWK moved to dismiss Darmstadt’s first petition because the town had not moved to seek an extension of time to file the record.

That same day, the town filed a request with the BZA to compile the board record. Two days later, the town moved for an extension of time to file the record with the court.

On Sept. 5 the town filed a second petition for judicial review, after the board had filed its record with written findings of fact on Aug. 31. The town also objected that the second petition was duplicative of the first and must be dismissed. The Vanderburgh Superior Court in January held oral arguments on motions to dismiss both petitions as untimely, and it did so.

A divided COA panel affirmed that decision Tuesday, splitting over whether the board’s action at the June meeting or the filing of written findings more than a month later was the determining factor in whether the town’s appeal was timely.

“…(W)e hold that a board of zoning appeals makes its decision at the conclusion of the hearing on the matter,” Judge Edward Najam wrote in a majority opinion joined by Judge Rudy Pyle. “The findings of fact, while essential to judicial review, are not a separate, appealable decision of the board.

“In the present case, the BZA made its decision at the conclusion of the hearing on June 15, 2017. The Town then had thirty days from that date to file its petition for judicial review,” Najam continued. “But the Town did not file the Second Petition until September 5, which was more than thirty days after the BZA had made its decision. Accordingly, the Town did not timely file the Second Petition, and the trial court did not err when it dismissed that petition as untimely.”

Judge Terry Crone dissented with a separate opinion, quoting BZA hearing minutes that he said indicate some members and counsel, including Steve Bohleber, appeared to agree with his position that the date of a zoning decision in a case such as this “should be interpreted as the date the board makes the written findings required by Indiana Code Section 36-7-4-916.”

“ … To elaborate on Bohleber’s point, if a court ‘can’t do anything’ without the board’s written findings, it stands to reason that a petitioner can’t do anything either,” Crone wrote. “Because the Town filed its second petition for judicial review within thirty days after the BZA made its written findings, I would reverse and remand for further proceedings.”