Here are the key phrases.
On February 22, 2023, GSP submitted an improvement location permit for one (1)
parcel. (Exhibit L — Original ILP).5 On March 28, 2023, the Town of Grandview Zoning Administrator issued the building permit for that parcel. (Ex. L, p. 4; Complaint, ¶37).
The only parcel included in the original ILP was owned by the Shourds and is identified as State Parcel No.: 74-16-05-100-004.000-010. (“Shourds Parcel”).
The Shourds Parcel falls within the corporate limits of the Town of Grandview. (Ex. G, p. 118; Spencer County GIS6).
On June 23, 2023, GSP submitted an amended ILP application. (Exhibit M — Amended ILP).
The amended ILP included, in addition to the Shourds parcel, parcels that all fall outside the corporate limits of the Town of Grandview.
The Town of Grandview Zoning Administrator has not issued a permit for amended ILP
application. (Complaint, ¶¶40, 51). This lawsuit ensued.
Below is a pdf file of the motion that includes other important legal facts about this case.Argument
1. GSP’s Complaint must be dismissed pursuant to Ind. Trial Rule 12(B)(3) because the Complaint was filed in the incorrect venue and transferred to Spencer County, Indiana pursuant to Ind. Trial Rule 75(B).
Pursuant to Indiana Code § 36-7-4-1606(a), “Venue is in the judicial district where the land affected by the zoning decision is located.” While this Court certainly could hear this case — as Knox County is in the same judicial district10 where the land affected by the zoning decision is located (i.e. Spencer County) — Knox is not the preferred venue pursuant to Ind.Trial Rule 75.
Ind. Trial Rule 75(A)(2) provides that preferred venue lies in the county “where the land or some part thereof is located” if the complaint relates to such land. Here, the land implicated by GSP’s Complaint is in Spencer County. (Complaint, ¶18). Land in Knox County is in no way implicated with the Project. Thus, pursuant to Ind. Trial Rule 75(A)(2), preferred venue lies in Spencer County.11
GSP is trying to get the furthest it can from “the action”, but the Indiana Court of Appeals disapproved a similar attempt in White Cty. Bd. of Comm'rs v. Y.M.C.A. Camp Tecumseh, Inc., 12 N.E.3d 904 (Ind. Ct. App. 2014).
In White Cty., the White County Board of Commissioners enacted an ordinance approving the rezoning of a seven-acre tract of land in White County for agricultural industrial use, specifically authorizing the building of a 9000-head hog confined feeding operation.
YMCA Camp Tecumseh was located adjacent to the tract of land and the Camp filed a petition for judicial review of the zoning decision in Carroll Circuit Court.
The White County Board of Commissioners argued that Carroll County was not a preferred venue, as the land at issue (i.e. the hog farm) for the rezoning is in White County.
The trial court denied the motion but on appeal the Court of Appeals reversed.
Despite Carroll and White County being in the same judicial district12, the Court of Appeals determined that preferred venue lied in White County because the “cause of action is for judicial review of a White County ordinance rezoning White County land and will involve review of documents filed, proceedings held, and findings and decisions made only in White County.” Id. at 907.
Thus, “[t]he Camp’s judicial review action does not relate to land in Carroll County for purposes of T.R.75(A)(2).” Id. at 907.
For these reasons, GSP’s Complaint should be dismissed and transferred to Spencer County, Indiana pursuant to Ind. Trial Rule 75(B).
2023-08-27 MTD Brief 4854-7850-6.pdf- (779.07 KiB) Downloaded 32 times