Court of Appeals of Indiana | Opinion 19A-PL-3046 | June 5, 2020 Page 1 of 15

ATTORNEY FOR APPELLANT

Terry K. Hiestand

Hiestand Law Office, LLC

Chesterton, Indiana

ATTORNEYS FOR APPELLEE

Adam J. Mindel

Mindel & Associates

Hobart, Indiana

Dan L. Whitten

Whitten & Whitten

Portage, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Central States Tower IV, LLC,

Appellant-Petitioner,

v.

Board of Zoning Appeals of the 

City of Portage,

Appellee-Respondent.

June 5, 2020

Court of Appeals Case No.

19A-PL-3046

Appeal from the Porter Superior

Court

The Honorable Jeffrey W. 

Clymer, Judge

Trial Court Cause No. 

64D02-1903-PL-3013

Sharpnack, Senior Judge.

Statement of the Case

[1] Appellant-Petitioner Central States Tower IV, LLC (“CST”) appeals the trial 

court’s order denying its petition for writ of certiorari. CST challenges whether 
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the trial court erred in affirming Appellee-Respondent Board of Zoning Appeals 

of the City of Portage’s (“BZA” or “Board”) denial of CST’s application for a 

special exception for the location of a cell tower. We reverse the trial court’s

decision and remand with instructions to dismiss CST’s petition for writ of 

certiorari. 

Issue

[2] CST raises several issues for our review. However, we find that resolution of 

the following issue leads to reversal of the trial court’s judgment, that is,

whether CST’s failure to file the BZA record with the trial court, or request an 

extension of time to do so within the timeframe provided by applicable Indiana 

statutes, requires dismissal of CST’s petition for writ of certiorari.

1

 

Facts and Procedural History

[3] This court has previously stated the relevant facts in this matter in a prior 

appeal involving Central States Tower III, LLC (a predecessor of Central States 

Tower IV, LLC) and the Plan Commission of the City of Portage. The relevant 

facts are as follows:

Portage Township Multi-School Building Corporation (the 

School Building Corporation) owns approximately thirty-five 

acres of land (the Property) in Portage on which Willowcreek 

Middle School is located. On November 13, 2015, the School 

Building Corporation and CST executed a lease agreement (the 

1

Finding this issue dispositive, we need not address the four issues that CST raised.
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Lease), pursuant to which CST would rent a 7,961-square-foot 

parcel (the Site) on the Property.[2] CST planned to construct and 

operate a telecommunications tower on the Site.

The Lease granted CST unrestricted access to the Site in 

accordance with Exhibit 2 to the Lease[, which] . . . conveyed an 

access and utility easement (the Easement) . . . . The Lease also 

contained [a] provision regarding access [over the Property and 

to the Site.]

CST filed a petition for a special zoning exception for the Site 

with the Portage Board of Zoning Appeals (the Board). . . . On 

April 25, 2016, the Board voted to approve the special exception 

on [certain conditions, including erecting a fence around the 

Site.]

* * *

Under Portage’s zoning ordinance, anyone seeking to erect a 

telecommunications tower must first obtain an improvement 

location permit, which requires a site plan review. Only after an 

improvement location permit is obtained may the party apply for 

a building permit. CST submitted its site plan proposal to the 

[Plan Commission of the City of Portage (the Plan Commission)]

on June 23, 2016. Before being considered by the entire Plan 

Commission, however, the site plan was reviewed by the Plan 

Commission’s Development Review Committee (DRC).

When the DRC reviewed CST’s site plan proposal, [it 

determined that, based upon a proposed change in the traffic 

flow] between the middle and nearby elementary schools and to 

consolidate the schools into a single campus . . . , CST would 

need a new easement from the School Building Corporation to be 

able to access the Site.

2 Central States Tower III, LLC, a predecessor of Appellant-Petitioner Central States Tower IV, LLC, was 

the entity that entered into the November 2015 Lease with the School Building Corporation. In this appeal, 

we refer to both Central States Tower entities collectively as “CST.” 
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Notwithstanding the uncertainty regarding CST’s ability to 

access the Site, the DRC approved CST’s site plan on three 

conditions: (1) CST would need to acquire a new access 

easement to the Site; (2) the Board’s landscaping and fencing 

conditions would have to appear in the site plan; and (3) the 

revised site plan would have to be re-submitted for final approval.

On October 28, 2016, CST submitted a new site plan. . . . [T]he 

plan showed[, among other things,] a new access point going 

south and west of the Site to a north-south access road (the 

Alternative Easement).

On November 15, 2016, the DRC convened a special meeting to 

consider CST’s new site plan. The DRC questioned CST as to 

whether the School Building Corporation had approved the 

Alternative Easement; CST stated that an “agreement for site 

access would be worked out at a later time.” [Appellant’s App. 

Vo. II p. 84]. Because of the lack of an agreement for the 

Alternative Easement, the DRC recommended that the Plan 

Commission deny CST’s site plan.

On December 5, 2016, the Plan Commission held a final hearing 

on CST’s site plan. CST introduced multiple documents into 

evidence, including two emails from people affiliated with the 

School Building Corporation[, indicating that the School 

Building Corporation was reluctant to enter into a new 

agreement with CST regarding an easement to the Site]. . . .

* * *

CST argued that under the Lease, the School Building 

Corporation was obligated to grant CST access to the Site. But a 

member of the Plan Commission did not find that argument 

persuasive:

. . . The real point is, that [the proposed new easement] is 

not a recorded access easement. So as we sit here, there is 

no access to this site. In my opinion, the Plan 

Commission is being put in a position between somebody 

who wants to build a tower and their landlord, the school 

system. . . . I think the Plan Commission—I think we 
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should stay out of that fight. This is not our fight, and I 

think we—I don’t think that there’s any way we can 

approve this plan as it exists.

Id. at 157. At the conclusion of the hearing, the Plan 

Commission unanimously denied CST’s site plan. . . .

On May 19, 2017, CST filed a petition seeking judicial review of 

the Plan Commission’s denial of its site plan proposal. 

Following submission of written materials and argument, the 

trial court denied CST’s request to overturn the Plan 

Commission’s decision on October 3, 2017. Ultimately, the trial 

court found that “[t]he Plan Commission was justified in denying 

site plan approval because the [School Building Corporation] had 

neither given its approval to [CST] for the [A]lternative 

[E]asement, nor was there an Access Easement in recordable 

form as to the new permanent access proposed.” Id. at 11.

Central States Tower III, LLC v. Plan Comm’n of City of Portage, 99 N.E.3d 665, 

666-69 (Ind. Ct. App. 2018), trans denied. CST appealed and, on April 4, 2018,

a panel of this court issued an opinion affirming the judgment of the trial court. 

Id. at 670.

[4] On April 20, 2018, CST forwarded to the School Building Corporation a 

proposal for a new easement, which was the Alternative Easement that had 

been submitted to the Plan Commission in December 2016. When the School 

Building Corporation failed to execute the Alternative Easement, CST filed suit 

on September 11, 2018, in the Porter Superior Court. CST sought 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. 
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[5] On December 28, 2018, CST filed a summary judgment motion. A little over a 

week later, on January 7, 2019, the School Building Corporation provided CST

with the Alternative Easement, which was recorded in the Porter County 

Recorder’s Office on January 11, 2019.

[6] On January 17, 2019, a representative of CST delivered a copy of the recorded 

Alternative Easement to the office of Kurt S. Knutsen, Development Review 

Planner for the City of Portage, and requested a building permit. On January 

29, 2019, Knutsen denied the request, memorialized as follows:

The new easement appears to be the same access that was 

presented previously to the DRC and Plan Commission, but 

which had not at that time been approved by [the School 

Building Corporation]. I told you that it was my opinion that 

Central States Tower would have to submit a new application for 

a special exception because by the terms of City ordinance . . . , a 

special exception for a specific use ceases to be authorized and is 

void if that use is not fifty percent (50%) established within a 

twelve (12) month period of the date the special exception was 

granted. The [S]pecial [E]xception was granted April 25, 2016, 

and well more than twelve (12) months have passed since 

without the use be[ing] at all established. . . . 

I have checked to see if there might be any other options, but see 

none. The ordinance is quite clear. [CST] will need to again 

apply to the BZA for a special exception. 

Appellant’s App. Vol. 2, p. 72.

[7] On February 5, 2019, CST appealed Knutsen’s decision to the BZA, 

challenging the denial of the building permit. At its meeting held on February 
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25, 2019, the BZA denied CST’s request to overturn Knutsen’s decision and 

advised CST that it would need to file a new application for a special exception 

for the Site. 

[8] CST filed a new application for a special exception on March 6, 2019 “(Second 

Special Exception”), seeking approval to construct a 175-foot cell tower on the 

Site. The matter was taken up at a public hearing held during the BZA’s 

meeting that took place on March 25, 2019. At the conclusion of the hearing, a 

motion was made and seconded to approve CST’s Second Special Exception. 

However, the motion failed by a vote of three to two. Representatives of CST

pointed out to the BZA that the failure of the motion to approve the application 

for the Second Special Exception did not amount to a vote to deny the Second 

Special Exception, as such a vote would require findings pursuant to Indiana 

Code section 36-7-4-919(f) (1983).

3

 The BZA took no further action at that 

time, and the meeting was adjourned. The following day, on March 26, 2019, 

CST filed in the Porter Superior Court a verified petition for writ of certiorari, 

contesting the BZA’s decision.4

3

Indiana Code section 36-7-4-919(f) reads: “Within five (5) days after making any decision under the 900 

series, the board of zoning appeals shall file in the office of the board a copy of its decision.”

4 CST filed a petition for writ of certiorari but should have sought judicial review instead, as the certiorari 

process has been repealed, and Indiana Code sections 36-7-4-1600 through 36-7-4-1616 (2011) (the “1600 

Series”) “establish[ ] the exclusive means for judicial review of zoning decisions as described in section 1003 

or 1016 of this chapter, made by a board of zoning appeals . . . .” Ind. Code § 36-7-4-1601(a) (2011); see also

Carmel Bd. of Zoning Appeals v. Bidgood, 120 N.E.3d 1045, 1050 (Ind. Ct. App. 2019).
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[9] At the BZA meeting held on April 22, 2019, the BZA determined that it needed 

additional time to review new materials that CST had submitted, including a 

proposal to lower the height of the proposed tower from 175 feet to 150 feet. At 

its next meeting, held on May 28, 2019, the BZA voted 4-1 to deny the

application for the Second Special Exception. Chairperson Denise Little 

recognized that written findings of fact were required, and the proposed 

findings were subsequently prepared by the BZA’s counsel and provided to the 

Board members. 

[10] At the following BZA meeting, held on June 24, 2019, the findings of fact were 

not adopted. Instead, Chairperson Little stated that she would review the 

proposed findings and then confer with the BZA’s counsel. At the July 22, 

2019 BZA meeting, the BZA finally adopted the findings of fact in support of its

decision, made at its May 28, 2019 meeting, to deny approval of CST’s 

application for the Second Special Exception.

[11] On July 2, 2019, CST filed with the trial court an amended verified petition for 

writ of certiorari. That same day, the trial court issued an order directing the 

parties to submit proposed findings of fact, and the parties timely submitted 

their findings of fact and conclusions thereon. However, CST did not file the 

BZA record with the trial court within thirty days of filing its petition or request 

an extension of the filing deadline, as required by Indiana Code sections 36-7-4-

1613(a) and (b) (2011). The BZA did not file a motion to dismiss the petition, 

under Indiana Code section 36-7-4-1613(b), on grounds that CST had failed to 

timely file the BZA record or timely request an extension to do so, and the trial 
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court did not dismiss the petition on its own motion. Instead, on November 26, 

2019, the trial court entered its Order and Findings of Fact and Conclusions of 

Law, upholding the BZA’s decision to deny CST’s application for the Second 

Special Exception. This appeal ensued.

Discussion and Decision

Motion to Strike

[12] Initially, we must address the BZA’s motion to strike that it has filed with this 

Court. CST included in its appendix a copy of the BZA record. The BZA 

argues that the record should be stricken from CST’s appendix because the 

record was never filed with the trial court. According to the BZA, the unfiled 

record constitutes new evidence that may not be introduced on appeal. By 

separate order issued contemporaneously with this opinion, and for reasons 

more clearly set forth below, we grant the BZA’s motion to strike. We now

address the dispositive issue before us after first setting forth the standard of 

review.

Standard of Review

[13] When reviewing a decision of a zoning board, the trial court must determine if 

the board’s decision was incorrect as a matter of law. Bd. of Zoning Appeals v. 

Elkins, 659 N.E.2d 681, 683 (Ind. Ct. App. 1996), trans. denied. Also, the trial 

court may not conduct a trial de novo or substitute its decision for that of the 

board. Id. “The Court of Appeals’ review of a trial court’s ruling on review of 

such a decision is governed by the same considerations. Unless the Board’s 
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decision was illegal, it must be upheld.” Bd. of Zoning Appeals of Evansville and 

Vanderburgh Cty. v. Kempf, 656 N.E.2d 1201, 1203 (Ind. Ct. App. 1995), trans. 

denied (internal citations omitted). However, findings of fact are required to 

ensure adequate judicial review of administrative decisions. Brownsburg 

Conservation Club, Inc. v. Hendricks Cty. Bd. of Zoning Appeals, 697 N.E.2d 975, 

978 (Ind. Ct. App. 1998).

Failure to Timely File the BZA Record

[14] The dispositive issue is whether CST’s failure to, within thirty days of filing its 

amended petition for writ of certiorari, either file the BZA’s record or file a 

motion for extension of time in which to file the record requires dismissal of its 

petition. 

[15] 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). The section reads in relevant part: 

“Upon a written request by the petitioner, the board making the zoning 

decision being reviewed shall prepare the board record for the petitioner.” CST 

also intimates that the burden was on the BZA to file the record with the trial 

court. Regarding its decision to include the unfiled record in its appendix, CST 

explains that, “[a]s [it] was preparing [its appendix for this appeal], [it]

discovered that [the BZA] had not filed the [record] with the Trial Court and 

that the counsel for the BZA[, that was] responsible for that apparent 
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oversight[,] no longer represents the BZA.” Appellant’s Br. p. 7. CST 

“constructed the BZA [r]ecord and submitted it as Volume 3 of [CST’s

a]ppendix so that the documents cited in the pleadings and the decision of the 

Trial Court c[ould] be referenced.” Id. 

[16] Indiana Code sections 36-7-4-1600 through 36-7-4-1616 (the “1600 Series”) 

“establish[ ] the exclusive means for judicial review of zoning decisions . . . .” 

Ind. Code § 36-7-4-1601(a). At issue in this case is section 1613, which provides

that the board shall prepare the board record for the petitioner upon the 

petitioner’s written request. Ind. Code § 36-7-4-1613(c). The section further 

provides: “Within thirty (30) days after the filing of the petition, or within 

further time allowed by the court, the petitioner shall transmit to the court the 

original or a certified copy of the board record for judicial review of the zoning 

decision . . . .” Ind. Code § 36-7-4-1613(a) (emphasis added). If the record 

cannot be filed within the thirty-day timeframe, section 1613 provides for an 

extension of time, specifically: “An extension of time in which to file the record 

shall be granted by the court for good cause shown[,]” and the “[i]nability to 

obtain the record from the responsible board within the time permitted by this 

section is good cause.” Ind. Code § 36-7-4-1613(b). Finally, a petitioner’s 

“[f]ailure to file the record within the time permitted by this subsection, including any 

extension period ordered by the court, is cause for dismissal of the petition for 

review by the court, on its own motion, or on petition of any party of record to 

the proceeding.” Id.
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[17] In our Supreme Court’s evenly divided decision in Indiana Family & Social

Services Administration v. Meyer, 927 N.E.2d 367, 368 (Ind. 2010), a case 

involving a Medicaid claimant’s appeal of the Family and Social Services 

Administration’s (FSSA) decision to deny her benefits, the Court examined 

whether the trial court had the authority to grant an extension of time to file the 

record in a petition for review of a FSSA’s decision, under the Indiana 

Administrative Orders and Procedures Act (“AOPA”), where the record was 

not filed within the required statutory period (thirty days) or any authorized 

extension of this period.5 All four justices agreed as follows regarding the

relevant provisions of the AOPA: 

We believe the statute is clear. The statute places on the 

petitioner the responsibility to file the agency record timely. 

Although the statute allows a petitioner to seek extensions of 

time from the trial court, and requires that extensions be granted 

if the petitioner demonstrates “good cause” for a delay in filing 

the record, the statute does not excuse untimely filing or allow 

nunc pro tunc extensions. . . . It is well settled that a reviewing 

court may grant a request for an extension under [the] AOPA 

only if the request is made during the initial thirty days following 

the filing of the petition for review or within any previously 

granted extension.

5 The provisions of the AOPA that govern judicial review of agency decisions and the filing of an agency 

record are materially identical to like provisions of the 1600 Series. In Howard v. Allen Cty. Bd. of Zoning 

Appeals, 991 N.E.2d 128, 130 (Ind. Ct. App. 2013), this court noted that because the judicial review 

provisions of the 1600 Series are materially identical to those found in the AOPA, and “the legislature had 

the same intent in enacting both[,]” we could “interpret these respective provisions in the same manner and 

rely on AOPA case law” in interpreting the 1600 Series. Id.
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Meyer, 927 N.E.2d at 370 (internal citations omitted).

[18] In Howard v. Allen County Board of Zoning Appeals, 991 N.E.2d 128, 129 (Ind. Ct. 

App. 2013), the question before this court was whether section 1613 required 

dismissal of Howard’s petition for judicial review where Howard had not timely 

filed the board record and had failed to timely request an extension of the filing 

deadline. The trial court had granted the respondents’ motion to dismiss

Howard’s petition. In affirming the trial court’s judgment, we looked to Meyer

and determined that section 1613 required dismissal of Howard’s petition. Id.

at 131. Also, we rejected Howard’s suggestion that the trial court had

discretion to accept the belatedly filed board record where the extension of time 

had not been granted. Id.

[19] In Teaching Our Posterity Success, Inc. v. Indiana Department of Education, 20 

N.E.3d 149, 155 (Ind. 2014)—a case interpreting the AOPA—our Supreme 

Court established a “bright-line approach” regarding the “requirement that the 

official agency record must be filed with the trial court in order for judicial 

review to proceed.” The Court held that “a petitioner for review cannot receive 

consideration of its petition where the statutorily-defined agency record has not 

been filed.” Id. (emphasis added) (footnote omitted); see also First Am. Title Ins. 

Co. v. Robertson, 19 N.E.3d 757, 762-63 (Ind. 2014). 

[20] 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 
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record does not relieve the petitioner of the statutory requirement to timely seek 

an extension of time in which to file the record. See Meyer, 927 N.E.2d at 371

(Court noted AOPA statute governing filing of agency record “acknowledges 

possible difficulties” in preparing and submitting agency record but places 

burden on the petitioner to file or seek an extension within statutory period or 

any previously granted extension); see also Carmel Bd. of Zoning Appeals v. 

Bidgood, 120 N.E.3d 1045, 1046 (Ind. Ct. App. 2019) (where remonstrators

assumed, rightly or wrongly, that it was “taking the Board’s staff some time to 

put the Record . . . together[,]” remonstrators were not excused from their 

failure to timely comply with statutory requirements for filing the board record); 

and Ind. Code § 36-7-4-1613(b) (“An extension of time in which to file the 

record shall be granted by the court for good cause shown[,]” and the 

“[i]nability to obtain the record from the responsible board within the time 

permitted by this section is good cause.”).

[21] Secondly, section 1613(a) is clear: CST, not the BZA, was required to file the 

BZA’s record within thirty days of filing its amended petition for writ of 

certiorari. Ind. Code § 36-7-4-1613(a). CST failed to do so; it did not timely 

seek an extension of the deadline in which to file the record, as required by 

section 1613(b); and, 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. See Howard, 991 N.E.2d at 131. 

[22] However, a distinguishing factor, procedurally, between the instant case and

the Meyer, Howard, and Teaching Our Posterity Success, Inc. cases is that, here, no 
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motion to dismiss CST’s petition was filed. Specifically, upon the expiration of 

the time period in which to file the record or seek an extension of time to do so, 

the BZA did not file a motion to dismiss CST’s petition, and the trial court did 

not, on its own motion, dismiss the petition. 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., applies, and CST could not 

receive consideration of its petition. 20 N.E.3d at 155. 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.

Conclusion

[23] Finding that CST’s failure to timely file the record, or request an extension of 

time in which to do so, required dismissal of its petition for writ of certiorari, 

we reverse the decision of the trial court and remand for dismissal of CST’s 

petition.

[24] Reversed and remanded.

Kirsch, J., and Bailey, J., concur.