New Review Standards Don't Apply to Zoning Appeals

Last year, Indiana’s legislature modified the appeal process for IDEM permits and other administrative law proceedings. I wrote about this change to the Administrative Orders and Procedures Act (“AOPA”) about a year ago. Those amendments had a similar impact as the United States Supreme Court’s opinion in Loper Bright and basically meant a court would give less deference to an agency’s interpretation of a statute. At the time, I wondered whether litigants would try to apply that new standard to other administrative areas, such as land use/zoning law. The bigger issue would be whether courts would go along with this approach.

Now the question has been answered: zoning appeals are not subject to the new standard. Our Court of Appeals recently held that appeals from decisions of a board of zoning appeals are not subject to AOPA judicial review. Senter v. Kosciusko BZA. Instead, there is a specific statute that authorizes judicial review of zoning decisions—Indiana Code Section 36-7-4-1614. That means the 2024 amendments to the AOPA have no bearing on zoning appeals.

In other words, when an aggrieved party appeals an adverse zoning decision and attacks the factual support for the BZA’s findings, he bears the burden of demonstrating that the board’s conclusions are clearly erroneous. That standard requires great deference toward the administrative board when the petition challenges findings of fact or the application of the law to the facts. But if the allegation is that the BZA committed an error of law, no such deference is afforded and reversal is appropriate if an error of law is demonstrated. Yet there is a presumption that determinations of a zoning board, as an administrative agency with expertise in the area of zoning problems, are correct and should not be overturned unless they are arbitrary, capricious, or an abuse of discretion. A decision is arbitrary, capricious, or an abuse of discretion if it is not supported by substantial evidence. Of course, on appeal, a court may not substitute its own judgment for or reweigh the evidentiary findings of the BZA. The question is simply whether the BZA’s decision was supported by substantial evidence. Substantial evidence means more than a “scintilla,” it is evidence reasonable minds might accept it as adequate to support the conclusion. It it less than the preponderance of the evidence standard which we use in most civil lawsuits.

Changes like this might seem unimportant or overly technical (fair point!). But the reality is that sometimes the standard of review—the way a court looks at a lower level’s decision—can change the way the appeal proceeds. This is true whether you are defending your IDEM permit, a special exception or variance from your county BZA, or challenging a DNR decision.