Section 36-9-27-107 - Judicial review; procedure(a) Whenever a petition for judicial review is filed on the ground that: (1) the board found that the petitioner's land would be benefited by the construction, reconstruction, or maintenance of a drain, and the benefits assessed were excessive; or(2) the petitioner's lands would be damaged by the construction, reconstruction, or maintenance of a drain, and: (A) the board failed to so find; or(B) the amount of damages awarded was inadequate; the court shall proceed to hear the issue of benefits or damages de novo. A change of venue may be taken from the judge and from the county, and a jury trial may be obtained, in accordance with the rules governing the trial of civil actions. An appeal may be taken in accordance with the rules governing appellate procedure.
(b) Whenever a petition for judicial review is filed on any ground other than those set forth in subsection (a), the review shall be heard by the court without the intervention of a jury. The court may not try or determine the cause de novo, but shall consider and determine the cause exclusively upon the record made before the board and filed with the court. A change of venue may be taken from the judge under the rules governing a change of venue in civil actions, but a change of venue may not be taken from the county. The proceedings shall be advanced upon the docket of the court. If the court finds from the record before it that: (1) the person filing the petition for review has complied with all procedures required under this chapter to properly present the matters set forth in the petition for review, and has exhausted the person's administrative remedies; and(2) the decision or determination of the board is arbitrary, capricious, unlawful, or not supported by substantial evidence; the court shall order the decision or determination of the board set aside and shall remand the matter to the board for further proceedings consistent with the findings and order of the court. If the court finds otherwise, the decision of the board shall be affirmed.
(c) In affirming or setting aside a decision or determination of the board, the court shall enter its findings and order or judgment on the record.(d) When a petition for judicial review presents issues that shall be heard de novo and issues that may not be heard de novo, the court shall separate the issues and shall proceed to determine the issues that may not be heard de novo. When the court's judgment on the issues that may not be heard de novo becomes final, or when the appeal is decided if an appeal is taken, the board shall proceed in accordance with the final judgment or appellate decision despite the fact that the issues to be heard de novo may be undecided and pending before the court or on appeal.Pre-Local Government Recodification Citation: 19-4-8-5.
Amended by P.L. 127-2017,SEC. 365, eff. 7/1/2017.As added by Acts1981 , P.L. 309, SEC.101.