§ 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.]
As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.127-2017, SEC.365.