Monroe County Board of Zoning Appeals v. Bedford Recycling, Inc.

IN THE

Indiana Supreme Court

Supreme Court Case No. 25S-MI-293

FILED

Monroe County Board of Zoning Appeals, Nov 13 2025, 11:51 am

CLERK

Appellant/Defendant, Indiana Supreme Court

Court of Appeals

and Tax Court

–v–

Bedford Recycling, Inc.,

Appellee/Plaintiff.

Argued: June 5, 2025 | Decided: November 13, 2025

Appeal from the Monroe Circuit Court

No. 53C06-2209-MI-1773

The Honorable Kara E. Krothe, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 23A-MI-1729

Opinion by Justice Molter

Chief Justice Rush and Justices Massa and Slaughter concur.

Justice Goff dissents in part and concurs in the judgment with separate

opinion.

Molter, Justice.

Through a final order, the Monroe County Board of Zoning Appeals

(BZA) granted Bedford Recycling, Inc. a conditional use permit to build a

scrap metal collection and sorting facility. Eleven months later, the BZA

revoked the permit because it decided it had made a legal error—on

further reflection, the BZA explained, it concluded the facility did not

satisfy the requirements of a conditional use permit. But no statute

authorizes the BZA to reconsider its final orders, so we must decide

whether the BZA has inherent or common law authority to do so. We

conclude it does not.

Facts and Procedural History

I. Permit Grant and Subsequent Revocation

In the fall of 2021, Bedford Recycling sought approval from the BZA to

build a scrap metal collection and sorting facility on property Bedford

owned in the county. That property is zoned for “mineral extraction”

under the county ordinance, and only a few uses are presumptively

allowed; scrap metal recycling is not one of them.

When a use is not presumptively allowed, a party may seek a

conditional use permit, which allows the use if certain conditions are met.

Rush v. Elkhart Cnty. Plan Comm’n, 698 N.E.2d 1211, 1213 n.1 (Ind. Ct. App.

1998). Bedford petitioned the BZA for conditional use approval of its

recycling facility as a “Central Garbage/Rubbish Collection Facility.”

Appellant’s App. Vol. 2 at 32. The zoning ordinance defines that use as

“[p]ublic or private establishments contracted to remove solid waste from

residential or commercial uses and transport such wastes to a locally

operated public or private landfill or other waste collection facility,

designated for consolidation of garbage or recycled matter.” Though the

application acknowledged the facility would neither “handle solid waste”

nor “operate waste hauling vehicles,” Bedford claimed it had worked with

the County Planning Department in preparing the application and the

department staff had recommended proceeding under the “Central

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 2 of 15

Garbage/Rubbish Collection Facility” permit. Appellant’s App. Vol. 3 at 6.

That was because the county’s zoning ordinance did not include explicit

operational or development standards for a scrap metal sorting facility.

The BZA considered Bedford’s petition at its September 2021 meeting,

during which a Bedford representative spoke and acknowledged again

that the facility would not accept solid waste—typically required under

this type of conditional use permit—and was “essentially a scrap yard.”

Id. at 52. No one opposed the proposal, and at the end of the meeting the

BZA voted 3-0 to grant the permit, with one member not present and one

member abstaining.

This grant was short lived, however, as the BZA’s decision began to

unravel in the following months. National waste management company

Republic Services, which owns property near Bedford’s proposed facility

site, timely petitioned for judicial review of the Board’s decision to grant

the permit. Republic claimed Bedford had not satisfied the requirements

for this type of conditional use.

Additionally, when the BZA hears a request, it must support its

decision with written “Findings of Fact” which provide the Board’s

official reasoning and facilitate judicial review. Ind. Code § 36-7-4-915.

While the permit was under judicial review, the county attorney was still

drafting the findings to support the order. And in the process of drafting

those findings, he concluded the Board made a legal error in granting the

permit.

In December 2021, the BZA reconvened in two meetings to discuss the

Republic Services litigation and the county attorney’s concerns. During

those meetings, the attorney explained his concern that a Central

Garbage/Rubbish Collection Facility had requirements, including “the

transportation of solid waste under contract from residences and

commercial interests,” which Bedford had expressly disclaimed in both its

application and through its representative’s testimony. Id. at 60. In the

attorney’s view, this revealed that the BZA made an “error of law” when

granting the permit. Id. Under Court of Appeals precedent, the BZA could

revoke a permit if it had been granted based on an error of law. Essroc

Cement Corp. v. Clark Cnty. Bd. of Zoning Appeals, 122 N.E.3d 881 (Ind. Ct.

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 3 of 15

App. 2019), trans. denied. Apparently swayed by the attorney’s comments,

the Board moved to schedule another public hearing in the following

months to determine whether it “erred as a matter of law by concluding

that use proposed by Bedford Recycling, Inc., was a Central

Garbage/Rubbish Collection Facility Use for which a Conditional Use

could be granted.” Appellant’s App. Vol. 3 at 61.

Six months passed before the BZA reconvened. And during that time

the BZA’s membership changed: two members who had voted to grant

Bedford’s permit were replaced with new members, and an additional

seat remained vacant. The county planning department also changed its

mind—it had previously supported Bedford’s application, but it now

found the BZA had “misapplied the facts” to the zoning ordinance. The

department found two reasons why the grant was in error: (1) Bedford’s

proposed use did not fit within the definition of a Central

Garbage/Rubbish Collection facility; and (2) Bedford was really proposing

a “scrap yard” facility, which was not permitted as a conditional use for a

mineral extraction zone.

At the BZA’s June 2022 hearing, the county attorney again explained

his view to the three present BZA members that the grant was made in

error. First, he believed the proposed use did not qualify because, as he

had stated before, Bedford would not be contracted to remove the metal

from residential or commercial areas. Second, he understood Bedford

would not be dealing with “waste” in any understanding of the term

because people would be bringing their scrap metal to the facility to sell

the metal to Bedford, meaning the metal was not “waste” but “a valuable

product.” Id. at 110. A Bedford representative also appeared at the

hearing, arguing that the grant was proper because its proposed use was

for a “recycling facility,” and although that term does not appear in the

ordinance’s definition of a “Central Garbage/Rubbish Collection Facility,”

a separate part of the ordinance envisions that kind of facility to also

include a center for recycling. Compare Monroe County Code § 802-5(D)(3)

(defining Central Garbage/Rubbish Collection Facility), with Monroe

County Code, Conditions Pertaining to Permitted Uses in Zoning Districts

§ 33 (outlining conditions required for “[c]entral garbage and rubbish

collection facilities, including recycling centers” (emphasis added)). The

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 4 of 15

BZA split and voted 2-1 to revoke the permit. Since a BZA decision

required a three person majority, the vote failed, and the matter was

automatically continued to the next BZA meeting in August.

By the next meeting in August, the BZA once again had a full slate of

members, with only two members remaining from the September 2021

Board that had granted Bedford’s permit. After further discussion, much

of it repeated material from previous meetings, the BZA took another vote

and came out 3-2 in favor of revoking Bedford’s conditional use permit.

The Board later released its official findings and conclusions,1 which

stated that Bedford’s proposed plan was really for a scrap yard that

involved no transportation or acceptance of “solid waste” as required, and

because a scrap yard was not a permitted use under the zoning ordinance,

the September 2021 BZA had acted beyond its legal authority when it

initially approved the proposal. So eleven months after the BZA approved

the conditional use permit, the board revoked it.

II. Bedford’s Judicial Review Proceedings

With Republic Services’ petition for judicial review of the BZA decision

to grant the conditional use permit still pending, in September 2022

Bedford filed its petition for judicial review of the BZA’s decision to

revoke the permit. After hearing argument from both sides on Bedford’s

petition, the Monroe Circuit Court found that, despite the BZA

characterizing its decision as a mistake of law, “the evidence shows that

there were mistakes of fact and a change of reasoning . . . and the BZA has

not identified any statute or statutory procedure that supports its

Revocation Order.” Appellant’s App. Vol. 2 at 43. Based on that

conclusion, the court granted Bedford’s petition, vacated the revocation

order, and reinstated the conditional use permit. In the same order, the

circuit court stated it was not deciding whether the original grant of the

1The copy in the Appellant’s Appendix is unsigned and undated, but neither party has

disputed its accuracy.

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 5 of 15

permit was proper—that was a question for the court to decide in

Republic Services’ judicial review case.

The BZA appealed, and after oral argument the Court of Appeals

reversed in a unanimous decision. Monroe Cnty. Bd. of Zoning Appeals v.

Bedford Recycling, Inc., 241 N.E.3d 1144 (Ind. Ct. App. 2024). The appellate

panel disagreed with the trial court’s conclusion that the revocation

decision was based on a change of reasoning, instead finding the Board

was clear in both the hearings and in its written findings that its decision

was based on only the evidence available at the September 2021 hearing.

The panel also held the BZA made an error of law in granting the permit

because Bedford’s proposed facility did not meet the ordinance

requirements for a Central Garbage/Rubbish Collection Facility.

Accordingly, the panel held the BZA was allowed to correct that error

under the court’s precedent in Essroc.

Bedford then petitioned for transfer, which we grant today, thereby

vacating the Court of Appeals decision. Ind. Appellate Rule 58(A).2

Discussion and Decision

The question presented is whether the BZA had the authority to

reconsider its final order granting Bedford a conditional use permit. That

is a purely legal question we consider de novo. See Noblesville, Ind. Bd. of

Zoning Appeals v. FMG Indianapolis, LLC, 217 N.E.3d 510, 514 (Ind. 2023).

Bedford argues the BZA did not have that power because the BZA is a

creature of statute, and no statute authorizes reconsideration. The BZA

responds that it did have that power, relying on a line of Court of Appeals

2Given the statewide importance of the administrative law issues this case presents, we

invited amicus briefing from interested parties. In response, we received briefs from

Accelerate Indiana Municipalities, the Association of Indiana Counties, and the Indiana

Municipal Lawyers Association; the Indiana Builders Association and the Associated Builders

& Contractors of Indiana/Kentucky; the Institute for Justice; and the Pacific Legal Foundation.

We are grateful for that insightful briefing.

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 6 of 15

cases that say administrative bodies have common law authority to

reconsider decisions that are based on a legal error.

We agree with Bedford. In Part I, we discuss our longstanding

precedent establishing that administrative bodies lack inherent or

common law authority to reconsider final decisions. In Part II, we explain

why we disapprove of the Court of Appeals cases carving out an

exception to that rule for legal errors. And in Part III, we explain our

holding that the BZA had no authority to reconsider Bedford’s conditional

use permit.

I. Administrative bodies have no common law or

inherent authority to reconsider final orders.

BZAs are administrative bodies, Kunz v. Waterman, 283 N.E.2d 371, 374

(Ind. 1972), which means they are statutory creatures limited to the

powers conferred by their enabling acts, Blue v. Beach, 56 N.E. 89, 93

(Ind. 1900).3 And we have long held that a statutorily created

administrative entity possesses no common law authority supplementing

the authority of its enabling statutes. See, e.g., Smith v. Thompson Const. Co.,

69 N.E.2d 16, 17 (Ind. 1946) (“Since the Board derives its authority from

the statutes, it can do the things authorized by the Legislature and beyond

that it cannot legally go. Its authority is not expanded by the ‘common

law.’”); 1 Ind. Law Encyc. Administrative Law and Procedure § 9 (2025)

(“Administrative boards, agencies and officers have no common-law or

inherent powers but only such authority as is conferred upon them by

valid statutory enactment.”); id. (“A statutorily created administrative

body has limited powers and jurisdiction, possessing only those powers

3The BZA’s argument on appeal was focused on whether the trial court erred by looking

beyond the BZA’s written findings when concluding the revocation was improper. Because

we hold no “error of law” exception exists, we need not address this issue.

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 7 of 15

that are expressly granted to it by the statute creating it and other

necessary incidental powers.”).4

Critical here, we have said this limitation means an agency cannot

reconsider its own final decisions unless the legislature explicitly grants

the agency that power. Cress v. State, 152 N.E. 822, 826 (Ind. 1926)

(“[P]ower to undo an act once done will not be implied from the mere

grant of power, in the exercise of a sound discretion, to do the act.”);

see also Smith, 69 N.E.2d at 17 (“We do not believe that the grant of

authority to correct clerical errors or mistakes of fact can be interpreted to

mean that the Board may at any time grant a new hearing upon the

essential necessary issues which have been determined.”). The legislature

does sometimes give administrative bodies that power explicitly. See, e.g.,

I.C. § 4-21.5-3-31(a) (granting the “ultimate authority . . . jurisdiction to

modify a final order” in limited circumstances). In other words, when the

legislature is silent, we infer it meant to withhold that power. See ESPN,

Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016)

(“As we interpret the statute, we are mindful of both what it does say and

what it does not say.” (quotations omitted)).

Though the Court of Appeals has been inconsistent, it has applied that

rule to BZAs, stating that a BZA “generally has no inherent power to

review and vacate, rescind or alter its decision after it has been made”

because “[t]he powers of the BZA are strictly limited to those granted by

its authorizing statute.” Schlehuser v. City of Seymour, 674 N.E.2d 1009, 1014

4 Ind. State Bd. of Pub. Welfare v. Tioga Pines Living Ctr., Inc., 622 N.E.2d 935, 939 (Ind. 1993) (“It

is elementary that the authority of the State to engage in administrative action is limited to

that which is granted it by statute and that administrative action within such limitation has

the force of law.”); Sowers v. Covered Bridge Tree Serv., 621 N.E.2d 1111, 1112 (Ind. 1993) (“[W]e

note that as an administrative body the Workers Compensation Board has only that authority

conferred upon it by the statute which created it. Its authority is not expanded by the

‘common law.’” (quotations omitted)); Ind. Air Pollution Control Bd. v. City of Richmond, 457

N.E.2d 204, 207 (Ind. 1983) (“Under Indiana law an administrative agency has only such

power as its creating statute has bestowed upon it.”); Chicago & E.I.R. Co. v. Pub. Serv. Comm’n,

49 N.E.2d 341, 341 (Ind. 1943) (“The Public Service Commission derives its power and

authority solely from the statute, and unless a grant of power and authority can be found in

the statute it must be concluded that there is none.”).

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 8 of 15

(Ind. Ct. App. 1996); see also Burcham v. Metro. Bd. of Zoning Appeals, 883

N.E.2d 204, 215 (Ind. Ct. App. 2008) (quoting Schlehuser for the same

principle); Brownsburg Conservation Club, Inc. v. Hendricks Cnty. Bd. of

Zoning Appeals, 697 N.E.2d 975, 977 (Ind. Ct. App. 1998) (“[A] zoning

board has no inherent authority to revoke a variance once issued.”); accord

4 Am. Law Zoning § 40:51 (5th ed. 2025) (“Absent a statute or ordinance

which authorizes a board of appeals to rehear an application for relief,

many courts hold that a board is without general authority to rehear and

reconsider a matter which it has decided.”). But over time, some Court of

Appeals cases have carved out an exception, which we discuss next.

II. We disapprove of the “error of law” exception

some Court of Appeals cases have recognized.

A conflicting line of Court of Appeals cases emerged recognizing an

“error of law” exception: “[w]hen an administrative entity recognizes its

own error of law, it may correct that error.” Adkins v. City of Tell City, 625

N.E.2d 1298, 1302 (Ind. Ct. App. 1993). This exception derives from

misplaced reliance on inapplicable precedent.

The Court of Appeals first recognized this exception in Adkins. Id. The

Tell City Board of Public Works and Safety voted unanimously to dismiss

police officer Adkins for misconduct while on duty but rescinded that

decision within ten days due to its own failure to follow the correct

procedure for dismissing a public employee. Id. The Board then followed

the proper procedure and dismissed Adkins again. Id.

Adkins challenged the Board’s authority to rescind its own decision

because he preferred judicial review of the first, procedurally-improper

order rather than the second, procedurally-proper one. But the Court of

Appeals rejected that challenge. One reason was, essentially, that any

error was harmless. “If Adkins had appealed the Board’s initial dismissal,

and the trial court had found that the Board’s procedures were deficient,

the trial court could have done nothing but reverse the dismissal and

remand to the Board for a proper hearing,” which the Board had by then

already held. Id. at 1303. So “[o]nce the Board rescinded its dismissal,

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Adkins had nothing about which to complain.” Id. We have no concern

with that reasoning.

The Court of Appeals had another reason, though, which was

mistaken. It found “[t]he record unquestionably shows that the Board

recognized that it failed to follow proper procedure,” and that “[f]ailure to

comply with required procedure was an error of law the Board was

entitled to correct on its own.” Id. The court cited two cases for the rule

that “[w]hen an administrative entity recognizes its own error of law, it

may correct that error.” Id. But we find those cases inapposite.

The first case, Robbins v. National Veneer & Lumber Co., 88 N.E.2d 773

(Ind. App. 1949), dealt with the revocation of an award granted by the

Industrial Board, the agency then responsible for workers’ compensation

claims. That revocation authority was granted by statute, though, not the

common law. The Court of Appeals had previously recognized a version

of the “error of law” exception specific to the Industrial Board due to the

language in the Board’s enabling statutes. See Homan v. Belleville Lumber &

Supply Co., 8 N.E.2d 127, 132 (Ind. App. 1937) (“We believe it was the

intention of the legislature . . . as gathered from the act as a whole, that

matters of this kind are incidental to the administration of this act and

should be passed upon by the board.”). And the Robbins court reaffirmed

that rule, specifically pointing out the statutory basis for the Board’s

authority to revoke a previous order. Robbins, 88 N.E.2d at 775 (noting the

Board had a kind of continuing jurisdiction over the award because

“[w]hen the board entered an award, it still had certain statutory duties to

perform”).

The second case, Geiger v. Miss. State Bd. of Cosmetology, 151 So. 2d 189,

191 (Miss. 1963), was based on Mississippi law. In Mississippi,

“administrative agencies may reconsider and modify their determinations

or correct errors on the ground of fraud or imposition, illegality,

irregularity in vital matters, mistake, misconception of facts, erroneous

conclusion of law, surprise or inadvertence.” Id. Mississippi’s broad grant

of extra-statutory power does not inform—and in fact contradicts—

Indiana law, which rejects any argument that an agency has inherent or

common law power beyond what is granted in its enabling statute.

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 10 of 15

After Adkins, two more cases recognized the “error of law” exception,

including one that specifically applied the rule to a BZA’s decision.

See State ex rel. ANR Pipeline Co. v. Ind. Dep’t of State Revenue, 672 N.E.2d 91

(Ind. Tax Ct. 1996); Essroc Cement Corp. v. Clark Cnty. Bd. of Zoning Appeals,

122 N.E.3d 881 (Ind. Ct. App. 2019). Both recognized the general rule that

“administrative bodies may not usually rescind their final determination

absent some statutory provision granting that authority.” ANR Pipeline

Co., 672 N.E.2d at 94; Essroc Cement Corp., 122 N.E.3d at 896 (“[U]nless the

legislature has given clear authority to revoke final determinations,

administrative bodies do not have the power to change their minds after a

final determination.”). And both recognized an exception that “[w]hen an

administrative agency recognizes its own error of law, it may correct that

error.” ANR Pipeline Co., 672 N.E.2d at 94; Essroc Cement Corp., 122 N.E.3d

at 896. But the ANR opinion cited only Adkins for the exception, and the

Essroc opinion cited only ANR. ANR Pipeline Co., 672 N.E.2d at 94; Essroc

Cement Corp., 122 N.E.3d at 896.

Neither case cites any authority justifying a deviation from our Court’s

precedents disclaiming any inherent or common law authority for

administrative bodies to reconsider final decisions. Nor do those cases or

Adkins confront the foundational principles underlying our precedents—

administrative bodies are creatures of statute; the legislature explicitly

directs when those bodies have the authority to reconsider their final

decisions; and we infer from the legislature’s silence that a body does not

have that power. We therefore disapprove of the exception recognized in

Essroc, ANR Pipeline, and Adkins, and we reaffirm our precedent that there

is no common law or inherent authority for an administrative body to

reconsider its final order based on an error of law.

III. The BZA here had no authority to reconsider the

conditional use permit.

Having rejected the “error of law” line of cases, we look to the BZA’s

enabling statutes to see whether those laws authorize any reconsideration

power. We conclude they do not.

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 11 of 15

BZAs derive their authority from a series of statutes under Title 36,

Article 7, Chapter 4 of the Indiana Code. See generally I.C. §§ 36-7-4-900 to

36-7-4-924 (collectively, “the 900 series” governing the board’s powers and

operation); I.C. §§ 36-7-4-1000 to 36-7-4-1019 (collectively, the “1000 series”

governing remedies and enforcement); I.C. §§ 36-7-4-1600 to 36-7-4-1616

(collectively, the “1600 series” governing judicial review). A review of

those statutes reveals no contemplation, let alone a grant, of BZA

authority to rescind a decision once it has been made. The BZA has

conceded as much throughout this litigation—including in oral argument

before this Court—by acknowledging that the only authority it could rely

on was the common law.

Yet the BZA asserted an eleventh-hour claim that one of the statutes

providing for judicial review of BZA decisions constitutes “legislative

acknowledgement of a board of zoning appeals’ inherent authority to

revoke conditional use decisions based on legal error.” Appellant’s Resp.

to Amicus Curiae at 12. The statute to which the BZA points allows a

person pursuing judicial review of a BZA decision to seek a stay of that

decision pending the court’s review, including where the review petition

“concerns a revocation or suspension of a previously approved variance,

exception, or use.” I.C. § 36-7-4-1609(b). An administrative body may

condition its approval, and the power that review statute refers to is the

agency’s statutory power to take remedial or enforcement action to

enforce those conditions, including by revoking a permit that was subject

to the unmet conditions. I.C. § 36-7-4-918.4; Schlehuser v. City of Seymour,

674 N.E.2d 1009, 1014 (Ind. Ct. App. 1996) (“The authority to revoke a

variance is not inherent in the BZA’s statutory powers to grant and deny a

variance. However, the BZA is expressly authorized to impose reasonable

conditions when it approves a variance. It is implicit that when a variance

is issued subject to conditions of approval, the variance can be revoked if

the conditions are not met.” (citations omitted)); Brownsburg Conservation

Club, Inc. v. Hendricks Cnty. Bd. of Zoning Appeals, 697 N.E.2d 975, 977

(Ind. Ct. App. 1998) (recognizing the same). But that is not an extra-

statutory, common law power, and it is not the power to reconsider a final

decision that is at issue here.

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The General Assembly knows how to grant reconsideration power. For

example, the Administrative Orders and Procedures Act (AOPA) grants a

limited power for an agency to reconsider final orders up to thirty days

after the order has been issued, or until another agency or court assumes

jurisdiction. I.C. § 4-21.5-3-31(a). But BZAs are not subject to AOPA.

Howard v. Allen Cnty. Bd. of Zoning Appeals, 991 N.E.2d 128, 130 (Ind. Ct.

App. 2013); see also Senter v. Kosciusko Cnty. Bd. of Zoning Appeals, 251

N.E.3d 584, 587 n.5 (Ind. Ct. App. 2025). And even if they were, AOPA’s

reconsideration power is much narrower than the power the BZA claims

here, which is the power to reconsider a final order months later while the

order is already subject to pending judicial review proceedings.

Of course, the legislature is free to add a statutory provision

authorizing BZAs to reconsider their final orders. Until that time,

however, we decline to endorse any extension of the BZA’s authority

beyond what is explicitly allowed in its governing statutes.

Because the Monroe County BZA has no statutory authority allowing

for reconsideration or revocation of a final decision, it acted outside the

scope of its power in revoking Bedford Recycling’s conditional use

permit.5

Conclusion

For these reasons, we affirm the trial court’s order vacating the BZA’s

revocation order and reinstating Bedford Recycling’s conditional use

permit.

5We need not consider the legality of the permit’s grant in the first place, as that issue remains

before the trial court in Republic Services’ pending judicial review action. This appeal also

does not involve an administrative body’s claimed authority (1) to correct clerical errors,

Burcham v. Metro. Bd. of Zoning Appeals, 883 N.E.2d 204, 215–16 (Ind. Ct. App. 2008); (2) to

rehear a matter where circumstances have changed since the decision was rendered, which in

some instances may constitute a new application for relief rather than a reconsideration,

4 Am. Law Zoning § 40:49 (5th ed. 2025); or (3) to make changes to its final order before a

petition for judicial review is filed or the time to seek judicial review has expired.

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 13 of 15

Rush, C.J., and Massa and Slaughter, JJ., concur.

Goff, J., dissents in part and concurs in the judgment with separate

opinion.

ATTORNEYS FOR APPELLANT

David B. Schilling

Justin D. Roddye

Monroe County Legal Department

Bloomington, Indiana

ATTORNEYS FOR APPELLEE

Dustin L. Plummer

Patrick A. Ziepolt

Mallor Grodner Plummer LLP

Bloomington, Indiana

ATTORNEYS FOR AMICI CURIAE ASSOCIATION OF INDIANA

COUNTIES, ACCELERATE INDIANA MUNICIPALITIES, AND

INDIANA MUNICIPAL LAWYERS ASSOCIATION

Thomas Kennedy Downs

Karen L. Arland

Kennedy Downs & Arland, PC

Carmel, Indiana

Becca McCuaig

Accelerate Indiana Municipalities

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE INDIANA BUILDERS

ASSOCIATION & ASSOCIATED BUILDERS AND CONTRACTORS

OF INDIANA/KENTUCKY

Thomas F. Bedsole

Maggie L. Smith

Frost Brown Todd LLP

Indianapolis, Indiana

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 14 of 15

ATTORNEYS FOR AMICUS CURIAE PACIFIC LEGAL

FOUNDATION

Allison D. Daniel

Frank D. Garrison

Pacific Legal Foundation

Arlington, Virginia

ATTORNEYS FOR AMICUS CURIAE INSTITUTE FOR JUSTICE

Marie Miller

Institute for Justice

Phoenix, Arizona

Caroline Grace Brothers

Institute for Justice

Arlington, Virgina

Ari Bargil

Institute for Justice

Miami, Florida

Indiana Supreme Court | Case No. 25S-MI-293 | November 13, 2025 Page 15 of 15

Goff, J., dissenting in part and concurring in the judgment.

Bedford Recycling (or just Bedford) owns land in Monroe County and

would like to build a facility to collect and sort scrap metal that will later

be transported off-site for recycling. The Monroe County Zoning

Ordinance establishes eighteen zoning classifications. Some land uses for

a zone are presumptively allowed. Other land uses are allowed if the

Board of Zoning Appeals (BZA) grants a conditional-use permit and

specific conditions are met. Bedford’s property is zoned for mineral

extraction, and scrap-metal recycling is not a presumptive use. So,

Bedford applied for a conditional-use permit as a “Central

Garbage/Rubbish Collection Facility.” Appellant’s App. Vol. 3, p. 30. Such

facilities are contracted to remove “solid waste” and transport it to landfills

or other designated facilities. Id.

The BZA held a hearing on September 1, 2021, to consider Bedford’s

application. Bedford’s representative acknowledged that “the facility that

[Bedford is] proposing here doesn’t handle solid waste. What it does is

handle ferrous and nonferrous metals for recycling. It is essentially a scrap

yard.” Id. at 52 (emphasis added). The BZA granted the conditional-use

permit. On October 1, 2021, Republic Services—a competitor which owns

property near Bedford’s property—petitioned for judicial review of the

BZA’s decision. See Petition for Judicial Review at 1–2, Republic Servs., Inc.

v. Monroe Cnty. Bd. of Zoning Appeals and Bedford Recycling, Inc., No. 53C06-

2110-MI-2052 (Monroe Cir. Ct. Oct. 1, 2021). Republic claimed that

Bedford hadn’t satisfied the requirements for the conditional-use permit.

The BZA called a special meeting in December 2021 to discuss

appropriate action after Republic initiated judicial review. The BZA voted

to hold a hearing to determine whether the BZA erred as a matter of law

when it granted the permit because the proposed facility does not handle

solid waste. The trial court in the Republic Services case stayed

proceedings. On August 3, 2022, the BZA revoked the permit and entered

written findings and conclusions, stating it could revoke the permit

because it made an error of law. See Essroc Cement Corp. v. Clark Cnty. Bd.

of Zoning Appeals, 122 N.E.3d 881, 896 (Ind. Ct. App. 2019) (holding that an

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administrative agency generally cannot change a final decision but may

correct an error of law), trans. denied.

With Republic Services’ petition for judicial review still pending,

Bedford filed its own petition for judicial review in September 2022,

arguing that the BZA could not revoke the permit. See Petition for Judicial

Review at 1, Bedford Recycling, Inc. v. Monroe Cnty. Bd. of Zoning Appeals,

No. 53C06-2209-MI-1773 (Monroe Cir. Ct. Sep. 2, 2022). The trial court

agreed and reinstated the permit, concluding that the BZA premised its

decision on “mistakes of fact and a change of reasoning” rather than an

error of law. Appellant’s App. Vol. 2, pp. 43–44. The Court of Appeals

reversed, concluding that the BZA’s written findings and conclusions

show it made an error of law, so it could revoke the permit. Monroe Cnty.

Bd. of Zoning Appeals v. Bedford Recycling, Inc., 241 N.E.3d 1144, 1146–47

(Ind. Ct. App. 2024).

The Court affirms the trial court’s reinstatement of the permit, albeit

because the “BZA has no inherent or common law authority” to correct its

errors of law. Ante, at 2. I respectfully dissent as to the Court’s holding

that an agency cannot correct its own errors of law without explicit

statutory authority. But because the BZA corrected its error of law after an

unreasonable amount of time, I concur in the Court’s decision to reinstate

the permit.

I. Agencies can revisit prior decisions to correct an

error of law.

“[A]dministrative agencies are creatures of statute,” so they generally

only have “such authority as is conferred upon them by statutory

enactment.” Vehslage v. Rose Acre Farms, Inc., 474 N.E.2d 1029, 1033 (Ind. Ct.

App. 1985). Therefore, in general, the General Assembly must give an

agency statutory authority to revoke its decisions. See, e.g., Ind. Code § 4-

21.5-3-31(a) (giving agencies the “jurisdiction to modify a final order under

this section” of the Administrative Orders and Procedures Act (AOPA)).

And here, neither AOPA nor any other statute gives the BZA explicit

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authority to revoke its prior decisions. See Burcham v. Metro. Bd. of Zoning

Appeals Div. I of Marion Cnty., 883 N.E.2d 204, 215 (Ind. Ct. App. 2008).

But the Court of Appeals has recognized exceptions to the general rule

that an agency cannot revoke a final action without express statutory

authority. For instance, an agency can revoke prior approvals where the

approval was subject to express conditions and those conditions were not

met. See Brownsburg Conservation Club, Inc. v. Hendricks Cnty. Bd. of Zoning

Appeals, 697 N.E.2d 975, 977 (Ind. Ct. App. 1998). An agency can also correct

clerical errors that inadvertently appear in its orders and decisions. See

Burcham, 883 N.E.2d at 215–16 (internal citation omitted). And “when an

administrative agency recognizes its own error of law, it may correct that

error.” Essroc Cement Corp., 122 N.E.3d at 896 (internal citation and quotation

marks omitted) (emphasis added). An error of law occurs when “a party,

having full knowledge of the facts, comes to an erroneous conclusion as to

their legal effect.” Id. (internal citation and quotation marks omitted).

“[Changes] in reasoning [do] not constitute an error of law and [do] not

justify the alteration of a final administrative decision.” Id. at 897 (citation

and emphasis omitted).

I would adopt the error-of-law exception recognized by the Court of

Appeals. Like the inherent authority trial courts may exercise to reconsider

certain orders, the error-of-law exception gives administrative agencies the

ability to reconsider erroneous decisions. See State v. Huffman, 643 N.E.2d

899, 901 (Ind. 1994) (stressing that a “court has the power to revisit prior

decisions of its own or of a coordinate court in any circumstance,” especially

in “extraordinary circumstances such as where the initial decision was

clearly erroneous and would work manifest injustice”) (internal citation and

quotation marks omitted). And other jurisdictions give agencies broad

inherent authority to revisit decisions. For instance, the Fifth Circuit has held

that the Administrative Review Board can reconsider an attorney’s fee

award because “it is generally accepted that in the absence of a specific

statutory limitation, an administrative agency has the inherent authority to

reconsider its decisions.” Macktal v. Chao, 286 F.3d 822, 825–26 (5th Cir. 2002).

In Tokyo Kikai Seisakusho, Ltd. v. United States, the Federal Circuit Court of

Appeals held that the Department of Commerce had “inherent authority to

reconsider” a prior review tainted by fraud. 529 F.3d 1352, 1356 (Fed. Cir.

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2008). And in Wisconsin, “an administrative agency has the power to

reconsider decisions since the power to decide carried with it the power to

reconsider.” See Schoen v. Bd. of Fire and Police Comm’rs of City of Milwaukee,

873 N.W.2d 232, 238 (Wis. Ct. App. 2015).

I would adopt the error-of-law exception because it is relatively narrow

yet promotes judicial economy by letting agencies correct legal errors

without the need for judicial review. The error-of-law exception is also an

important tool for agencies when judicial review is unavailable. For

example, had the BZA initially denied the permit because of a legal error,

Bedford could seek judicial review to correct that legal error. But here, the

BZA granted the permit because of a legal error, so Bedford had no reason

to seek judicial review until it was later revoked. And the BZA itself has no

explicit authority to initiate judicial review of its own decisions when it

makes a legal error, see I.C. § 36-7-4-1603, so the error-of-law exception

allows the agency to correct any such error, especially when there is no third

party with standing and interests aligned with the BZA to seek judicial

review. Therefore, the error-of-law exception ultimately promotes

confidence that administrative proceedings will get to the right results. 1

II. The error-of-law exception does not apply here

because the BZA revoked the permit after an

unreasonable amount of time.

But to promote the finality of administrative decisions, I would only

apply the error-of-law exception within a reasonable time after an agency

decision was made. Finality “provides certainty and stability” and “protects

the interests of parties by enabling closure.” Auto. Fin. Corp. v. Liu, 250

1The Court notes that this case does not involve an agency’s claimed authority “to correct

clerical errors,” “to rehear a matter where circumstances have changed since the decision was

rendered,” or “to make changes to its final order before a petition for judicial review is filed or

the time to seek judicial review has expired.” Ante, at 13 n.5 (internal citations omitted). But

the Court’s decision now leaves unclear if agencies have any inherent authority to correct any

errors, burdening agencies and harming the integrity of their proceedings.

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N.E.3d 406, 408 (Ind. 2025). A reasonable time for an agency to reconsider a

decision is “the time allowed by the controlling statute for [judicial] review.”

Dale Bland Trucking, Inc. v. Calcar Quarries, Inc., 417 N.E.2d 1157, 1160 (Ind.

Ct. App. 1981). Once the time for judicial review has expired, all parties

can reasonably depend on the agency decision staying final.

Here, the BZA’s decision to revoke the permit eleven months after

granting it was an unreasonable amount of time. The timeframe permitted

for judicial review of the BZA’s decision here was “not later than thirty (30)

days after the date of the [original] zoning decision.” See I.C. § 36-7-4-1605.

After thirty days, Bedford should be able to reasonably depend on the

permit. According to Bedford, tens of thousands of hours have been spent

on the project, and revoking the permit after eleven months creates

uncertainty in planning. 2

Conclusion

Though I concur in the Court’s conclusion that the BZA here could not

revoke Bedford’s permit, I respectfully dissent from the Court’s

conclusion that agencies do not have inherent authority to correct their

legal errors. Because the error-of-law exception promotes the integrity of

administrative proceedings and judicial efficiency, I would hold that

administrative agencies can revisit prior decisions to correct an error of

law within a reasonable amount of time.

2 The Court of Appeals concluded that Bedford waived the issue of whether the BZA’s

revocation was timely. Monroe Cnty. Bd. Zoning Appeals v. Bedford Recycling, Inc., 241 N.E.3d

1144, 1153 (Ind. Ct. App. 2024). But Bedford did argue to the BZA that “reversing the decision

at this point in time over 300 days after the initial grant is going to create a lot of uncertainty.”

Appellant’s App. Vol. 3, p. 102. Bedford also raised the issue at oral argument in front of the

Court of Appeals and raised the issue in its petition to transfer, giving the BZA an

opportunity to respond to the argument. Court of Appeals Oral Argument at 24:37–24:43; Pet.

to Trans. at 18–19. Considering the important property interests at stake, I would address the

issue of timeliness.

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