Background
Grandview Solar Project, LLC sought to develop a large commercial solar farm straddling Spencer County, Indiana and the two-mile extraterritorial fringe surrounding the Town of Grandview. Indiana Code § 36-7-4-205 allows a municipality to extend its zoning authority into this two-mile fringe—known as an extraterritorial jurisdiction (ETJ)—by providing for it in the municipality’s comprehensive plan and local zoning ordinance. The Town of Grandview had a comprehensive plan and a zoning ordinance, but both documents defined the Town’s jurisdiction as limited to territory within the corporate limits; neither document authorized extraterritorial jurisdiction.
In November 2019, despite this gap, the Town’s Board of Zoning Appeals (BZA) unanimously approved a special exception permitting Grandview Solar to build within the two-mile fringe. Public notice was given; no one challenged the approval within the 30-day review period established by Indiana zoning law, or for years afterward. In reliance on the approval, Grandview Solar spent approximately $30 million advancing the development, obtained confirmation from both Town and County officials in 2022 that all required zoning approvals were in place, and secured a new ownership group willing to pay millions for the project.
In 2023, after public opposition mounted, the Town refused to issue the non-discretionary improvement location permits Grandview Solar needed to begin construction. Grandview Solar obtained a preliminary injunction and the Town settled. Then, a group of approximately 79 neighboring landowners (“Landowners”) filed a new declaratory judgment action asserting that the 2019 special exception approval was void ab initio because the Town lacked ETJ authority. The trial court granted summary judgment to the Town and Grandview Solar. The Court of Appeals reversed, holding the approval “ultra vires and void” and subject to collateral attack at any time. The Indiana Supreme Court granted transfer.
The Court’s Holding
The Indiana Supreme Court, in an opinion by Justice Massa joined by Justices Slaughter and Molter, reversed the Court of Appeals and reinstated the trial court’s summary judgment for the Town and Grandview Solar. The central question was whether the BZA’s failure to have ETJ authority properly incorporated into the Town’s comprehensive plan rendered the 2019 special exception approval void—subject to challenge at any time—or merely voidable—subject to the 30-day challenge window after which any objection is waived.
The Court surveyed its precedents on the ultra vires doctrine and distinguished between two categories of government action. A decision is void when it falls entirely outside the government body’s general grant of authority—for example, when a BZA acts on a matter wholly beyond its subject-matter jurisdiction. A decision is merely voidable when the body had general authority to take that class of action but failed to satisfy a statutory prerequisite before exercising that authority. Here, the Court found, the Town unquestionably had general authority both to issue special exceptions under Indiana Code § 36-7-4-918.2 and to provide for ETJ zoning jurisdiction under § 36-7-4-205. The Town’s failure to formally incorporate ETJ authority in its comprehensive plan before approving the special exception was a procedural defect in the exercise of a power the Town possessed—rendering the approval voidable, not void. Because the Landowners did not challenge the approval within the 30-day review window (or for years thereafter), their objection was waived, and the approval stands.
Justice Goff dissented in a separate opinion joined by Chief Justice Rush, arguing that the majority’s void/voidable distinction inadequately protects neighbors who had no meaningful opportunity to know the Town was acting without proper ETJ authority, and that the 30-day window should not bar challenges to approvals that exceed the BZA’s jurisdictional authority.
Key Takeaways
- Under Indiana law, a BZA decision is void only when the BZA acted entirely outside its general subject-matter authority; a decision made within the BZA’s general power but without satisfying a statutory prerequisite is voidable, meaning the 30-day challenge period applies and an unchallenged decision becomes final.
- A town’s failure to provide for extraterritorial jurisdiction in its comprehensive plan before issuing a special exception in the two-mile fringe is a voidable procedural defect, not a void act—neighbors who do not object within 30 days of the BZA’s decision forfeit their objection.
- Parties who invest substantial capital in reliance on unchallenged BZA approvals—and who confirm those approvals with local officials—acquire a legally secure position once the 30-day window closes, regardless of whether the approving body had fully satisfied all statutory preconditions.
- The decision resolves conflicting Court of Appeals precedent on the ultra vires doctrine in the zoning context, providing a clearer framework for classifying BZA defects as void or voidable going forward.
Why It Matters
For Indiana real estate developers and project financers, Wike v. Grandview Solar provides meaningful comfort: once a BZA approval survives the 30-day challenge window without objection, it is almost certainly beyond collateral attack—even if later review reveals that the BZA failed to satisfy a statutory prerequisite before acting. The decision is especially significant for renewable energy projects, infrastructure investments, and other large-scale developments that require years of permitting before construction can begin and may be acquired by new owners who rely on the validity of prior approvals.
For Indiana litigators advising neighbors or community groups opposed to development approvals, Wike draws a sharp line: the 30-day objection window is the critical deadline. Post-window challenges based on procedural defects in the BZA’s exercise of its authority will now be treated as voidable and waived, not void and perpetually available. Counsel should carefully review whether a proposed project’s BZA approval touches ETJ authority, extraterritorial service areas, or other statutory prerequisites—and advise clients to object promptly if any defect is identified.