Indiana Supreme Court Considering BZA Appeal Procedures

The Indiana Supreme Court is currently considering when an appeal of a BZA decision must be filed. Put simply, the question is whether the deadline for an appeal is 30 days after the decision (usually made during a BZA hearing) or 30 days after the written findings (usually entered sometime after the hearing. The case has attracted significant attention from land use and appellate attorneys, county boards, and interested landowners. The case is Burgess v. Board of Zoning Appeals for the Town of Utica, Indiana. The docket is available online. In September 2025, the Court of Appeals ruled that Burgess had not timely filed his petition for review of a variance denial, rendering the entire appeal moot. The Supreme Court granted transfer to address the question of when a petition to review must be filed.

According to Indiana Code 36-7-4-1605, a petition for review of a zoning decision is timely only if the petition is filed within 30 days of the zoning decision. So what exactly is a “zoning decision” for purposes of this deadline? Indiana Code 36-7-4-919(e) provides that a zoning board shall “make a decision” on a matter at the end of the hearing on that matter. But Indiana Code 36-7-4-1016(a) says a “zoning decision” is a board's “final” decision (“Final decisions of the [BZA] ... are considered zoning decisions for purposes of this chapter and are subject to judicial review….”). A final decision suggests the BZA has nothing left to do. But at the end of a hearing, after the BZA votes a project up or down, the BZA still has to issue written findings of fact to support its vote. Indiana Code 36-7-4-915. So can the decision at the end of the hearing really be considered “final” for purposes of a petition for review? The Supreme Court is considering that very question.

There is no requirement that a BZA make written findings at the end of a hearing. This makes common sense, since the end of a meeting on a contentious matter may come at midnight or later. The BZA and its staff has likely received evidence during the evening which influences and informs the BZA’s decision. The BZA members and staff may need additional time to review that record. The person who will draft the written findings may consult with board members to assure that the written findings reflect the various reasons BZA members voted the way they did. The drafter may need to do legal research and then ultimately draft findings that are sufficiently specific to allow a reviewing court to intelligently review the BZA’s decision if someone files a petition for judicial review. Of course, the issuance of written findings may take weeks or even months to complete after the BZA’s hearing on the matter. The timing of the BZA’s written findings may not be as well published as the initial BZA hearing.

This deadline to file a petition for review of a BZA decision is critical because missing the deadline dooms the case. In other words, missing the 30-day period during which a person can file a petition for review of a BZA decision is fatal. There are no do-overs or grace periods for this petition. I know I will be keeping an eye on the court’s docket. Stay tuned to see how the Supreme Court rules on this important question…