Philip R. Davis, Appellant v. Fort Wayne Board of Zoning Appeals, Appellee (2026)

MEMORANDUM DECISION

[1] Philip R. Davis petitioned for judicial review of a decision of the Fort Wayne Board of Zoning Appeals (the “BZA”). However, he did not – within the thirty days allowed by Indiana Code section 36-7-4-1613 – transmit the board record to the trial court or ask the trial court for additional time to do so. The Allen Superior Court therefore dismissed his petition. Davis contends the dismissal was error because the BZA had not prepared the record and its counsel represented that preparation was underway. Because a petitioner's duty to either file the board record or seek an extension within the allotted time is not excused by the BZA's late preparation of the record, we affirm.

Facts and Procedural History

[2] Davis owns real property at 505 Russell Avenue in Fort Wayne. On May 19, 2025, the Fort Wayne Zoning Administrator determined Davis's uses of the property – both for an accessory structure without a principal structure and for outdoor storage – were not lawful nonconforming uses. Davis appealed that determination to the BZA. After a public hearing on August 21, 2025, the BZA issued written findings of fact affirming the Zoning Administrator's determination, and it notified Davis of its decision by letter dated August 27, 2025.

[3] On September 22, 2025, Davis filed a verified petition for judicial review of the BZA's decision in the Allen Superior Court. That same day, he sent the Department of Planning Services a written request for the certified board record and a transcript of the August 21, 2025, hearing. On October 16, 2025, counsel for the BZA sent Davis an email stating that the BZA was “in the process of preparing the BZA Record ․ for you to file with the trial court” and that Davis would be responsible for the cost of preparing the transcript. (App. Vol. 2 at 49.) Davis replied the same day and confirmed that he would pay for the transcript upon completion.

[4] On December 5, 2025, the BZA moved to dismiss Davis's petition for judicial review because Davis had failed to timely file the board record or request an extension as required by Indiana Code section 36-7-4-1613. On December 29, 2025, Davis filed a response opposing dismissal and a verified motion for an extension of time to file the board record. The BZA replied on January 9, 2026

[5] The trial court held a hearing on the motion to dismiss on January 14, 2026. Davis acknowledged at the hearing that the board record had not been filed. On January 27, 2026, the trial court denied Davis's motion for an extension of time, granted the BZA's motion, and dismissed Davis's petition with prejudice. Davis then filed a motion to correct error, which the court denied.

Discussion and Decision

[6] “We review de novo a court's ruling on motions to dismiss for failure to timely file necessary agency records where the court ruled on a paper record.” Teaching Our Posterity Success, Inc. v. Ind. Dep't of Educ., 20 N.E.3d 149, 151 (Ind. 2014). The 1600 Series of Indiana Code chapter 36-7-4 “establishes the exclusive means for judicial review of zoning decisions[,]” Ind. Code § 36-7-4- 1601(a), and the review process begins with the filing of a petition for review with the trial court, Ind. Code § 36-7-4-1602.

[7] Then, “[w]ithin thirty (30) days after the filing of the petition, or within further time allowed by the court, the petitioner shall transmit to the court the original or a certified copy of the board record ․” Ind. Code § 36-7-4-1613(a). An extension of time for filing the record “shall be granted by the court for good cause shown,” and the “[i]nability to obtain the record from the responsible board within the time permitted by this section is good cause.”¹ Ind. Code § 36-7-4-1613(b). If a petitioner fails to file the record within the time permitted, including any extension ordered by the court, that failure “is cause for dismissal of the petition for review.” Id.

[8] Our Indiana Supreme Court has established a bright-line rule for the filing of an agency record on judicial review: “a petitioner for review cannot receive consideration of its petition where the statutorily-defined agency record has not been filed.” Teaching Our Posterity Success, 20 N.E.3d at 155 (footnote omitted). Our Court has adopted that approach for the 1600 Series, Central States Tower IV, LLC v. Bd. of Zoning Appeals of City of Portage, 149 N.E.3d 1206, 1213 (Ind. Ct. App. 2020) (holding trial court erred by not sua sponte dismissing petition for review when petitioner did not timely file BZA record), trans. denied, and the requirement is mandatory, id. at 1214 (“the trial court did not have the discretion to accept an untimely filing of the BZA's record where an extension of time was not timely sought and granted”). A trial court has no discretion, “aside from granting a timely motion for extension of time,” to “alter the timeline or retroactively grant an extension” of time to file the record. Carmel Bd. of Zoning Appeals v. Bidgood, 120 N.E.3d 1045, 1050 (Ind. Ct. App. 2019). A petitioner cannot cure an untimely filing by later action, because once the deadline passes the record “is not, and will never be, properly before the trial court.” Allen Cnty. Plan Comm'n v. Olde Canal Place Ass'n, 61 N.E.3d 1266, 1270 (Ind. Ct. App. 2016).

[9] The material facts herein are undisputed. Davis filed his petition on September 22, 2025, so the board record, or a motion for an extension of time to file it, was due no later than October 22, 2025. Davis filed neither by that date. His motion for an extension was not filed until December 29, 2025 – more than two months after the deadline. Because his request was untimely, the trial court had no discretion to grant it, Howard v. Allen Cnty. Bd. of Zoning Appeals, 991 N.E.2d 128, 131 (Ind. Ct. App. 2013) (holding trial court could grant extension for filing only if request was made when filing of petition would be timely), and dismissal was required, see Cent. States Tower IV, 149 N.E.3d at 1214 (holding sua sponte dismissal of petition for review was required when petitioner failed to file board record).

[10] Davis's principal contention is that his failure should be excused because the BZA was statutorily obligated to prepare the board record, see Ind. Code § 36-7-4-1613(c), and had not done so before the record was due. However, we have held that “reliance on the board to timely prepare its record does not relieve the petitioner of the statutory requirement to timely seek an extension of time in which to file the record.” Cent. States Tower IV, 149 N.E.3d at 1213. The statute anticipates this very difficulty and provides a petitioner's “[i]nability to obtain the record from the responsible board” is expressly deemed “good cause” for an extension. Ind. Code § 36-7-4-1613(b). That provision afforded Davis a remedy he was required to invoke within the thirty-day period; it did not relieve him of the obligation to act. See Cent. States Tower IV, 149 N.E.3d at 1213 (refusing to excuse failure to file based on board's obligation to prepare record).

[11] Davis also asserts that BZA counsel's statement that the board record was “in the process” of preparation, (App. Vol. 2 at 49), was a misrepresentation that amounted to extenuating circumstances to justify his delinquent filing. However, BZA counsel's email represented only that preparation was underway and confirmed Davis's responsibility for the transcript cost; it did not state that the record would be completed before the filing deadline. Counsel's email reached Davis on October 16, 2025 – six days before the October 22 deadline – which provided ample time within which Davis could have sought an extension of time to file the board record in the trial court.²

[12] Finally, Davis asks us to overlook the applicable rules regarding filing of the board record based on the Indiana Supreme Court allowing deviation from filing deadlines for “extraordinarily compelling reasons” in In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). Adoption of O.R. held that while an untimely notice of appeal results in forfeiture of an appeal pursuant to Appellate Rule 9, Indiana's appellate courts have authority under Appellate Rule 1 to restore the forfeited appeal. Id. at 971-72. While Appellate Rule 1 states “[t]he Court may, upon the motion of a party or the Court's own motion, permit deviation from these Rules[,]” the 1600 Series of Indiana Code chapter 36-7-4 contains no such grant of authority to deviate from the rules regarding the filing of the board record. We therefore cannot use Adoption of O.R. to reach the result requested by Davis.

Conclusion

[13] Because Davis did not file the board record or seek an extension of time within thirty days of filing his petition for judicial review, and because the BZA's obligation to prepare the record did not excuse Davis's failure, the trial court properly dismissed his petition. We accordingly affirm.

[14] Affirmed.

FOOTNOTES

1.   The board “shall prepare the board record for the petitioner” following a written request by a petitioner. Ind. Code § 36-7-4-1613(c).

2.   We reject Davis's assertion that BZA counsel's email constituted “concealment and gamesmanship” of the kind disapproved in Indiana's legal system. (Appellant's Br. at 9) (quoting Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012)). Opposing counsel could not give legal advice to Davis. See Ind. Rules of Prof. Conduct 4.3 (“The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.”).

May, Judge.

Pyle, J., and Scheele, J., concur.