§ 155.034  BOARD OF ZONING APPEALS.
   (A)   Reestablished.
      (1)   As a part of this chapter, there is hereby reestablished and continued a Board of Zoning Appeals (hereinafter the B.Z.A.).
      (2)   The B.Z.A. shall consist of 5 members appointed as follows:
         (a)   Three citizen members appointed by the Town Council President, of whom 1 must be a member of the Plan Commission and 2 must not be members of the Plan Commission;
         (b)   One citizen member appointed by the Town Council who must not be a member of the Plan Commission; and
         (c)   One citizen member appointed by the Advisory Plan Commission who must be a member of the Plan Commission other than the member appointed under division (2)(a) above.
   (B)   Appointment of alternate members. At the time an appointing authority makes an appointment pursuant to division (A) above, the appointing authority shall appoint an alternate member for each of its appointments to participate with the B.Z.A. in any hearing or decision in which the regular member is disqualified by reason of interest.
   (C)   Organization of B.Z.A. Chairperson, Vice Chairperson.
      (1)   At the first meeting of each year, the B.Z.A. shall elect a Chairperson and Vice Chairperson from its members. At the first meeting, any member may take the Chair for the limited purpose of accepting nominations for Chairperson.
      (2)   A member may nominate any member including himself or herself for Chairperson. Upon motion duly made, seconded and adopted, the nominations shall be closed. Thereupon the nominee receiving the vote of the majority of the entire membership of the B.Z.A. shall be elected Chairperson of the B.Z.A.
      (3)   The temporary Chairperson is entitled to vote.
      (4)   The Chairperson shall immediately take the Chair and preside over the nomination and election of a Vice Chairperson, and the appointment of a Secretary and other employees as are necessary for the discharge of the B.Z.A.’s duties.
      (5)   The Vice Chairperson may act as Chairperson during the absence or disability of the Chairperson.
   (D)   Quorum. A quorum consists of a majority of the entire membership of the B.Z.A.
   (E)   Official action. Action of the B.Z.A. is not official unless it is authorized by a majority of the entire membership of the B.Z.A.
   (F)   Removal of B.Z.A. member.
      (1)   The appointing authority may remove a member from the B.Z.A. for cause. The appointing authority must mail notice of the removal, along with written reasons for the removal, to the member at his or her residence address.
      (2)   A member who is removed may, within 30 days after receiving notice of the removal, appeal the removal to the Porter Superior Court.
   (G)   Vacancy. If a vacancy occurs among the members of the B.Z.A., the appointing authority shall appoint a member for the unexpired term of the vacating member.
   (H)   Conflict of interest.
      (1)   A member of the B.Z.A. may not participate in a hearing or decision of the B.Z.A. concerning a zoning matter in which he has a direct or indirect financial interest.
      (2)   The B.Z.A. shall enter in its records:
         (a)   The fact that a regular member has a disqualification; and
         (b)   The name of the alternate member, if any, who participates in the hearing or decision in place of the regular member.
      (3)   The determination of whether or not a member has a direct or indirect financial interest shall be made as follows:
         (a)   Any evidence showing the existence of a conflict shall be received by the Board at a meeting at which there is present a quorum, excluding the member in question;
         (b)   Rebuttal evidence, if any, shall be received;
         (c)   The Board shall honor the opinion of a member in question who asks to disqualify himself or herself;
         (d)   Absent self-disqualification, a member shall not be disqualified from participating in a hearing or a decision of the B.Z.A. except upon a vote of a majority of the entire membership of the B.Z.A. The member in question may not vote on his or her disqualification, nor shall any member of the B.Z.A. who presents evidence at the hearing on disqualification.
      (4)   No Board member shall be disqualified by reason of questions asked or comments made during the presentation of evidence or deliberations on the disqualification issue.
   (I)   Rules of procedure.
      (1)   The B.Z.A. shall adopt rules, which may not conflict with the Zoning Chapter, concerning:
         (a)   The filing of appeals;
         (b)   The application for variances, special exceptions, special uses, contingent uses and conditional uses;
         (c)   The giving of notice;
         (d)   The conduct of hearings; and
         (e)   The determination of whether a variance application is for a variance of use or for a variance from the development standards (such as height, bulk or area, among others).
      (2)   A variance application shall be deemed an application for a variance of use if the applicant seeks to use land within the jurisdiction of the B.Z.A. in a manner that is neither a permitted, special or conditional use, or special exception in the zoning district wherein the land is located.
   (J)   Powers and duties of the B.Z.A. A Board of Zoning Appeals shall hear and determine appeals from and review:
      (1)   Any order, requirement, decision or determination made by the Building Commissioner or any other administrative official, hearing officer or staff member under the this chapter;
      (2)   Any order, requirement, decision or determination made by an administrative board or other body except a Plan Commission in relation to the enforcement of this chapter; or
      (3)   Any order, requirement, decision or determination made by an administrative board, or other body except a Plan Commission in relation to the enforcement of an ordinance adopted under the chapter requiring the procurement of a building permit or certificate of occupancy.
   (K)   Special exceptions.
      (1)   A Board of Zoning Appeals shall approve or deny all of the following from the terms of this chapter, but only in the classes of cases or in the particular situations specified in this chapter:
         (a)   Special exceptions;
         (b)   Special uses;
         (c)   Contingent uses; and
         (d)   Conditional uses;
      (2)   The Board may impose reasonable conditions as a part of its approval.
      (3)   The B.Z.A. shall review the particular facts and circumstances of each special exception, special use, contingent use and conditional use in terms of the following standards and shall not approve a special exception except upon a finding from the evidence at the public hearing that the proposed use:
         (a)   Is in fact a special exception as established under the provisions of the zoning district wherein it is located;
         (b)   Will be harmonious with and in accordance with the general objectives and any specific objective of the Town of Beverly Shores Comprehensive Plan, Zoning and/or Subdivision Ordinance;
         (c)   Will be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity; and further that the use will not change the essential character of the neighborhood wherein it is located;
         (d)   Will not be hazardous or disturbing to existing or future neighboring uses;
         (e)   Will be served adequately by essential public facilities and services such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewer, schools; or that the persons or agencies responsible for the establishment of the proposed use shall be able to provide adequately any like service;
         (f)   Will not create excessive additional requirements at public expense for public facilities and services and will not be detrimental to the economic welfare of the community;
         (g)   Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any person, property or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors;
         (h)   Will have vehicular approaches to the property which shall be so designed as not to create an interference with traffic or surrounding public thoroughfares and shall provide for adequate parking; and
         (i)   Will not result in the destruction, loss or damage of a natural, scenic or historic feature(s) of major importance.
   (L)   Variance; use.
      (1)   A Board of Zoning Appeals shall approve or deny variances of use from the terms of this chapter. The Board may impose reasonable conditions as a part of its approval.
      (2)   A variance may be approved under this section only upon a determination in writing that:
         (a)   The approval will not be injurious to the public health, safety, morals and general welfare of the community;
         (b)   The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;
         (c)   The need for the variance arises from some condition peculiar to the property involved;
         (d)   The strict application of the terms of this chapter will constitute an unnecessary hardship if applied to the property for which the variance is sought; and
         (e)   The approval does not interfere substantially with the Comprehensive Plan for the Town of Beverly Shores, as amended from time to time.
   (M)   Variance; development standards.
      (1)   The B.Z.A. shall approve or deny variances from the development standards (such as height, bulk or area) of this chapter.
      (2)   A variance may be approved under this section only upon a determination in writing that:
         (a)   The approval will not be injurious to the public health, safety, morals and general welfare of the community;
         (b)   The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and
         (c)   The strict application of the terms of this chapter will result in practical difficulties in the use of the property.
   (N)   Appeals to B.Z.A.; grounds; transmission of record. An appeal filed with the B.Z.A. must specify the grounds of the appeal and must be filed within a time and in a form as may be prescribed by the Board of Zoning Appeals by rule.
      (1)   The administrative official, hearing officer, Administrative Board or other body from whom the appeal is taken, shall, on the request of the Board of Zoning Appeals, transmit to it all documents, plans and papers constituting the record of the action from which an appeal was taken.
      (2)   Certified copies of the documents, plans and papers constituting the record may be transmitted for purposes of division (N)(1).
      (3)   When an appeal is filed as herein provided with the B.Z.A., all proceedings and work on the premises shall be immediately stayed unless the official or board from whom the appeal is taken shall certify to the B.Z.A. that, by reason of the facts stated in the certificate, a stay would cause imminent peril to life or property. In that case, proceedings or work shall not be stayed except by a restraining order which may be granted by the Porter Superior Court after notice to the officer or board from whom the appeal is taken and the owner of the premises affected and after due cause shown.
   (O)   Public notice and hearing.
      (1)   The B.Z.A. shall fix a reasonable time for the hearing of administrative appeals, exceptions, uses and variances.
      (2)   At least 10 days before the date set for the public hearing the party taking the appeal shall, using forms provided by the B.Z.A., give public notice of the hearing as follows:
         (a)   Publish the notice in 1 newspaper of general circulation in Porter County;
         (b)   Post the notice at or near:
            1.   The Town Hall; and
            2.   The Beverly Shores Post Office.
         (c)   Deliver the notice by certified mail, return receipt requested, to record owners of all real property located within 300 feet of petitioner's property as shown on the rolls of the Township Assessor or a similarly reliable resource.
      (3)   The party taking the appeal, or applying for the exception, use or variance may be required to assume the cost of public notice and notice by certified mail to record owners within 300 feet. At the hearing, each party may appear in person, by agent or by attorney.
      (4)   The B.Z.A. may require the Building Commissioner or any person having information relevant to a pending matter to appear at the hearing on the matter and present evidence. Other persons may appear and present relevant evidence.
      (5)   (a)   A person may not communicate with any member of the B.Z.A. before the hearing with an intent to influence the member's action on a matter pending before the B.Z.A.
         (b)   Not less than 5 days before the hearing, however, the town official or board from whom the appeal is taken, or in any event, the Building Commissioner, may file with the B.Z.A. a written statement setting forth any facts or opinions relating to the matter.
      (6)   (a)   The B.Z.A. may require any party adverse to any pending petition to enter a written appearance specifying the party's name and address.
         (b)   If the written appearance is entered more than 4 days before the hearing, the B.Z.A. may also require the petitioner to furnish each adverse party with a copy of the petition and a plot plan of the property involved.
      (7)   Upon appeal, the B.Z.A. may reverse, affirm or modify the order, requirement, decision or determination appealed. For this purpose the B.Z.A. has all the powers of the official officer, board or body from which the appeal is taken.
      (8)   The B.Z.A. shall make a decision on any matter that it is required to hear either:
         (a)   At the meeting at which that matter is first presented; or
         (b)   At the conclusion of the hearing on that matter, if it is continued.
      (9)   Within 5 days after making the required decision, the B.Z.A. shall file in its permanent record a copy of its decision and deliver copies of the decision to the Building Commissioner and the petitioner. The decision shall be available for public inspection.
(Ord. 208, passed 12-19-1983; Am. Ord. 11-11, passed 9-19-2011; Am. Ord. 2021-09, passed 7-20-2021)