(A) Establishment. The Area BZA is established, with membership as provided by I.C. 36-7-4-902(d). In addition, it is hereby recognized that the Whitestown BZA, which was duly established under the Advisory Planning Law and continued in existence under the Area Planning Law, continues as the BZA with exclusive jurisdiction within Whitestown pursuant to I.C. 36-7-4-901.
(B) Organization. At the first meeting of the calendar year, the BZA shall elect from among its members a Chairperson and a Vice-Chairperson as per established rules of procedure. Consistent with Indiana Planning Law, it may appoint and fix the compensation of a secretary and such employees as it considers necessary to discharge its duties.
(C) Rules of procedure. The BZA shall supervise and make rules for the administration of the affairs of the BZA and prescribe uniform rules pertaining to investigations and hearings.
(D) Meetings and records. The BZA shall hold a public hearing after the receipt of an application for a variance, special exception or appeal from an applicant or their agent in accordance with the established rules of procedure. Before holding the required public hearing, applicant must act in accordance with the established rules of procedure. Meetings of the BZA shall be open to the public. The BZA shall keep minutes of its meetings, keep records of all examinations and other official actions, make any findings in writing and record the vote of each member on each question. Minutes and records shall be filed in the office of the BZA and made available to the public. A majority of the members of the BZA shall constitute a quorum. No action of the BZA is official unless concurred by a majority of the membership of the BZA.
(E) Powers and duties.
(1) Variance. The BZA shall authorize in specific cases such variances from the terms of this chapter as will not be contrary to the public interest, where owing to special conditions fully demonstrated on the facts presented, a literal enforcement of this chapter will result in an unnecessary hardship, and so that the spirit of this chapter shall be observed and substantial justice done. The BZA may grant a Variance with respect to specific property if, after a hearing, the BZA finds that the variance is warranted per Indiana Planning Law.
(a) The BZA shall not grant a variance from a use district or classification.
(b) When in the public interest, the Director may consider and render decisions on applications involving minor deviations from the provisions of the ordinance, limited to the following.
1. Lot area requirements may be reduced by not more than 10% of that required in the District.
2. Yard requirements may be reduced by permitting portions of a building or structure to extend into and occupy not more than 10% of the area of a required yard.
3. Maximum building heights may be increased by not more than 10%.
(c) The following standards shall apply for evaluating variances as established by I.C. 36-7-4-918.5:
1. The variance will not be injurious to the public health, safety, morals and general welfare of the community.
2. The use or value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
3. The strict application of the terms of this chapter will continue the usual and unnecessary hardship as applied to the property for which the variance is sought because.
(2) Special exception. The BZA shall hear and determine special exceptions to the terms of this chapter upon which the BZA is required to act. The BZA may require that impact studies be performed at the expense of the applicant prior to deciding upon the special exception.
(a) The special exceptions listed in the districts (see Table 2, Authorized Uses), and their accessory buildings and uses may be permitted by the BZA in the districts indicated therein, in accordance with the procedures set forth in this section. Uses listed as special exceptions in the conservation district must be approved by the Indiana Department of Natural Resources prior to application for special exception by the BZA.
(b) Upon receipt of an application for a special exception, the Director may refer the application to the APC for investigation as to the manner in which the proposed location and character of the special exception will affect the master land use plan. The APC shall report the results of its study to the BZA within 90 days following receipt of the application. If no such report is filed with the BZA within the time period, or, if no report is requested by the Director, then the BZA shall proceed to process the application. The BZA shall then proceed with a hearing on the application in the manner prescribed in this chapter. Following the hearing, and upon an affirmative finding by the BZA that the applicant meets the requirements and criteria established by Indiana Manning Law and this chapter, the BZA shall order the Plan Director to issue an improvement location permit.
(c) An existing use which is listed herein as a special exception, and which is located in a district in which the special exception may be permitted, is a conforming use. Any expansion of the special exception involving the enlargement of the buildings, structures or land area devoted to the use shall be subject to the procedures described in this section.
(d) The following standards shall apply for evaluating special exceptions as established by I.C. 36-7-4-918.2:
1. The establishment, maintenance or operation of the special exception will not be detrimental to or endanger the public health, safety, morals or general welfare.
2. The special exception will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted.
3. The establishment of the special exception will not impede or substantially alter the normal and orderly development and improvement of surrounding property for uses permitted in the district.
4. Adequate utilities, access road, drainage and other necessary facilities have been or are being provided.
5. Adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion on the public roadways.
6. The special exception will be located in a district where such use is permitted and all other requirements set forth in this chapter which are applicable to the use will be met.
7. It is recognized that in the development of a zoning ordinance, not all uses of land can be listed, nor can all future uses be anticipated. A use may have been omitted from the list of those specified as permissible in the various districts established by this chapter, or questions may arise concerning words which are synonymous. Applicant shall file a request with the APC for a decision by the BZA. The BZA may also initiate an application. The BZA shall render a decision after the application is made, and shall notify the applicant and any person requesting the notice of the decision. In such instances the following procedures shall apply:
a. In classifying a use, the BZA shall first make a finding that all of the following conditions exist:
i. That investigations have disclosed that the subject use and its operations are compatible with the uses permitted in the district wherein it is proposed to be located
ii. That the subject use is similar to one or more uses permitted in the district within which it is proposed to be located;
iii. That the subject use will not cause substantial injury to the values of property in the neighborhood or district within which it is proposed to be located; and
iv. That the subject use will be so designed, located and operated that the public health, safety and general welfare will be protected
b. The BZA shall classify the use as to permitting the use by right or permitting the use subject to special exception.
c. When classification of use is appealed or referred to the BZA, it shall be the duty of the BZA to ascertain all pertinent facts concerning the use and set forth in writing its findings and the reasons for designating a specific classification for the use.
d. In no instance shall the BZA determine that a use be permitted in a district when the use is specifically listed as first permissible in a less restricted district.
e. Uses classified pursuant to this section shall be regarded as listed uses. The Director shall maintain in the office of the APC an up-to-date list of all such classifications which have been made.
f. Should the BZA determine that a use cannot be classified, then the use shall be considered appropriate only within a PUD District.
(3) Appeals. The BZA shall hear and determine appeals from and review any order, requirement, decision or determination made by the Director in the enforcement of this chapter. In exercising its powers the BZA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed and to that end shall have all of the powers of the Director from whom the appeal is taken. The BZA shall fix a reasonable time for the hearing of an appeal. Public notice shall be given of the hearing and due notice shall be given additionally to the affected parties as determined by the BZA. The BZA must require the party taking the appeal to assume the cost of public notice and due notice to interested parties.
(a) When an appeal from the decision of any official or board has been filed with the BZA, all proceedings, operation and work on the premises concerned shall be stayed, unless the official or board from whom the appeal was taken shall certify to the BZA that, by reason of facts stated in the certificate, a stay would cause imminent peril to life or property. In such case, proceedings or work shall not be stayed except by a restraining order, which may be granted by a circuit or superior court of the county in which the premises affected are situated, on notice to the office or board from whom the appeal is taken and the owner of the premises affected, and on due cause shown.
(b) Every decision of the BZA shall be subject to review by certiorari. Any person aggrieved by a decision of the BZA, may present to the circuit or superior court of the county in which the premises affected are located, a petition duly verified, setting forth that such decision is illegal in whole or in part, and specifying the grounds of the illegality. The petition shall be presented to the court within 30 days after the entry of the decision or order of the BZA complained of. No change of venue from the county in which the premises affected are located shall be had in any cause arising under the provisions of this section.
(Ord. 98-25, passed 12-21-1998)