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(A) Variances and appeals procedures.
(1) The Board of Zoning Appeals shall approve or deny all:
(a) Variances from the terms of this chapter, but only in classes of cases or in the specific situation specified in this chapter; and
(b) Appeals from staff decisions.
(2) The Board shall set a date for a public hearing on the petition.
(a) Notice of the public hearing shall be published one time, at least ten days before the date of the hearing.
(b) Prior to the public hearing by the Board of Zoning Appeals, the petitioner must file in the Plan Commission office proof of notification.
(c) Cost of the notice must be borne by the petitioner.
(d) A person may not communicate with any member of the Board before the hearing with the intent to influence the member’s action on a matter pending before the Board. Not less than five days before the hearing, however, the staff of the Plan Commission may file with the Board a written statement setting forth any facts or data pertinent to the matter.
(e) Should the petitioner fail to comply with the notice requirements, as provided by this section, before the second regular meeting of the Board of Zoning Appeals following the date said petition is filed, the petition shall be withdrawn by the Board of Zoning Appeals and the time limits imposed by this section shall apply.
(B) Requirements for variance.
(1) A person desiring a variance from the requirements of this chapter must file a petition with the Board of Zoning Appeals describing the property that is the subject of the variance, the type of variance required, the facts pertinent to the variance desired and a site plan.
(2) Following the public hearing on the variance, the Board of Zoning Appeals must either grant or deny the petition. No variance may be granted except on a finding of all of the following factors:
(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 strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property;
(d) The variance is not a variance of the use of the property;
(e) The petitioner’s property is not located in a planned unit development; and
(f) The applicant does not create the need for the variance.
(3) The Board of Zoning Appeals may not grant a variance from the use district or classification. The grant of a variance is by resolution of the Board of Zoning Appeals and is not an amendment of this chapter.
(4) The Board may incorporate into the granting of a variance whatever conditions or limitations are necessary to protect adjacent properties and the surrounding neighborhood and effectuate the purpose of this chapter.
(C) Appeals before the Board of Zoning Appeals.
(1) The Board of Zoning Appeals shall hear and determine appeals from and review:
(a) Any order, requirement, decision or determination made by a Plan Commission staff member under the zoning ordinance; and
(b) Any order, requirement, decision or determination made by an administrative board or other body, except the County Plan Commission in relation to the enforcement of an ordinance requiring the procurement of an improvement location permit or occupancy permit.
(2) An appeal filed with the Board of Zoning Appeals must specify the grounds of the appeal and must be filed within such time and in such form as prescribed by the Board of Zoning Appeals by rule.
(3) The administrative official, 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.
(4) Upon appeal, the Board may reverse, affirm or modify the order, requirement or decision, or determination appealed. For this purpose, the Board has all the powers of the official, officer, board or body from which the appeal was taken.
(5) Within five days, the Board of Zoning Appeals shall file in the office of the Board a copy of its decision.
(D) Time limits. The denial of a petition for a variance, special use or an appeal by the Board of Zoning Appeals or the withdrawal of such a petition by the petitioner shall prohibit the Board of Zoning Appeals from hearing a petition for a variance, special use or an appeal for the subject property or a part thereof for 12 months from the date of the denial or withdrawal.
(E) Appeals from Board decisions. A person aggrieved by a decision of the Board of Zoning Appeals may appeal the decision in the manner provided in I.C. 36-7-4-1000 et seq.
(Ord. 17-2007, passed 12-18-2007)