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Accessory uses and structures such as privacy garages, tool sheds, fences, and swimming pools may be permitted in conjunction with a principal use or structure, provided that the accessory use or structure does not alter the character of the district in which it is being proposed. In addition, accessory uses and structures shall meet the follow requirements:
(A) General provisions for accessory uses and structures.
(1) Accessory uses and structures may be permitted subject to approval by the Planning Director.
(2) There can be no accessory use/structure without a principal use/structure.
(3) No accessory use/structure shall be permitted prior to the operation or erection of its principal use/structure.
(4) No accessory use/structure shall be used unless the principal use/structure is also being used.
(5) Accessory uses/structures shall be operated and maintained under the same ownership and shall be located on the same lot as the principal use/structure.
(6) The materials, and any architectural design elements, used for the construction of the accessory structure shall be comparable in color, texture, and scale as the principal structure.
(7) Accessory structures shall be clearly subordinate in height, area, extent and purpose when compared to principal structure.
(B) Provisions for individual accessory uses and structures. The following provisions are in addition to the general provisions listed above and are use specific in their applicability.
(1) Private residential swimming pool. A private residential swimming pool may be permitted as an accessory use, provided that access to the said accessory use is restricted by one of the following means:
(a) Walls or fencing not less than five feet high and completely surrounding the pool and deck area with the exception of self-closing and latching gates or doors, each capable of being locked.
(b) Other means not less than five feet high, and deemed impenetrable by the Planning Director, at the time of construction and completely surrounding the pool and deck area when the pool is not in use.
(c) A combination of (a) and (b) above that completely surrounds the pool and deck with the exception of self-closing and latching gates or doors, which are capable of being locked.
(d) A power safety pool cover, provided that it:
1. Provides a continuous connection between the cover and the deck, so as to prohibit access to the pool when the cover is completely drawn over the pool;
2. Be mechanically operated by a key or key and switch such that the cover cannot be drawn open or retracted without the use of a key;
3. Is installed with track, rollers, rails, guides, or other accessories necessary to accomplish clauses (a) and (b) above, in accordance with the manufacturer’s instructions; and
4. Bears an identification tag indicating that the cover satisfied the requirements of ASTM F 1346 for power safety pool covers.
(2) Pools, multi-family or commercial (public or private). All outdoor pools installed as an accessory use to a mufti-family residential dwelling or commercial establishment (including public pools) shall be completely surrounded by walls or fencing not less than 72 inches high and of a design that will restrain the entrance of intruders. Ornamental fencing shall not have over four inches of space between pickets.
(Ord. 4-2009, passed 3-9-09)
The purpose of this section is to effectively and promptly permit temporary uses and structures within the jurisdiction of the city.
(A) General provisions and standards. All temporary uses and structures shall meet the following conditions:
(1) The temporary use/structure shall comply with all county and state health requirements, which would be imposed upon a permanent use/structure on the same lot.
(2) No temporary use/structure shall be permitted to encroach on any required yard, sidewalk, setback, or easement as specified by the zone in which it is located.
(3) Adequate access and off-street parking facilities, which do not interfere with traffic movement on adjacent streets, shall be provided.
(B) Provisions for individual temporary uses and structures. Unless otherwise stated, the following temporary uses and/or structures may be permitted in any district, through the issuance of a temporary use permit.
(1) Temporary residence. A manufactured structure or recreational vehicle may be moved onto a lot and be used as a temporary residence in the event that an owner’s primary residence is undergoing temporary repairs or renovations, provided that the following conditions are met:
(a) The improvement location permit for the structure being built remains valid.
(b) The temporary residence is located on the same lot as the permanent residence.
(c) The temporary residence ceases to be used after a maximum of nine months. If a temporary residence is needed for longer than nine months, a special exception permit may be granted by the Board of Zoning Appeals. Said special exception permit shall not exceed 12 months. No extension for the special exception permit shall be granted.
(d) The temporary residence shall be vacated and removed from the premises within30 days from the expiration, or revocation, of the improvement location permit for the permanent structure, or within 30 days of the expiration date of the special exception permit, which ever occurs first.
(2) Temporary office. A manufactured structure may be moved onto a lot and be used as a temporary office as a result of: the construction of a project; unique employee training periods, office overcrowding, or other similar office shortage situations; or a natural disaster, provided the following conditions are met:
(a) The improvement location permit for the temporary structure remains valid.
(b) The temporary residence is located on the same lot as the permanent residence.
(c) The use of any temporary office shall not exceed six months. For temporary offices needed for a period longer than six months, a special exception permit may be granted by the Board of Zoning Appeals. Said special exception permit shall not exceed two years. Special exception permits for temporary offices may be extended once, for a period not to exceed one year.
(d) The temporary office shall be vacated and removed from the premises within 30 days from the expiration, or revocation, of the improvement location permit, or within 30 days of the expiration date of the applicable special exception permit.
(e) There may be more than one temporary office located on a lot, plot or tract of land, provided that each temporary office is issued, or otherwise included in, a special exception permit.
(3) Used as temporary classrooms. A temporary use permit may be issued for such a trailer in any district when it is erected accessory to a public use, semipublic use, or essential service.
(a) A temporary permit for trailers used as temporary classrooms shall be limited to a period not to exceed six months.
(b) If a trailer is to be used as a temporary classroom for a period exceeding six months, a temporary use permit shall only be approved when a special exception use permit has been issued pursuant to this chapter. The Planning Commission shall establish the expiration date of such temporary use permit.
(4) Christmas tree sales. No Christmas tree sales area shall exist for more than 60 days during any 12 month period of time. The fee for a temporary use permit shall not apply, provided that they are being sold by a non-profit organization as part of a fundraising activity. Otherwise, the fee for a temporary Christmas tree sales area shall be as prescribed by the official fee schedule.
(5) Roadside stands. Roadside stands may be permitted in a business district. No roadside stand shall exist for more than 60 days during any 12-month period of time. Said 60-day time period may be consecutive days, or separate events, provided that the total amount of time permitted does not exceed the 60-day time period for the year. The fee for temporary roadside stands shall be as prescribed by the official fee schedule. Farmer’s markets and festivals shall be excluded from these provisions.
(6) Fireworks stands. Strict compliance with the provisions of state fireworks laws is required. In addition, Fireworks stands are prohibited from being located in a residential zoning district, unless otherwise approved, in writing, by the Planning Director. The owner shall also comply with the requirements of the Clerk-Treasurer’s office, which includes but is not limited to: obtaining a surety bond, providing proof of insurance, paying a user fee.
(7) Temporary/portable storage unit. Temporary/portable storage units shall be permitted in any residential district, provided that they comply with the following minimum standards:
(a) Time limitation. No temporary/portable storage unit may be located on any site, in any residential district for a period longer than ten consecutive days from time of delivery to time of removal. At the end of such period, the temporary storage unit shad be moved off-site and shall not be returned for at least one month from the date it was removed.
(b) Number of units. No more than two temporary/portable storage units may be located on a lot of record at one time.
(c) Location. No temporary/portable storage unit may be located closer than ten feet to any property line. Under no circumstances may a temporary/portable storage unit be located within a public right-of-way.
(d) Removal. In the event of high winds or other adverse weather conditions in which such a structure may become a physical danger, the appropriate law enforcement officer may require the immediate removal of such temporary structure. In the event that a unit has been in place longer than the time period specified in (a) above, the Planning Director shall cause said structure to be removed. In any instance, all costs associated with the removal of a temporary/portable storage unit shall be the responsibility of the landowner.
(e) Use. No temporary/portable storage unit shall be used to store solid waste, construction debris, demolition debris, recyclable materials, business inventory, commercial goods, or any illegal or hazardous material.
(8) Garage and yard sales. Garage and yard sales may be held at any given residential location up to three times per calendar year, for a maximum of three consecutive days each, and for a maximum of two consecutive weeks at a time. Garage and yard sales must be held during daylight hours. City officials may halt garage and yard sales if parking on public rights-of-way or trespassing on neighbors’ property becomes a problem. Persons holding garage and yard sales must comply with all signage rules in this code, including but not limited to § 153.038(P) concerning garage sale signs.
(9) Other similar uses deemed temporary by the Planning Director and conditioned upon any time period, conditions, and other safeguards for protection of neighboring properties as the Planning Director may deem necessary in her or his discretion.
(Ord. 4-2009, passed 3-9-09; Am. Ord. 8-2011, passed 4-11-11)
Within the districts established by this chapter, including amendments thereto, there may exist lots, uses, or structures which were lawful before the effective date of this chapter, but which would be prohibited, regulated or restricted under the terms of this chapter. It is the intent of this section to allow said nonconforming lots, uses, or structures to continue until they are removed, but not to encourage their survival. Nothing in this section shall be deemed to prevent the strengthening, or restoring to a safe condition, any building or part thereof which has been declared to be unsafe by any official charged with protecting the public safety. The existence of nonconforming lots, uses and structures is not to be used as grounds for adding similar lots, uses or structures which would otherwise be prohibited. Nonconforming situations shall be governed as follows:
(A) Agricultural uses. Consistent with I.C. 36-7-4-616, an agricultural use of land that constitutes an agricultural nonconforming use may be changed to another agricultural use of land without losing agricultural nonconforming use status. In addition, an agricultural nonconforming use shall not be restricted or required to obtain a variance or special exception so long as an agricultural nonconforming use has been maintained for three years in a five year period.
(B) Single nonconforming lots of record. In any district, construction on a single nonconforming lot of record in existence prior to the effective date of this chapter, as amended from time-to-time, and excluding any other limitations imposed by other provisions of this chapter, are subject to the following:
(1) Any nonconforming lot shall be in a separate ownership and not contiguous with other lots in the same ownership; and
(2) All setback, height and other applicable provisions of the zoning district shall be satisfied unless appropriate variances are obtained.
(C) Nonconforming lots of record in combination. If two or more lots, or a combination of lots and portions of lots with continuous frontage in single ownership, are of record prior to the effective date of this chapter, as amended from time-to-time, and if all or part of the lot(s) which is void of any structure(s) do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of administering and enforcing this chapter. No portion of the parcel shall be used or sold in a manner which diminishes compliance with the lot, width, and area requirements established by this chapter. Nor shall any division of a parcel be made which creates a lot with width or area below the requirements stated in this chapter.
(D) Nonconforming uses. Where, at the time of adoption of this chapter, lawful use(s) of land exist which would not be permitted by the regulations imposed by this chapter, as amended from time-to- time, the use(s) may be continued so long as they otherwise remain lawful. Such uses shall also be subject to the following provisions:
(1) A nonconforming use may be continued but shall not be extended, expanded, or changed unless to a conforming use, except as permitted by the Board of Zoning Appeals.
(2) A nonconforming use shall not be moved, in whole or in part, to any portion of the lot or parcel.
(3) In the event that any nonconforming use which is conducted within a structure ceases, for whatever reason, for a period of one year, said nonconforming use shall not be resumed, unless approved by the Board of Zoning Appeals.
(4) No structure shall be erected, constructed, or altered in connection with a legally nonconforming use of land.
(E) Nonconforming structures. Where a structure that could no longer be built under the provisions of this chapter exists, the structure may continue to exist so long as it remains otherwise lawful. Said structure shall also be subject to the following provisions:
(1) A nonconforming structure may continue to exist but shall not be enlarged or altered in a way which increases its nonconformity. Conversely, a nonconforming structure may be altered so as to decrease its nonconformity.
(2) Any nonconforming structure damaged by fire, flood, explosion, wind, or other catastrophe may be reconstructed and used as before if:
(a) Such reconstruction is performed within 12 months of such catastrophe; and
(b) If the restored structure has no greater coverage and no greater cubic content than before such catastrophe.
(3) (a) In the event that any nonconforming use conducted in a structure or at a location ceases for any reason for a continuous period of one year; or
(b) In the event that such nonconforming use is intentionally abandoned for any period, such nonconforming use shall not be resumed, except with the approval of the Board of Zoning Appeals.
(4) No nonconforming structure shall be moved for any reason for any distance, unless said structure is being removed from the site.
(5) Work may be done on any nonconforming structure in any period of 12 consecutive months. Such work may include ordinary repairs such as the repair or replacement of non-load bearing walls, fixtures, wiring or plumbing, provided that the repaired structure has no greater coverage and contains no greater cubic content than before such repairs.
(6) If a nonconforming structure, or portion thereof, becomes physically unsafe or by reason of its physical condition, shall not thereafter be restored, repaired or rebuilt except in conformance with this chapter.
(F) Nonconforming uses and structures in combination. Where a lawful use occupied by a lawful structure existed prior to the effective date of this chapter, as amended from time-to-time, where one or the other, or both, do not comply with the requirements imposed by this chapter, nonconforming combination of use and structure may be continued so long as they both remain otherwise lawful. Such a combination shall also be subject to the following provisions:
(1) No existing structure devoted to a use not permitted by this chapter shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered, except to change the use from a legally nonconforming use to a conforming use, in which case, such modifications shall be subject to the provisions of this chapter.
(2) Where nonconforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the legally nonconforming status of the use, in which case, both the structure and the use shall be brought into conformance with the provisions of this chapter, as amended from time-to-time.
(Ord. 4-2009, passed 3-9-09)
PLANNED UNIT DEVELOPMENT REGULATIONS
(A) Open space requirement. A PUD shall contain permanently reserved land suitable for the common use of the public or the owners within the PUD. This may be accomplished by dedication, covenant, or easement. Said open space may be comprised of non-buildable land as the result of topography, soil conditions, wetlands, and the like. The open space shall constitute a minimum of 10% of the gross acreage less rights of way. This land may be used for recreational or scenic open space, or as a landscaped buffer as approved by the Commission. This land may also be set aside as sites for future public facilities. Provisions for permanent control and maintenance of this land shall be outlined in a form acceptable by the Plan Commission.
(B) Types. For the purpose of administering and enforcing this chapter, there shall be two types of PUDs: residential and mixed-use.
(1) Residential PUD development requirements. The following standards shall be used in designing and developing all residential PUDs:
(a) Residential PUDs shall be permissible on tracts of land of at least five acres.
(b) Permissible types of residential uses within a residential PUD shall be prescribed by the applicable PUD district ordinance as approved by the Plan Commission and the Common Council.
(c) In any residential PUD, the minimum lot and setback requirements of the initial zoning district may be reduced, provided that each lot is at least 7,000 square feet with a minimum width of 60 feet. To the extent practicable, all perimeter lots shall be sized and oriented so as to provide a reasonable transition between the residential uses of the PUD and any adjacent land uses.
(d) In the event that a residential PUD is to be located adjacent to a single-family neighborhood, all two-family or multi-family portions of a residential PUD should be located nearer the interior of the development rather than the periphery of the tract.
(2) Mixed-use PUD development requirements. The following standards shall be followed in designing and developing all mixed-use PUDs:
(a) Mixed-use PUDs shall be permissible on tracts of land of at least five acres.
(b) Permissible types of uses within a mixed-use PUD shall be prescribed by the applicable PUD district ordinance as approved by the Plan Commission.
(c) Within any tract of land developed as a mixed-use PUD, a minimum of 50% of the buildable land shall be developed for single-family detached dwellings. Not more than 30% of the buildable area may be developed for two-family or multi-family dwellings. Not more than 20% of the total buildable area may be developed for non -residential uses.
(d) The site development plans and construction plans for any proposed mixed-use PUD shall indicate the particular portions of the tract that the developer intends to develop for each use. One plan shall be approved for the mixed-use PUD; however, for the purposes of determining the substantive regulations that apply to the mixed-use PUD, each portion of the tract so designated shall then be treated as if it were a separate district, zoned to permit respectively higher density residential, lower density residential or business uses.
(e) The non-residential portions) of any mixed-use PUD may not be occupied until of the residential portions of the development are substantially completed, unless a performance bond and/or maintenance guarantee are in effect. The guarantee shall be done in accordance with the provisions of this chapter. The purpose and intent of this provision is to ensure that the mixed use PUD procedure is not used, intentionally or unintentionally, to create non-residential uses in areas generally zoned for residential uses except as part of an integrated and well-planned, mixed-use development.
(C) Application. The application for a PUD shall be submitted to the Plan Commission on a form approved by the Plan Commission. This drawing shall include details, as required by the Commission, including the location of properties within 300 feet of the proposed PUD district boundary.
(D) PUD district ordinances. PUD district ordinances shall be adopted and amended in accordance with the following procedures:
(1) The Common Council shall adopt and amend PUD district ordinances in the same manner as a zone map change. Approval of the PUD district ordinance by the Common Council shall constitute a zone map change to “PUD.” In the event construction has not begun on the PUD within seven years from the date of PUD district ordinance approval, the zoning shall revert to the previous zoning.
(2) A PUD district ordinance shall be expressed in either general terms or detailed terms. At the initial public hearing, the Plan Commission shall make a finding as to whether the PUD is expressed in either general or detailed terms.
(3) If the PUD ordinance is expressed in detailed terms, a secondary review of the PUD ordinance shall not be required, provided that the ordinance specifies any and all plan documentation or supporting information that must be supplied before an Improvement Location Permit for any structure within the PUD district is issued, Secondary approval of a PUD ordinance shall also constitute final plat approval.
(4) If the PUD district ordinance is expressed in general terms, a secondary review of the PUD district ordinance, which shall specify any plan documentation or supporting information that must be supplied in connection with the secondary review, shall be required. Such documentation and supporting information shall follow the following procedures:
(a) The Common Council hereby delegates authority to conduct secondary review of all PUD district ordinances to the Plan Commission. However, the Common Council reserves its right to modify the permitted uses or development requirements of all PUD district ordinances at the time of the zone map change. Such modification shall be conducted in an open Council meeting;
(b) The Plan Commission shall hear and consider all secondary reviews during a public hearing;
(c) The approval of the secondary review shall be by an affirmative vote of the Plan Commission. The disposition of the secondary review shall be covered by the Plan Commission’s Rules of Procedure and adopted by resolution;
(d) If the secondary review is denied by the Plan Commission, the applicant may appeal said decision to the Common Council. A written letter requesting the appeal shall be delivered to the Plan Commission office within ten days of the Plan Commissions decision. The Planning Director shall prepare a council resolution affirming the Commission’s decision and forward it to the Council. If the Council affirms the Commission’s denial, the Council’s decision may be reviewed by certiorari.
(Ord. 4-2009, passed 3-9-09)
ENFORCEMENT
The Director of Planning and Community Development ("Director") or an authorized designee is hereby designated to enforce the terms and provisions of this chapter as provided herein. As used herein, the term
PLANNING DIRECTOR or DIRECTOR
shall be inclusive of an authorized designee.
(A) Complaints regarding violations. Whenever the Director receives a complaint alleging a violation of this chapter or has reason to suspect that a violation is occurring, the Director shall investigate the complaint or suspicion and shall take whatever action is warranted in accordance with these enforcement provisions.
(B) Persons liable. The owner or occupant of any building, structure, or land, or part thereof, or other person who participates in, assists, directs, creates, or maintains any condition that is contrary to the terms of this chapter may be held responsible for the violation, suffer the penalties, and be subject to the remedies provided herein and at law.
(C) Right of entry. The Director may enter upon any premises at any reasonable time to inspect all buildings, structures, and premises within the jurisdiction of this chapter to determine compliance with the provisions of this chapter. All inspections shall be subject to the following standards and conditions:
(1) The Director shall furnish to the owner, tenant, or occupant of the building, structure, or premises sought to be inspected sufficient identification and information to verify that the person is a representative of the city and to identify the purpose of the inspection.
(2) If the owner, tenant, or occupant refuses to grant entry, the Director may obtain the assistance of law enforcement and/or the courts for securing entry.
(D) Procedures upon discovery of violations. If the Director determines that any provision of this chapter is being violated, he shall provide a written notice to correct to the persons responsible for the violation. However, if the Director determines that corrective action is required immediately, he may proceed with the appropriate action without first issuing a notice to correct, as provided in division (D)(2) below.
(1) Notice to correct.
(a) Except as provided in division (D)(2) below, upon determining that a violation of the terms of this chapter exists, the Director shall issue to the person or persons responsible for the violation a written notice to correct. The notice to correct shall be delivered by personal delivery, certified mail return receipt requested, or regular U.S. Mail. Delivery by mail shall be made to the owner of the property at the address of record at the Office of the Montgomery County Auditor, and the owner shall be deemed to have received notices mailed to that address. Delivery to any other person responsible for the violation may be made to the address of the property at issue. If delivery is made by mail, service shall be deemed to have been made two days after the notice is placed in the mail.
(b) The notice to correct shall include the following information:
1. The date of the notice;
2. The name, business address, and phone number of the person issuing the notice;
3. The name and address of the property owner and/or responsible party;
4. The nature of the violation and the applicable section(s) of this chapter;
5. The date the violation was observed;
6. The action necessary to correct the violation;
7. That if the violator does not correct the violation within ten days he shall be subject to a fine citation and the remedies provided in this section;
8. The schedule of fines that may be imposed if the violation is not timely corrected, and an advisement that each day the condition remains uncorrected after the time allowed constitutes a separate violation for which an additional fine may be imposed;
9. That, if applicable, the violator may petition for an appropriate development approval as provided in division (E) below;
10. That the violator may appeal the Director's determination that a violation exists as provided in division (F) below.
(c) 1. After service of a notice to correct, the violator shall have ten days to correct the condition. However, the Director may, in his discretion, extend the time for correction if such a request is made by the violator in writing and within the time originally allowed for correction. Such a request shall be submitted to the Director and shall identify a proposed date for completing the corrective action. If the Director denies the request, the deadline contained in the notice to correct remains in effect.
2. Upon correcting the violation, the violator shall notify the Director so that the Director may confirm that no further corrective action is required.
(d) If the violation is not timely corrected, the violator shall be subject to a fine citation and other remedies as provided herein.
(e) A person who receives a notice to correct may elect to file an application for any available development approval, such as a request for a variance or a special exception, seeking approval of the condition at issue. The person must notify the Director of the intent to file such an application within ten days after the date of service of the notice to correct. The appropriate application must then be filed within 14 days, or before the next application deadline, whichever is the greater time, unless additional time is allowed by the Director. A person who timely files such an application or petition shall diligently pursue the application or petition. While the application or petition is pending, additional enforcement action shall be stayed. If the application or petition is withdrawn, dismissed, or denied and the violation remains uncorrected, the violator shall be subject to additional enforcement, including issuance of a fine citation.
(f) Appeal of determination of violation.
1. The Director's determination that a violation exists may be appealed to the Board of Zoning Appeals. Such an appeal must be filed within ten days after service of the notice to correct and as provided in division (I) below.
2. While an appeal is pending, further enforcement action shall be stayed.
3. If the appeal is withdrawn, dismissed, or denied and the violation remains uncorrected, the violator shall have ten days from the withdrawal, dismissal or denial to correct the violation, unless additional time is allowed as provided in division (D)(1)(c) above. Failure to correct within this time shall subject the violator to a citation and all available remedies.
4. Failure to file an appeal within the time provided herein shall operate as a waiver of such an appeal. The waiver is limited to the determination of a violation, and does not preclude any available appeal of further action relating to the violation.
(2) Enforcement without prior written notice to correct. In cases where delay would prevent the effective enforcement of this section or would pose a danger to the public health, safety, or welfare, the Director may seek enforcement by invoking any penalties or remedies authorized herein or by law without first issuing a written notice to correct. Those remedies can include, but may not be limited to, a stop work order and/or a fine citation.
(E) Fine citation. If a violation identified in a notice to correct is not timely corrected, the Director may issue a fine citation to the violator. When a citation is issued, fines shall be imposed beginning the day the citation is issued and shall continue accruing daily thereafter, without further notice, until the condition is corrected. Each day a violation remains uncorrected after issuance of a citation results in an additional fine without any further notices to correct or citations.
(1) Service of the citation. A citation shall be delivered in the same manner as provided in division (D)(1)(a). If delivery made by mail, service shall be deemed to have been made two days after the citation is placed the mail.
(2) Content of citation. The citation shall contain the following information:
(a) The date of the citation;
(b) The name, business address, and phone number of the person issuing the citation;
(c) The address of the property at issue;
(d) The name and address of the property owner and/or other responsible party;
(e) The nature of the violation and the applicable section(s) of this chapter;
(f) The action necessary to correct the violation;
(g) The first date for which a fine is imposed;
(h) That each day the violation remains uncorrected constitutes a violation for which a separate fine will be assessed, without further notice or citation;
(i) The amount of the fine(s) imposed; and
(j) An advisement of the right to appeal the fine.
(3) Fine schedule.
(a) First occurrence of violation. The monetary fine for the first occurrence of a violation shall be $100 per day.
(b) Recurring violation(s). For any recurrence of violation within a 365-day period after correction of the first occurrence, the following fines shall apply for each day the recurrence remains uncorrected:
1. Second occurrence: $200.
2. Third occurrence: $400.
3. Fourth occurrence: $600.
4. Fifth occurrence: $1,000.
5. Each occurrence in excess of five: $2,500.
(c) Each day a violation remains uncorrected shall be a distinct and separate violation and subject to an additional fine, in the amounts provided above, without further notice or citation.
(d) Waiver or reduction of fines. In his discretion and for good cause, the Director may waive or reduce fines upon correction of a violation.
(4) Payment, adjudication, and appeal.
(a) A person to whom a citation is issued may elect to do one of the following:
1. Pay all fines due to the City Clerk-Treasurer within 30 days of the citation.
2. File an appeal with the Board of Zoning Appeals as provided in division (I) below. Such an appeal is limited to the amount of the fine assessed. While the appeal is pending, further enforcement action and further fines shall be stayed.
3. Stand trial for the citation by notifying the Director of such intent, in writing, within ten days after issuance of the citation.
a. Upon receipt of a notice of intention to stand trial, additional fines shall be stayed pending resolution of the alleged violation.
b. Upon receipt of a notice of intention to stand trial, the Director shall initiate appropriate action to enforce the citation in court.
c. If the court determines that the condition is not a violation or if the case is dismissed, no fines are owed. If the court affirms the alleged violation, fines resume accruing the day following the court decision or dismissal.
(b) If the violator neither timely pays all amounts due under a citation, files an appeal with the BZA, nor elects to stand trial, the Director may commence an enforcement action in court.
(5) Other remedies reserved.
(a) Seeking a civil penalty as authorized in this section does not preclude the Zoning Director, the city, the Plan Commission, or the Board of Zoning Appeals from seeking alternative and additional relief from a court of competent jurisdiction or as otherwise provided by law or by this section.
(B) Pursuant to IC 36-1-6-2, if a condition exists on real property in violation of this chapter, the Director, or other representatives or contractors of the city, may enter onto the properly and take the appropriate action to bring the property into compliance. However, before such action may be taken, the Director shall provide notice to all persons holding a substantial interest in the property of his intention and shall provide such persons a reasonable time of at least ten days to bring the properly into compliance. If the city is required to take action under this section, the expenses incurred by the city to obtain compliance may be collected from the owner or other responsible party and shall constitute a lien against the property.
(F) Stop work order.
(1) The Director may issue a stop work order requiring the immediate suspension of land improvements whenever any of the following circumstances exist:
(a) A site is being improved without a building permit, certificate of occupancy, improvement location permit, or any other permit required by this chapter; or
(b) A site is being improved in violation of:
1. The terms, conditions, or provisions of this chapter;
2. The terms, conditions, or commitments of a variance, special exception, development plan, planned unit development, or zone map amendment; or
3. Any other development approval granted under this chapter.
(2) The following procedures apply to the Director's issuance of a stop work order:
(a) The stop work order shall:
1. Be posted on the property in a conspicuous place or personally delivered to the owner, tenant, occupant, or person in charge;
2. Identify the violation(s) on which it is based and the corrective action required;
3. Identify the conditions under which construction or other activity may resume; and
4. Inform the recipient of his right to appeal the order.
(b) The recipient of a stop work order may appeal the decision of the Director to the Board of Zoning Appeals in accordance with division (I) below.
(c) The Director may bring an action in court to enforce the provisions of a stop work order.
(d) Violation of a stop work order shall also be considered a violation of this chapter and shall be subject to enforcement and penalties as contained herein.
(G) Revocation of prior development approval.
(1) Authority.
(a) The Director may, in accordance with this section, seek the revocation of any development approval previously granted either administratively or by any city board, commission, or committee under this chapter, including but not limited to any improvement location permit, certificate of occupancy, sign permit, development plan approval, variance, or special exception if:
1. The approval was obtained without adhering, to the applicable procedures of this chapter, including but not limited to:
a. Failure to properly notify other property owners as required; or
b. Failure to demonstrate consent of property owners as required;
2. The approval was obtained on the basis of factual errors in the application or supporting materials;
3. The approval was obtained on the basis of falsified information; or
4. The recipient of the approval fails to develop or maintain the property in accordance with the application and plans submitted, the requirements of this chapter, or any additional requirements imposed in connection with the approval.
(b) Any development approval granted administratively, rather than by the Plan Commission or Board of Zoning Appeals, may be revoked by the Zoning Director. Any development approval granted by the Plan Commission or Board of Zoning Appeals can be revoked only by whichever of those bodies granted the approval.
(2) Procedure for revocation by approving body.
(a) Notice of intent to revoke.
1. If the Director intends to seek the revocation of an approval previously granted by the Board of Zoning Appeals or the Plan Commission, he shall deliver to the holder of the approval a written notice of intent to revoke. The notice of intent to revoke shall identify the reason(s) , for the revocation and shall identify the date and time at which the Board or Commission will decide the issue, as provided herein.
2. The notice of intent to revoke shall be delivered by personal delivery, certified mail return receipt requested, or regular U.S. Mail to the holder of the permit or approval at issue. If delivery is made by mail, service shall be deemed to have been made two days after the notice is placed in the mail.
(b) Hearing. If the approval sought to be revoked originally required a public hearing, then the appropriate Board or Commission shall conduct a public hearing on the proposed revocation. If the approval did not require a public hearing, a public hearing is not required on the revocation. The meeting or public hearing of the appropriate Board or Commission shall be held not less than 30 days after delivery of the notice of intent to revoke. Notice of the meeting or public hearing shall be provided to the public and/or surrounding property owners in the same manner as would be required for an original petition for the approval at issue.
(c) Decision. At the close of its consideration of the proposed revocation, the Board or Commission shall render its decision. The Board or Commission shall also enter written findings of fact supporting the decision. The Director shall provide a copy of the decision to the approval holder within ten days of the decision.
(3) Procedure for administrative revocation. The Director may revoke any approval granted administratively, as set forth above, as follows:
(a) If the Director determines a development approval which was granted administratively should be revoked, he shall deliver to the holder of the approval or permit a written notice of the revocation. The notice shall identify the reason(s) for the revocation and shall advise the recipient of the right to seek review of the decision by submitting an appeal to the Board of Zoning Appeals as provided in division (I) below. This notice shall be delivered in the same manner as provided in division (G)(2)(a) above.
(4) Result of revocation. No person may continue to make use of land or buildings in the manner authorized by any approval or permit after the approval or permit has been revoked as provided herein.
(5) Records. A record of all written correspondence, notices, and decisions concerning the revocation of any prior approval shall be kept with the original development file.
(H) Common nuisance. Pursuant to IC 36-7-4-1012, any structure, land, or premises found to be in violation of this chapter is hereby declared to be a common nuisance. In addition to any other fine or civil penalty, any owner or possessor of the structure, land, or premises may be liable for maintaining a common nuisance.
(I) Appeals of Director decisions.
(1) Except as may be otherwise provided in this section all decisions of the Director may be appealed to the Board of Zoning Appeals in accordance with the procedures and standards for appeals of administrative decisions.
(2) Decisions of any board or commission acting under this section may be appealed by a request for judicial review under IC 36-7-4-1600 et seq.
(J) Costs and legal fees. The violator, or other person or entity subject to an enforcement action as provided herein, shall be liable for the city's costs of enforcement, including any court costs and reasonable attorney fees.
(K) Private remedies reserved. The terms of this section shall not be interpreted to prevent any person entitled to relief in law or equity due to a violation of this chapter from bringing an appropriate action to secure relief.
(Ord. 11-2013, passed 4-8-13)
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