(A) Duties. The Board shall have the following duties as authorized in IC 36-7-4-900 series:
(1) Rules and Procedures.
(a) The Board shall adopt rules for its administration in accordance with IC 36-7-4-916.
(2) The Board shall make decisions regarding appeals in accordance with IC 36-7-4-918.1.
(3) The Board shall make decisions regarding special exceptions in accordance with IC 36-7-4-918.2.
(4) The Board shall make decisions regarding variances from development standards in accordance with IC 36-7-4-918.5 and this chapter.
(5) The Board shall make decisions regarding variances of use in accordance with IC 36-7-4-918.4.
(B) Procedures. The Board shall utilize the following procedures:
(1) Appeals Procedures. In accordance with IC 36-7-4-918.1 and the Board Rules and Procedures, the Board shall hear and determine appeals from and review the decisions below. In addition, all appeals shall be made pursuant to IC 36-7-4-1000 thru 1020 and all amendments thereto.
(a) The Board shall hear appeals to any of the following:
1. Any order, requirement, decision, or determination made by an administrative official, hearing officer, or staff member under the zoning ordinance;
2. Any order, requirement, decision, or determination made by an administrative board or other body except the Plan Commission in relation to the enforcement of the zoning ordinance; or
3. Any order, requirement, decision, or determination made by an administrative board or other body except the Plan Commission in relation to the enforcement of an ordinance adopted under this zoning ordinance requiring an improvement location permit or certificate of occupancy.
(b) Application. The applicant shall submit an application for appeal in accordance with the application packet adopted by the Board as part of the Board Rules and Procedures and be prepared in accordance with the format described therein. The application shall be submitted within 30 days of the decision/interpretation that is the subject of the appeal.
1. Public File. Once the Administrator determines that an application is complete and in proper form, they shall assign a file number, create a public file, and assign a date for public hearing.
2. Public Notice. Public notice is not required for appeals.
(c) Public Hearing. The Board shall consider the appeal at a public hearing. The applicant shall be in attendance to present their appeal and address any questions or concerns of the Board.
1. Final Decision. The Board may affirm, reverse, or modify the decision, interpretation, order, or action that is the subject of the appeal. The Board may also add conditions to their decision.
2. Appeal. The decision of the Board may be appealed in accordance with IC 36-7-4-1016.
(2) Special Exception, Variance from Development Standards, and Variance of Use Procedures. In accordance with IC 36-7-4-918.2 for special exceptions, IC 36-7-4-918.5 for variances from development standards, IC 36-7-4-918.4 for variances of use, and the Board Rules and Procedures, the Board shall hear and make recommendations regarding special exceptions, variances from development standards and variances of use.
(a) Applicability. Uses permitted by special exception as listed in this zoning ordinance may be permitted by the Board in the districts indicated in accordance with the procedures set forth in this section. The Board may vary the development standards or grant a variance of use in accordance with the procedures set forth in this section.
(b) Non-conforming Uses. Any expansion of a legal non-conforming use, including the enlargement of the structures or land area devoted to such use, shall be subject to the procedures described in this section.
(c) Application.
1. Pre-Application Conference. Prior to filing an application for special exception, variance from development standards or variance of use, the applicant shall schedule a pre-application meeting with the Zoning Administrator, which may be held in-person, virtually (video conference), or by phone. This step gives the applicant the opportunity to discuss the procedures for approval with the Zoning Administrator as well as the requirements and regulations for development.
2. Application. The applicant shall submit application for special exception, variance from development standards or variance of use in accordance with the application packet adopted by the Board as part of the Board Rules and Procedures and be prepared in accordance with the format described therein.
3. Public File. Once the Zoning Administrator determines that an application is complete and in proper form, they shall assign a file number, create a public file, and assign a date for public hearing.
4. Public Notice. Notice of public hearing shall be in accordance with the BOARD Rules and Procedures.
5. Public Hearing. The Board shall consider the special exception, variance from development standards or variance of use at a public hearing. The applicant shall be in attendance to present their plan and address any questions or concerns of the Board.
6. Criteria for Evaluation.
i. Special Exception. When considering a special exception, the Board shall find that the following standards have all been satisfied:
a. The establishment, maintenance, or operation of the special exception will not be detrimental to or endanger the public health, safety, morals, or general welfare;
b. The special exception will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted;
c. 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;
d. Adequate utilities, roads, drainage, and other necessary facilities and infrastructure have been or are being provided;
e. Adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion on the public roadways; and
f. The special exception will be located in a district where such use is permitted, and all other requirements set forth in this UDO that are applicable to such use will be met.
(C) Additional Criteria for Special Exceptions in I-1 Districts. In determining whether certain uses shall be located in an I-1 District, the Board shall give due regard to the nature and condition of all adjacent uses and structures, and the consistency therewith of the proposed use and development. Before authorizing a use as a special exception, the Board shall determine whether the proposed special exception would be hazardous, harmful, noxious, offensive, or a nuisance to the surrounding neighborhood by reason of noise, smoke, odor, vibration, dust and dirt, cinders, noxious gases, glare and heat, fire and safety hazards, sewage wastes and pollution, transportation and traffic, aesthetic, and psychological effects. The Board may utilize and give recognition to those performance standards which are available in model codes or ordinances, or have been developed by planning, manufacturing, health, architectural, and engineering research organizations, and can be applied to the proposed use to assist it in reaching a fair and objective decision.
(1) On authorizing a special exception, the Board may impose such requirements and conditions in addition to those expressly stipulated in this report for the particular special exception as the Board may deem necessary for the protection of adjacent properties and public interest.
(2) Variance from Development Standards. Per IC 36-7-4-918.5, when considering a variance, the Board shall find that the following criteria have all been satisfied:
(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 ordinance will result in practical difficulties in the use of the property;
(d) The variance granted is the minimum necessary; and
(e) The variance granted does not correct a hardship caused by a former or current owner of the property.
(3) Variance of Use. Per IC 36-7-4-918.4, when considering a variance of use, the BOARD shall find that the following criteria have all been satisfied:
(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 the zoning ordinance 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.
(4) Final Decision.
(a) Approval. If the Board finds all the criteria have been satisfied, it shall approve or approve with conditions the request and written findings shall specify that all criteria have been met.
(b) Denial. If the Board does not find that all the criteria have been satisfied, it shall deny the request and written findings shall specify the reason for denial.
(5) Expiration. Approval of a special exception, variance from development standards, and variance of use shall run with the land, unless the following apply:
(a) If construction of structures or occupancy of existing structures relevant to the approved special exception or variance has not commenced within three years of approval by the Board, the approval shall be void; or
(b) If the Board places a condition upon the approval that identifies an expiration, but such expiration shall not be less than one year.
(6) Amendment. A special exception, variance from development standards, or variance of use may only be amended by the Board by submitting a revised application through the respective application process.
(Am. Ord. 2022-10, passed 5-10-22)
Statutory reference:
Duties of Board of Zoning Appeals, see IC 36-7-4-918. through IC 36-7-4-918.5