A. For the purpose of this Ordinance, the Board of Zoning Appeals shall have the following duties:
1. Hear and determine appeals of:
a. Any order, requirement, decision, or determination made by an administrative official, hearing officer, or staff member under this Ordinance;
b. Any order, requirement, decision, or determination made by an administrative board or other body except the Plan Commission in relation to the enforcement of this Ordinance; and
c. 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 chapter requiring the procurement of an Improvement Location Permit or Certificate of Occupancy.
2. Approve or deny all:
a. Special Exceptions from the terms of this Ordinance, but only in the classes of cases or in the particular situations specified in this Ordinance;
b. Variances from the development standards (such as height, bulk, or area, and including signs) of this Ordinance; and
c. Variances of use from the terms of this Ordinance.
B. The Board of Zoning Appeals shall adopt rules, which may not conflict with this Ordinance, concerning:
1. The filing of appeals;
2. The application for variances, special exceptions, special uses, contingent uses, and conditional uses, as applicable under this Ordinance;
3. The giving of notice;
4. The conduct of hearings; and
5. The determination of whether a variance application is for a variance of use or for a development standards variance.
C. The Board of Zoning Appeals may also adopt rules providing for:
1. The allocation of cases filed with the Board of Zoning Appeals; and
2. The fixing of dates for hearings by the divisions.
3. Rules adopted by the board of zoning appeals shall be printed and be made available to all applicants and other interested persons.
D. Every decision of the Board of Zoning Appeals shall be subject to review by petition as prescribed in Ind. Code § 36-7-4-1000 series.
E. Variances. Pursuant to Ind. Code § 36-7-4-918.2 et seq., the Board of Zoning Appeals may authorize upon petition in specific cases such variances from the terms of this Ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this Ordinance would result in unnecessary hardship or practical difficulty, and further that the criteria set forth herein are satisfied.
1. Filing and Notification Requirements.
a. All variance requests shall be filed on application forms as prescribed by the Board of Zoning Appeals.
b. Applicants shall serve notice to all “interested parties” as defined in the written rules of procedure of the Board of Zoning Appeals. Such notice shall be in the form prescribed by the Board of Zoning Appeals.
2. Public Hearings. All determinations of the Board of Zoning Appeals made on petitions for variance shall be made at a public meeting and following a public hearing. The Board of Zoning Appeals shall hold a public hearing within a reasonable length of time after receipt of an application but not sooner than ten (10) days after its receipt.
3. Board Action and Findings. The Board of Zoning Appeals shall adopt written findings of fact for each petition based on the following criteria:
4. Variances of use from the terms of this Ordinance, in accordance with Ind. Code § 36-7-4918.4 may be approved 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 Ordinance will constitute an unusual and 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.
5. Developmental Standards Variance.
a. Variances from the development standards of this Ordinance, in accordance with Ind. Code § 36-7-4-918.5 may be approved only upon a determination in writing that:
i. The approval will not be injurious to the public health, safety, morals, and general welfare of the community;
ii. 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
iii. The strict application of the terms of this Ordinance will result in practical difficulties in the use of the property.
b. Before approval of a proposal involving a structure regulated under Ind. Code § 8-21-10 (Regulation of Tall Structures) may become effective, the Board of Zoning Appeals must have received:
i. A copy of:
1) The permit for the structure issued by the Indiana Department of Transportation; or
2) The Determination of No Hazard to Air Navigation issued by the Federal Aviation Administration; and
ii. Evidence that notice was delivered to a public use airport as required in Ind. Code § 821-10-3 not less than sixty (60) days before the proposal is considered.
c. Supplemental Conditions or Commitments. In granting a variance, the Board of Zoning Appeals may prescribe appropriate conditions or commitments, per Ind. Code § 36-7-4918.2, Ind. Code § 36-7-4-918.4, Ind. Code § 36-7-4-918.5, and Ind. Code § 36-7-4-1015. Violation of such conditions or commitments, when made a part of the terms under which the variance is granted shall be deemed a violation of this Ordinance and grounds for revoking said variance. Written commitments shall be subject to the requirements herein and to written rules of procedure adopted by the Board of Zoning Appeals in relation thereto.
d. Revocation of a Use Variance. A use variance shall be subject to revocation following notice to interested parties and an opportunity to be heard, under one or all of the following conditions:
i. If the use for which the variance was granted ceases for any continuous period greater than six (6) months in length;
ii. If the property or structures for which the variance was granted change ownership;
iii. If there is a change in use of the property or structures for which the variance was granted;
iv. If the applicant to whom the variance was granted fails to comply with any of the conditions or commitments made a part of the variance;
v. If the Board of Zoning Appeals discovers at some future date that the variance has created some previously unforeseen problem, nuisance, or hazard that is adversely affecting the health, safety, or welfare of adjacent properties or the general public; or
vi. If the approved use does not commence within three (3) years of the date that the application is filed.
F. Special Exceptions. The authority to review plans and grant special exceptions shall rest with the Board of Zoning Appeals.
1. Filing and Notification Requirements.
a. Written Application - All requests for a special exception shall be filed on written application forms as prescribed by the Board of Zoning Appeals. All applications must be submitted in accordance with the provisions herein.
b. Interested Parties - Applicants shall serve notice to all “interested parties” as defined in the written rules of procedure of the board. Such notice shall be in the form prescribed by the Board.
2. Public Hearings. All determinations of the Board made on a request for special exception shall be made at a public meeting and following a public hearing. The Board of Zoning Appeals shall hold a public hearing within a reasonable length of time after receipt of an application but not sooner than ten (10) days after its receipt.
3. Factors for Granting a Special Exception. Before granting a special exception, the Board of Zoning Appeals shall consider the following factors:
a. Appropriate screening and buffering of the site, including refuse and other service areas, is provided to ensure that the use will be compatible with neighboring properties and will present acceptable views from public ways;
b. Ingress and egress to the site and to structures is safe and adequate, and on-site circulation is also safe and adequate. The Board of Zoning Appeals may receive recommendations regarding ingress and egress and site circulation from the City Engineer and the Fire Chief. The Board of Zoning Appeals may also request that the applicant provide a traffic impact analysis;
c. Satisfactory parking and loading facilities are provided;
d. Adequate utility services and related facilities are available. The Board of Zoning Appeals may require written evidence of this availability from utility authorities;
e. Adequate yards and open space are provided;
f. The proposed use does not generate environmental impacts which may threaten public health and safety, including, but not limited to, negative impacts to air quality (such as odor, smoke or air pollution), increased flooding due to filling of the floodplain, or a loss of wetlands;
g. Compatibility with surrounding uses. The proposed special exception shall not cause a loss of use or enjoyment of adjacent properties;
h. The design of the structures is in harmony with the surrounding area, in both style and scale; and
i. The petition is not in conflict with the Comprehensive Plan.
4. Supplemental Conditions or Commitments. In granting any special exception, the Board of Zoning Appeals may prescribe appropriate conditions or commitments, per Ind. Code § 36-74-918.2 and Ind. Code § 36-7-4-1015. Violation of such conditions or commitments, when made a part of the terms under which the special exception is granted shall be deemed a violation of this Ordinance and grounds for revoking said special exception. Written commitments shall be subject to the requirements established herein and to written rules of procedure adopted by the Board in relation thereto.
5. Revocation of Special Exception. All special exception approvals shall be considered conditional approvals. A special exception shall be deemed subject to revocation following notice to interested parties and an opportunity to be heard, under one or all of the following conditions:
a. If the use for which the special exceptions was granted ceases for any continuous period greater than six (6) months in length;
b. If there is a change in use of the property or structures for which the special exception was granted; and/or
c. If the applicant fails to comply with specific conditions or commitments made a part of the approval by the Board or fails to comply with a reasonable request of the Board for furnishing specific information related to the proposed use.
6. Revocation for Failure to Obtain a Permit or Commence Use. The granting of a special exception becomes official (final) only upon actual commencement of the approved use for the subject property. Commencement of the approved use must occur within three (3) years of the date that the application was filed, or the special exception shall become null and void. The Board of Zoning Appeals may grant a one-time extension not to exceed three (3) additional years. If a land alteration permit is needed in order to affect the requested use, the issuance of said permit must occur within the same three (3)-year period from the date that the application was filed, or the approval becomes null and void. Any actual construction required to affect the requested use must also begin within that same three (3) years from the date that the application was filed or said permit shall become null and void.
(Ord. 20-29, § 2, 9-21-20)