§ 154.16  BOARD OF ZONING APPEALS.
   (A)   Membership.  All members of the Board shall be residents of the city. The Board shall be made up of five members as follows, per I.C. 36-7-4-902(a), as the same may be amended from time to time:
      (1)   Three citizen members, appointed by the Mayor, of whom one must be a member of the Plan Commission and two must not be members of the Plan Commission.
      (2)   One citizen member, appointed by the Common Council, who must not be a member of the Plan Commission.
      (3)   One citizen member, appointed by the Plan Commission, who must be a member of the Plan Commission other than the member appointed in division (A)(1) of this section.
      (4)   If and when the city exercises its jurisdiction outside the incorporated area of the municipality, as provided for in I.C. 36-9-4-205, the Plan Commission shall designate, as its appointment to the Board, per division (A)(3), one of the two citizen members who were appointed to the Commission, per division (A)(3), to represent the incorporated area. That member must reside in the unincorporated area. That member shall be appointed for a term of four years and is entitled to participate and vote in all matters that come before the Board.
   (B)   Term of office. The term of office for the Board shall be governed by I.C. 36-7-4-906, except as indicated in division (A)(4) of this section.
   (C)   Board organization.
      (1)   At its first meeting of each year, the Board shall elect a Chairman and Vice-Chairman from its members. The Vice-Chairman may act as Chairman during the absence or disability of the Chairman.
      (2)   The Board may appoint and fix the duties of a Secretary.
      (3)   A quorum consists of a majority of the entire Board membership.
      (4)   Action of the Board is not official, unless it is authorized at a regular or special meeting, by a majority of the entire Board membership.
   (D)   Powers and duties.  Per I.C. 36-7-4-900 et seq., the Board shall:
      (1)   Adopt, print and have available to applicants and the public, rules which may not conflict with this chapter, concerning:
         (a)   The filing of appeals;
         (b)   The application for variances, special exceptions, special uses, contingent uses, and conditional uses, as this chapter may authorize, define, and regulate the same;
         (c)   The giving of notice;
         (d)   The conduct of hearings.
      (2)   Keep minutes of all its proceedings and record the vote on all actions taken. All minutes and records shall be on file in the office of the Board and all such records are public. The Board shall, in all cases heard by it, make written findings of fact.
      (3)   Hear and determine appeals from and review, pursuant to the following:
         (a)   Types of appeals.
            1.   Any order, requirement, decisions, or determination made by an administrative official, hearing officer, or staff member under this chapter;
            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 this chapter; 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 pursuant to state law requiring the procurement of an improvement location or occupancy permit.
         (b)   Written appeals must be filed, at the designated staffs office, within 20 calendar days of the date the action, requirement, decision, or determination took place. The appeal must specify the grounds on which the appeal is being filed.
         (c)   The person or body from whom the appeal is taken shall cause to have transmitted, copies of all documents, plan, and papers which constitute the record of the action from which the appeal is taken, to the Board member to allow sufficient review prior to the date of the meeting at which the appeal will be heard.
         (d)   Upon an appeal, the Board may reverse, affirm, or modify the original action. For this purpose, the Board shall have all the powers of the official, officer, board, or body from which the appeal was taken.
         (e)   The Board shall decide the appeal either at the meeting at which the matter is first presented or at the conclusion of the hearing on the matter, if it is continued. Within five days after making any decision, the Board shall file in the office of the Board a copy of its decision.
         (f)   Notification procedures for all appeals shall be established by the Board.
         (g)   Any person or persons, firm or corporation, jointly or severally aggrieved by any decision by the Board, may present to the Circuit or Superior Court of Dearborn County 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 date of the decision and the order of the Board complained of.
         (h)   An appeal to the Board shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Inspector certifies to the Board after notice of appeal shall have been filed with him or her, that by reason of fact stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed except by restraining order, which may be granted by the Board or by the Circuit or Superior Court of Dearborn County.
      (4)   Approve or deny all conditionally permitted uses as authorized, defined, and regulated by this chapter. The Board may impose reasonable conditions as a part of its approval. The Board may also permit or require the owner of land, which is the subject of the above application type, to make a written commitment concerning the use or development of that land. Any such commitment shall be recorded at the Dearborn County Recorders Office, pursuant to I.C. 36-7-4-1015, as the same may be amended from time to time.
      (5)   Approve or deny all variances, pursuant to the following:
         (a)   The Board shall review and approve or deny all variance applications. In all cases, the Board shall, as a part of its deliberations, consider the purpose and definition of the term variance. The Board may impose reasonable conditions as a part of any approval it grants. The Board may also permit or require the owner of the land, which is the subject of the variance, to make a written commitment concerning the use or development of that land. Any such commitment shall be recorded at the Dearborn County Recorders Office, pursuant to I.C. 36-7-4-1015, as the same may be amended from time to time. Additionally, an approval can be granted only after the Board has determined, in writing that:
            1.   For use variances:
               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 properly involved;
               d.   The strict application of the terms of this chapter will constitute an unnecessary hardship if applied to the property for which the variance is sought;
               e.   The approval does not interfere substantially with the city’s comprehensive plan; and
               f.   The approval is not based upon legally existing nonconforming uses in the same zoning district nor permitted uses in other districts.
            2.   For variances from development standards, such as height, bulk, or area:
               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 represents the smallest deviation possible; and
               e.   The approval is not based upon legally existing nonconformities of a similar nature in the same zoning district nor regulations from other zoning districts.
         (b)   Applications for variances shall include sufficient information in order to clearly state the facts surrounding the variance request and shall comply with the provisions of § 154.29(C) and (D), as amended below, regarding the parties who receive notices and substituting the Board for the referenced Plan Commission and Common Council.
         (c)   The following notification requirements and procedures shall apply.
            1.   For use variances:
               a.   Written notice, by certified mail, shall be sent to all property owners within 200 feet of the subject parcel(s), no less than ten days prior to the hearing date of the Board wherein the application will be reviewed. If the matter is continued to additional meetings, written notice may be sent to the same property owners at the discretion of the Board.
               b.   The notice shall state the date, time, place, and purpose of the meeting.
               c.   Legal notice for the hearing shall be given by one publication in a newspaper of general circulation in the city at least ten days before the date of such hearing and state the same information as that required in the written notice and shall otherwise comply with I.C. 5-3-1.
            2.   For variances from development standards: All of the provisions for use variances apply, except that only the property owners directly adjacent to and across the street from the subject parcel(s) shall receive written notices.
(Ord. 99-14, passed 12-20-99; Am. Ord. 16-2003, passed 11-17-03)