(A) Procedure. In no case shall any variance to the terms of this ordinance be authorized without the approval of the Board of Zoning Appeals (BZA). Further, no decisions on previous applications shall serve to set a precedent for any other application before the BZA. The following procedure shall apply to all variance applications.
(1) Application. The applicant shall submit a variance application, affidavit and consent of property owner (if the owner is someone other than the applicant), a copy of the deed for the property involved, the required filing fee and required supporting information. Supporting information shall include, but not be limited to, the following.
(a) Site plan. A site plan shall be signed and dated. The site plan shall be drawn to scale and/or fully dimensioned to the satisfaction of the Planning Director and clearly show the entire layout of the property with all features relevant to the variance request.
(b) Statement of intent. A statement of intent to the Board of Zoning Appeals describing the details of the variance being requested and stating how the request is consistent with the required findings of fact. The statement should include any written commitments being made by the applicant.
(2) Notification. Notification for the scheduled public hearing regarding the variance request shall be completed consistent with § 9.15 and the Rules of Procedure of the Board of Zoning Appeals.
(3) Public hearing. The BZA will then, in a public hearing, review the variance application and required supporting information.
(a) Representation. The applicant and any representative of the applicant must be present at the public hearing to present the petition and address the required findings of fact.
(b) Testimony. The Board shall consider a report from the Planning and Zoning Administrator and testimony from the applicant, remonstrators, the public and interested parties at the hearing.
(c) Procedures. The presentation of reports and testimony and all other aspects of the public hearing shall be consistent with the Rules of Procedure of the Board.
(d) Possible action. The BZA may approve, approve with conditions, deny or continue the application in accordance with I.C. 36-7-4-918.4.
(1) Approval. The application shall be approved if a determination in writing is made consistent with the decision criteria listed in subsection (A)(4) below.
(2) Approval with modifications. The application shall be approved with modifications if the Board of Zoning Appeals determines that the requirements of subsection (A)(4) below may be met if certain conditions are applied to the application. The Board may make reasonable conditions related to the required decision criteria in subsection (A)(4) below, part of its approval and/or accept written commitments from the applicant.
(3) Denial. The application shall be denied if a determination in writing consistent with the decision criteria listed in subsection (A)(4) below is not met. Applications that are denied shall not be eligible for consideration again by the Board for a period of 12 months from the date of denial.
(4) Continued. The application may be continued by the Board based on a request by the Administrator, applicant, remonstrator or interested party; an indecisive vote; or a determination by the Board that additional information is required prior to action being taken on the request.
a. Additional legal notice shall not be required unless specified by the Board of Zoning Appeals.
b. The continuing of all applications shall be consistent with the adopted Rules of Procedure of the Board of Zoning Appeals.
(4) Decision criteria.
(a) Generally. In taking action on all variance requests, the Board shall use the following decision criteria, consistent with the requirements of the State Code.
(b) Development standards variance. The Board may grant a variance from the development standards of this ordinance (such as height, bulk, area) if, after a public hearing, it makes a determination in writing (consistent with I.C. 36-7-4-918.5), that the following requirements will be met:
(1) General welfare. The approval will not be injurious to the public health, safety, morals and general welfare of the community;
(2) Adjacent property. 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
(3) Practical difficulty. The strict application of the terms of this ordinance will result in a practical difficulty in the use of the property. This situation shall not be self-imposed, nor be based on a perceived reduction of, or restriction on, economic gain.
(5) Conditions. The Board may impose reasonable conditions upon its approval as it deems necessary to find that the decision criteria for approval have been met.
(6) Commitments. The Board may require the owner of the property to make written commitments concerning the use or development of the property as specified under I.C. 36-7-4-921. These commitments shall be recorded in the County Recorder’s office. A copy of the recorded commitments shall be provided to the Planning and Zoning Administrator for inclusion in the petition file at the time of application for an improvement location permit. No improvement location permit shall be issued for a permit application which does not comply with the recorded commitments.
(7) Limitations. The following limitations shall apply to the execution of a variance approval.
(a) Development standards variance. A development standards variance granted by the Board and executed in a timely manner as described in this section shall run with the parcel until the property conforms with ordinance as written.
(B) Use variance criteria and procedures. The Board of Zoning Appeals may approve or deny variances of the unified development ordinance. The Board may impose reasonable conditions as a part of its approval. A variance may be approved under this section only upon a determination in writing that:
(1) Approval will not be injurious to the public health, safety, morals and general welfare of the community;
(2) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;
(3) The need for the variance arises from some condition peculiar to the property involved;
(4) The strict application of the terms of the unified development ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and
(5) The approval does not substantially interfere with the comprehensive plan.
(Ord. 07-16, passed 12-10-2007; Ord. 2009-04, passed 4-13-2009)