(A) Establishment. A Board of Zoning Appeals is hereby established, which shall consist of five members representing the town and the land within its extraterritorial jurisdictions as follows:
(1) Three citizen members appointed by the President of the Town Council, one of whom shall be a member of the Plan Commission and two of whom shall not be members of the Plan Commission;
(2) One citizen member appointed by the Town Council, who shall not be a member of the Plan Commission; and
(3) One citizen member appointed by the Plan Commission, other than the Plan Commission member appointed by the President of the Town Council, who shall be one of the two members of the Plan Commission who resides within the unincorporated area over which extraterritorial jurisdiction is exercised.
(B) Other elective or appointive office. Other than the two Plan Commission members, no member of the Board of Zoning Appeals may hold other elective or appointive office in municipal, county, or state government.
(C) Organization.
(1) The terms of the initial members of the Board of Zoning appeals shall be as follows.
(a) One member appointed by the Town Council President shall have an initial term of one year.
(b) One member appointed by the Town Council President shall have an initial term of two years.
(c) The Plan Commission member appointed by the Town Council President shall have an initial term of the lesser of three years or the remainder of that person’s term on the Plan Commission.
(d) The member appointed by the Town Council shall have an initial term of four years.
(e) The member appointed by the Plan Commission shall have an initial term of the lesser of two years or the remainder of that person’s term on the Plan Commission.
(2) After the initial terms have expired, all appointments, except for the member who resides in the unincorporated area of extraterritorial jurisdiction, shall be for four years, expiring on the first Monday of January of the fourth year after appointment, except that the Plan Commission members may serve only for the remainder of their terms as members of the Plan Commission. The term of the member who resides in the unincorporated area of extraterritorial jurisdiction shall not exceed two years.
(3) In the event a vacancy occurs prior to the expiration of a member’s term (including a Plan Commission member whose remaining term on the Plan Commission is less than four years), the appropriate appointing authority shall appoint another member meeting the qualifications to complete the unexpired term.
(4) Members are eligible for reappointment.
(D) Alternate members.
(1) The Town Council President may appoint two alternate members, and the Town Council and the Plan Commission each may appoint one alternate member to the Board of Zoning Appeals, for a total of four alternate members.
(2) Alternate members shall have the same qualifications as regular appointees: the Town Council President may appoint one citizen member of the Plan Commission and one citizen member who is not a member of the Plan Commission as alternates; the Town Council may appoint one citizen member who is not a member of the Plan Commission as an alternate; and the Plan Commission may appoint the other member who resides in the unincorporated area as an alternate member.
(3) Alternate members shall have all of the rights and privileges of members of the Board of Zoning Appeals and may participate in the discussion and evaluation of petitions before the Board.
(4) An alternate member may serve as a voting member of the Board of Zoning Appeals when the regular member for whom he or she is alternate abstains or disqualifies himself or herself from participating in consideration of a matter before the Board.
(E) Conflict of interest.
(1) A member of the Board of Zoning Appeals shall not participate in a hearing or decision of the Board concerning a zoning matter if the member is biased or prejudiced or otherwise unable to be impartial or has a direct or indirect financial interest in the outcome of the hearing or the decision.
(2) In such an instance, the Board shall enter in its records:
(a) The fact that a regular member has such a disqualification; and
(b) The name of the alternate member, if any, who participates in the hearing or decision in place of the regular member.
(F) Removal of a member. The appointing authority may remove a member from the Board of Zoning Appeals for cause. The appointing authority shall mail notice of the removal, along with written reasons for the removal, to the member at his or her residence address. A member who is removed may, within 30 days after receiving notice of the removal, appeal the removal to the Circuit or Superior Court of the county.
(G) Promulgation of rules.
(1) The Board of Zoning Appeals shall adopt rules of procedure concerning the filing of appeals, applications for variances and conditional uses, giving of notice, conduct of hearings, and other such matters as may be necessary to carry out the duties of the Board under this chapter.
(2) An affirmative vote by a majority of the membership of the Board of Zoning Appeals shall be required to approve or deny a petition before the Board.
(3) Any petition approved by the Board of Zoning Appeals, unless otherwise stipulated, shall expire and become void one year after the date of its granting unless the variance or conditional use has been substantially put into place or an extension has been granted by the Board.
(H) Stays pending appeals.
(1) An appeal shall stay all proceeding in furtherance of the action appealed from, unless the administrative official or body from whom the appeal is taken certifies to the Board after the notice of appeal is filed that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. In such case, the proceeding or work shall not be stayed except by a restraining order which may be granted by the Board of Zoning Appeals or by the Circuit or Superior Court of the county, and such notice shall be given to the administrative official or body from whom the appeal is taken and to the owner of the premises affected.
(2) After the person in charge of the work on the premises affected has received notice that an appeal has been filed with the Board of Zoning Appeals, the designated administrative official or body shall have full power to order such work discontinued or stayed, and to call upon the police power of the town to give full force and effect to the order.
(I) Appeals of administrative decisions.
(1) The Board of Zoning Appeals shall hear and decide appeals where it is alleged there is error in any of the requirements, decisions, or determinations made by an administrative official or body charged with the administration and enforcement of this chapter.
(2) An appeal concerning interpretation or administration of this chapter may be taken by any person aggrieved by any decision of the administrative official or body charged with the administration and enforcement of this chapter.
(3) An appeal shall specify the grounds thereof and shall be filed within 30 days of the decision alleged to be in error. The administrative official or body from whom the appeal is taken shall forthwith transmit to the Board all documents, plans, and papers constituting the record of the action from which the appeal is taken.
(J) Conditional uses.
(1) The Board of Zoning Appeals shall hear and decide only such conditional uses as the Board is specifically authorized to permit by this chapter. The Board shall decide such questions as are involved in determining whether conditional uses should be granted and shall apply such conditions and safeguards as are necessary and appropriate under this chapter, or to deny conditional uses when incompatible or inconsistent with the purpose and intent of this chapter. Before any conditional use shall be granted, the Board shall make written findings certifying compliance with any specific regulations governing individual special exceptions and that satisfactory provisions and arrangements have been made concerning the following, where applicable:
(a) There will be adequate ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or other emergency;
(b) There will be conveniently located adequate off-street parking and loading areas. Special consideration shall be given to the location and use of these areas in relation to surrounding properties and reasonable assurance shall be provided that the use of these areas will not create noise, glare, or other adverse effects on adjoining and nearby properties;
(c) Adequate refuse disposal and service areas will be provided. Special consideration shall be given to the location and use of these areas in relation to surrounding properties and reasonable assurance shall be provided that the use of these areas will not create noise, glare, or other adverse effects on adjoining and nearby properties;
(d) Adequate utilities will be available to serve the use;
(e) Adequate screening and buffering will be provided to mitigate any adverse effects of the conditional use on surrounding properties;
(f) Any signs or lighting permitted in conjunction with the conditional use shall be appropriate to the location and in harmony with the general character of the properties in the area. Special consideration shall be given to the size, design, and location of these in relation to surrounding properties and reasonable assurance shall be provided that the use of these areas will not create noise, glare, or other adverse effects on adjoining and nearby properties; and/or
(g) Setback distances will provide adequate open space and separation from adjoining land uses.
(2) Before granting any conditional use, the Board shall make a written finding that such use will be in general compatibility with adjoining properties and will be consistent with the spirit and intent of this chapter.
(K) Variances.
(1) The Board of Zoning Appeals shall hear and decide variances of use and variances from development standards (such as height, bulk, or area) in accordance with the criteria established in this section.
(2) The Board may impose conditions as deemed necessary in the public interest. Failure to comply with any conditions imposed by the Board shall constitute a violation of this chapter.
(3) Conditions of variances may be in the form of written commitments signed by the owner of the real estate and shall authorize the Board to record such commitments in the office of the County Recorder upon the grant of the variance. The Board may require commitments to designate any specially affected persons who shall be entitled to enforce them.
(4) Before granting a variance of use, the Board must make written findings of fact that all the following criteria are met:
(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 chapter 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.
(5) Before granting a variance from the development standards, the Board must make written findings of fact that all of the following criteria are met:
(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; and
(c) The strict application of the terms of this chapter will result in practical difficulties in the use of the property. However, this chapter may establish a stricter standard.
(Ord. passed - -1989; Ord. 2014-5, passed 5-5-2014)