(A) General. In accordance with I.C. 36-7-4-1015, as a condition to the adoption of a rezoning proposal (zoning map amendment) or the approval of a variance or special exception, the owner of a parcel of real property may be required or allowed to make a commitment the Area Plan Commission or the Area Board of Zoning Appeals, as applicable, concerning the use and development of that parcel.
(B) Provisions. Commitments are subject to the following provisions.
(1) A commitment must be in writing.
(2) Unless the written commitment is modified or terminated in accordance with this subsection, a written commitment is binding on the owner of the parcel and all subsequent owners.
(3) A commitment shall be recorded in the Office of the County Recorder. After a commitment is recorded, it is binding on a subsequent owner or other person who acquires an interest in the parcel. However, a commitment is binding on the owner who makes the commitment even if the commitment is unrecorded. An unrecorded commitment is binding on a subsequent owner or other person acquiring an interest in the parcel only if that subsequent owner or other person has actual notice of the commitment.
(4) A commitment may contain terms providing for its own expiration. A commitment may also contain terms providing that the commitment automatically terminates:
(a) If the zoning district or classification applicable to the parcel is changed;
(b) If the land use to which the commitment relatives is changed; or
(c) Otherwise in accordance with the rules of the Area Plan Commission to which the commitment is made.
(5) Except for a commitment that expires or automatically terminates under division (B)(4) of this section, a commitment may be modified or terminated only by a decision of the Area Board of Zoning Adjustment or the Area Plan Commission, as appropriate, to which the commitment is made. The decision must be made at a public hearing after notice of the public hearing has been provided under § 153.241 for variances and special exceptions and § 153.252(C) for rezoning.
(6) During the time a rezoning proposal (zoning text amendment) is being considered by the applicable local legislative body, the owner may make a new commitment to the Area Plan Commission or modify the terms of the commitment that was made when the proposal was being considered by the Area Plan Commission.
(7) No further action of the Area Plan Commission is required for a new commitment made under division (B)(6) of this section to be effective.
(8) If a commitment is modified under division (B)(6) of this section:
(a) No further action is required of the Area Plan Commission for the commitment to be effective if the effect of the modification is to make the commitment more stringent; or
(b) The modified commitment must be ratified by the Area Plan Commission if the effect of the modification is to make the commitment less stringent.
(9) Requiring or allowing a commitment to be made does not obligate the Area Plan Commission or applicable local legislative body to adopt, approve, or favorably recommend the proposal or application to which the commitment relates.
(C) The Area Plan Commission and the Area Board of Zoning Appeals may adopt rules:
(1) Governing the creation, form, recording, effectiveness, modification and termination of commitments; and
(2) Designating which specially affected persons and classes of specially affected persons are entitled to enforce commitments.
(D) Enforcement. An action to enforce a commitment may be brought in the circuit or superior court of the county by:
(1) The Area Plan Commission or the Area Board of Zoning Appeals to which the commitment was made;
(2) Any person who is entitled to enforce the commitment under the rules of the Area Plan Commission in force at the time the commitment was made; or
(3) Any other specially affected person who was designated in the commitment.
(E) Injunctive relief. A person bringing an action to enforce a commitment may request mandatory or prohibitory injunctive relief through the granting of a temporary restraining order, preliminary injunction, or permanent injunction. If an action to enforce a commitment is successful, the respondent shall bear the costs of the action. A change of venue from the county may not be granted in such an action.
(F) Indefensible arguments. In an action to enforce a commitment, it is not a defense that:
(1) No consideration was given for the commitment;
(2) The commitment does not benefit any designated parcel of property;
(3) The document setting forth the commitment lacks a seal;
(4) There is no privity of estate;
(5) There is not privity of contract; or
(6) There is no proof of damages.
(G) Conditions not considered commitments. The following types of conditions are not considered commitments and are not subject to division (B) of this section.
(1) A condition imposed upon primary approval of a plat that must be met before secondary approval of the plat may be granted.
(2) A condition imposed upon the approval of an exception, a use, a variance, or a development plan that must be met before an improvement location permit may be granted.
(3) A condition imposed upon an approval relative to any other development requirement that must be met before any other secondary approval may be granted or building permit issued.
(4) A condition that was imposed before July 1, 2011, on an approval relative to any development requirement. However, this subdivision applies only if a copy of the condition has been filed and permanently maintained as a public record in the office of the plan commission that imposed the condition.
(H) Other agreements not considered commitments. Covenants, easements, equitable, servitudes, and other land use restrictions created in accordance with law are not considered commitments, and are not subject to division (B) of this section.
(Ord. 12-16, passed 8-8-12)