(A) Composition. The composition of the New Palestine Board of Zoning Appeals shall be in accordance with I.C. 36-7-4-902 and any acts amendatory thereto or supplementary thereto which at the time of the adoption of these rules is as follows:
(1) Three citizen members appointed by the executive of the municipality of whom 1 member must be a member of the Plan Commission and 2 must not be members of the Plan Commission;
(2) One citizen appointed by the fiscal body of the municipality who must not be a member of the Plan Commission;
(3) One member appointed by the Plan Commission from the Plan Commission's membership who must be a citizen member of the Plan Commission other than a member appointed under subdivision (A)(1) above.
(B) Quorum and authorization. A majority of the members of the entire Board constitutes a quorum. No action shall be official, however, unless authorized by a majority of the Board.
(C) Meetings. All meetings shall be open to the public.
(1) Meetings shall be held upon call of the Chairperson, or by written request by 2 members to the Secretary, or as determined at a regular meeting. The Secretary shall send to all members, at least 2 days in advance of a meeting, a written notice fixing the time and place of the meeting.
(2) Only matters included in the call for a meeting shall be considered except by unanimous approval of all of the members of the Board.
(D) Officers of the Board.
(1) The Chairperson and Vice-Chairperson shall be elected at the first meeting held each year.
(2) The Vice-Chairperson shall serve in the absence of the Chairperson.
(3) A temporary chairperson shall be elected in case both Chairperson and Vice-Chairperson are absent.
(4) The Board shall appoint a Secretary and attorney.
(E) Duties of the Secretary.
(1) The Secretary, subject to the provisions of the zoning ordinance, these rules, and the direction of the Board and its Chairperson, shall conduct all correspondence of the Board; send out all notices required by these rules and the order of the Board; shall attend all meetings of the Board and all hearings; shall review all applications to see that these rules are complied with; shall keep the dockets and minutes of the Board's proceedings; shall compile all required records; and shall maintain the necessary files and indexes and generally supervise all clerical work of the Board.
(2) The Secretary, under the direction of the Chairperson, may designate members of the Board to make personal inspections when necessary from time to time and the Secretary or Zoning Administrator or his designated representative shall demand from the applicant such additional information and data as may be required to fully advise the Board with reference to the application, whether such information and data is called for by the official forms or not. Any failure or refusal on the part of the applicant to furnish such additional information or data shall be grounds for dismissal of the application by the Board.
(F) Minutes and records.
(1) The Board shall keep minutes of its proceedings; keep records of its examinations and other official actions; and shall record the vote on all actions taken.
(2) All minutes and records shall be filed in the office of the Board and shall be a public record.
(G) Appeals and requests.
(1) An appeal from any order, requirement, decision or determination made by the Zoning Administrator or other official in the enforcement of the "Zoning Ordinance of New Palestine, Indiana, 2001," as amended, will be reviewed by the Board.
(2) The appeal shall be prepared on the form provided therefore and shall specify the grounds thereof in such a manner that the Board may be fully informed of the facts and elements involved and clear statement of the reasons why the appellant deems the appeal to be justified.
(3) The Zoning Administrator or other official shall, upon request of the Board, submit to the Board the complete record, including plans and drawings, leading to the decision being appealed.
(4) Upon receipt of the appeal application, the Secretary shall set a date, time and place for a hearing thereon, and shall notify the appellant of such date, time and place.
(5) Any communication purporting to be an appeal shall be regarded as a mere notice or intention to seek relief and shall be of no force or effect until it is made in the form required.
(G) Requests.
(1) Requests for variances and conditional uses shall be prepared on the form provided therefore in such a manner that the Board may be fully informed of all the facts and elements involved and a clear statement of the reasons why the applicant deems the request to be justified and shall include a copy of all necessary drawings, plans, or other documents necessary for the decision making process. If said documents are amended or modified in any way whatsoever after the date of the original application, said amended materials must be submitted to the Town Engineer no later than 1 week prior to the scheduled hearing date.
(2) Upon receipt of the formal written application, the Secretary shall set a date, time and place for a hearing thereon, and shall notify the applicant of such date, time and place.
(3) Any communication purporting to be a request for variance shall be regarded as a mere notice or intention to seek relief or to proceed and shall be of no force or effect until it is made in the form required.
(H) Fees. Applications and petitions shall be prepared on the form provided by the Zoning Administrator and accompanied by the filing fees stated below. Fees shall be paid to the Zoning Administrator who shall forthwith pay over to the Clerk-Treasurer of the town to the credit of the General Fund of the town. Applications and petitions shall be accompanied by the following fees for each application:
(1) Variance: $50;
(2) Conditional use (not sent to the Technical Review Committee): $100;
(3) Conditional use (sent to the Technical Review Committee): $250.
(I) Docket and calendar.
(1) Each application filed in proper form with the required data shall be numbered serially, docketed, and shall be placed upon the calendar of the Board by the Secretary. The docket numbers shall begin anew on January 1 of each year and shall be hyphenated with the number of the year in which the application is filed.
(2) All applications docketed shall be set for hearing within 30 days.
(3) Applications shall be heard in the order in which they appear on the calendar, except that an application may be advanced for hearing by order of the Board for any good cause shown. Where all applications cannot be disposed of on the day set, the Board may adjourn from day to day, or until the next regular or special meeting, as it may order.
(4) No notice other than that provided for in these rules will be given to applicants or others interested in hearings by the Board.
(J) Notice.
(1) For each appeal or request the appellant shall assume the expense of notifications and publication of notice as required by ordinance.
(2) Notice shall be given in the newspaper of general circulation in the Town of New Palestine and the City of Greenfield, in the form prescribed by the Board, for every appeal or request made to the Board. The applicant shall cause the notice to be published at least 10 days prior to the date set for the hearing, and proof of publication must be made by an affidavit of the publisher and attached to a copy of the notice taken from the paper in which it was published and filed with the Secretary before the hearing. Such affidavit must specify the place, the time when, and the paper in which the notice was published.
(3) For each appeal, application for a variance, application for special exception, or any other matter coming before the New Palestine Board of Zoning Appeals for hearing, the applicant shall notify all abutting and adjoining legal landowners and landowners of block frontage immediately across the street from the property in question by a certificate of mailing at least 10 days before the date of the hearing. The applicant shall file with the Secretary before the hearing, an affidavit signed by the applicant verifying that all persons entitled to receive notice pursuant to these rules and the ordinances of the town have been properly notified. The Board may vary the requirements for personal notification, if in the judgment of the Board, a departure from the rules above is justified and the intent of this rule is observed.
(4) All notices shall give both the legal description and post office address or county road number location.
(K) Conflict of interest. Any member who either has a pecuniary interest in or may derive a profit from any action taken upon any appeal or request shall be deemed to have a conflict of interest in compliance with state law. Any member having such conflict of interest shall announce at the beginning of the meeting and prior to the introduction to the appeal or request the existence of the conflict and shall thereafter refrain from comment, discussion, or participation in any way upon the appeal or request including voting thereon. Such a member shall also notify the Zoning Administrator of such a conflict upon receipt of the meeting agenda in order to allow sufficient time to arrange for an alternate member to be present with regard to the appeal or request.
(L) Hearing.
(1) The Board shall hear the appeal or request at the time and place specified in the notice unless the appeal or request has been processed through the Technical Review Committee, which changes were requested and the plans reflecting the changes have not been submitted to staff within 7 calendar days of the Technical Review Committee meeting. In such case, the hearing upon the appeal or request will be continued to the next regular hearing date, provided plans reflecting the Technical Review Committee changes have been submitted to staff at least 13 calendar days prior to the scheduled hearing. Hearings shall be open to the public, and all decisions made by the Board shall be arrived at and announced during the course of the public meeting.
(2) The appellant or requestor or other interested persons may appear in person, by agent or by attorney. In the absence of the personal appearance on behalf of the applicant, the Board will proceed to dispose of the matter on the record before it.
(3) At a hearing the order shall be as follows.
(a) Initial presentation of the application by the Zoning Administrator or his designated representative.
(b) Applicant's initial presentation.
(c) Zoning Administrator's or other enforcement official's report of the case for cases involving an appeal of an enforcement official's decision.
(d) Interested property owner's presentation of the case, with those in favor of the appeal speaking first and those opposed speaking second.
(e) Applicant's rebuttal;
(f) Reasonable limitations may be placed upon the presentation of any participant.
(4) The Board will not condone repetitious testimony, personal accusations or threats and continued references to irrelevant subjects.
(5) All persons who speak before the Board as to any matter shall only do so after being placed under oath by the Board's Council, the Board President, or the officer conducting the meeting.
(6) The Board may cause the expulsion of any person whose conduct is not courteous and orderly, provided that such person has been admonished at least once by the Board.
(M) Action. The Board may order, following the hearing:
(1) Conditional uses in particular situations as specified in the zoning ordinance;
(2) Improvement location permits issued, amended or modified, or denied;
(3) The affirmation or reversal, wholly or partly, or the modifications of the order, requirement, decision or determination appealed from, as in the Board's opinion ought to be done and to that end shall have all the powers of the Zoning Administrator from whom the appeal is taken.
(N) Final disposition of applications.
(1) The final disposition of any appeal before the Board shall be in the form of an order either reversing or modifying the requirement, order, decision or determination appealed from and granting the appeal, or affirming the order and denying the appeal. The Board may dismiss an appeal for want of prosecution or for lack of jurisdiction.
(2) All decisions of the Board, on matters heard in public hearing, shall be by recorded vote. The vote of each member shall be a matter of permanent record.
(3) A case may not be withdrawn by the applicant or requestor after the vote has been called for by the Chairperson. No case which has been withdrawn by the applicant or requestor shall again be placed on the docket for consideration by the Board within a period of 6 months from the date of the withdrawal, except upon the motion of a member, and adopted by the unanimous vote of all members present at a regular or special meeting.
(4) If the request is granted by the Board, all permits necessary for the prosecution of the work shall be obtained within 90 days.
(O) Rehearings.
(1) No rehearing of any decision by the Board shall be had except on motion by a member of the Board to reconsider the vote, which motion is seconded and duly passed. Such rehearing shall be held within 30 days after such a motion is made, seconded and duly passed.
(2) No motion for a rehearing shall be entertained except upon written request for rehearing, and then not unless new evidence is submitted which could not reasonably have been presented at the original hearing.
(3) If rehearing is granted, the case shall be put on the calendar for rehearing and new notices shall be issued in accordance with the notice provisions of these rules.
(P) Advice. No informal requests for advice, or moot questions, will be considered by the Board. Any advice, opinion, or information given by any Board member or the administrative officer or any other official or employee of the town shall not be binding on the Board. It is declared to be the policy of the Board to discourage any such personal appeals.
(Q) Docket and minutes book.
(1) The Secretary shall be provided with a docket and minute book which shall be kept posted and up-to-date. The docket shall be a well-bound book in which the administrative officer shall enter the number of the application; the name of the applicant; short description by street number, road or otherwise, of the premises; the nature of the application; and the final disposition of the cause has been disposed of. All continuances, postponements, dates of sending notices, and other steps taken and acts done shall be noted on the docket.
(2) The minute book shall be a well-bound book in which shall be recorded the decision relating to each application, together with the vote of each member of the Board present, those absent being so marked, together with other actions of the Board, and including a record of the transactions at hearing. The docket book and the minute book may be combined.
(3) The order of business at all regular meetings of the Board shall be as follows:
(a) Roll call;
(b) Approval of the minutes of the previous meeting;
(c) Communications;
(d) Reports of committees or consultants;
(e) Unfinished business;
(f) New business.
(R) Prior rules. Amendments to these Rules of Procedure may be made by the Board of Zoning Appeals at any regular or special meeting upon the affirmative vote of 5 members. The suspension of any rule of procedure may be ordered at any meeting by unanimous vote of those present.
(1989 Code, § 24.02) (Am. Ord. —, passed - -; Am. Ord. 030715A, passed 3-7-2015; Am. Ord. 080223, passed 8-2-2023)
Statutory reference:
Board of Zoning Appeals, see I.C. 36-7-4-901 et seq.