§ 194.202  BOARD OF ZONING APPEALS.
   (A)   Establishment. The town’s Board of Zoning Appeals is hereby established in accordance with I.C. 36-7-4-900 et seq.
   (B)   Membership, qualifications and terms. The membership of the Board of Zoning Appeals, the qualification of its members and the terms of membership shall be in accordance with I.C. 36-7-4-900 et seq.
   (C)   Duties and powers.
      (1)   Power. The Board of Zoning Appeals shall have the duty and power to:
         (a)   Hear and determine appeals from and review any order, requirement, decision or determination made by staff or administrative official under this chapter;
         (b)   Hear and determine appeals from and review 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;
         (c)   Hear and determine appeals from and review any order, requirement, decision or determination made by staff, an administrative board or other body except the Plan Commission in relation to the enforcement of those provisions of this chapter requiring the procurement of an improvement location permit or a certificate of occupancy;
         (d)   Hear, and approve or deny, all special exceptions in accordance with the provisions of division (C)(4) below;
         (e)   Hear and approve or deny, all variances from development standards of this chapter. A variance from development standards may be approved only upon written determination that:
            1.   The 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; and
            3.   The strict application of the terms of this chapter would result in an unnecessary hardship in the use of the property.
         (f)   Hear, and approve or deny, all variances of use from the terms of this chapter. A variance of use may be approved only upon written determination that:
            1.   The 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 zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and
            5.   The approval does not interfere substantially with the Comprehensive Plan.
      (2)   Conditions. The Board of Zoning Appeals may impose reasonable conditions as a part of its approval of any special exception or variance from the terms of this chapter.
      (3)   Rules. The Board of Zoning Appeals shall adopt rules concerning: the filing of appeals; applications for special exceptions and variances; the giving of notice; the determination of interested parties to receive notice; the conduct of hearings; the determination between use variances and development standards variances; the creation, form, recording, modification, enforcement and termination of commitments; and the designation of which specially affected persons and classes of specially affected persons are entitled to enforce commitments.
      (4)   Special exceptions.
         (a)   Statement of purpose. Certain land uses have characteristics and locational impacts which, if inappropriately located, may have a detrimental effect upon other land uses within the town. It is therefore recognized that such land uses should be regulated in order to preserve property values, as well as promote the public health, safety, comfort, community moral standards, convenience and general welfare of the town.
         (b)   Uses permitted by special exception. Only those uses identified in each individual zoning district as uses permitted by special exception shall be permitted by special exception in each zoning district.
         (c)   Grant of a special exception. The Board of Zoning Appeals is hereby authorized to grant special exceptions to permit uses designated as uses permitted by special exception in each zoning district subject to the following requirements.
            1.   A petition for special exception shall be filed with the Board of Zoning Appeals in accordance with the requirements for the filing of a variance, except as such requirements may be modified in this section. Such petition shall include proposed detailed findings of fact pursuant to division (C)(4)(c)3. below, in support of the determinations required to be made by the Board of Zoning Appeals.
            2.   A petition for special exception may contain a request for a variance of development standards of the zoning district determined to be inappropriate for the individual special exception use. The Board of Zoning Appeals may approve such a variance only if such waiver is specifically requested in said petition and specifically approved by the Board of Zoning Appeals. Any development standards for which a variance is granted shall require additional findings by the Board of Zoning Appeals as specified in division (C)(1)(e) above, for the grant of a variance of development standards.
            3.   The Board of Zoning Appeals may grant a special exception only upon a determinations that:
               a.   The proposed use will not be injurious to the public health, safety, comfort, community moral standards, convenience or general welfare;
               b.   The proposed use will not injure or adversely affect the adjacent area or property values therein; and
               c.   The proposed use will be consistent with the character of the district, land uses authorized therein and the town’s Comprehensive Plan.
            4.   In addition to the findings of fact listed in division (C)(4)(c)3. above, the additional finding shall be met in order for the Board of Zoning Appeals to grant a special exception for a religious use.
               a.   The religious use shall comply with the off-street parking requirements of § 194.105 of this chapter.
               b.   Additional traffic created by the religious use will not injure or adversely affect the adjacent area or property values therein, as satisfactorily determined by the Board of Zoning Appeals in its review of a traffic impact study, following the thresholds prescribed in § 193.036 of this code of ordinances, incorporated into this chapter by reference herein.
         (d)   Conditions for the grant of a special exception. The grant of a special exception shall be subject to the following conditions.
            1.   The proposed use shall conform to all development standards of the applicable zoning district (unless a waiver of such development standards is requested as part of the special exception petition and approved by the Board of Zoning Appeals as set forth above).
            2.   The proposed use shall conform to all conditions attached to the grant of the special exception by the Board of Zoning Appeals. Such conditions may include any reasonable site, development, operational standards, performance standards, requirements and restrictions deemed necessary to ensure compliance with the findings of fact determinations. The grant of a special exception may be for a limited period of time, as specified by the Board of Zoning Appeals.
         (e)   Basis of Board of Zoning Appeals review. In reviewing a special exception petition and making a determination as to compliance with the required findings of fact, the Board of Zoning Appeals shall give consideration to the particular needs and circumstances of each special exception application and shall examine the following items as they relate to the proposed use:
            1.   Topography and other natural site features;
            2.   Zoning of the site and surrounding properties;
            3.   Driveway locations, street access and vehicular and pedestrian traffic;
            4.   Parking amount, location and design;
            5.   Building character;
            6.   Landscaping, screening and buffering;
            7.   Open space and other site amenities; and
            8.   Availability and adequacy of streets, sanitary facilities, potable water and storm water management system and other utilities.
      (5)   Other powers. The Board of Zoning Appeals shall exercise all powers conferred on it by state law, local ordinance or rule in the manner so prescribed. This section shall not be construed as a limitation on such powers.
   (D)   Commitments required by the Board of Zoning Appeals.
      (1)   Commitments.
         (a)   The Board of Zoning Appeals may permit or require the owner of a parcel of property to make a written commitment concerning the use or development of that parcel in the case of a petition for a special exception, variance from the terms of this chapter or a variance of development standards. All such commitments shall be in recordable form and shall be recorded in the office of the county’s Recorder and shall take effect upon the granting of the special exception or variance. Unless modified by a decision of the Board of Zoning Appeals, a recorded commitment shall be binding on the owner of the parcel, each subsequent owner, and each other person acquiring an interest in the parcel. The commitments required by the Board of Zoning Appeals shall be in substantially the form set forth in Exhibit “C” of this chapter.
         (b)   By permitting or requiring commitments, the Board of Zoning Appeals does not obligate itself to approve or deny any request. This section does not affect the validity of any covenant, easement, equitable servitude or other land use restriction created in accordance with law.
      (2)   Modification of commitments by the Board of Zoning Appeals.
         (a)   A commitment may be modified or terminated only by a decision of the Board of Zoning Appeals made at a public hearing after notice to adjoining owners has been given pursuant to the rules of procedure of the Board of Zoning Appeals. Any modification or termination of the commitments shall not be effective until:
            1.   Reduced to writing;
            2.   Approved by the Board of Zoning Appeals;
            3.   Executed and notarized by the present owner (s) of the real estate; and
            4.   Recorded in the office of the Recorder of the county.
         (b)   The modification or termination of commitments shall be in substantially the form set forth in Exhibit “D” of this chapter.
(Ord. 2000-16, passed 8-28-2000, § 8.3)