The Board of Zoning Appeals (BZA) shall consist of and continue as a five-member Board. Members shall be appointed pursuant to I.C. 36-7-4-902.

(Ord. 2002-05, passed 12-30-2002, § 12.1)

   (A)   Following his or her initial appointment to the BZA, each member shall be appointed for a term of four years. Each term shall expire at midnight on December 31 of the fourth year of the four-year term; however, members of the Board of Zoning Appeals shall serve until his or her successor is appointed and seated.

   (B)   At its first regularly scheduled meeting in each calendar year, the Board shall select from its membership a Chairperson and a Vice Chairperson for a one year term.

   (C)   The Vice Chairperson shall have the authority to act as chairman of the Board during the absence or disability of the Chairperson.

   (D)   Upon resignation or replacement of the Chairperson or Vice Chairperson as a member of the Board, the Board shall elect a successor at its next regularly scheduled meeting.

   (E)   The Board shall appoint and fix the duties of a secretary, who is not required to be a member of the Board. The Secretary shall be charged with such duties as required under state statutes, town ordinances and these rules.

   (F)   If a vacancy occurs among the members of the Board, the appointing authority shall appoint a member for the unexpired term of the vacating member. The appointing authority shall be notified in writing by the Secretary when a member has been absent for three consecutive meetings of the Board. Such absences may constitute cause for removal from the Board by the appointing authority under I.C. 36-7-4-906(f).

(Ord. 2002-05, passed 12-30-2002, § 12.2)

   The Board of Zoning Appeals shall have jurisdiction over all the land subject to this chapter.

(Ord. 2002-05, passed 12-30-2002, § 12.3)

   The Board of Zoning Appeals shall have exclusive subject matter jurisdiction for:

   (A)   Variance from development standards;

   (B)   Variances of use (use variances);

   (C)   Special exceptions; and

   (D)   Administrative appeals.

(Ord. 2002-05, passed 12-30-2002, § 12.4)

   (A)   Rules and procedures. The Board of Zoning Appeals shall have sole authority to adopt any and all rules under I.C. 36-7-4-916 and any and all procedures concerning organization, selection of officers, forms for applications, filing requirements, procedures, notices for and conduct of meetings and public hearings.

   (B)   Facilities and funding. The town shall provide suitable facilities for the holding of Board of Zoning Appeals meetings and hearings and the storage of its records, documents and accounts, and in its annual budget to provide sufficient funds for the functioning of said Board and its staff.

   (C)   Filing. All applications for variances, special exceptions and requests for appeal shall be filed by the applicant with the staff of the Board of Zoning appeals and in the form prescribed by said Board.

(Ord. 2002-05, passed 12-30-2002, § 12.5)

   (A)   The Board shall fix a reasonable time for the hearing of administrative appeals, special exceptions and variances.

   (B)   Public notice in accordance with I.C. 5-3-1-2 and I.C. 5-3-1-4 and due notice to interested parties shall be given at least ten days before the date set for the hearing.

   (C)   The party pursuing the appeal or applying for the special exception or variance shall be required to assume costs of public notice and notice to interested parties. Interested parties shall include, but are not limited to, all properties adjacent within 600 feet or two properties deep whichever is less of the subject site boundaries within the corporate boundary and only directly adjacent properties outside the corporate limit.

   (D)   The Board may, by rule, determine who are interested parties, how notice is to be given to them, and who is required to give that notice.

   (E)   Other persons may appear and present relevant evidence at such public hearing.

   (F)   A person may not communicate with any member of the Board before the hearing with intent to influence the member’s action on a matter pending before the Board.

   (G)   Special meetings may be called by the Chairperson or by two members of the Board upon written request to the Secretary. The Secretary shall send to all members, at least three days before the special hearing, a special notice fixing the time and place of the meeting. Written notice is not required if:

      (1)   The date, time and place of the special meeting are fixed in the regular meeting;

      (2)   All members of the Board are present at that regular meeting; and

      (3)   The Secretary complies with the notice requirement of I.C. 5-14-1.5.

   (H)   The Chairperson of the Board shall preside over meetings and hearings, decide questions of order, subject to appeal by Board meetings, and preserve decorum in the meeting room. The Chairperson may warn any person present that particular conduct is a breach of courtesy and may order a person expelled from the meeting for disruptive conduct.

   (I)   The Board shall use Robert’s Rules of Order when conducting its meetings and hearings.

   (J)   The Board may set time limits on public input when deemed necessary.

   (K)   The Secretary shall keep minutes of its proceedings and record the vote on all actions taken. The Board shall also make written findings of fact in all cases heard by it. The minutes shall be presented to the Board at the next succeeding regular meeting. When approved, the minutes shall be signed by the Chairperson and attested by the Secretary.

(Ord. 2002-05, passed 12-30-2002, § 12.6)

   (A)   The petitioner or the petitioner’s agent must appear in person or by counsel to present petition or remonstrance to the Board and for the Board to consider the case. If no person appears on behalf of a petition, the petition may be tabled until the following meeting or dismissed under division (B) below.

   (B)   The Board’s Secretary or staff must be informed in writing prior to the meeting if the petitioner requests a time extension. The Chairperson will determine whether the petitioner’s reasons warrant an extension. If the petitioner or the petitioner’s agent fail to appear at the meeting for which the extension was given without sufficient reason, the petition may be dismissed.

(Ord. 2002-05, passed 12-30-2002, § 12.7)

   (A)   The order of business for a regular meeting shall be:

      (1)   Executive meeting;

      (2)   Call to order;

      (3)   Roll call and determination of quorum;

      (4)   Consideration of minutes of previous meeting;

      (5)   Old business (tabled or continued items);

      (6)   New business;

      (7)   Report of officers and committees;

      (8)   Communications, bills and expenditures; and

      (9)   Adjournment.

   (B)   The order of business for special meetings shall be:

      (1)   Call to order;

      (2)   Roll call and determination of quorum;

      (3)   The business for which the special meeting was called; and

      (4)   Adjournment.

(Ord. 2002-05, passed 12-30-2002, § 12.8)

   (A)   A majority of the members of the Board who are qualified to vote shall constitute a quorum. Action of the Board shall not be official unless it is authorized at a regular or properly-called special meeting by a majority of the entire membership of the Board.

   (B)   Voting by the Board shall be by roll call vote of the members. All members present shall vote on every question unless they are permitted to abstain by the presiding officer.

   (C)   On all decisions on petitions before the Board of Zoning Appeals, the Board shall adopt written findings of fact and a written decision.

   (D)   Pursuant to I.C. 36-7-4-909, a member of the Board of Zoning Appeals may not participate in a hearing or decision of that Board concerning a zoning matter in which he or she has a direct or indirect financial interest. The Board shall enter in its records the fact that its member has such a disqualification.

(Ord. 2002-05, passed 12-30-2002, § 12.9)

   (A)   Every decision of the Board of Zoning Appeals shall be subject to review by a writ of certiorari as prescribed in I.C. 36-7-4-1000 series.

   (B)   Such appeals shall be presented to a court of jurisdiction within 30 business days of the Board’s decision, and not thereafter.

(Ord. 2002-05, passed 12-30-2002, § 12.10)

   (A)   To be eligible for the granting of a special exception under this section, a person must first receive a determination from the Zoning Administrator that a special exception is required for the intended use, change of use or for the expansion, extension or enlargement of a use.

   (B)   There shall be no cases or applications, nor any particular situation in which these rules authorize special exceptions without the approval of the BZA. Further, no previous applications shall set a precedence for any other application before the BZA.

      (1)   The Board may grant a special exception for a use in a district if, after a hearing under, it makes findings of facts in writing, that:

         (a)   The proposal will not be injurious to the public health, safety, morals and general welfare of the community;

         (b)   The requirements and development standards for the requested use as prescribed by this chapter will be met;

         (c)   Granting the exception will not subvert the general purposes served by this chapter and will not permanently injure other property or uses in the same district and vicinity; and

         (d)   Te proposed use will be consistent with the character of the district therein, the spirit and intent of this chapter and the town’s Comprehensive Plan.

      (2)   When considering a special exception, the Board of Zoning Appeals may take into consideration the following items as they relate to the proposed use:

         (a)   Topography and other natural site features;

         (b)   Zoning of the site and surrounding properties;

         (c)   Driveway locations, street access and vehicular and pedestrian traffic;

         (d)   Parking amount, location, design;

         (e)   Landscaping, screening, buffering;

         (f)   Open space and other site amenities;

         (g)   Noise production and hours of operation;

         (h)   Design, placement, architecture and building material of the structure;

         (i)   Placement, design, intensity, height and shielding of lights;

         (j)   Traffic generation; and

         (k)   General site layout as it relates to its surroundings.

      (3)   The Board may impose such reasonable conditions upon its approval as it deems necessary to find that the above criteria will be served.

      (4)   The Board may permit or require the owner of the parcel of property to make a written commitment concerning the use or development of the parcel as specified under I.C. 36-7-4-921 and have such commitment recorded in the County Recorder’s Office.

      (5)   The Board may limit special exceptions to a specific individual and/or a specific time period and for a specific use.

      (6)   A use authorized by special exception may not be changed, expanded, extended or enlarged unless reauthorized by the Board under the procedures set forth in these rules for granting a special exception.

      (7)   If the Board grants the special exception, it shall direct the applicant to apply for a building permit and/or improvement location permit within four months or the special exception will be void. If such application complies with all ordinances and rules, a building permit and/or improvement location permit for the use authorized by special exception shall be issued.

      (8)   A special exception, granted for a specific use ceases to be authorized and is void if that use is not 50% established within a twelve-month period of the date the special exception was granted. A special exception, granted for a specific use ceases to be authorized and is void if that use is discontinued at that site for a consecutive six-month period.

      (9)   A special exception may be terminated by the Board of Zoning Appeals under the following conditions:

         (a)   Upon the filing of an application by an interested person or a member of the staff, a public hearing is held with notice to the property owner; and

         (b)   At the public hearing a finding is made by the Board that one or more of the following has not been complied with:

            1.   The terms of this chapter;

            2.   Conditions of approval; and

            3.   Written commitments.

(Ord. 2002-05, passed 12-30-2002, § 12.11)

   (A)   The Board may grant a variance from the development standards of this chapter (such as height, bulk, area) if, after a public hearing, it makes findings of facts in writing, 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 will result in a practical difficulty. This situation shall not be self-imposed, nor be based on a perceived reduction of or restriction of economic gain.

   (B)   The Board may permit or require the owner of a parcel of property to make written commitments and record it in the County Recorder’s office concerning the use or development of that parcel or may impose conditions upon that grant of variance.

   (C)   A developmental standards variance granted by the Board shall run with the parcel until such time as:

      (1)   The use of the variance ends; or

      (2)   The property conforms with this chapter as written.

   (D)   The Board of Zoning Appeals may enforce any condition and/or commitment it has imposed as if it were a standard of this chapter.

(Ord. 2002-05, passed 12-30-2002, § 12.12)

   (A)   The Board may grant a variance from use if, after a public hearing, it makes findings of facts in writing, 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 adjacent areas to the subject property are not adversely affected;

      (3)   The need for a variance stems from a condition unusual or peculiar to the subject property itself;

      (4)   The strict application of the terms of this chapter will results in an unnecessary hardship if they were applied to the subject property; and

      (5)   The approval of the variance does not contradict the goals and objectives of the Comprehensive Plan.

   (B)   The Board may permit or require the owner of a parcel of property to make written commitments and record it in the County Recorder’s office concerning the use or development of that parcel or may impose conditions upon that grant of variance.

   (C)   A use variance granted by a Board may run with the parcel or applicant until such time as:

      (1)   The use of the variance ends, is vacated or unused for three months consecutively;

      (2)   The property conforms with this chapter as written; or

      (3)   The property is sold.

   (D)   The Board of Zoning Appeals may enforce any condition and/or commitment it has imposed as if it were a standard of this chapter.

(Ord. 2002-05, passed 12-30-2002, § 12.13)

   (A)   Nothing in these rules, regulations or orders issued pursuant to this chapter shall be deemed to restrict or regulate the power of eminent domain by the state or by any state agency. Nor shall they be deemed to authorize any unit of government, legislative body, Plan Commission or Board of Zoning Appeals to restrict or regulate the power of eminent domain by the state or a state agency.

   (B)   As used in this section, the term STATE AGENCY shall mean and include all agencies, boards, commissions, departments and institutions, including state educational institutions of the state.

(Ord. 2002-05, passed 12-30-2002, § 12.14)

   (A)   Amendments to these rules of procedure may be made by the Board at any regular meeting upon the affirmative vote of a majority of the members of the Board.

   (B)   The suspension of any rule may be ordered at any meeting by a three-fifths vote of the quorum.

(Ord. 2002-05, passed 12-30-2002, § 12.15)

   All previous rules and regulations heretofore adopted by the town’s Board of Zoning Appeals are hereby expressly repealed, as of the effective date of these rules.

(Ord. 2002-05, passed 12-30-2002, § 12.16)