(A)   A Board of Zoning Appeals is hereby created. Such Board shall consist of five members who shall be appointed by the Mayor. Vacancies shall be filled in the same manner for the unexpired term. Upon the creation of the Board the members shall be appointed for the following terms: One for a term of one year; one for a term of two years; one for a term of three years; and two for a term of four years. The terms shall expire on January 1 of the first, second, third or fourth year respectively, following their appointment and thereafter as their terms expire each new appointment shall be for a term of four years. Members of the Board shall be removable for nonperformance of duty, misconduct in office or other causes by the Common Council upon written charges having been filed with the Common Council and after a public hearing has been held regarding such charges, a copy of the charges having been served upon the members so charged at least ten days prior to the hearing, either personally or by registered mail or by leaving the same at his usual place of residence. The member shall be given an opportunity to be heard in answer to such charges.

   (B)   Said Board shall consist of five members as follows:

      (1)   Three citizen members appointed by the Mayor, of whom one must be a member of the Plan Commission and two must not be members of the Plan Commission;

      (2)   One citizen member appointed by the Common Council, 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 county agricultural agent or a citizen member of the Plan Commission other than the member appointed under division (B)(1) above.

   (C)   None of the members of the Board may hold:

      (1)   An elected office (as defined in IC 3-5-2-17); or

      (2   Any other appointed office, except as permitted by IC 36-7-4-902, in municipal, county, or state government.

   (D)   All members of the Board must meet one of the following requirements:

      (1)   The member must be a resident of the city; or

      (2)   The member must be a resident of the county and also an owner of real property located in whole or in part in the city.

   (E)   However, at least a majority of the total number of citizen members appointed to the Board must be residents of the city. The Board shall determine whether a member meets all applicable residency requirements for appointment in accordance with uniform rules prescribed by the Board.

(Ord., passed - -79; Am. Ord. 1980-5, passed 7-7-80; Am. Ord. 2017- 017, passed 12-4-17)

   The Board of Zoning Appeals shall adopt such rules concerning the filing of appeals and applications for variances and exceptions, and giving of notice and conduct of hearings as shall be necessary to carry out its duties. At the first meeting of each year the Board shall elect a Chairperson and a Vice-Chairperson from its members. The Vice-Chairperson shall have authority to act as Chairperson in the absence or disability of the Chairperson. Meetings of the Board shall be held at the call of the Chairperson and at such other times as the Board may determine and all meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact and shall keep records of its examinations and other official actions all of which shall be immediately filed in the office of the Board and shall be a public record.

(Ord., passed - -79)

   A majority of the members of the Board shall constitute a quorum. The Board shall act by resolution and no action of the Board shall be official unless authorized by a majority of the members of the Board.

(Ord., passed - -79)

   The Board may appoint and affix the compensation of a secretary and such employees as are necessary for the discharge of its duties all in conformity to and compliance with salaries and compensations theretofore fixed by the Common Council. The Board may call upon the city departments for assistance in the performance of its duties and it shall be the duty of such departments to render such assistance to the Board as may reasonably be required. The Common Council shall provide suitable offices for the holding of hearings and the preservation of records, documents and accounts of the Board. The Board shall have authority to expend under regular city procedure all sums appropriated to it by the Common Council.

(Ord., passed - -79)

   (A)   Applications - when and by whom taken. An application, in cases in which the Board has original jurisdiction under the provisions of this chapter, may be taken by any property owner, including a tenant, or by a governmental officer, department, board or bureau. Such application shall be filed with the Board in accordance with its rules of procedure.

   (B)   Appeals - when and by whom taken. An appeal to the Board may be taken by any person aggrieved or by any officer of the city affected by any decision of the Zoning Inspector. Such appeal shall be taken within 20 days after the decision, by filing with the Zoning Inspector and with the Board a notice of appeal specifying the grounds thereof. The Zoning Inspector shall, upon request of the Board, transmit to the Board all the papers constituting the record of the action from which an appeal was taken.

   (C)   Hearings and fees.

      (1)   The Board shall fix a reasonable time for the hearing of the application or appeal and give public notice as well as due notice to the parties in interest of such public hearing. At the hearing, any party may appear in person or by attorney.

      (2)   The Board may require the party submitting the application or taking the appeal to assume the cost of public notice and due notice to interested parties.

   (D)   Decisions of the Board.

      (1)   The Board shall decide all applications and appeals within 30 days after the final hearing thereon.

      (2)   A certified copy of the Board's decision shall be transmitted to the applicant or appellant and to the Zoning Inspector. Such decision shall be binding upon the Zoning Inspector and observed by him and he shall incorporate the terms and conditions of the same in the improvement location permit to the applicant or appellant whenever a permit is authorized by the Board.

      (3)   Any person or persons, firm or corporation, jointly or severally aggrieved by any decision by the Board may present to the Circuit or Superior Court of Dearborn County, a petition duly verified setting forth that such decision is illegal in whole or in part and specifying the grounds of the illegality. The petition shall be presented to the court within 30 days after the date of the decision and the order of the Board with which there is a complaint.

   (E)   Stay of proceedings. An appeal to the Board shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Inspector certifies to the Board after notice of appeal shall have been filed with him, that by reason of fact stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed except by restraining order which may be granted by the Board or by the Circuit or Superior Court of Dearborn County.

(Ord., passed - -79)

   The powers of the Board shall be:

   (A)   To hear and determine appeals from and review any order, requirement, decision or determination made by an administrative official or board in the enforcement of this chapter;

   (B)   To authorize, upon appeal, a variance as defined in § 152.004;

   (C)   To grant an improvement location permit for conditional uses as hereinbefore specified and as defined in § 152.004;

   (D)   To interpret the provisions of this chapter as provided in §§ 152.015 through 152.020;

   (E)   To authorize or prohibit additional uses as provided in §§ 152.030 through 152.040;

   (F)   To permit the extension and/or substitution of a nonconforming use as provided in §§ 152.050 through 152.056.

   (G)   To permit the temporary use of a structure or premises in any district for a purpose or use that does not conform to the regulations prescribed elsewhere in this chapter for the district in which it is located, provided that such use be of a temporary nature and not involve the erection of a substantial structure, and further provided that an improvement location permit for such use shall be granted in the form of a temporary and revocable permit, for not more than a 12-month period, subject to such conditions as will safeguard the public health, safety, morals and general welfare; and

   (H)   Such other duties as may be required by the provisions of this chapter.

(Ord., passed - -79; Am. Ord. 1980-5, passed 7-7-80)

   In considering an application for a conditional use, the Board shall give due regard to the nature and condition of all adjacent uses and structures; and in authorizing a conditional use, the Board may impose such requirements and conditions with respect to location, construction, maintenance and operation (in addition to those expressly stipulated in this chapter for the particular conditional use) as the Board may deem necessary for the protection of public health, safety, comfort, morals, convenience and general welfare, and for the protection of adjacent properties.

(Ord., passed - -79)

   Where the street or lot layout actually on the ground, or as recorded, differs from the street and lot lines as shown on the Zoning Map, the Board, after notice to the owners of the property and after public hearing, shall interpret the map in such a way as to carry out the intent and purpose of this chapter. In case of any question as to the location of any boundary line between zoning districts, a request for interpretation of the Zoning Map may be made to the Board and a determination shall be made by the Board. In considering an interpretation of the Zoning Map, the Board shall give due regard to the nature and condition of all adjacent uses and structures.

(Ord., passed - -79)

   (A)   In authorizing a variance, the Board may attach thereto such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the interest of the furtherance of the purposes of this chapter and in the public interest. In authorizing a variance with attached conditions, the Board shall require such evidence and guarantee of bond, as it may deem necessary, that the conditions attached are and will be complied with.

   (B)   No such variance shall be authorized by the Board unless the Board finds that all the following facts and conditions exist:

      (1)   That there are exceptional or extraordinary circumstances applying to the property in question, or to the intended use of the property, that do not apply generally to other properties or classes of uses in the same zoning district;

      (2)   That such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same zoning district and in the same vicinity; and so that the spirit of this chapter shall be observed and substantial justice done; and

      (3)   That the authorizing of such variance will not be of substantial detriment to adjacent property, and will not materially impair the purposes of this chapter or the public interest.

   (C)   No grant of a variance shall be authorized unless the Board specifically finds that the condition or situation of the specific piece of property, or the intended use of said property for which variance is sought (one or the other or in combination) is not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such condition or situation.

   (D)   In exercising its power the Board may, in conformity with the provisions of statute and of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination made, and to that end shall have all powers of the officer from whom the appeal is taken.

(Ord., passed - -79)

   In considering an appeal from an alleged error in the administration of this chapter, the Board shall consider the intent and purpose of the provisions of this chapter that apply and the effect of the desired interpretation upon neighboring properties and the public interest. In exercising its power to review such allegation, the Board may, in conformity with the provisions of statute and of this chapter, reverse or affirm, wholly or partly, or may modify the order, decision or determination made, and to that end shall have all powers of the officer from whom the appeal is taken.

(Ord., passed - -79)