1.   The regular meeting of the Chesterton Advisory Board of Zoning Appeals (hereinafter referred to as “BZA”) shall be the second Thursday of each month at 6:30 p.m., where there is business pending before the BZA, unless otherwise announced by the Chairperson at the last preceding regular meeting. If it appears that the public hearings will be lengthy, the BZA can have an extra meeting that month to accommodate the heavy agenda, which will be held on a date set by the BZA during the extra meeting as well, and the paperwork must be submitted at the same time as the deadline for the regular Thursday meeting.

   2.   Special meetings of the BZA may be called by the Chairperson or by two members upon written request to the Secretary. The Secretary shall send to all the members and press entitled to notice, at least two days in advance of a special meeting, a written notice fixing the time and place of the meeting.

   Petitioner may request a special meeting of the BZA. If granted, the petitioner is required to bear the cost of the special meeting, which is $900.

   Written notice of a special meeting is not required if the time of the special meeting has been fixed in a regular meeting, or if all members are present at the regular meeting.

   3.   Emergency meetings may be called by the Chairperson or Secretary giving notice as provided in I.C. 5-14-1.5-5.

   4.   A majority of the members shall constitute a quorum. No action of the BZA is official, however, unless authorized by a majority of the BZA at a regular or properly called special meeting.

   5.   Decisions of the BZA shall be by voice vote of the members. Upon request of any member of the BZA, any vote shall be taken by written ballot, signed by the member voting, and then read aloud by the Secretary. All members present shall vote on every question unless they disqualify themselves or are excused from voting by a majority of the members present.

   6.   The Secretary of the BZA or, in his or her absence, a Secretary pro tem appointed by the Chairperson or presiding officer shall keep the official minutes of al proceedings which shall include:

      i.   Date, time and place of meeting;

      ii.   The members present and absent;

      iii.   The general substance of all matters proposed, discussed or decided; and

      iv.   A record of all votes taken, by individual members if there is a roll call. The Secretary shall submit the minutes of the previous meetings to the next regular meeting of the BZA for approval. When approved the record shall be signed by the Chairperson and attested by the Secretary. Once approved, the minutes shall be filed with the office of the Clerk-Treasurer of the town and shall be open to the public for inspection and copying.

   7.   A member of the BZA may not participate in a hearing or decision of the BZA concerning a matter in which he has a direct or indirect financial interest or for other reasons brought to the attention of the BZA and which disqualification is approved by the BZA. The BZA shall enter in its records the fact that a regular member has such a disqualification and the name of the alternate member, if any, who participates in the hearing or decision. Said alternate member, if any shall be appointed by the authority of the appointing body of the regular member who has been disqualified. Communication with BZA members by any person with intent to influence action prior to a hearing or decision regarding matters pending before the BZA is prohibited. However, the staff may file with the BZA a written statement setting forth any facts or opinions relating to the matter.

(Ord. 2009-17, passed 10-26-2009)

   1.   At its first regular meeting following the first day of January, the BZA shall elect from its members a Chairperson and Vice-Chairperson.

   2.   The Vice-Chairperson shall have the authority to act as Chairperson of the BZA during the absence, disability or resignation of the Chairperson. In the case of resignation, the new Chairperson shall be elected from the membership and shall fill the unexpired term of such departing Chairperson.

   3.   The BZA may appoint and fix the compensation of a Secretary and such employees necessary to the discharge of duties and responsibilities of the BZA. Such compensation shall conform to and comply with the compensation and salaries theretofore fixed by the Town Council.

   1.   The BZA shall hear and determine appeals from and review any order, requirement, decision or determination made by an Administrative Official or Staff member made in relation to the enforcement of the Chesterton Zoning and Subdivision Ordinance and the enforcement of building and occupancy permits as adopted under I.C. 36-7 and all Sections therein applicable. A preliminary hearing in accordance with these rules is required for petitions pursuant to this paragraph. No public hearing is required.

   2.   In exercising its powers, the BZA may reverse or affirm, wholly or partly, or may modify any order, requirement, decision or determination appealed from as, in its opinion, ought to be done in the premises and to that end shall have all the powers from whom the appeal is taken.

   3.   A petitioner seeking relief outlined in § 1 above must file a petition with the office of the Clerk-Treasurer no later than 12:00 noon on the Monday, ten days prior to the next regular meeting date, such petition to be forthwith forwarded by said Clerk-Treasurer to the Secretary of the BZA.

   4.   A separate petition shall be required for each lot in which a petitioner is seeking a variance. When we use the term “lot”, we are utilizing the definition of lot as found in Article II, Definitions of the Chesterton Zoning and Subdivision Ordinance, which is “a parcel of land occupied or to be occupied by one principal structure and its accessory buildings with such open spaces and off-street parking spaces as are required by the provisions of this appendix and having frontage on a public street”.

   5.   The BZA also shall approve or deny all variances, development standard variances, and special exceptions. A petitioner seeking the relief outlined in this paragraph must file petition BZA: one for variances and BZA; two for special exceptions with the Office of the Clerk-Treasurer no later than 12:00 noon on the Monday, ten days prior to the next regular meeting of the Board, such petition to be immediately forwarded by said Clerk-Treasurer to the Secretary of the BZA.

   6.   Such petitions must be filed with the office of the Clerk-Treasurer and the Secretary no later than 12:00 noon on Monday, ten days prior to the next regular meeting of the BZA. Petitions filed too late to comply with the section shall be heard at the next succeeding regular meeting of the BZA. However, the BZA may waive the requirements of this section by a unanimous vote of the members present, upon showing that an emergency exists. The purpose of this section is to enable the members to examine and study the pending appeals and to conduct any investigation deemed advisable.

   7.   A non-refundable filing fee shall accompany all such petitions, as follows:

Development Standard Variance

   Residential Zone…...………………………………………………...…………..$50

   Business Zone………………………………………………………………..…….$175

   Industrial Zone……………………………………………………………………..$300

Use Variance………………………………………………………………………………….$300

   Administrative Decision Appeal………………………………………………….....$50

   Special Exception…………………………………………………………………......$300

   Special Meeting……………………………………………………………………......$900

   To help defray the administrative and investigative expenses of the BZA, petitioner shall bear all costs of publication and notification that is required by the BZA.

   8.   When the petition is filed with the office of the Clerk-Treasurer, the petitioner also shall file with the Clerk-Treasurer proposed findings and decision for the immediate forwarding to the Secretary of the BZA. Samples of the findings and decision forms are attached to these rules and are marked “BZA 8”, “BZA 9” and “BZA 10”.

   9.   At least ten days prior to the date set for public hearing, the BZA Secretary shall publish in a newspaper of general circulation in the town, a notice of the time and place of the hearing. The petitioner is required to pay for such publication and provide proof of payment of publication prior to having a public hearing.

   10.   At least 14 days prior to the date set for public hearing, the petitioner shall notify the owner(s) of all real estate within a radius of 300 feet of the affected property of the date of hearing and substance of the appeal by certified mail with return receipt requested (see BZA 4 or BZA 5) or by hand-carried forms with the same information and a place for signature or property owner(s) (see BZA 6 or BZA 7) to acknowledge receipt. These receipts and/or forms are to be turned in to the Clerk-Treasurer by Monday of the week of the public hearing, for forwarding to the BZA Secretary.

   11.   If the BZA finds that a petition is in good order with sufficient information, it will set a time and place for holding a public hearing and announce same publicly.

   1.   Each case to be presented before the BZA shall be filed in proper form with the required date, shall be numbered serially, and placed on the docket of the BZA. The docket numbers shall include the year and begin anew on January 1 of each year.

   2.   As soon as the case receives a docket number, it shall be placed upon the agenda of the BZA and a date set for preliminary hearing.

   3.   Cases shall come before the BZA in the regular order of their consecutive numbers unless otherwise ordered by the BZA, or hereinafter otherwise provided.

   1.   At a public hearing before the BZA, the presentation of a case by the petitioner should, in most situations, take no more that five minutes to address all pertinent facts necessary for the BZA to decide this matter. Those who oppose the petitioner shall follow, after which petitioner shall have five minutes for rebuttal. To maintain orderly procedure, each side shall proceed without interruption by the other. Each speaker shall have three minutes to speak, and shall speak only once. Each speaker shall address the Chair and be recognized before speaking. If a person has submitted comments in writing to the BZA in support of or in opposition to the petition, the Chairperson will read them into the record.

   2.   In the presentation of a case, the burden shall be upon the petitioner to supply all information, including charts, scaled plats, accurate diagrams and other exhibits necessary for a clear understanding of the problem. The BZA may continue the hearing when, in its judgment, the petitioner has not provided sufficient evidence and information on which to make a determination.

   3.   A use variance from the terms of the Chesterton Zoning and Subdivision Ordinance may be approved by the BZA only upon a determination in writing that:

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

      b)   The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;

      c)   The need for the variance arises from some condition peculiar to the property involved;

      d)   The strict application of the terms of this appendix will constitute an unnecessary hardship if applied to the property for which the variance is sought; and

      e)   The approval does not interfere substantial with the Comprehensive Plan adopted under the 500 series of I.C. 36-7-4.

   4.   A development standards variance from the terms of the Chesterton Zoning and Subdivision Ordinance may be approved by the BZA only upon determination in writing that:

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

      b)   Use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and

      c)   The strict application of the terms of this appendix will result in practical difficulties in the use of the property.

   5.   A special exception from the Chesterton Zoning and Subdivision Ordinance may be approved only where specifically allowed in Table A of § 505 of this appendix. There shall be no cases or application therefore nor any particular situation in which this appendix authorizes special exceptions without the approval of the BZA. Further, no previous application shall set a precedent for any other application before the BZA. The BZA may grant a special exception for a use in a zoning district if, after a public hearing, it makes findings of facts in writing, that:

      a)   The requirements and development standards for the requested use as prescribed in this appendix will be met;

      b)   The special exception shall be designed so that it can be constructed, operated and maintained in a manner harmonious with the character of adjacent property in the surrounding area;

      c)   The special exception shall not inappropriately change the essential character of the surrounding area;

      d)   The special exception shall not interfere with the general enjoyment of adjacent property;

      e)   The special exception shall represent an improvement to the use or character of the property under consideration and the surrounding area in general, it shall also be in keeping with the natural environment of the site; and

      f)   The special exception shall not be hazardous to adjacent properties, or involve uses, activities, materials or equipment which be detrimental to the health, safety or welfare of persons or property through the excessive production of traffic, noise, smoke, odor, fumes or glare.

   6.   In the presentation of the case, the burden of proof as to the items in §§ 3, 4 and 5 above, (whichever is applicable), shall be upon the petitioner. The facts supporting said petitioner’s burden shall be stated by him or her in the proposed findings and decision on the applicable form.

   7.   Every person appearing before the BZA shall abide by the order and directions of the Chairperson. Discourteous, disorderly or contemptuous conduct shall be regarded as a breach of privileges of the BZA and shall be dealt with as the BZA directs.

   8.   The BZA, at its discretion, may continue or postpone the hearings of any case upon an affirmative vote of a majority of the members present.

   1.   The final disposition of any case shall be in the form of an order setting forth the findings and determination of the BZA together with any modification, specification or approval. In addition to reasonable conditions as aforementioned, the BZA may require the owner of a parcel of property to make a written commitment concerning the use or development of that parcel as set forth in Article VII.

   2.   The BZA may dismiss a case for want of prosecution or lack of jurisdiction. When a petitioner has failed to appear at two consecutive meetings, the case shall be dismissed for want of prosecution.

   3.   A petitioner may not withdraw a case after a roll call vote has been ordered by the Chairperson.

   4.   A case which has been withdrawn by the petitioner shall not be again placed on the docket within a period of six months after the date of withdrawal.

   5.   A case which has been decided adversely to the petitioner shall not again be place upon the docket for a period of one year from the date of the decision.

   1.   The BZA, in its discretion, may impose reasonable conditions as a part of its approval of any petition. In the event of a violation of the reasonable conditions imposed by the BZA, the BZA may take any action it deems necessary including, but not limited to, revoking any variance granted that contained reasonable conditions that were violated by the petitioner. Prior to revoking any variance for violation of reasonable conditions imposed by the BZA, the BZA shall give written notice to the petitioner at his or her last known address advising the petitioner of the allegation concerning the reasonable conditions and giving the petitioner notice of the time and place of a meeting at which the BZA will consider this matter.

   2.   In the case of any approval by the BZA, it may permit or require the owner of a parcel of property to make a written commitment(s) concerning the use or development of that parcel.

   3.   The written commitments shall be in typewritten form and subject to the approval of the BZA’s attorney.

   4.   The written commitments shall take effect upon the approval of the special exception, development standard or use variance.

   5.   Unless modified or terminated by the BZA, a commitment is binding upon:

      a.   The owner of the parcel;

      b.   A subsequent owner of the parcel; and

      c.   A person who acquires an interest in the parcel.

   6.   A written commitment may be modified or terminated only by a decision of the BZA made at a public hearing after ten days notice has been given by the BZA to the petitioner of said public hearing. No other notice is required with the exception of the legal publication that is required pursuant to Indiana law for public hearing.

   1.   A variance or special exception granted by the BZA may be terminated by the BZA on its on motion or upon the filing of an application theretofore by an interested person, or a member of the staff or Plan Commission and, upon a finding made at a public hearing with ten days’ notice given to the property owner for which the variance or special exception was given, that the terms of this appendix or conditions of approval or written commitments have not been complied with.

NOTE:

   An informational packet for the Chesterton Advisory Board of Zoning Appeals has been adopted as part of the general overview and appropriate forms that must be used for petitions before the BZA. A complete informational packet, as may be amended from time to time, is available in the office of the Clerk-Treasurer. The BZA informational packet includes the rules of practice and procedures, information designed to assist petitioners before the BZA, and forms and checklists.