(a)

There is established an executive department of the municipal government of the city which shall be known as the department of development and planning. The department shall include, as its department head, the director of development and planning who shall be appointed by the mayor. The department shall also include other employees that may be designated by the director, and provided for by the mayor and the common council in an annual appropriation ordinance. All officers and employees of the department shall be under the direction and supervision of the director of development and planning and shall perform all duties required by the director or by the provisions of this chapter.

(b)

It shall be the duty of the director of development and planning to coordinate the formulation of physical improvement projects and programs affecting the present and future development of the city, including those projects and programs proposed by the respective executive departments of city government; to create, maintain, and expand a comprehensive general master plan of the city; to keep the city zoning code under constant review and to recommend amendments as necessary to keep pace with changing conditions; and to coordinate the development of a long range capital improvement program.

(c)

The department of development and planning shall include those divisions that may be necessary or desirable to enable the performance of the duties of the director of development and planning as herein set forth in this section, and as provided in the annual appropriation ordinance approved by the mayor and the common council.

(Code 1960, § 6-1301; Code 1989, § 163.020; Ord. No. 3376; Ord. No. 4126; Ord. No. 4929, 9-3-1974; Ord. No. 8256, § 1(163.020), 2-17-2009)

(a)

A board of zoning appeals is created, as set forth in IC 36-7-4-901 and 36-7-4-902. None of the members may hold other elective or appointive office, except as set forth in IC 36-7-4-902. A member must be a resident of the jurisdictional area of the board.

(b)

The members of the board 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 the first day of January of the first, second, third, or fourth year, respectively, following the appointment. Thereafter, as the terms expire, each new appointment shall be for a term of four years. If a vacancy occurs, by resignation or otherwise, among the members of the board, the mayor shall appoint a member for the unexpired term.

(c)

At the first meeting of each year, the board shall elect a chairperson and vice-chairperson from its members. The vice-chairperson shall have authority to act as chairperson during the absence or disability of the chairperson. The presence of three members of the board shall be necessary to constitute a quorum. No action of the board is official, however, unless authorized by a majority of the board. The board may appoint and fix the compensation of a secretary and any other employees that are necessary for the discharge of its duties, all in conformity to and compliance with salaries and compensations fixed by the common council.

(d)

The common council shall provide suitable offices for the holding of hearings and the preservation of records, documents, and accounts. The common council may appropriate funds to carry out the duties of the board and the board shall have the authority to expend, under regular city or county procedure, all sums appropriated to it for the purposes and activities authorized herein.

(e)

The members of the board shall serve without salary.

(f)

The board shall adopt all rules concerning the filing of appeals and applications for variances and exceptions, giving of notice, and conduct of hearings, as shall he necessary to carry out its duties as defined herein. The board shall keep minutes of its proceedings, keep records of its examinations and other official acts, and shall record the vote on all actions taken. All minutes and records shall be filed in the office of the board and shall be a public record.

(g)

The board of zoning appeals shall have the powers and duties as set forth in IC 36-7-4-918.1 et seq., and as follows:

(1)

Hear and determine appeals from and review any order, requirement, decision, or determination made by the director of the department of development and planning under this chapter, and as set forth under IC 36-7-4-918.1.

(2)

Hear and pass upon applications for variations from the district regulations provided in this chapter, and as set forth under IC 36-7-4-918.3.

(3)

Authorize upon appeal the variations from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the chapter will result in unnecessary hardship, so that the spirit of the chapter shall be observed and substantial justice done.

(4)

Hear and decide special exceptions to the terms of this chapter upon which the board is required to act.

(5)

The board of zoning appeals shall forward to the common council a listing of all new petitions which are scheduled for hearing before the board, said listing to include the names, addresses, and requests of all petitioners. The listing shall be forwarded on a monthly basis.

(h)

All decisions and findings of the board of zoning appeals, on appeal or upon application for a variation after a hearing, shall be subject to review by court as by law may be provided.

(Code 1960, § 6-1302; Code 1989, § 163.021; Ord. No. 3376; Ord. No. 5737, 7-21-1981; Ord. No. 7414, § 1, 12-17-2002; Ord. No. 8256, § 1(163.021), 2-17-2009)

State Law reference— Authority to establish, IC 36-7-4-901 et seq.

The city plan commission, as established under chapter 2, is hereby vested with the following jurisdiction and authority:

(1)

Receive from the city clerk copies of all proposed ordinances, other than those originating from petition of the plan commission, for the amendment, supplement, change, or repeal of the zoning code or for the authorization of special uses as set forth in this chapter.

(2)

Consider all proposed ordinances referred to it and to hold public hearings thereon in the manner prescribed in section 123-6.

(3)

Following public hearings, to submit to the common council a report and recommendations on each proposed ordinance for the amendment, supplement, change, or repeal of the zoning code or for the authorization of a special use.

(4)

On its own initiative, to petition the common council requesting an amendment, supplement, change, or repeal of the zoning code, provided it has first held public hearings thereon in the manner prescribed in section 123-6.

(5)

Initiate, from time to time, a comprehensive review of the provisions of the zoning code, and make a report of its findings and recommendations to the common council at least once every two years.

(6)

The plan commission shall forward to the common council a listing of all new petitions which are scheduled for hearing before the commission, said listing to include the names, addresses, and requests of all petitioners. The listing shall be forwarded on a monthly basis.

In addition, the city plan commission shall have the duties and powers authorized under IC 36-7-4-400.

(Code 1960, § 6-1303; Code 1989, § 163.022; Ord. No. 3376; Ord. No. 5739, 7-21-1981; Ord. No. 8256, § 1(163.022), 2-17-2009)

The intent and purpose of this section is to reimburse the city for planning services, reviews, and inspections, and to defray the city's expense involved with preparation, mailing, and publication of notices. Fees in the amount established in chapter 20 shall be charged by the city and collected by the city controller.

(Code 1989, § 163.014; Ord. No. 5978, 7-3-1984; Ord. No. 8256, § 1(163.014), 2-17-2009)

Any application for an amendment or special use filed by or on behalf of the owner of the property affected shall be accompanied by a fee in the amount established in chapter 20.

(Code 1960, § 6-1315; Code 1989, § 163.044; Ord. No. 3376; Ord. No. 4128)

(a)

Except as hereinafter provided, no permit pertaining to the use of land or buildings shall be issued by an officer, department, or employee of the city unless the application for the permit has been examined by the director of the department of development and planning and has affixed to it a certificate of his office that the proposed building or structure and use thereof complies with all the provisions of this chapter.

(1)

However, with respect to the performance standards of this chapter for manufacturing and other specified uses, the director shall accept as proof of compliance with these standards the certificate of an architect or structural engineer, licensed by the state, stating that the building or structure and proposed use thereof does conform with the performance standards for the district in which it is located. Upon receipt of the certificate, and if all other relevant requirements of this chapter are met, the director shall without further delay approve and authorize the issuance of a zoning certificate; within 15 days from the date of the approval, the director shall examine the application and shall advise the architect or structural engineer, in writing, if the building, structure, or use thereof does not in fact comply with the performance standards of this chapter for the district in which it is or is to be located. Failure of the architect or structural engineer to show compliance within 30 days of the notification shall be cause for revocation of the zoning certificate.

(2)

Any permit, zoning certificate, or certificate of occupancy issued in conflict with the provisions of this chapter shall be null and void.

(b)

Every application for a new building permit in addition to an existing building shall be accompanied by the following:

(1)

A plat of the piece or parcel of land, lot, lots, block, blocks, or parts or portions thereof, drawn to scale, showing the actual dimensions and certified by a land surveyor or civil engineer, licensed by the state, as a true copy of the piece or parcel, lot, lots, block, blocks, or portions thereof, according to the registered or recorded plat of the land when required or considered necessary by the director.

(2)

A plat drawn to scale in the form that may from time to time be prescribed by the director, showing the ground area, height and bulk of the building or structure, the building lines in relation to lot lines, the use to be made of the building or structure of land, and other information as may be required by the director for the proper enforcement of this chapter.

(3)

Each of the two plats shall be attached to the application for a building permit when it is submitted for a zoning certificate and shall be retained by the director as a public record.

(Code 1960, § 6-1304; Code 1989, § 163.023; Ord. No. 3376; Ord. No. 8256, § 1(163.023), 2-17-2009)

(a)

No building, or alteration, modification, or addition thereto, constructed or made after the effective date of the ordinance from which this chapter is derived; no alteration, modification, or addition to a previously existing building; and no land vacant on the effective date of the ordinance from which this chapter is derived shall be used or occupied for any purpose until a certificate of occupancy is issued by the office of the director of the department of development and planning. Further, no changes in any residential, business, or manufacturing principal or accessory use or uses of a lot or building, or any portion thereof, shall be made or affected until a certificate of occupancy has been issued by the office of the director of the department of development and planning. Such changes, for the purposes of this section, shall include but are not limited to changes in type, nature, or classification of a dwelling or dwelling unit; type or nature of goods dispensed; type or nature of goods resulting from or materials used in production, processing, or storage; and changes resulting in reclassification or amended performance standards to uses enumerated in this chapter. Every certificate of occupancy shall state that the use or occupancy complies with all provisions of this chapter.

(b)

Every application for a building permit shall be deemed to be an application for an occupancy certificate. Every application for an occupancy certificate for a new use of land where no building permit is required shall be made directly to the office of the director of the department of development and planning.

(c)

No occupancy certificate shall be issued until construction has been completed or the use established, and has been inspected and certified by the office of the director to be in compliance with all the provisions of this chapter. Pending the issuance of a regular certificate, a temporary certificate may be issued to be valid for a period not to exceed six months from its date during the completion of any addition or during the partial occupancy of the premises. An occupancy permit shall be issued or written notice shall be given to the applicant stating the reasons why a certificate cannot be issued later than 14 days after the office of the director is notified in writing that the building or premises is ready for occupancy.

(Code 1960, § 6-1305; Code 1989, § 163.024; Ord. No. 3376; Ord. No. 4035; Ord. No. 8256, § 1(163.024), 2-17-2009)

(a)

The formulation and enactment of this chapter is based on the division of the entire city into zoning districts, in each of which are authorized specified land uses that are permitted as mutually compatible, special exceptions, or transitional uses. It is recognized that special exceptions are land uses which it may be necessary or desirable to allow in a given zoning district but which on account of their potential impact upon neighboring land uses or public facilities need to be carefully regulated with respect to location or operation for the protection of the community. These land uses and fall into two categories:

(1)

Uses either municipally operated or operated by publicly regulated utilities, or uses traditionally affected by public interest.

(2)

Uses entirely private in character which on account of their peculiar locational need or the nature of the service they offer to the public may have to be established in a zoning district or districts in which they cannot reasonably be allowed as a permitted use under the zoning regulations.

It is also recognized that transitional land uses may be appropriate for those areas along a zoning district border to allow for a mix of land uses from each zoning district that share a common border to provide for an overlap of zoning district land use activities and implement sustainable growth principles and initiatives to overcome strict traditional zoning boundary delineations. Transitional uses may be permitted when located on a lot that is tangential to a zoning district boundary delineation or separated by a right-of-way, alley or public, private or railroad easement.

(b)

An application for a special use shall be filed with the planning department upon the form and accompanied by the information established from time to time by the planning department. The city clerk shall forward to the planning department without delay a copy of each ordinance proposed for authorizing a special use.

(c)

Special uses shall be authorized by the board of zoning appeals. No special use shall be granted by the board of zoning appeals unless the special use meets the following:

(1)

The establishment, maintenance, or operation of the special use will not be detrimental to or endanger the public health, safety, morals, or general welfare.

(2)

The special use will not be injurious to the use and enjoyment of other properties in the immediate vicinity for the purposes already permitted.

(3)

The establishment of the special use will not impede or substantially alter the normal and orderly development and improvement of surrounding property for uses permitted in the district.

(4)

Adequate utilities, access roads, drainage, and other necessary facilities have been or are being provided.

(5)

Adequate measures have been or will be taken to provide for access management, ingress and egress so designed as to minimize traffic congestion on the public roads.

(6)

The special use will be located in a district where such a use is authorized and all other requirements set forth in this chapter which are applicable to such special use will be met.

(7)

The petitioner documents and presents to the commission that proposed special use provides for the implementation of sustainable growth principles and initiatives as approved by the commission.

(d)

The board of zoning appeals provides conditions or restrictions upon the construction, locations, operation, and time limit that construction must begin or the special use is null and void, including but not limited to provisions for off-street parking and loading, as necessary to secure the general objectives of this chapter and to reduce injury to the value of property in the neighborhood.

(Code 1960, § 6-1312; Code 1989, § 163.041; Ord. No. 3376; Ord. No. 4255; Ord. No. 4266; Ord. No. 5965, 2-7-1984; Ord. No. 8256, § 1(163.041), 2-17-2009)

Planned developments, as defined in section 123-1 are of such substantially different character from other special uses that specific and additional standards and exceptions are hereby set out to govern the recommendations of the plan commission and the action of the board of zoning appeals.

(1)

Use exceptions. In the case of residential, business, or manufacturing planned developments, the plan commission may recommend and the board of zoning appeals may authorize that there be, in part of the area of the development and for the duration of the development, specified uses not permitted by the use of regulations of the district in which the development is located, provided the plan commission makes the following findings:

a.

The uses permitted by the exception are necessary or desirable and are appropriate with respect to the primary purpose of the development.

b.

The uses permitted by the exception are not of such a nature or so located as to exercise a detrimental influence on the surrounding neighborhood.

c.

Not more than 20 percent of the ground area or of the gross floor area of the development shall be devoted to the uses permitted by the exception.

d.

In a manufacturing planned development, additional uses allowed by exception shall conform with the performance standards of the district in which the development is located, as set forth in sections 123-216 through 123-219.

e.

Uses permitted provide for the implementation of sustainable growth principles and initiatives as approved by the commission;

f.

Residential and business planned unit developments provide for pedestrian-orientated and/or transit-orientated developments that include pedestrian amenities and transportation mode options where necessary and as required by the commission; and are developed as human-scale design/developments; and include appropriate landscaping along public right-of-ways, open spaces, plazas, planter strips and common green areas.

(2)

Bulk regulations. In the case of any planned development, the plan commission may recommend and the board of zoning appeals may authorize exceptions to the applicable bulk regulations of this chapter within the boundaries of the development, provided the plan commission makes the following findings:

a.

Bulk regulation exceptions provide for the implementation of sustainable growth principles and initiatives as approved by the commission;

b.

The exception shall be solely for the purpose of promoting an integrated site plan no less beneficial to the residents or occupants of the development, as well as of neighboring properties, than would obtain under the bulk regulations of this chapter for buildings developed on separate zoning lots.

c.

The over-all floor area ratio of the development shall not exceed that prescribed in this chapter for the district in which it is located.

d.

The minimum lot area per dwelling unit requirements of this chapter shall be adhered to in any development containing residential uses, and that there shall be available to each residential building and immediately adjacent thereto, including the land area upon which it is erected, the minimum amount of land area required for the building under the lot area per dwelling unit provisions of this chapter.

e.

Spacing between principal buildings shall be at least equivalent to spacing required between, buildings similarly developed under the terms of this chapter on separate zoning lots, due consideration being given to the openness normally afforded by intervening streets and alleys.

f.

Along the periphery of the planned developments, yards shall be provided as required by the regulations of the district in which the development is located.

(Code 1960, § 6-1313; Code 1989, § 163.042; Ord. No. 3376; Ord. No. 5965, 2-7-1984; Ord. No. 8256, § 1(163.042), 2-17-2009)

(a)

In order to protect areas devoted to residential, business, and light manufacturing uses from annoying or dangerous classes of industrial nuisances and hazards, the city has been divided into three manufacturing zoning districts, M1, M2, and M3, graduated respectively in terms of industrial performance standards from high to intermediate to low. For practical purposes, the performance standards in the M1 and M3 districts have been supplemented by lists of the uses permitted in these zoning districts.

(1)

It is recognized, however, that among the uses first permitted in an M2 zoning district there may be individual establishments having such high performance standards that they could safely be permitted in the M1 zoning district even though engaged in operations not listed as permitted in the M1 zoning district. It is consistent with the purposes of this chapter and with the welfare of the community that the provision be made to allow these individual establishments of high performance to be located in the M1 zoning districts. The board of zoning appeals is empowered, therefore, to authorize as a special use in an M1 zoning district any individual establishment engaged in production, processing, cleaning, testing, or repair which is first permitted in an M2 zoning district under the terms of this chapter, but not first permitted in the M3 district, if the board of zoning appeals is satisfied beyond a reasonable doubt that all performance standards for the M1 zoning district, as well as all other regulations, will be complied with.

(2)

In authorizing this special use, the board of zoning appeals may, on advice of the plan commission, require the posting of a performance bond by the owners or operators of the proposed establishment, the bond to be subject to forfeiture and the money to be applied to the cost of any remodeling or other alterations necessary to ensure compliance with the M1 performance standards should the establishment in fact fail to so comply.

(b)

Preliminary to making its report to the board of zoning appeals, the plan commission shall require the applicant for a special manufacturing use to furnish it with a certificate of an architect or structural engineer licensed by the state, which shall include the following:

(1)

A complete inventory of all machinery and fuel-burning equipment to be used in the conduct of the enterprise, together with any performance ratings which may be available from the manufacturers thereof.

(2)

A statement that the proposed operations will conform with the performance standards for the M1 zoning district, and a description of the methods, structural and mechanical, which will be employed to keep any potential sources of nuisance in conformity with the performance standards.

(3)

A statement and finding that the petition for a special manufacturing use will not negatively impact or effect adjacent residential or business zoning districts, ecologically/scientifically significant natural areas, fish and wildlife habitat areas, or identified natural features or mitigate any negative impacts; or any negative impacts documented by the petitioner or the commission with be mitigated prior to development.

(4)

Other pertinent information as the plan commission shall deem necessary to assist it in making its findings and report.

(Code 1960, § 6-1314; Code 1989, § 163.043; Ord. No. 3376; Ord. No. 5965, 2-7-1984; Ord. No. 8256, § 1(163.043), 2-17-2009)

A lawfully established use, building or structure which becomes nonconforming with respect to this chapter on the effective date thereof or as a result of any subsequent amendment thereto may be continued except as otherwise provided in this chapter.

(Code 1960, § 6-1201; Code 1989, § 163.120; Ord. No. 3376; Ord. No. 8256, § 1(163.120), 2-17-2009)

(a)

The nonconforming use of any building, structure, or portion thereof, which is designed or intended for a use not permitted in the district in which it is located, may be changed to another nonconforming use thereof, but only if such other use is permitted in every zoning district in which the use presently occupying the building, structure or portion thereof is permitted. However, when the aforesaid building or structure or portion thereof is located in a residence district, the following additional regulations shall apply:

(1)

Uses first permitted in a business or manufacturing district may be changed only to uses permitted in a residence or B1 district.

(2)

No nonconforming residential use shall be changed to nonconforming, nonresidential use.

(b)

Except for those uses classified and regulated in subsection (a) of this section, no nonconforming use shall be changed to any other use except a use which conforms to the use regulations of the district in which it is located.

(c)

No change of use shall extend or otherwise modify any provision for the elimination of a nonconforming building or structure and the use thereof as set forth in section 123-88.

(Code 1960, § 6-1202; Code 1989, § 163.121; Ord. No. 3376; Ord. No. 8256, § 1(163.121), 2-17-2009)

(a)

When the nonconforming use of a building, structure, or portion thereof, which is designed or intended for a use not permitted in the district in which it is located, is discontinued for a continuous period of two years, such building, structure, or portion thereof shall thereafter be occupied only by a use which conforms to the use regulations of the district in which it is located.

(b)

Except for those uses classified and regulated in subsection (a) of this section, any nonconforming use which is discontinued for a continuous period of six months shall not thereafter be resumed, and the premises shall thereafter be occupied only by a use which conforms to the use regulations of the district in which it is located.

(Code 1960, § 6-1203; Code 1989, § 163.122; Ord. No. 3376; Ord. No. 8256, § 1(163.122), 2-17-2009)

(a)

In districts other than an M3 district, there shall be no extension or enlargement of a nonconforming use, except in the following instances:

(1)

When a use first permitted in the M3 district is a nonconforming use in an M2 district, provided that any expanded portion of such use shall conform with the performance standards for the M2 districts.

(2)

When a use first permitted in the M2 district is a nonconforming use in an M1 district, provided that any expanded portion of such use shall conform with the performance standards for the M1 districts.

(3)

When a use first permitted in one of the business districts is a nonconforming use in a manufacturing district. However, no nonconforming use shall be expanded to the extent of more than 50 percent of the land area or floor area occupied by such use on the date it became nonconforming.

(b)

When a building, structure, or portion thereof is designed or intended for a use not permitted in the district in which it is located, it shall not be enlarged, added to or structurally altered in any manner except as may be required by law, unless the building or structure and use thereof shall be made to conform to the use regulations of the district in which it is located, provided that this restriction shall not apply to a building or structure occupied by a nonconforming use which is permitted to expand under the terms of subsection (a) of this section. A building or structure which is nonconforming with respect to yards, floor area ratio, or any other element of bulk regulated by this chapter shall not be altered or expanded in any manner which would increase the degree or extent of its nonconformity with respect to the bulk regulations for the district in which it is located.

(Code 1960, § 6-1204; Code 1989, § 163.123; Ord. No. 3376; Ord. No. 8256, § 1(163.123), 2-17-2009)

Ordinary repairs and alterations may be made to a nonconforming building or structure provided that no structural alterations shall be made in or to a building or structure, all or substantially all of which is designed or intended for a use not permitted in the district in which it is located, except those required by law or except to make the building or structure and use thereof conform to the regulations of the district in which it is located. For the purpose of this section, repairs shall include the replacement of storage tanks, where the safety of the operation of the installation requires such replacement, and of other equipment located within such buildings and structures, except as hereinabove provided.

(Code 1960, § 6-1205; Code 1989, § 163.124; Ord. No. 3376; Ord. No. 8256, § 1(163.124), 2-17-2009)

A building or structure which is designed or intended for a use not permitted in the district in which it is located and which is damaged or destroyed by any means to the extent of 50 percent of its replacement value, shall not thereafter be restored unless the building or structure and the use thereof shall conform to all the regulations of the district in which is located.

(Code 1960, § 6-1206; Code 1989, § 163.125; Ord. No. 3376; Ord. No. 8256, § 1(163.125), 2-17-2009)

No nonconforming building or structure shall be moved in whole or in "art to any other location on the lot, except as required by law, unless every portion of such building or structure which is moved and the use thereof made to conform to all the regulations of the district in which it is located.

(Code 1960, § 6-1207; Code 1989, § 163.126; Ord. No. 3376; Ord. No. 8256, § 1(163.126), 2-17-2009)

(a)

For the purposes of this section, the valuation of a nonconforming building or structure or use shall be its assessed valuation or, where no assessed valuation exists, its appraised valuation at the time it became nonconforming with respect to this chapter. However, at the end of any period prescribed hereinafter for the termination, removal, or remodeling of a nonconforming building, structure, or use, if the valuation of same shall have increased to a figure for which a longer period is prescribed hereinafter, then such longer period shall be substituted as the prescribed period for termination, removal or remodeling in lieu of the original period based on the valuation of the building, structure or use at the time it became nonconforming. When the provisions of this section affect only a portion of a building or structure and when there is no separate valuation for such portion, the director of the department of development and planning shall determine the valuation of same on the basis of an equitable prorating of the valuation of the entire building or structure.

(b)

In a residence district, any building, structure, or portion thereof which is designed or intended for a use permitted only in a business or manufacturing district and which has a valuation of less than $2,000.00, shall be demolished, removed or remodeled and converted for a use permitted in the residence district within two years from the date the building, structure or portion thereof became nonconforming with respect to this chapter, as indicated herein, or four years from the date of issuance of the building permit for same, or from the date construction was completed if no building permit was issued, whichever period shall terminate last.

(c)

In a residence district, any building, structure or portion thereof which is designed or intended for a use permitted only in a business or manufacturing district and which has a valuation of at least $2,000 but no more than $5,000, shall be demolished, removed, or remodeled and converted for a use permitted in the residence district within four years from the date the building, structure, or portion thereof became nonconforming with respect to this chapter as indicated herein, or eight years from the date construction was completed if no building permit was issued, whichever period shall terminate last.

(d)

In a residence district, any building, structure, or portion thereof which is designed or intended for a use permitted only in a business or manufacturing district, and which has a valuation of more than $5,000, shall be demolished, removed, or remodeled and converted for a use permitted in the residence district after the termination of the respective periods of time set out hereinafter, which periods are hereby established as a reasonable amortization of the normal, useful life of each class of building and type of construction above the foundation walls or piers.

(1)

Solid brick, stone, reinforced concrete, or similar materials with structural members of steel or similar materials: 30 years from the date the building, structure, or portion thereof became nonconforming with respect to this chapter as hereinbefore indicated, or 40 years from the date of issuance of the building permit for the construction of either the whole structure or the initial building or initial part thereof, whichever period shall terminate last.

(2)

Solid brick, stone, reinforced concrete, or similar materials, with structural members of reinforced concrete, masonry, timber, or similar materials: 20 years from the date the building, structure, or portion thereof became nonconforming with respect to this chapter as hereinbefore indicated, or 30 years from the date of issuance of the building permit for the construction of either the whole structure or the initial building or initial part thereof, whichever period shall terminated last.

(3)

Timber and all other construction and physical improvements to land all or substantially all of which are below or at ground level: ten years from the date the building, structure, or portion thereof became nonconforming with respect to this chapter as hereinbefore indicated, or 20 years from the date of issuance of the building permit for the construction of either the whole structure or the initial building or initial part thereof, whichever period shall terminate last.

(4)

If, prior to the adoption of this chapter, substantially all of a nonconforming building has been reconstructed, rebuilt or structurally altered, or if an addition at least equal in size or valuation has been structurally attached thereto, then for purposes of determining the normal useful life of such building the date of issuance of the building permit therefore shall be taken to be the date of issuance of the building permit for such reconstruction, alteration or addition.

(e)

In a residence district, the nonconforming business or manufacturing use of a building or portion thereof which is designed or intended for residential purpose or for a residential accessory purpose, shall be entirely discontinued within one year and shall thereafter cease operation and not be reestablished.

(f)

The nonconforming use of land:

(1)

In a residence district shall be terminated not later than two years from the date the use became nonconforming with respect to this chapter in each of the following instances:

a.

Where no buildings or structures are employed in connection with such use, or where the only buildings, structures or other physical improvements employed are accessory or incidental to such use or have an assessed valuation of less than $2,000; or

b.

Where such use is maintained in connection with a conforming building or structure; except that inadequate off-street parking facilities accessory to a building or structure located in the residence district and occupied by a use conforming with the requirements of the district may be continued for as long a time as the premises are used for a permitted use.

(2)

Which is accessory to the nonconforming use of a building or structure shall be discontinued on the same date the nonconforming use of the building or structure is discontinued.

(3)

Which has in connection therewith physical improvements, all or substantially all of which are underground or at ground level, shall be deemed to be a nonconforming structure and shall be subject to the applicable provisions of this section.

(g)

In accordance with the provisions of section 123-86 the board of zoning appeals may, in a specific instance and after public hearing, extend the period of time prescribed hereinbefore for termination of nonconforming use or building.

(h)

Exemptions.

(1)

No lawfully established building, structure or use shall be subject to the termination provision of section 123-88 solely for reason of being nonconforming with respect to the standards prescribed in the chapter for any of the following:

a.

Floor area ratio.

b.

Yards, front, side, rear, or transitional.

c.

Off-street parking or loading.

d.

Lot area.

e.

Building height.

f.

Gross floor area.

(2)

No nonconforming residential use or building lawfully established in a residence district shall be subject to the termination provisions of this section.

(3)

No public utility installation service, a public necessity and convenience lawfully established, shall be subject to the termination provisions of this section.

(Code 1960, §§ 6-1208, 6-1209, 6-1210; Code 1989, §§ 163.127, 163.128; Ord. No. 3376; Ord. No. 8256, § 1(163.127, 163.128), 2-17-2009)

Where a use is classified as a special use under this chapter, and exists as a special or permitted use at the date of the adoption of this chapter, it shall be without further action of the city council, the zoning administration, or the board of zoning appeals, a legal use.

(Code 1960, § 6-509; Code 1989, § 163.011; Ord. No. 3376; Ord. No. 8256, § 1(163.011), 2-17-2009)

(a)

In order that the spirit of this chapter may be observed and substantial justice done, the board of zoning appeals may, upon application or appeal, grant the variations enumerated in section 123-108. The board of zoning appeals shall make a finding of fact that, owing to special conditions, a literal enforcement of the provision of this chapter would result in unnecessary hardship.

(b)

In making its determination as to whether there is unnecessary hardship, the board of zoning appeals shall take into consideration the extent to which the following conditions, all favorable to the applicant or appellant, have been established by the evidence:

(1)

The particular physical surroundings shape or topographical conditions of the specific property involved would result in a particular hardship upon the owner, as distinguished from a mere inconvenience, if the strict letter of the regulations were carried out.

(2)

The conditions upon which the requested variation is based would not be applicable, generally, to other property within the same zoning classification.

(3)

The alleged difficulty or hardship has not been created by any person presently having an interest in the property.

(4)

The granting of the variation will not be materially detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.

(5)

The proposed variation is within the purposes of this chapter (section 123-2) and but more specifically, but not limited to the following: will not impair an adequate supply of light and air to adjacent property, substantially increase the congestion in the public streets, increase the danger of fire, endanger the public safety, substantially diminish or impair property values within the neighborhood; improves access management; or will not negatively impact or effect ecologically/scientifically significant natural areas, fish and wildlife habitat areas, or identified natural features or mitigate any negative impacts.

(c)

The board of zoning appeals may impose conditions and restrictions upon the premises benefited by a variation as may be necessary to prevent injurious effects therefrom upon other property in the neighborhood and better to carry out the general intent of this chapter.

(Code 1960, § 6-1306; Code 1989, § 163.030; Ord. No. 3376; Ord. No. 3761; Ord. No. 8256, § 1(163.030), 2-17-2009)

Variations from the regulations of this chapter shall be granted by the board of zoning appeals only in accordance with the standards set forth in section 123-107, and may be granted in the following instances only, and in no others:

(1)

Permit the use of a temporary building for the business of manufacturing, in any district, for a use otherwise excluded from that district, provided the use is incidental to the construction of new buildings and facilities and the development of that district and that the use shall not continue for a period of more than one year.

(2)

Permit the reconstruction within 12 months of a building located in a district restricted against the use, which has been damaged by fire or other causes to the extent of not more than 50 percent of its replacement value, exclusive of foundations and land; however, when the reconstruction becomes involved in litigation, the time involved shall not be counted as a part of the 12 months allowed for reconstruction.

(3)

Permit the extension of any district where the boundary line of a district divides a zoning lot, provided the zoning lot is in single ownership on May 19, 1964.

(4)

Permit any yard of less dimension than required by the applicable regulations.

(5)

Permit any building or structure to exceed the height limitations imposed by the applicable regulations.

(6)

Permit the use of a lot for a use otherwise prohibited because of insufficient lot dimensions or area, but in no event shall the area of the lot be less than 90 percent of the required lot area.

(7)

Permit the alteration or enlargement of an existing building or use located on premises in a district which prohibits the use of land or buildings, the height and area of buildings existing on December 3, 1957, where the alteration or enlargement is a necessary incident to the use of the structure existing on December 3, 1957. However, the alteration or enlargement shall in no case be extended more than 50 feet from a structure existing at the time of adoption or amendment of this chapter.

(8)

Extend the period within which a nonconforming business or manufacturing use is to be removed from a dwelling district when the owner or owners can furnish substantial proof that the building was so extensively remodeled, reconstructed, or structurally altered after the original construction that it practically resulted in a new building having a valuation of more than $5,000. However, the extension of the period shall not exceed the termination periods, established in section 123-88 from the date of the remodeling, reconstruction, or structural alteration.

(9)

Interpret the provisions of this chapter where the ground varies from the street layout as shown on the zoning map.

(10)

Reduce the applicable off-street parking or loading facilities required.

(11)

Increase by not more than 25 percent the maximum distance that required parking spaces are permitted to be located from the use served.

(12)

Permit the same off-street parking facilities to qualify as a required facility for two or more uses, provided the substantial use of the facility by each user does not take place at approximately the same hours of the same days of the week.

(13)

Permit front yard fences.

(14)

Permit other variances, not provided for in this section, which are required to expand, alter, or renovate institutions of public service, religious, philanthropic, or eleemosynary use existing on May 24, 1964.

(15)

Permit the use of a lot of record which is less than the prescribed zoning lot in lineal and area dimensions but whose frontage is greater than 50 percent in width of every improved zoning lot on the same block on the same side of the street at the time of construction. However, if the lot of record is in the same ownership on or after the effective date of the ordinance from which this chapter is derived as an adjoining unimproved lot on the same street, it shall not be improved with a residential use unless both lots are combined in a single zoning lot for this purpose or unless further subdivision produces the requisite minimum lot width.

(16)

Permit signs to exceed height limitations.

(17)

A proposed alteration or rehabilitation, development or redevelopment of land or a structure provides for the implementation of sustainable growth principles and initiatives as approved by the commission.

(Code 1960, § 6-1307; Code 1989, § 163.031; Ord. No. 3376; Ord. No. 3948; Ord. No. 4017; Ord. No. 4318; Ord. No. 8256, § 1(163.031), 2-17-2009)

(a)

An application for a variation shall be filed with the board of zoning appeals. The application shall be in the form and shall contain the information that the board shall from time to time prescribe by general rule. Upon receiving an application for a variation, the board shall, according to its rules of procedure, fix a reasonable time for a public hearing thereon and give public notice of the hearing.

(b)

An appeal may be taken to the board of zoning appeals by any person, firm, or corporation, or office, department, board, or bureau affected by a decision of the office of the director of the department of development and planning. The appeal shall specify the grounds thereof and shall be filed within the time and in the form as may be prescribed by the board by general rule. The director shall, upon request of the board of zoning appeals, transmit to it all documents, plans, and papers constituting the record of the action from which an appeal was taken.

(c)

The board shall fix a reasonable time for the hearing of an appeal. Public notice shall be given of the hearing and due notice shall be given additionally to the interested parties. The board may require the party taking the appeal to assume the cost of public notice and due notice to interested parties. At the hearing, any party may appear in person, by agent, or by attorney.

(d)

When an appeal from the decision of the director has been taken and filed with the board of zoning appeals, all proceedings and work on the premises concerning which the decision was made shall be stayed unless the director certifies to the board that, by reason of facts stated in the certificate, a stay would cause imminent peril to life or property. In that case, proceedings or work shall not be stayed except by a restraining order which may be granted by the board of zoning appeals or by a circuit or superior court of Lake County, on application of notice to the director and the owner of the premises affected and on due cause shown. After the owner or his agents or persons, or a corporation in charge of the work on the premises affected have received notice that an appeal has been filed with the board, the director shall have full power to order the work discontinued or stayed and to call upon the police power of the city or county to give full force and effect to the order.

(e)

In exercising its powers, the board may, upon the concurring vote of three members, reverse or affirm, partly or wholly, or may modify the order, requirement, decision, or determination appealed from as in its opinion ought to be done in the premises; and to that end it shall have all the powers of the director.

(Code 1960, §§ 6-1308, 6-1309; Code 1989, § 163.032; Ord. No. 3376; Ord. No. 8256, § 1(163.032), 2-17-2009)

(a)

The board of zoning appeals shall hear and decide on applications for special exceptions to the terms of this zoning code in the classes of cases set forth in this section. The board may authorize an exception if it has determined that the authorization is consistent with the spirit of this chapter and that the exception will not be materially detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located. After a public hearing noticed and held in the manner prescribed in section 123-109 for variations and appeals, the board may allow as a special exception the following:

(1)

The same off-street parking facility to qualify as a shared parking facility for two or more uses, provided the substantial use of the facility by each user does not take place at approximately the same hours of the same days of the week.

(2)

A nonconforming use or building to be continued beyond the period of time prescribed in section 123-88 for the termination thereof is permitted; provided the extension of time is granted within six months before the end of the original period and is no longer than the original termination period. The board may, after public hearing noticed and-held, renew any extension of time within six months before the end thereof but not longer than the original termination period, and in no case for longer than ten years.

(3)

In a residentially zoned district on sites not less than ten acres in area, outdoor recreation uses, but not including the dispensing of food or beverages, or any merchandise or equipment not directly related to the recreational use, is permitted. In addition, the following requirements must be met.

a.

Paved off-street parking is provided in an amount as determined by the board of zoning appeals.

b.

Trash and litter control and waste collection areas are provided by the petitioner.

(4)

In M2 and M3 districts, the treatment, storage and disposal of toxic waste or infectious materials, but only if the use has:

a.

Been reviewed and a report issued by the city environmental affairs department, the city fire department and the city health and human services department. The review shall be conducted using any available information and shall include any applicable United States Environmental Protection Agency, the state department of environmental management or local, state or federal laws, regulations or standards;

b.

The department's report, including a recommendation as to whether the health and safety standards have met, has been submitted to the zoning administrator, and

c.

Met the health and safety standards set by the departments listed above.

(5)

The petitioner documents and presents to the commission that proposed special exception provides for the implementation of sustainable growth principles and initiatives as approved by the commission.

(b)

The board of zoning appeals may impose those restrictions and conditions upon the premises benefited by an exception as may be necessary to prevent injurious effects therefrom upon other property in the neighborhood and better to carry out the general intent of this chapter.

(Code 1960, § 6-1310; Code 1989, § 163.033; Ord. No. 3376; Ord. No. 4144; Ord. No. 4515, 12-13-1970; Ord. No. 7394, § 2, 11-6-2002; Ord. No. 8256, § 1(163.033), 2-17-2009)

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