The board of zoning appeals continues with membership and appointment provided in accordance with state law and all acts now or hereafter amendatory thereto.

(Ord. No. 1205, 11-21-17)

The board of zoning appeals shall consist of and continue as a six (6) member board appointed as follows:

1.

Three (3) citizen members appointed by the executive of the municipality, of whom one (1) must be a member of the plan commission and two (2) must not be members of the plan commission;

2.

One (1) citizen member appointed by the fiscal body of the municipality, who is not a member of the plan commission;

3.

One (1) member, appointed by the plan commission from the plan commission's membership, who must be a county agricultural agent or a citizen member other than the member appointed under subsection 1, above.

4.

One (1) member of the plan commission appointed to represent the unincorporated area of the jurisdictional boundaries of the city.

The original members of the board shall serve for the following terms: One (1) for one (1) year; one (1) for two (2) years; one (1) for three (3) years; and three (3) for four (4) years. Upon the expiration of the term of any original member of the board, the successor shall serve for a term of four (4) years. All members of the board must be a resident of the jurisdictional area of the board.

If a vacancy occurs among the members of the board, the executive of the municipality shall appoint a member for the unexpired term of the vacating member. The executive of the municipality may appoint an alternate member to participate with the board on any decision in which the regular it has appointed has a disqualification due to a conflict of interest.

(Ord. No. 1205, 11-21-17)

A member of the board may not participate in a hearing or decision of that board concerning a matter in which that member is biased or prejudiced or otherwise unable to be impartial, or has a direct or indirect financial interest. The board shall enter in its records the fact that the member has such disqualifications and the name of the alternate, if any, participates in the place of the regular member.

(Ord. No. 1205, 11-21-17)

The first meeting in each year, the board shall elect from its members a chairman, vice chairman and secretary. The vice chairman shall preside over the meeting during the absence of the chairman. The secretary shall keep accurate record of the actions that are taken by the board.

In the event of the absence at any meeting of both the chairman and vice chairman, the secretary shall preside; provided that the first and only item of business to be presented by such presiding officer shall be the election of a chairman pro tempore.

(Ord. No. 1205, 11-21-17)

Meetings of the board shall be held at the time and place advertised by a petition properly filed with the board. All meetings shall follow the guidelines set forth by this section as follows:

A.

Call to order.

B.

Adoption of previous minutes.

C.

New petitions.

D.

Previously tabled petitions for re-hearing.

E.

Additional business for the good of the order.

F.

Adjournment.

(Ord. No. 1205, 11-21-17)

Each petition shall proceed in the following manner:

1.

The petitioner shall present evidence to the board that the petition has been properly advertised and proper notification given to interested parties.

2.

The petitioner shall present the request and any statement pertaining to the conditions peculiar and supportive to the request.

3.

The chairman shall permit supporters and opponents to speak after proper recognition concerning the petition before the board. Each speaker shall be allowed sufficient time for comment. The board may question at any time the supporters, the opponents, or the director of planning and zoning.

4.

The chairman shall permit the petitioner an additional time for rebuttal comments.

5.

The chairman shall close the public hearing portion of the petition and return all comments to the board. The board members shall discuss the case and may question any member in the audience at this time. The chairman shall entertain any motion presented by the board.

6.

The Board of Zoning Appeals may refer any application to the Kendallville Advisory Plan Commission for review and comment. Any petition referred to the Commission will be considered at the next month regular scheduled meeting and will be considered a continuation of the public hearing.

7.

The Board of Zoning Appeals shall make determination on each application in the following format:

a.

Approve as requested

b.

Approve with conditions

c.

Deny the request

d.

Dismiss due to lack of jurisdiction

All decisions of the Board of Zoning Appeals shall be based on the established "Finding of Fact" guidelines.

8.

The secretary will record the board's finding of facts and any vote on the board's action form.

(Ord. No. 1205, 11-21-17)

The board shall have the power to authorize variances from the development standards (such as height, bulk, setback requirements, etc.) of this appendix. The board may attach such conditions to the variance as it deems necessary to assure compliance with the purpose of this appendix. A variance may be permitted if all the following requirements are met:

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 areas adjacent to the property will not be affected in a substantially adverse manner;

3.

The strict application of the terms of the Zoning Code will result in practical difficulties in the use of the property.

Conditions of variances:

1.

The petitioner shall provide a site plan, photographs and other such documentation to assist in the clarification of the petitioner's request for the variance.

2.

If an improvement location permit and/or building permit is not secured within six (6) months of the granting of the variance, the variance becomes null and void. The applicant must secure another variance prior to the issuance of an improvement location permit and/or building permit after any previous variances become null and void.

3.

A variance is good for one (1) improvement location permit/building permit for the property in which the variance was granted. Any enlargement, expansion, addition, or alteration needed must receive a new variance.

4.

A variance granted by the board shall run with the land until such time as:

a.

The use of the variance ends; or

b.

The property conforms with this appendix as written; or

c.

The area granted a variance is destroyed by fire, explosion, or an act of God.

5.

Where an owner has failed to comply with any condition and/or commitment permitted or required by grant of variance, the board may authorize such action as it deems appropriate to obtain compliance by the owner with the condition or commitment of the grant, or with the terms of this appendix in the same manner as if the variance had not been granted.

6.

Any variance granted prior to this appendix are subject to the current provisions of this appendix.

(Ord. No. 1205, 11-21-17)

The board has the power to authorize special exceptions, and to attach such conditions to the special exceptions as it deems necessary to assure compliance with the purpose of this appendix. This may include prohibiting or limiting such things as signage, area, screening, outside lighting, hours of operation, etc. A special exception may be permitted if all the following requirements are met:

1.

A special exception shall be listed as such by Figure 6.

2.

The special exception shall not involve any element or cause any condition that may be dangerous, injurious, or noxious to any other property or persons.

3.

The special exception shall produce a total visual impression and environment which is consistent with the environment of the neighborhood.

4.

The special exception shall organize vehicular access and parking to minimize traffic congestion in the neighborhood.

5.

The special exception shall preserve the purpose of this appendix.

Conditions of special exception:

1.

The petitioner shall provide a site plan, photographs, and such other documentation to assist in the clarification of the petitioner's request.

2.

If an improvement location permit and/or building permit is not secured within six (6) months of the granting of the special exception, the special exception becomes null and void. The applicant must secure another special exception prior to the issuance of an improvement location permit and/or building permit after any previous variances become null and void.

3.

A special exception is good for one (1) improvement location permit/building permit for the property in which the special exception was granted. Any enlargement, expansion, addition, or alteration needed must receive a new special exception.

4.

If a special exception ceases or is discontinued at the site for a twelve (12) month period during which time it is not succeeded by the same specifically approved special exception, then the authorization is null and another special exception is required.

5.

A special exception may be terminated by the board, upon filing of an application therefore by an interested person or the administrator, and upon finding at a public hearing, with notice to the property owner, that the terms of this appendix, or conditions of approval or commitments have not been complied with.

6.

All special exceptions shall be approved for the original applicant for a specific location, and may not be transferred, enlarged, or modified to any other person or location by the applicant. Should the property upon which the special exception was granted be sold or conveyed to a different ownership, a new special exception will be required.

7.

Any special exception granted prior to this appendix are subject to the current provisions of this appendix.

SPECIAL EXCEPTIONS

REQUIREMENTS FOR SPECIAL EXCEPTIONS LISTED IN FIGURE 6

Note: Use of the symbol # in this list indicates that the requirements of the district apply to the special exception where located.

a.

Classification of use permitted:

1.

Light Industrial

2.

Local Business

b.

Minimum lot area:

1.

#

2.

1,500 square feet

3.

110 square feet per child

4.

25,000 square feet

5.

20,000 square feet plus 5,000 square feet per horse over 4 horses

6.

1 acre

7.

5 acres

8.

5 acres including 2,500 square feet per mobile home stand

9.

6 acres

10.

20 acres

11.

40 acres

12.

80 acres

13.

320 acres

14.

2 times requirement for single-family dwelling

c.

Minimum setback (in feet):

d.

Setback from a residential zoned property, property containing a school, a hospital, a nursing home, or a child care facility shall be not less than three-hundred (300) feet from the property line to the structure containing a crematory.

e.

Use permitted not closer than three hundred (300) feet to a residential district.

f.

Minimum gross floor area of principal building(s) in square feet:

1.

#

2.

Over 1,000

3.

Determined by number of children to be accommodated

4.

400

5.

2 times single-family dwelling

g.

Landscape plan to be submitted with application.

h.

Maximum age of dwelling unit not greater than ten (10) years from manufacture date at time of application.

i.

Fence:

1.

Six (6) foot wire mesh where accessible to the public

2.

Six (6) foot wire mesh where located at ground level

3.

Four (4) foot wire mesh around play area

4.

Solid wall or solid painted fence 7 feet in height

5.

Four (4) foot wire mesh in residence area

6.

Painted board fence 7 feet in height

7.

Adequate to protect abutting use

8.

Six (6) foot wire mesh

9.

Six (6) foot wire mesh for refuse dump

j.

Screen planting where abutting residential use (tight screen, effective at all times):

1.

Six (6) foot height in a six (6) foot reserved landscape buffer

2.

Twenty-five (25) feet abutting residential district or use

3.

Eight (8) foot height by six (6) foot width

4.

Adequate to screen power substation from street view

5.

Six (6) feet high along streets for refuse dump

k.

Parking spaces:

1.

1 per 2 employees plus 1 per 4 seats in waiting room

2.

1 per 2 customers or members

3.

1 per 2 employees plus 3 per doctor

4.

1 per 3 employees plus 1 per 6 students

5.

30

6.

1 per 3 employees per largest shift

7.

1 per 3 employees plus 1 per 125 square feet of sales area

8.

1 additional

9.

1 per 4 beds plus 1 per doctor plus 1 per 3 employees

10.

1 per 2 employees of largest shift

11.

1 per 2 employees

12.

1 per 2 employees plus 1 per 5 children to be accommodated

13.

1 per 2 employees plus 1 per mobile home stand

14.

1 per 3 employees plus 1 per 500 square feet of use area

15.

1 per 3 employees plus 1 per 10 inmates at estimated capacity

16.

1 per 3 employees plus 1 per driving use

17.

1 per campsite and 1 per cabin

18.

Telephone exchange: 1 per employee

19.

1 per employee per shift

20.

1 per 2 employees where headquartered

21.

1 per 5,000 square feet

22.

1

23.

1 per 60 square feet of sales area

24.

3 per 4 employees plus 1 per 4 seats

25.

1 per 2 employees plus 4 for customers

26.

1 per employee plus 1 per sleeping accommodation

27.

2

28.

Space for each three (3) seats in the main auditorium, community room or sanctuary

l.

Distance of parking area from residential district (in feet):

1.

10

2.

25

3.

50

4.

100

5.

300

m.

Number of loading and unloading berths (shall not face on bordering highway):

1.

1

2.

2

3.

Per development plan

4.

15,000 square feet: 1, over 15,000 square feet: 2

5.

Up to 200 beds: 1, 200 to 500 beds: 2, over 500 beds: 3

n.

Distance of loading and unloading berths from residential district (in feet):

1.

50

2.

100

3.

300

o.

Plat approved by the commission to be submitted with application.

p.

Development plan to be submitted with application.

q.

Covenant by owners to perpetuate maintenance and approve future maintenance.

r.

Maximum number of principal entrances from a major thoroughfare:

1.

1

2.

2

s.

Acceptable relationship to major thoroughfare.

t.

Thoroughfares must be adequate to carry additional traffic engendered by the use.

u.

Other authority approval required:

1.

State Board of Health

2.

Aeronautics Commission of Indiana

3.

Indiana Department of Environmental Management (IDEM)

v.

Outdoor advertising signs and outdoor artificial lighting shall be approved by the commission.

w.

Disposal of liquid and other wastes shall meet the approval of the State Board of Health.

x.

No sales, dead storage, repair work or dismantling on the lot.

y.

No parking in the front yard, except as provided in Article VI of this appendix.

z.

Except for approve entrances and exits, a masonry wall four (4) feet in height and six (6) inches thick erected at required front line of building and may be required along boundaries of parking area as determined by the commission for the protection of residentially zoned or used property.

(Ord. No. 1205, 11-21-17; Ord. No. 1220, § 1, 11-4-20)

The board has the power to authorize special uses, and to attach such conditions to the special use as it deems necessary to assure compliance with the purpose of this appendix. This may include prohibiting or limiting such things as signage, area, screening, outside lighting, hours of operation, etc. A special use may be permitted if all the following requirements are met:

1.

A special use is not listed in any other section of this appendix.

2.

The special use shall not involve any element or cause any condition that may be dangerous, injurious, or noxious to any other property or persons.

3.

The special use shall produce a total visual impression and environment which is consistent with the environment of the neighborhood.

4.

The special use shall organize vehicular access and parking to minimize traffic congestion in the neighborhood.

5.

The special use shall preserve the purpose of this appendix.

Conditions of special use:

1.

The petitioner shall provide a site plan, photographs, and such other documentation to assist in the clarification of the petitioner's request.

2.

If an improvement location permit and/or building permit is not secured within six (6) months of the granting of the special use, the contingent use becomes null and void. The applicant must secure another special use prior to the issuance of an improvement location permit and/or building permit after any previous variances become null and void.

3.

A special use is good for one (1) set of improvement location permit/building permit for the property in which the special use was granted. Any enlargement, expansion, addition, or alteration needed must receive a new special use.

4.

If a special use ceases or is discontinued at the site for a twelve (12) month period during which time it is not succeeded by the same specifically approved special use, then the authorization is null and another special use is required.

5.

A special use may be terminated by the board, upon filing of an application therefore by an interested person or the administrator, and upon finding at a public hearing, with notice to the property owner, that the terms of this appendix, or conditions of approval or commitments have not been complied with.

6.

All special use shall be approved for the original applicant for a specific location, and may not be transferred, enlarged, or modified to any other person or location by the applicant. Should the property upon which the special use was granted be sold or conveyed to a different ownership, a new special use will be required.

7.

Any special use granted prior to this appendix are subject to the current provisions of this appendix.

(Ord. No. 1205, 11-21-17)

Motions. The final disposition of any petition duly filed and brought before the board shall be in the form of a motion, properly adopted, specifically setting forth such disposition.

Dismissal.

A.

Want of prosecution. The board may dismiss a petition if the petitioner or authorized representative does not appear to present and speak in favor of such petition or if such petition has been improperly filed.

B.

Lack of jurisdiction. The board shall dismiss a petition if it finds it has no jurisdiction over such matter.

C.

Time limit. The board shall dismiss a petition if it is found that the same request by the same applicant has been properly ruled upon any time within one (1) year prior to the application date.

Withdrawal.

A.

Without prejudice. Any petition may be withdrawn without prejudice provided a written request for withdrawal signed by the petitioner or an authorized agent is received five (5) days before the scheduled hearing.

B.

With prejudice. A petition may be withdrawn by the petitioner at any time before the close of the public hearing, by oral request at the scheduled meeting or in writing. Any petition which is withdrawn less than five (5) days before the scheduled hearing shall not be placed on the docket for hearing within a period of two (2) months from the date of the originally scheduled hearing, except upon a motion duly adopted by a majority of the entire membership of the board to permit such re-docketing.

C.

Not permitted. No petition may be withdrawn after a motion has been made and seconded and a vote has been ordered by the presiding officer.

Amendment.

A.

Increased variance. No petition can be amended in a manner which increases the amount of variance from the terms of this appendix requested or alters a special exception after the filing deadline. Any such amendment request will result in postponing the docketing of the petition for one (1) month. If notice in accordance with section 9.13 already has been given, the item as amended shall be re-advertised and new notice given to interested parties. The petitioner shall be required to pay the costs of such re-advertising and re-notification.

B.

Decreased variance. It shall be within the discretion of the board to approve a petitioner's request to amend the petition in a manner which decreases the amount of variance from the standards contained in this appendix. Any interested parties may be heard on the subject of such amendment. The board may require such amended petition to be continued and may require re-advertising and re-notification in the interest of providing a fair and adequate hearing.

Continuance.

A.

Motion by the board. Any member of the board may at any time move to continue the hearing of the petition. Such a motion duly seconded and adopted shall continue the hearing to the time specified in the motion. The board may include in the motion specific instruction for the re-advertising and/or re-notification of interested parties. If such re-advertising and/or re-notification is required, the petitioner may be required to pay the costs associated therewith.

B.

Improper notice. If proper notice under applicable laws and section 9.13 of these rules has not been given, the board shall continue the petition to allow time for proper notice to be given.

(Ord. No. 1205, 11-21-17)

The board shall define an interested party as any person, firm, organization, or other who owns or has financial interest in a parcel, lot or tract of land which lay within one hundred (100) feet to the parcel being petitioned to the board.

(Ord. No. 1205, 11-21-17)

An appeal on the decision of the administrator may be taken to the board of zoning appeals by any person, firm, or corporation, or by any officer, department, board or bureau affected by a decision. Such appeals shall be filed through the city using the forms and manner set forth by the board of zoning appeals. An appeal on the decision of the board of zoning appeals may be taken to the circuit or superior court of the county in which the premises affected area located (IC 36-7-4-1003).

The board may require the appellant to submit all necessary surveys, plans, or other information necessary for the board to investigate thoroughly the matter for consideration. The board may impose such conditions or limitations in granting a decision on an appeal as it may deem necessary to comply with the spirit and purposes of this appendix. The board may reverse or affirm, wholly or partially 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 shall have all the powers of the administrator from whom the appeal is taken.

In interpreting and applying the provisions of this appendix, the board shall be held to the minimum requirements for the promotion of the public safety, health, convenience, comfort, morals, prosperity, and general welfare. It is not intended by this appendix that the board shall have the powers to interfere with or abrogate or annul any ordinance, rules, regulations, or permits previously adopted or issued, and not in conflict with any of the provisions of this appendix, or which shall be adopted or issued pursuant to law relating to the use of buildings or premises and by this appendix to interfere with or abrogate or annul any easements, covenants or other agreements between parties; provided, however, that where this appendix imposes a greater restriction upon the placement or use of buildings or premises, the provisions of this appendix shall control.

Any person, firm or corporation, or anyone acting in behalf of said person, firm or corporation, who shall violate any of the provisions of this appendix, or fails to comply with any of the regulatory measures or conditions of the board of zoning appeals shall be notified of the requirement to correct said provision or corrective actions may be initiated to remove or repair the violations listed as ordinance violations and subject to any fines set forth by the general penalty provisions as adopted by ordinance of the city.