Leo Cedarville City Zoning Code
BOARD OF
ZONING APPEALS
§ 152.250 MEMBERSHIP.
The Board of Zoning Appeals (BZA) shall consist of and continue as a five member Board. Members shall be appointed pursuant to I.C. 36-7-4-902.
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§ 152.251 OFFICERS, MEMBERS, AND EMPLOYEES.
(A) Following their initial appointment to the BZA, each member shall be appointed for a term of four years. Each term shall expire at midnight on December 31 of the fourth year of the four-year term; however, members of the Board of Zoning Appeals shall serve until their successors are appointed and seated.
(B) At its first regularly scheduled meeting in each calendar year, the Board shall select from its membership a chairman and a vice-chairman. Each shall serve during the period of their membership on the Board for the balance of the calendar.
(C) The vice-chairman shall have the authority to act as chairman of the Board during the absence or disability of the chairman.
(D) Upon resignation or replacement of the chairman or vice-chairman as a member of the Board, the Board shall elect a successor at its next regularly scheduled meeting.
(E) The Board shall appoint and fix the duties of a secretary, who is not required to be a member of the Board. The secretary shall be charged with such duties as required under state statutes, town ordinances, and these rules.
(F) If a vacancy occurs among the members of the Board, the appointing authority shall appoint a member for the unexpired term of the vacating member. The appointing authority shall be notified in writing by the secretary when a member has been absent for three consecutive meetings of the Board. Such absences may constitute cause for removal from the Board by the appointing authority under I.C. 36-7-4-906(f).
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§ 152.252 TERRITORIAL JURISDICTION.
The Board of Zoning Appeals shall have jurisdiction over all the land subject to the Zoning Ordinance and Subdivision Control Ordinance.
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§ 152.253 POWERS AND DUTIES.
The Board of Zoning Appeals shall have exclusive subject matter jurisdiction for:
(A) Variance from development standards;
(B) Variances of use (use variances);
(C) Special exceptions; and
(D) Administrative appeals.
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§ 152.254 RULES AND PROCEDURES.
(A) Rules and procedures. The Board of Zoning Appeals shall have sole authority to adopt any and all rules under I.C. 36-7-4-916 and any and all procedures concerning organization, selection of officers, forms for applications, filing requirements, procedures, notices for an conduct of meetings, and public hearings.
(B) Facilities and funding. The town shall provide suitable facilities for the holding of Board of Zoning Appeals meetings and hearings and the storage of its records, documents, and accounts, and in its annual budget to provide sufficient funds for the functioning of said Board and its staff.
(C) Filing. All applications for variances, special exceptions, and requests for appeal shall be filed by the applicant with the staff of the Board of Zoning Appeals and in the form prescribed by said Board.
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§ 152.255 HEARINGS.
(A) The Board shall fix a reasonable time for the hearing of administrative appeals, special exceptions, and variances.
(B) Public notice in accordance with I.C. 5-3-1-2 and I.C. 5-3-1-4 and due notice to interested parties shall be given at least ten days before the date set for the hearing.
(C) The party pursuing the appeal or applying for the special exception or variance shall be required to assume costs of public notice and notice to interested parties. Interested parties shall include, but are not limited to, all properties adjacent within 300 feet of the subject site boundaries with the corporate boundary and only directly adjacent properties outside the corporate limit.
(D) The Board may, by rule, determine who are interested parties, how notice is to be given to them, and who is required to give that notice.
(E) Other persons may appear and present relevant evidence at such public hearing.
(F) A person may not communicate with any member of the Board before the hearing with intent to influence the member’s action on a matter pending before the Board.
(G) Special meetings may be called by the chairman or by two members of the Board upon written request to the secretary. The secretary shall send to all members, at least three days before the special hearing, a special notice fixing the time and place of the meeting. Written notice is not required if:
(1) The date, time and place of the special meeting are fixed in the regular meeting;
(2) All members of the Board are present at that regular meeting; and
(3) The secretary complies with the notice requirement of I.C. 5-14-1.5.
(H) The chairman of the Board shall preside over meetings and hearings, decide questions of order, subject to appeal by Board members, and preserve decorum in the meeting room. The chairman may warn any person present that particular conduct is a breach of courtesy and may order a person expelled from the meeting for disruptive conduct.
(I) The secretary shall keep minutes of its proceedings and record the vote on all actions taken. The Board shall also make written findings of fact in all cases heard by it. The minutes shall be presented to the Board at the next succeeding regular meeting. When approved, the minutes shall be signed by the chairman and attested by the secretary.
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§ 152.256 APPEARANCES.
(A) The petitioner or the petitioner’s agent must appear in person or by counsel to present petition or remonstrance to the Board and for the Board to consider the case. If no person appears on behalf of a petition, the petition may be tabled until the following meeting or dismissed under division (B) below.
(B) The Board’s secretary or staff must be informed prior to the meeting if the petitioner requests a time extension. The chairman will determine whether the petitioner’s reasons warrant an extension. If the petitioner or the petitioner’s agent fail to appear at the meeting for which the extension was given without sufficient reason, the petition may be dismissed.
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§ 152.257 ORDER OF BUSINESS.
(A) The order of business for a regular meeting shall be:
(1) Call to order;
(2) Roll call and determination of quorum;
(3) Consideration of minutes of previous meeting;
(4) Old business (tabled or continued items);
(5) New business;
(6) Report of officers and committees;
(7) Communications, bills, and expenditures; and
(8) Adjournment.
(B) The order of business for special meetings shall be:
(1) Call to order;
(2) Roll call and determination of quorum;
(3) The business for which the special meeting was called; and
(4) Adjournment.
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§ 152.258 OFFICIAL ACTION.
(A) A majority of the members of the Board who are qualified to vote shall constitute a quorum. Action of the Board shall not be official unless it is authorized at a regular or properly-called special meeting by a majority of the entire membership of the Board.
(B) Voting by the Board shall be by roll call vote of the members. All members present shall vote on every question unless they are permitted to abstain by the presiding officer.
(C) On all decisions on petitions before the Board of Zoning Appeals, the Board shall adopt written findings of fact and a written decision.
(D) Pursuant to I.C. 36-7-4-909, a member of an Advisory Board of Zoning Appeals may not participate in a hearing or decision of that Board concerning a zoning matter in which he has a direct or indirect financial interest. The Board shall enter in its records the fact that its member has such a disqualification.
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§ 152.259 APPEALS.
Every decision of the Board of Zoning Appeals shall be subject to review by a writ of certiorari as prescribed in I.C. 36-7-4-1000. Such appeals shall be presented to a court of jurisdiction within 30 business days of the Board’s decision, and not thereafter.
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§ 152.260 SPECIAL EXCEPTIONS.
(A) There shall be no cases or application therefore, nor any particular situation in which these rules authorize special exceptions without the approval of the Board of Zoning Appeals. Further, no previous applications shall set a precedence for any other application before the BZA.
(B) The Board may grant a special exception for a use in a district if, after a hearing under, it makes findings of facts in writing, that:
(1) The requirements and development standards for the requested use as prescribed by this chapter will be met; and
(2) Granting the exception will not subvert the general purposes served by this chapter and will not, because of traffic generation, placement of outdoor lighting, noise production or hours of operation, materially and/or permanently injure other property or uses in the same district and vicinity.
(C) The Board may impose such reasonable conditions upon its approval as it deems necessary to find that the purpose of this chapter shall be served.
(D) The Board may permit or require the owner of the parcel of property to make a written commitment concerning the use or development of the parcel as specified under I.C. 36-7-4-921.
(E) A use authorized by special exception may not be expanded, extended, or enlarged unless reauthorized by the Board under the procedures set forth in these rules for granting a special exception.
(F) A special exception, granted for a specific use ceases to be authorized and is void if that use is not established within a 12-month period of the date the special exception was granted, or if that use is discontinued at that site for a 12-month period during which time it is not succeeded by the same use specifically authorized as a special exception.
(G) A special exception may be terminated by the Board of Zoning Appeals, upon filing of an application therefore by an interested person or a member of the staff, and upon a finding at a public hearing, with notice to the property owner, that the terms of this chapter, or conditions of approval or commitments have not been complied with.
(H) To be eligible for the granting of a special exception under this section, a person must first receive a determination from the Board that a special exception is required for the intended use or for the expansion, extension, or enlargement of a use.
(I) After public hearing the Board shall issue written findings of facts granting or denying the special use exception. If the Board grants the special exception, the applicant may apply for an improvement location permit. If such application complies with all ordinances and rules, an improvement location permit for the use authorized by special exception shall be issued.
(Ord. passed - - ; Ord. 2021-08, passed 10-19-2021)
§ 152.261 VARIANCES.
(A) The Board may grant a variance from the development standards (such as height, bulk, area) of the zoning ordinance if, after a public hearing, it makes findings of facts in writing, that:
(1) The approval will not be injurious to the public health, safety, morals, and general welfare of the community; and
(2) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and
(3) The strict application of the terms of this chapter will result in a unnecessary hardship. This situation shall not be self-imposed, nor be based on a perceived reduction of or restriction on economic gain.
(B) The Board may grant a variance from the use restrictions of the Zoning Ordinance if, after public hearing, it makes findings of fact in writing, that:
(1) The variance will not be injurious to the public health, safety, morals, and general welfare of the community;
(2) The use and value of the area adjacent to the property included in the variance will not be effected in a substantially adverse manner;
(3) The need for the variance arises from some condition peculiar to the property involved;
(4) The strict application of the terms of the Zoning Ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and
(5) The approval of the variance does not interfere substantially with the comprehensive plan adopted by the Town Council.
(C) The use variance granted by the Board shall run with the parcel until such time as the use of the variance ends, or the property conforms to the ordinance as written.
(D) The Board may permit or require the owner of a parcel of property to make written commitment concerning the use or development of that parcel or may impose provisions upon the grant of a use or development of that parcel or may impose provisions upon the grant of a use or development standards variance.
(E) Where an owner has failed to comply with any condition and/or commitment permitted or required by the grant of a variance, the Board may authorize such action as it may deem appropriate to obtain compliance by the owner with the condition or commitment of the grant, or with the terms of the town ordinances in the same manner as if the variance had not been granted.
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§ 152.262 EXCLUSION.
Nothing in these rules, regulations or orders issued pursuant to town ordinances shall be deemed to restrict or regulate or to authorize any unit of government, legislative body, Plan Commission or Board of Zoning Appeals now or hereafter established, to restrict or regulate the exercise of the power of eminent domain by the State of Indiana or by any state agency, or the use of property occupied by the State of Indiana or any state agency. As used in this section, the term STATE AGENCY shall mean and include all agencies, boards, commissions, departments, and institutions, including state educational institutions of the State of Indiana.
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