There is hereby reestablished the Advisory Board of Zoning Appeals to be known as the Advisory Board of Zoning Appeals of the city. The Advisory Board of Zoning Appeals shall be a continuation of the present Board of Zoning Appeals of the city heretofore established under the advisory plan law, being I.C. 36-7-4-900, as added by Acts 1981, P.L. 309 § 23.

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

      (2)   One citizen member appointed by the fiscal body of the city, who must not be a member of the Plan Commission.

      (3)   One member appointed by the Plan Commission from the Plan Commission’s membership, who must be a citizen member of the Plan Commission other than the member appointed under division (A)(1) above.

      (4)   The Plan Commission shall designate, as its appointment to the Advisory Board of Zoning Appeals, one of the two citizen members who were appointed to the Plan Commission to represent the unincorporated area. The member must reside in the unincorporated area. The member shall be appointed for a term of four years, and is entitled to participate and vote in all deliberations of the Advisory Board of Zoning Appeals.

      (1)   Variances under statute and this chapter;

      (2)   Special uses; and

      (3)   Appeals as provided by statute, including requirements for procurement of improvement location or occupancy permits or any ordinance adopted under I.C. 36-7-4 or any prior zoning statute, and any other appeals authorized by statute.

(Ord. 614, passed 2-22-1999; Ord. 892-2016, passed 11-14-2016)

   (A)   Rules and by-laws. The Advisory 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 by-laws concerning organization, selection of officers, forms for applications, filing requirements, other than as to place of filing as herein provided for, procedures, notices for and conduct of meetings. Upon adoption of the rules and by-laws, they shall be applicable to the Advisory Board of Zoning Appeals.

   (B)   Facilities and funding. The city shall provide suitable facilities for the holding of Advisory Board of Zoning Appeals hearings and the storage of its recorded documents and accounts, and its annual budget to provide sufficient funds for the functioning of the Board and its staff.

   (C)   Filing. All applications for variances, special uses and requests for appeal should be filed by the applicant with the staff of the Advisory Board of Zoning Appeals, along with a $50 filing fee.

   (D)   Hearings. All hearings required for variances, special uses and appeals shall be by the Advisory Board of Zoning Appeals. As per § 82 (A), procedures for public notice setting forth time and place for all hearings by the Advisory Board of Zoning Appeals shall be established by the Advisory Board of Zoning Appeals, consistent with I.C. 5-3-1 or any other applicable provision of Indiana Code.

(Ord. 614, passed 2-22-1999; Ord. 617, passed 6-14-1999)

   (A)   There shall be no classes of cases or application therefor, nor any particular situation in which this chapter authorizes either special exceptions, contingent uses, conditional uses or use variances.

   (B)   The Advisory Board may approve a special use in a district subordinate and in direct connection with primary use if, after a hearing under § 156.111(D) above, it makes findings of fact in writing, that:

      (1)   Section 156.035 above authorizes that special use in that district;

      (2)   The requirements and development standards for the requested special use as prescribed by this chapter will be met; and

      (3)   Granting the special use 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 permanently injure other property or uses in the same zoning district and vicinity.

   (C)   The Advisory Board may impose such reasonable conditions upon its approval as it deems necessary to find that division (B)(3) above will be served.

   (D)   The Advisory 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.

   (E)   The approval of a special use under division (B) above is unnecessary for a use authorized by § 156.035 above if that use existed on the date this chapter, or pertinent amendments to it, were passed. However, this section shall not authorize the expansion of such a use if it involves the enlargement of a building, structure or land area.

   (F)   A special use approved by the Advisory Board may not be expanded, extended or enlarged unless reapproved by the Advisory Board under the procedures set forth in this chapter for approving a special use.

   (G)   A special use, approved under division (B) above or authorized by division (E) above ceases to be authorized and is void if that use is not established within a 12-month period of the date the special use was approved, or if that special use is discontinued at that site for a 12-month period during which time it is not succeeded by the same specifically approved special use.

   (H)   A special use may be terminated by the Advisory Board of Zoning Appeals, upon filing of an application therefor by an interested person or the Administrator, 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 compiled with.

   (I)   For a special use to be eligible for a public hearing by the Advisory Board under this section, an applicant must first receive a determination from the Administrator that a special use is required for the intended use or for the expansion, extension or enlargement of a use under division (F) above. The Administrator shall file a report of determination (in a form presented by the Advisory Board) with the Plan Commission which body shall determine how the granting of the special use would affect the purposes served by this chapter in furtherance of the Comprehensive Plan. Within 30 days; of the date on which it received the application, the Commission shall report its determination to the Advisory Board, for action by it as authorized by division (B) above. If the Advisory Board grants the special use, it shall direct the applicant to apply for an improvement location permit under § 156.125 below. If the application complies with this chapter and all other applicable codes and ordinances, the Administrator shall issue the improvement location permit for the approved special use.

(Ord. 614, passed 2-22-1999)

   (A)   The Advisory Board may grant a variance from the development standards (such as height, bulk, area) of this chapter if, after a public hearing, it makes findings of fact in writing, that:

      (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 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: is being applied to some condition peculiar to the property involved that is not common to other properties in the same zoning district; and will result in an unusual and unnecessary hardship. This situation shall not be solely self-imposed, nor be based on a perceived reduction of or restriction on economic gain.

   (B)   The Advisory 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 conditions upon that grant of variance.

   (C)   A variance granted by The Advisory Board shall run with the land until such time as the use of the variance ends; or the property conforms with the ordinance as written.

   (D)   Where an owner has failed to comply with any condition and/or commitment permitted or required by the grant of variance, the Advisory Board may authorize that 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 this chapter in the same manner as if the variance had not been granted.

(Ord. 614, passed 2-22-1999; Ord. 892-2016, passed 11-14-2016)

   (A)   A decision of the Administrator enforcing this chapter may be appealed to the Advisory Board of Zoning Appeals by any person who is adversely affected by the decision.

   (B)   On an appeal under division (A) above, the Advisory Board of Zoning Appeals may make any decision that the Administrator might have made.

   (C)   All appeals from a decision of the Advisory Board of Zoning Appeals shall be made pursuant to I.C. 36-7-4-1001 through 36-7-4-1020. The person aggrieved by a decision of the Board of Zoning Appeals shall present the petition provided for in I.C. 36-7-4-1003 to the court within 30 days after the entry of the decision of the Board of Zoning Appeals.

(Ord. 614, passed 2-22-1999)