Pursuant to IC 36-7-4-901, the Town Council establishes the Board of Zoning Appeals which shall conduct business consistent with all requirements of the Indiana Code and this chapter. The Board of Zoning Appeals (BZA) shall consist of and continue as a five member Board. Members shall be appointed pursuant to IC 36-7-4-902 and 36- 7-4-906. Alternate Board of Zoning Appeal members may be appointed consistent with IC 36-7-4-907. 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.

(Ord. 2013-02, passed 3-11-13)

   The Board of Zoning Appeals shall have jurisdiction over all the land subject to this chapter.

(Ord. 2013-02, passed 3-11-13)

   The Board of Zoning Appeals shall have exclusive subject matter jurisdiction for:

   (A)   Variances;

   (B)   Special uses (special exceptions); and

   (C)   Administrative appeals.

(Ord. 2013-02, passed 3-11-13)

   (A)   Rules and procedures. The Board of Zoning Appeals shall have sole authority to adopt any and all rules under IC 36-7-4-916 and any and all procedures concerning organization, selection of officers, forms for applications, filing requirements, procedures, notices for and 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 for the storage of its records, documents, and accounts; and in its annual budget shall provide sufficient funds for the functioning of the Board and its staff.

   (C)   Filing. All applications for variances, special exceptions, and requests for administrative appeal shall be filed by the applicant with the Planning Director in the form prescribed by the Board.

(Ord. 2013-02, passed 3-11-13)

   (A)   The Board shall fix a reasonable time for the hearing of administrative appeals, special exceptions, and variances.

   (B)   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.

(Ord. 2013-02, passed 3-11-13)

   For all public hearings, the petitioner shall provide notice to the public consistent with the requirements of the Indiana Code.

(Ord. 2013-02, passed 3-11-13)

   Every decision of the Board of Zoning Appeals shall be subject to review by a writ of certiorari as prescribed in IC 36-7-4-1000 series. Such appeals shall be presented to the court of jurisdiction within 30 days of the Board's decision.

(Ord. 2013-02, passed 3-11-13)

   There shall be no cases or application therefor, nor any particular situation in which this chapter authorizes special uses without the approval of the BZA. Further, no decisions on previous applications shall set a precedent for any other application before the BZA.

   (A)   The Board may grant a special use approval for a use listed as such in the appropriate zoning district in this chapter if, after a public hearing, it makes findings of facts in writing, that:

      (1)   The proposal will not be injurious to the public health, safety, morals, and general welfare of the community;

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

      (3)   Granting the special use will not subvert the general purposes served by this chapter and will not permanently injure other property or uses in the same district and vicinity; and

      (4)   The proposed use will be consistent with the character of the zoning district in which it is located and the Comprehensive Plan.

   (B)   When considering a special use the Board of Zoning Appeals may examine the following items as they relate to the proposed use:

      (1)   Topography and other natural site features;

      (2)   Zoning of the site and surrounding properties;

      (3)   Driveway locations, street access, and vehicular and pedestrian traffic;

      (4)   Parking amount, location, and design;

      (5)   Landscaping, screening, and buffering;

      (6)   Open space and other site amenities;

      (7)   Noise production and hours of operation;

      (8)   Design, placement, architecture, and building material of the structure;

      (9)   Placement, design, intensity, height, and shielding of lighting;

      (10)   Traffic generation; and

      (11)   General site layout as it relates to its surroundings.

   (C)   The Board may impose such reasonable conditions upon its approval as it deems necessary to find that the criteria for approval in division (A) above will be served.

   (D)   The Board may require the owner of the property to make written commitments concerning the use or development of the property as specified under IC 36-7-4-921 and have such commitments recorded in the County Recorder's Office.

   (E)   Unless otherwise specified by the Board, special use approvals shall be limited to, and run with, the applicant at the location specified in the petition. The Board may also limit special uses to a specific time period and for a specific use.

   (F)   A use authorized as a special use may not be expanded, extended, or enlarged unless reauthorized by the Board under the procedures set forth in this section for granting a special use.

(Ord. 2013-02, passed 3-11-13)

   (A)   The Board may grant a variance from the development standards of this chapter (such as height, bulk, area) 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;

      (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 practical difficulty in the use of the property. This situation shall not be self-imposed, nor be based on a perceived reduction of, or restriction on, economic gain.

   (B)   The Board may impose such reasonable conditions upon its approval as it deems necessary to find that the criteria for approval in division (A) above will be served.

   (C)   The Board may require the owner of the property to make written commitments concerning the use or development of the property as specified under IC 36-7-4-921 and have such commitments recorded in the County Recorder's Office.

   (D)   A developmental standards variance granted by the Board and executed in a timely manner as described in this section shall run with the parcel until such time as:

      (1)   The property conforms with the chapter as written; or

      (2)   The variance is terminated.

(Ord. 2013-02, passed 3-11-13)

   (A)   The Board shall consider all technical evaluations, all relevant factors, and:

      (1)   The danger of life and property due to flooding or erosion damage;

      (2)   The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

      (3)   The importance of the services provided by the proposed facility to the town;

      (4)   The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

      (5)   The compatibility of the proposed use with existing and anticipated development;

      (6)   The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

      (7)   The safety of access to the property in times of flood for ordinary and emergency vehicles;

      (8)   The expected height, velocity, duration, rate of rise, and sediment of transport of the floodwaters at the site; and

      (9)   The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas electric, and water systems, and streets and bridges.

   (B)   The Board may grant a variance from the flood hazard area standards, § 155.079, only if, after a public hearing, it makes findings of facts in writing, that:

      (1)   There exists a good and sufficient cause for the requested variance;

      (2)   The strict application of the terms of this chapter will constitute an exceptional hardship to the applicant; and

      (3)   The granting of the requested variance will not increase flood heights, create additional threats to public safety, cause additional public expense, create nuisances, cause fraud or victimization of the public, or conflict with existing laws or codes.

   (C)   The Board of Zoning Appeals may only issue a variance to the terms and provisions of § 155.079 subject to the following conditions:

      (1)   No variance for a residential use within a floodway subject to § 155.079 may be granted;

      (2)   Any variance granted in a floodway subject to § 155.079 will require a permit from the Indiana Department of Natural Resources;

      (3)   Variances to the building protection standards of § 155.079 may be granted only when a new structure is to be located on a lot of one-half acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the flood protection grade;

      (4)   Variances may be granted for the reconstruction or restoration of any structure individually listed on the Register of Historic Places or the Indiana State Survey of Historic Architectural, Archeological and Cultural Sites, Structures, Districts, and Objects;

      (5)   All variances shall give the minimum relief necessary and be such that the maximum practical flood protection will be given to the proposed construction; and

      (6)   The Board of Zoning Appeals shall issue a written notice to the recipient of a variance or exception that the proposed construction will be subject to increased risks to life and property and could require payment of increased flood insurance premiums.

      (7)   The Planning Director shall maintain the records of appeal actions and report any variances to the Federal Emergency Management Agency or the Indiana Department of Natural Resources upon request.

   (D)   The Board may impose such reasonable conditions upon its approval as it deems necessary to find that the criteria for approval in (B) and (C) above will be served.

   (E)   The Board may require the owner of the property to make written commitments concerning the use or development of the property and have such commitments recorded in the County Recorder's Office.

   (F)   A floodplain standards variance granted by the Board and executed in a timely manner as described in this section shall run with the parcel until such time as:

      (1)   The property conforms with the chapter as written; or

      (2)   The variance is terminated.

(Ord. 2013-02, passed 3-11-13)

   The Town Council, through the recommendation of the Plan Commission, retains the power to approve rezonings and changes to the zoning map, and the Board of Zoning Appeals shall consider the variance requests in accordance with the provisions of IC 36-7-4-918.4.

(Ord. 2013-02, passed 3-11-13)

   (A)   If the Board grants a special use or variance, it shall direct the applicant to apply for an improvement location permit pursuant to the Building Code. If such application complies with all established requirements and this chapter, an improvement location permit for the execution of the approved variance or special use shall be issued.

   (B)   A special use or variance ceases to be authorized and is terminated if an improvement location permit for the execution of the approval has not been obtained within one year of the date the variance or special use is granted. The variance or special use shall also be terminated if the approved construction has not been completed and approved by the Planning Director as being consistent with all written commitments or conditions, the requirements of this chapter, and all applicable permits within two years of the date the special use or variance is granted.

   (C)   A variance or special use may be terminated by the Board of Zoning Appeals under the following procedure:

      (1)   Upon determination by the Planning Director that possible grounds for termination exist, the matter shall be placed on the Board of Zoning Appeals agenda for a public hearing.

      (2)   At the public hearing the variance or special use shall be terminated if a finding is made by the Board that one or more of the following is true:

         (a)   The execution of the approval is not consistent with any requirement of this chapter;

         (b)   The execution of the approval is not consistent with any condition of approval;

         (c)   The execution of the approval is not consistent with any written commitment; or

         (d)   The approved was the result of fraud or the misrepresentation of facts.

      (3)   No special use or variance may be reviewed by the Board of Zoning Appeals for the same cause more than once in any one- year period.

(Ord. 2013-02, passed 3-11-13)

   (A)   The Board may grant an appeal of any decision, interpretation, or determination made by the Planning Director, other Plan Commission staff members, or any other administrative official or board charged with the duty of enforcing and interpreting this chapter.

   (B)   The Board shall only grant an appeal of such an administrative decision based on a finding, in writing, that the decision of the administrative person or board was inconsistent with the provisions of this chapter.

   (C)   The approval of an administrative appeal may be terminated by the Board of Zoning Appeals under the following procedure:

      (1)   Upon determination by the Planning Director that possible grounds for termination exist, the matter shall be placed on the Board of Zoning Appeals agenda for a public hearing.

      (2)   At the public hearing the approval shall be terminated if a finding is made by the Board that the approval was the result of fraud or misrepresentation of facts.

      (3)   No administrative appeal may be reviewed by the Board of Zoning Appeals for the same cause more than once in any one -year period.

   (D)   If an administrative appeal is granted, the Board may refund any application fees which have been paid to the town by the applicant in petitioning for the appeal. In no way shall this provision be interpreted as providing the applicant with the ability to seek the refund of any other fees or costs associated with the appeal or the application which is the subject of the appeal.

(Ord. 2013-02, passed 3-11-13)