There is hereby re-established the advisory board of zoning appeals to be known as the "board of zoning appeals of the City of Martinsville, Indiana." The 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 amendment 1981, Pub. Law No. 309, Section 23.

(A)

Membership. The board of zoning appeals shall be established pursuant to Indiana Code. The terms of office of each member shall, likewise, be as set out under the Indiana Code for an advisory board of zoning appeals.

(B)

Territorial jurisdiction. The board of zoning appeals shall have jurisdiction over all the land subject to the zoning ordinance as shown in the zoning maps.

(C)

Organization. At the first meeting of the calendar year, the board shall elect from its members a chairperson and vice-chairperson and secretary consistent with state law, recording secretary and such employees as it considers necessary to discharge its duties.

(D)

Subject matter jurisdiction. The board of zoning appeals shall have exclusive jurisdiction for:

(1)

Use variance under I.C. 36-7-4-918.4 and all acts amendatory thereto;

(2)

Development standards variance under I.C. 36-7-4-918.5 and all acts amendatory thereto;

(3)

Special exception request pursuant to this chapter;

(4)

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

(5)

Appeals of decisions of the city superintendent concerning zoning or development standards; and

(6)

Other requests that are directed to the board by this chapter.

(E)

Rules and by-laws. 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 by-laws concerning organization, forms for applications, filing requirements, other than as to the place of filing as herein provided for, procedures for notice and conduct of meetings. If no formal by-laws are adopted, the chairperson shall have the right to set out the procedures for conducting the meetings.

(F)

Facilities and funding. The city shall provide suitable facilities for meetings of the board of zoning appeals hearings and the storage of its recorded documents and accounts and in its annual budget to provide sufficient funds for the functioning of said board and its staff.

(G)

Hearings. All hearings shall be open to the public. The board shall keep minutes of its meetings, keep records of all examinations and other official actions, making the findings in writing and shall record the vote of each question. Minutes and records shall be filed in the office of the city superintendent and made available to the public.

(Ord. No. 2001-1478, 11-19-2001)

(A)

Upon application for a variance or special exception, the board shall hold a public hearing.

(B)

(1)

Notice for public hearings of the board of zoning appeals shall be the same as a petition before the plan commission.

(2)

Public notice and filing procedures shall meet the requirements of Section 94-145(A) through (H) and (J) through (L) of this chapter.

(C)

The board of zoning appeals meets on the fourth Tuesday of each month at 6:00 p.m., unless otherwise posted, and shall conduct hearings for variances, special exceptions and appeals of decisions of the superintendent and building official.

(Ord. No. 2001-1478, 11-19-2001)

(A)

The board may permit or require the owner of a parcel of property to make written commitment or commitments concerning the use or development of that parcel or may impose conditions upon that grant of variance.

(B)

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

(1)

The use for which the variance was granted ceases for a period of one year or more;

(2)

Change of ownership of the land on which a USE variance was granted; and

(3)

The property conforms to the chapter as written in both use and development standards.

(C)

The board may approve a variance of use only upon a determination 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;

(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 does not interfere substantially with the comprehensive plan adopted under I.C. 36-7-4-500.

(D)

The board may approve a variance from development standards only upon a determination 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;

(3)

The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property. However, the zoning ordinance may establish a stricter standard than the "practical difficulties" standard.

(Ord. No. 2001-1478, 11-19-2001)

(A)

Any person who is adversely affected by a zoning decision of the city superintendent in enforcing this chapter may appeal the decision to the board. The filing fee for appeals is established in Section 94-240 of this chapter.

(B)

On appeal under subsection (A) above, the board may make any decision that the city superintendent might have made regarding zoning matters.

(C)

All appeals from the decision of the board of zoning appeals shall be made pursuant to I.C. 36-7-4-1000 through 36-7-1020 and all amendments thereto.

(Ord. No. 2001-1478, 11-19-2001)

Enforcement shall be under the terms and conditions of Article XII of this chapter.

(Ord. No. 2001-1478, 11-19-2001)

All amendments to this chapter shall be in accordance with Sections 46 through 50 of Ch. 138 of the Acts of the Indiana General Assembly of 1957 and all acts amendatory thereto.

(Ord. No. 2001-1478, 11-19-2001)

(A)

It is recognized that in the development of a zoning ordinance, not all uses of land can be listed, nor can all future uses be anticipated. A "use" may have been omitted from the list of those specified as permissible in the various districts established by this chapter, or questions may arise concerning words that are synonymous.

(B)

In such instances, the following procedures shall apply.

(1)

When classification of use is appealed or referred to the board, it shall be the duty of the board to ascertain all pertinent facts concerning said use and set forth in writing its findings and the reasons for designating a specific classification for such use.

(a)

The applicant shall file a request with the city superintendent for a decision by the board. The board may also initiate an application. An applicant who requests a use classification by the board must follow the filing procedures of Section 94-145(A) to (F) and (I) to (K) of this chapter.

(b)

The board shall render a decision not less than 30 days after such application is made, and shall notify the applicant and any person requesting such notice of such decision.

(2)

In classifying a use, the board shall first make a finding that all of the following conditions exist:

(a)

The investigation has disclosed the nature of the subject use and its operations are compatible with the uses permitted in the district wherein it is proposed to be located;

(b)

The subject use is similar to one or more uses permitted in the district within which it is proposed to be located;

(c)

The subject use will not cause substantial injury to the values of property in the neighborhood or district within which it is proposed to be located; and

(d)

The subject use will be so designed, located, and operated that the public health, safety and general welfare will be protected.

(3)

The board shall classify such use as to permitting such use by right or permitting such use subject to special exception.

(4)

In no instance shall the board determine that a use be permitted in a district when such use is specifically listed as first permissible in a less restricted district.

(5)

Uses classified pursuant to this section shall be regarded as listed uses.

(Ord. No. 2001-1478, 11-19-2001)

Whenever a petitioner desires to have a special meeting of the city's board of zoning appeals the petitioner must request said special meeting at a regular scheduled meeting of the board. If the chairperson of the board approves a special meeting, then the chairperson will schedule said special meeting on an agreed date with the petitioner. In addition to meeting all the filing, application, notice, fees and other requirements of this chapter, the petitioner shall pay a non-refundable special meeting fee in the amount shown in Section 94-240 of this chapter.

(Ord. No. 2001-1478, 11-19-2001)