This chapter may be referred to as the "Zoning Ordinance."

(Ord. No. 02-03, § 1, 2-12-02)

(a)

This chapter is adopted for the purpose of:

(1)

Promoting the public health, safety, comfort, morals, convenience and general welfare.

(2)

Securing adequate light, pure air and safety from fire and other dangers.

(3)

Conserving the taxable value of land and buildings throughout the Town of Merrillville.

(b)

This chapter is based upon the comprehensive plan for the Town of Merrillville which has been adopted by the town council. Said comprehensive plan included a study of existing zoning, estimate of population growth, land use surveys, a land use plan, plans for major streets, community facilities, public utilities, and housing.

(c)

Need for public services and facilities in both size and location depends upon the character and intensity of land use. Regulation of the use of land is thus fundamental to a coordinated optimum physical development of the community. The land use regulations are intended to be the foundation of the entire process of improvement of the physical environment.

(d)

The regulations are intended to preserve and protect existing uses and values against adverse or incompatible adjacent uses.

(e)

The land use regulations divide the area into a number of zoning districts. Accordingly:

(1)

The comprehensive plan included careful estimates of the land area requirements for the various land uses, such as commerce, residence, industry, and public uses. These urban uses should be directed into that land area where they may be most efficiently served by the public services and facilities such as sewers, water, schools, streets, parks and the like.

(2)

An agriculture district has been established which includes regulations governing the types of land use activities in the prime agricultural areas containing the best soil for agricultural purposes in Merrillville.

(3)

In the past, residential neighborhoods have deteriorated because they were invaded by small isolated commercial uses and by more intensive residential uses such as duplexes or apartment buildings. These regulations establish residential districts particularly designed to provide maximum protection for single-family homes.

(4)

Other residential districts are established for two-family homes and for multiple-family dwellings. Density, yard, and parking regulations would insure good living conditions in these areas. Much of present day building is by large projects instead of lot-by-lot. The regulations provide for "planned developments" which may be located in any residential districts with approval of the site plan and conformity of the plan to the overall density standards of this chapter. This introduces an important measure of flexibility into the regulations.

(5)

Commercial districts recognize the different types of commercial areas that will be needed as future development occurs in Merrillville.

(6)

There is a zoning district for office and research uses.

(7)

For industry there is a "light" industrial district for the modern industrial facility and a corridor overlay district to allow limited industrial development along major corridors.

(8)

The regulations emphasize character as well as location and density of the land uses. Special inducements are offered for good design of apartment areas. Landscape planting is required in all front yards and advertising is carefully controlled.

(9)

The regulations are reasonable in relation to existing conditions. Yard dimensions are adjusted to peculiarities of existing lots. Lots that are too small may be used. Non-conforming uses are permitted.

(10)

All uses are required to provide their own off-street parking.

(11)

Each of the regulations has been designed to work harmoniously with the others, with the totality providing that minimum degree of land use control essential to the realization of the most desirable urban environment.

(Ord. No. 02-03, § 1, 2-12-02)

For the purpose of this chapter, certain terms are hereby defined: Words used in the present tense shall include the future; the singular number shall include the plural and the plural the singular; the word "building" shall include the words "structure" and "premises;" the word "shall" is mandatory and not permissive; the words "used" or "occupied" include the words "intended," "designed" or "arranged to be used or occupied;" the word "lot" includes the words "plot" or "parcel;" and the word "person" includes a firm, association, organization, partnership, trust, company or corporation, as well as an individual. All measured distances, expressed in feet, shall be to the nearest integral foot; if a fraction is one-half (½) foot or more, the integral foot next above shall be taken. Any word not herein defined shall be as defined in the Merrillville Building Code, Subdivision Ordinance, Webster's New International Dictionary - Second Edition, or in Abram's Language of Cities.

Access. The way in which vehicles ingress and egress a lot from a street fronting along said lot.

Access drive. That area within the right-of-way between the pavement edge or curb and the right-of-way line to provide ingress and egress to and from a lot. (See section 21-21.)

Accessory apartment. A second dwelling unit either within or added to an existing single-family detached dwelling for use as a complete, independent dwelling unit. Such a dwelling unit is an accessory use to the main dwelling unit and shall be solely for use by family members or care givers. The accessory apartment shall have direct access to the primary dwelling unit without having to exit said dwelling.

Accessory building. A subordinate building, the use of which is:

(1)

Incidental to and customary in connection with the primary building or use;

(2)

Located on the same lot with such primary building or use; and

(3)

Under the same ownership. (See Figures 1 and 6).

Accessory structure. A subordinate structure, that is customarily associated with, and is appropriately and clearly incidental and subordinate in use, size, bulk, area and height to the primary structure and is located on the same lot as the primary building, structure, or use.

Accessory use. A subordinate use which is incidental to and customary in connection with the primary building or use and which is located on the same lot as the primary use.

Adult entertainment businesses. (See section 21-17.)

Adult bookstore. An establishment having as a preponderance of its stock in trade or its dollar volume in trade, books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, tapes, records or other forms of visual or audio representations which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Adult cabaret. A nightclub, bar, theater, restaurant or similar establishment which frequently features live performances by topless or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar entertainers, where such performances are distinguished or characterized by an emphasis on specified sexual activities or by exposure of specified anatomical areas or which regularly feature films, motion pictures, video cassettes, slides or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons.

Adult drive-in theater. An open lot or part thereof, with appurtenant facilities, devoted primarily by forms of visual productions, for any form of consideration, to persons in motor vehicles or on outdoor seats in which a preponderance of the total presentation time is devoted to the showing of materials distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons.

Adult entertainment business. An adult bookstore, adult motion picture theater, adult mini motion picture theater, adult motion picture arcade, adult cabaret, adult drive-in theater, adult live entertainment arcade, or adult service establishment.

Adult live entertainment arcade. Any building or structure which contains or is used for commercial entertainment where the patron directly or indirectly is charged a fee to view from an enclosed or screened area or booth a series of live dance routines, strip performance or other gyrational choreography which performances are distinguished or characterized by an emphasis on specified sexual activities or by exposure of specified anatomical areas.

Adult mini motion picture theater. An enclosed building with a capacity of more than five (5) but less than fifty (50) persons, used for presenting films, motion pictures, video cassettes, slides or similar photographic reproductions in which a preponderance of the total presentation time is devoted to the showing of materials which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

Adult motion picture arcade. Any place to which the public is permitted or invited wherein coin or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image-reducing devices are maintained to show images to five (5) or fewer persons per machine at one time, and where the images so displaced are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas.

Adult motion picture theater. An enclosed building with a capacity of fifty (50) or more persons used for presenting films, motion pictures, video cassettes, slide or similar photographic reproductions in which a preponderance of the total presentation time is devoted to showing of materials which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

Adult service establishment. Any building, structure, premises or other facility, or any part thereof, under common ownership or control which provides a preponderance of services involving specified sexual activities, display of specified anatomical areas or live modeling that involves payment of any compensation or gratuities by customers.

Agriculture use. An operation which consists of the following uses, individually or in combination: the production of grain or livestock, except for the raising of hogs, pigs or other livestock fed on garbage or offal, stables; forest or tree production, dairying, pasturage, horticulture, floriculture, viticulture, bee keeping, animal and poultry husbandry, setting aside land in a government set-aside reserve program, a farmstead, uses accessory to agricultural operations on the site, or uses accessory to agricultural operations in the area.

Aircraft. Any contrivance, now known or hereafter invented, for use in or designed for navigation of or flight in the air.

Airport. Any premises which are used, or intended for use, for the landing and take-off of aircraft; and any appurtenant areas which are used or intended for use of airport buildings or structures located thereon.

Alley. Any public right-of-way which has been dedicated or deeded to and accepted by the public for public use as a secondary means of public access to a lot otherwise abutting upon a public street and not intended for traffic other than public services and circulation to and from said lot.

Animal hospital. Any building or portion thereof designed or used for the care, observation or treatment of domestic animals, birds, reptiles and other small mammals.

Antenna. See section 21-18(b), definitions for wireless telecommunication facilities.

Apartment. See "dwelling unit."

Automobile wrecking yard.

(1)

Any area of land where three (3) or more motor vehicles, not in operable condition, or the parts thereof, are stored in the open and are not being restored to operation; or

(2)

Any land, building or structure used for the wrecking or storing of such motor vehicle or parts thereof.

Awning. A roof-like cover, often of fabric, metal, plastic, fiberglass or glass designed and intended for protection from the weather or as a decorative embellishment, and which is supported by and projects from a wall or roof of a structure over a window, door, or walkway.

Basement. A building story with an interior vertical height clearance of not less than seventy-eight (78) inches and having one-half (½) or more of its interior vertical height clearance below grade.

Bed and breakfast. An owner-occupied dwelling unit that contains no more than four (4) guest rooms where temporary accommodations with or without meals, is provided to overnight guests for compensation.

Block. A tract of land bounded by streets, or by a combination of one or more streets and public parks, cemeteries, railroad rights-of-way, or shore lines of waterways or municipal boundary lines.

Board. The town board of zoning appeals of the Town of Merrillville, Indiana.

Boarding house. A building or part of a building, other than hotels, motels, bed and breakfast, or multiple family dwellings, containing accommodation facilities in common where lodging, typically with meals reserved solely for the occupants thereof, for three (3) or more persons is provided for a fee.

Buffer landscaping. Landscaping consisting of a continuous screening of plantings. (See Figures 15, 16, and 17.)

Buildable width. The width of a lot remaining for development after the side yards are provided. (See Figure 2.)

Building. Any structure having a roof supported by columns or walls and intended for the shelter, housing or enclosure of any individual, animal, process, equipment, goods or materials of any kind or nature.

Building, detached. A principal or accessory building surrounded by open space on the same lot.

Building height. The vertical distance from the grade to:

(1)

The highest point of a roof; or

(2)

The deck line of a mansard roof; or

(3)

The peak of a gabled roof.

Chimneys, elevators, HVAC units, tanks and similar projections, other than signs, shall not be included in calculating building height. (See Figure 4.)

Building line. A line parallel to any front, side or rear lot line which passes through the nearest point of any building or structure. (See Figure 2.)

Building line, front. A line parallel to any front lot line which passes through the nearest point of any building or structure and terminates at the point of contact with any side lot line. (See Figure 2.)

Building line, rear. A line parallel to any rear lot line which passes through the nearest point of any building or structure and terminates at the point of contact with any side lot line. (See Figure 2.)

Building line, side. A line parallel to any side lot line which passes through the nearest point of any building or structure and terminates at the point of contact with any front or rear lot line. (See Figure 2.)

Building, primary. A non-accessory building or buildings, within which is conducted a permitted use of the property on which it is located.

Building setback line. The setback line, established by this chapter, beyond which a building (or structure) shall not extend unless varied according to the procedures in this chapter.

Building width. The shortest side of a building, exclusive of porches, terraces, or garages.

Bulk. A composite characteristic of a given building located upon a given lot - not definable as a single quantity, but involving all of the following characteristics:

(1)

Size and height of buildings;

(2)

Location of exterior walls at all levels in relation to lot lines, streets, or to other buildings or structures;

(3)

Gross floor area of the building in relation to lot area (floor area ratio);

(4)

All open spaces allocated to the building; and

(5)

Amount of lot area provided per dwelling unit.

Business center. A group of five (5) or more stores, offices, research facilities, or manufacturing facilities on a lot or adjacent lots of two (2) or more acres, which collectively have a name different than the name of any of the individual establishments and which may have common private parking and entrance facilities.

Campground. An area or tract of land on which accommodations for temporary occupancy are located or may be placed, including cabins, tents, and major recreational equipment, and which is primarily used for recreational purposes and retains an open air or natural character.

Car wash. A building, area, or structure with machine or hand-operated facilities used principally for the cleaning, washing, polishing, or waxing of motor vehicles. Required stacking of five (5) cars for each space of capacity contained within the facility.

Carport. A roofed structure designed and intended to shelter the automotive vehicle of occupant or owner of the premises, with at least one side open to the weather.

Cellar. (See "basement" and Figure 5.)

Certificate of occupancy. A certificate signed by the community development director stating that the occupancy and use of land or building or structure referred to in the certificate complies with the provisions of this Code including building regulations, subdivision control standards, variance, special exception that may have been granted, or development plan approval reducement.

Child care. A service that provides for the care, health, safety, and supervision of a child's social, emotional, and educational growth. (For reference see IC 12-7-2.)

Child care center. A building where at least seventeen (17) children receive child care from a provider:

(1)

While unattended by a parent, legal guardian, or custodian;

(2)

For regular compensation; and

(3)

For more than four (4) hours but less than twenty-four (24) hours in each of ten (10) consecutive days per year, excluding intervening Saturdays, Sundays, and holidays.

This term also applies to a building where child care is provided to less than seventeen (17) children if the provider has applied for a license under IC 12-17.2-4 and meets the requirements under IC 12-17.2-4. (For reference see IC 12-7-2.)

Child care home. A residential structure in which at least six (6) children (not including the children for whom the provider is a parent, stepparent, guardian, custodian or other relative) at any time receive child care from a provider whose primary residence is such residential structure:

(1)

While unattended by a parent, legal guardian, or custodian;

(2)

For regular compensation; and

(3)

For more than four (4) hours but less than twenty-four (24) hours in each of ten (10) consecutive days per year, excluding intervening Saturdays, Sundays, and holidays.

This term includes a Class I child care home and a Class II child care home as such terms are defined by IC 12-7-2-33.7 and 12-7-2-33.8, respectively. (For reference see IC 12-7-2.)

Child care institution.

(1)

A residential facility:

a.

That provides child care on a twenty-four (24) hour basis for more than ten (10) children; or

b.

With a capacity of not more than ten (10) children that does not meet the residential structure requirements of a group home; or

(2)

An institution:

a.

That operates under a license issued under IC 12-17.4:

b.

Provides for delivery of mental health services that are appropriate to the needs of the individual; and

c.

Complies with the rules adopted under IC 4-22-2 by the Division of Family and Children. (For reference see IC 12-7-2.)

Child care ministry. A child care facility operated by a church or religious ministry that is a religious organization exempt from federal income taxation under Section 501 of the Internal Revenue Code. (For reference see IC 12-7-2.)

Clinic. An establishment where patients are not lodged overnight, but are admitted on an out-patient basis for examination and treatment by a group of Indiana licensed physicians or dentists practicing medicine together, excluding the practice or operations of pregnancy termination and/or euthanasia.

Club. Buildings, structures, or facilities owned or operated by a corporation, association, person or persons for a social, educational or recreational purpose, but not primarily to render a service which is customarily carried on as a business. This term includes lodges and halls of private, fraternal or religious groups.

Commission. The town plan commission of the Town of Merrillville, Indiana.

Commitment. An official agreement concerning and running with the land as recorded in the office of the recorder of Lake County, Indiana.

Community development director. The officer designated by the commission and town council to administer and enforce this chapter, or a duly designated assistant.

Comprehensive plan. The official comprehensive plan of the Town of Merrillville, Indiana.

Condominium. A building, group of buildings, or portion thereof, in which units are owned individually, and the structure, common areas, or facilities are owned by all the owners on a proportional, undivided basis.

Council. The town council of the Town of Merrillville, Indiana.

Cul-de-sac. A street having one open end and being permanently terminated at the other by a vehicular turnaround. (See Figure 11.)

Decibel. A unit of measurement of the intensity (loudness) of sound. Sound level meters which are employed to measure the intensity of sound are calibrated in decibels.

Deck. A ground-supported, unenclosed, platform accessory structure, usually constructed of wood, of which any permanent horizontal area(s) of the platform is raised above grade level designed and intended for the recreational enjoyment of the occupant(s) and guest(s) of the primary use or structure.

Density. A unit of measurement which represents the number of dwelling units per acre of land on the aggregate total land to be developed. (See Figure 13.)

Development standards. Area, bulk, height and other applicable regulations of a zoning district contained in the ordinance which govern the physical development of real estate.

Distribute. To transfer possession of matter for a consideration.

District. A section of the territory within the jurisdiction of the Town of Merrillville, Indiana for which uniform regulations governing the use, height, area, size and intensity of use of buildings and land, and open spaces about buildings, are established by this chapter.

Drive-in restaurant or refreshment stand. Any place or premises used for sale, dispensing or serving of food, refreshments or beverages in automobiles, including those establishments where customers may serve themselves and may eat or drink the food, refreshments or beverages on the premises.

Drive-through restaurant. A business establishment whose method of operation involves the delivery of the prepared food or beverage to the customer in a motor vehicle, typically through a drive-through window, for consumption off of the premises.

Drive, interior access. A way for internal vehicular movement in and around an individual lot or business center. (See section 21-21.)

Driveway. Access for vehicular egress/ingress between the right-of-way of a public or private street and the required parking area. (See Figure 18.)

Driveway, interior access. A minor, private street providing for vehicular egress/ingress between the minimum required setback lines of separate lots or between lots within the boundaries of business center. (See Figure 18 and section 21-21.)

Dwelling. Any building or portion thereof which is designed and used primarily for residential purposes. (See Figure 3 and 12.) This term shall not include hotels, motels, or boarding houses.

Dwelling, attached. A dwelling unit having its own ground floor entrance and open space, joined to two (2) or more other dwellings by party walls, or other horizontally unifying structural element. (See Figure 3.)

Dwelling, caretaker. A single-family dwelling designed and used as part of a commercial or industrial use and located on the same lot.

Dwelling, detached. A dwelling unit which does not share a common wall with any other dwelling and is surrounded on all sides by open space located on the same lot. (See Figures 3 and 8.)

Dwelling, four-family detached. A building designed for or intended for occupancy by four (4) families and surrounded on all sides by open space. (See Figures 3 and 8.)

Dwelling, manufactured home. A dwelling unit which is fabricated in one or more modules at a location other than the home site, by assembly-line type production techniques or by other construction methods unique to an off-site manufacturing process; provided, that each module must bear a label certifying that it is built in compliance with the Federal Manufactured Home Construction and Safety Standards; and provided further, that each unit must have been built after January 1, 1981, and must have at least one thousand (1,000) square feet of main floor area (exclusive of garages, carports, and open porches) and attached to a permanent foundation.

Dwelling, mobile (mobile home). A movable or portable dwelling unit that:

(1)

Is fabricated in one or more modules at a location other than the home site, by assembly-line type production techniques or by other construction methods unique to an off-site manufacturing process;

(2)

Is designed for occupancy by one family;

(3)

Is erected or located as specified by the Town of Merrillville Building Code; and

(4)

Was either:

a.

Constructed prior to June 15, 1976 and bears a seal attached under Indiana Public Law 135, 1971, certifying that it was built in compliance with the standards established by the Indiana Administrative Building Council; or

b.

Constructed subsequent to or on June 15, 1976 and bears a seal, certifying that it was built in compliance with the Federal Mobile Home Construction and Safety Standards law.

Dwelling, modular home. A dwelling unit which is fabricated in one or more modules at a location other than the home site, by assembly-line type production techniques or by other construction methods unique to an off-site manufacturing process, designed for residential occupancy; provided, that each module must bear the seal certified that it was built in compliance with Indiana Public Law 360; and, provided further, that the unit must have been built in compliance with the CABO One and Two-Family Dwelling Code, and must have at least one thousand (1,000) square feet of main floor area (exclusive of garages, carports and open porches) and attached to a permanent foundation.

Dwelling, multiple family. A building designed for or occupied exclusively by five (5) or more families. A multiple dwelling shall also include the terms "apartment house, town house, garden apartments and row house."

Dwelling, single-family. An individual, detached building containing one dwelling unit which is either: (See Figures 3 and 8.)

(1)

Built in compliance with the State of Indiana Code and any current amendments for One and Two-Family Dwellings,

(2)

A modular dwelling; or

(3)

A manufactured dwelling.

Dwelling, three-family detached. A building designed for or intended for ownership and occupancy by three (3) families and surrounded on all sides by open space. (See Figure 3.)

Dwelling, two-family detached and attached. A building designed for or occupied exclusively by two (2) families. (See Figures 3 and 8.)

Dwelling unit. A room or group of rooms designed and equipped exclusively for use as living quarters for only one family and its household employees, including provisions for sleeping, lawful cooking, and sanitary facilities. The term shall include mobile dwellings, modular dwellings and manufactured dwellings but shall not include recreational vehicles.

Easement. Land which has been designated by lawful agreement between the owner or owners of land and a person or persons for a specified use only by such person or persons.

Efficiency dwelling unit. A dwelling unit consisting of one principal room, together with sanitary, lawful cooking, living and sleeping facilities and/or dining alcove.

Enlargement of an adult entertainment business. An increase in the size of the building structure or premises in which the adult entertainment business is conducted by either construction or use of:

(1)

An adjacent building;

(2)

An additional building; or

(3)

The construction or use of any portion of an adjacent or additional building, whether located on the same or an adjacent lot or parcel of land.

Entertainment. Dancing to music provided either by mechanical means or by live musicians; live performances by musicians and other live presentations by individuals from the performing arts excluding adult entertainment.

Essential services. The erection, construction, alteration or maintenance by public utilities or municipal departments or commissions of underground, surface or overhead gas, electrical, steam, or water transmission or distribution systems, collection, communication, supply or disposal systems, including telecommunication towers not greater than fifty (50) feet in height, poles, wires, mains, drains, sewers, pipes, conduits, cables, fire alarm boxes, police call boxes, traffic signals, hydrants and other similar equipment and accessories in connection therewith, including buildings, reasonably necessary for the furnishing of adequate service by such public utilities or municipal departments or commissions or for the public health or safety or general welfare. Main rail lines are included, but classification yards are excluded from this definition. Telecommunications towers greater than fifty (50) feet in height are not defined as an essential service.

Establishing an adult entertainment business. Any of the following:

(1)

The opening or commencement of an adult entertainment business as a new business;

(2)

The conversion of any existing business, whether or not an adult entertainment business, to any of the adult entertainment businesses defined herein;

(3)

The addition of any of the features of one or more of the adult entertainment businesses defined herein to an existing business;

(4)

The addition of any of the adult entertainment businesses defined herein to any other existing adult entertainment business.

Family. One or more human beings (person can be a corporation) related by blood, marriage, adoption, foster care or guardianship, together with incidental domestic servants and temporary, non-compensating guests; or, not more than four (4) persons not so related, occupying a dwelling unit and living as a single housekeeping unit.

Fence. A structure, including entrance and exit gates, designed and constructed for enclosure or screening.

Flood. A general and temporary condition of partial or complete inundation of normally dry land areas from the overflow, the unusual and rapid accumulation, or the runoff of surface waters from any source.

Floodplain. The channel proper and the areas adjoining any wetland, lake or watercourse which have been or hereafter may be covered by the regulatory flood agency. The floodplain includes both the floodway and the floodway fringe districts.

Flood table land. The continuous land area adjacent to the flood plain, the elevation of which is greater than the flood height by five (5) feet or less.

Floodway. The channel of a river or stream and those portions of the floodplains adjoining the channel which are reasonably required to efficiently carry and discharge the peak flood flow of the regulatory flood of a river or stream.

Floodway fringe. Those portions of the floodplain lying outside the floodway.

Floor area. For single-family dwellings and two-family dwellings, the sum of all horizontal surface areas (in square feet), of all floors of all roofed portions of a building enclosed by and within the surrounding exterior walls or roofs, or the centerline(s) of party walls separating such buildings or portions thereof. The floor area of a building shall exclude all areas with a vertical height clearance less than seventy-eight (78) inches, porches, basement, or cellar space is used for storage or incidental uses.

Floor area, gross.

(1)

For dwelling units, the total area, computed on a horizontal plan inclusive of basements, attached garages, entrances, hallways, stairways and other enclosed areas, but exclusive of cellars and attics.

(2)

For commercial or industrial buildings or structures, the sum of all horizontal surface areas of all floors of a building or structure measured from the exterior faces of the exterior walls or from the center line of walls separating abutting buildings or structures.

Floor area ratio. The floor area of the building divided by the area of the lot. (See Figure 4.)

Frontage. All the property on one side of a street or highway, between two (2) intersecting streets (crossing or terminating) or for a distance of four hundred (400) feet on either side of a proposed building or structure, measured along the line of the street, or if the street is deadened, then all of the property abutting on one side between an intersecting street and the dead-end of the street, but not including property more than four hundred (400) feet distance on either side of a proposed building or structure.

Garage, private. A detached accessory building or an accessory portion of the principal building, including a carport which is intended for and used for storing the private motor vehicles of the family or families residing upon the premises, and in which no business, service or industry connected directly or indirectly with the motor vehicles is carried on.

Garage sale. A public or private sale conducted by the owner or occupier of a premises of six (6) or more items of personal property owned by the owner or occupier of the premises, which personal property was not acquired by the owner or occupier for the purpose of resale.

Grade. The average level of the finished surface of ground adjacent to the exterior walls of the building or structure. (See Figure 5)

Greenbelts. An area or strip of land reserved for the purpose of separating zone districts, and protecting wetlands, ditch lines, and creeks from further encroachment and development, consisting of green plant material(s), and/or limited paved, concrete, gravel, stone, or bark material.

Group home. A residential facility licensed by the community residential facilities council, or its successor in authority, and authorized by IC 12-17.4-5 in which care is provided on a twenty-four (24) hour basis for not more than ten (10) individuals in need of services; or children who have committed a delinquent act.

Home occupation. An occupation or business activity carried on within a legally established dwelling unit by a resident of said dwelling, where the occupation or business activity:

(1)

Is clearly incidental and subordinate to the residential use;

(2)

Does nor alter the outside appearance of the dwelling and there is no visible evidence of the conduct of a home occupation;

(3)

Is carried on within the principal building and only by members of the family occupying the premises;

(4)

Does not include any outdoor storage or activities other than receipt or delivery associated with the business activity. (See section 21-76.)

Home day care center. A dwelling where there is provided care and maintenance to children separated from their parents or guardian or a person in loco parentis during a part of the day for two (2) or more consecutive weeks, not to exceed five (5) children at any one time, and where no overnight stays are provided.

Hospital, sanitarium, sanatorium or preventorium. An institution for the reception, care and medical treatment of sick and injured patients whom are usually lodged overnight, provided such institution is operated by or treatment given under direct supervision of a physician licensed to practice by the State of Indiana.

Hotel. A building in which lodging is provided and offered to the public for compensation and providing additional services, such as restaurants, meeting rooms and recreational facilities.

Institution. A nonprofit establishment for public use.

Junk yard. Any place at which personal property is or may be salvaged for reuse, resale, or reduction or similar disposition and is owned, possessed, collected, accumulated, dismantled, or assorted, including but not limited to, used or salvaged base metal or metals, their compounds or combinations, used or salvaged rope, bags, paper, cloth, glass, rubber, lumber, millwork, brick and similar property except animal matter; and used motor vehicles, machinery or equipment which does not carry a current, valid license, and is used, owned or possessed for the purpose of wrecking or salvaging parts therefrom. This term shall not apply to said use or activity carried on entirely within an enclosed building.

Kennel. Any premises where four (4) or more animals over four (4) months of age are owned, boarded, bred and/or offered for sale.

Laboratory. A building or room in a building utilized for conducting scientific experiments, medical or dental analyses, or similar work.

Landscaped area. An area that is permanently devoted and maintained to the growing of shrubbery, grass and other plant material. (See Figures 15, 16, and 17.)

Lawful cooking. A room or area in which food may be prepared and cooked and which contains the following:

(1)

A kitchen sink in good working condition and properly connected to an approved water supply and approved sewer/septic system. The sink must provide an adequate amount of water under pressure, both unheated and heated to no more than one hundred twenty (120) degrees Fahrenheit;

(2)

Cabinets, shelves, counters or tables used for storage of food, eating, drinking or cooking equipment and utensils shall be of sound condition furnished with surfaces that are easily cleanable and that will not impart any harmful effect to food; and,

(3)

A stove, oven or microwave oven for cooking food and a refrigerator for safe storage of food at temperatures less than forty-five (45) degrees Fahrenheit. (See "dwelling unit.")

Liquor store. A business establishment where alcoholic liquor is kept and sold but where such alcoholic liquors are not consumed on the premises.

Loading space. A hard-surface, off-street area either within a building or on the same lot, used for the temporary parking of a commercial vehicle while transferring goods or materials to and from a facility.

Lodging or rooming house. See "boarding house."

Lot. A platted parcel or combination of platted parcels recorded in the office of the recorder of deeds of Lake County, Indiana occupied or intended for occupancy by a use permitted in this chapter, including one principal building, together with its accessory buildings, open spaces and parking spaces required by this chapter and having its principal frontage upon a road or street.

Lot area. The area of a horizontal plane bounded by the vertical planes through front, side and rear lot lines. (See Figure 10.)

Lot, corner. A lot abutting upon two (2) or more streets at their intersections or upon two (2) parts of the same street forming an interior angle of less than one hundred thirty-five (135) degrees. (See Figure 9.)

Lot, coverage. The total ground area within the lot or project covered by the primary structure plus any accessory structures (including decks, patios, above-ground pools, garages, carports and storage sheds), excluding driveways, sidewalks, fences, walls not attached in any way to a roof, and protecting roof eaves.

Lot, depth. The mean horizontal distance between the front and rear lot lines. (See Figure 9.)

Lot, double frontage or through lot. A lot which has a pair of opposite lot lines along two (2) substantially parallel streets and which is not a corner lot. On a through lot, both street lines shall be deemed front lot lines, but in the case of two (2) or more contiguous through lots, there shall be a common front lot line. (See Figure 9.)

Lot, interior. A lot that is not a corner lot or double frontage or through lot. (See Figure 9.)

Lot line, front. That boundary of a lot which adjoins an existing or dedicated public street; or where no public street exists, is along a public way. On a corner lot, the lot line having the shortest length abutting a street shall be the front lot line. (See Figure 2.)

Lot line, rear. That boundary of a lot which is most distant from and is, or is most nearly, parallel to the front lot line; and in the case of an irregular, or triangular-shaped lot, a line ten (10) feet in length within the lot, parallel to and at the maximum distance from the front lot line. (See Figure 2.)

Lot line, side. Any lot line which is not a front lot line or a rear lot line. (See Figure 2.)

Lot of record. A lot or parcel of land, the plat or deed of which has been recorded prior to the adoption of this chapter.

Lot width. The width of the lot at the building setback line.

Lot, zoning. A single tract of land located within a single block which (at the time of filing for a zoning permit) is designated by its owner or developer as a tract to be used, developed or built upon as a unit, under single ownership or control. Therefore, a "zoning lot" may or may not coincide with a lot of record. The zoning lot shall have adequate frontage on an improved dedicated roadway of adequate width.

Matter. Any book, magazine, newspaper or printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation of any statute or other figure, or recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.

Metal building. A building comprised of structural steel framework, both primary (main frame) and secondary (girths and purlins) members; covered by a skin of steel panels on the roof and/or walls, and not more than fifty (50) percent of any wall area in steel panels. The wall and roof panels can be an integral part of the structural soundness of the complete system.

Mobile home park. An area where one or more inhabited mobile dwellings can be or are intended to be parked. It does not include trailer sales lots on which unoccupied trailers, new or used, are parked for purposes of sale.

Motel, motor court, motor lodge or tourist court. Any building or group of buildings containing guest rooms or dwelling(s), some or all of which have a separate entrance leading directly from the outside of the building with garage or parking space conveniently located on the lot, and designed, or intended wholly or in part for the accommodation of transients.

Motor freight terminal. A building or premises in which goods, materials or products are received, stored and/or dispatched by motor vehicle.

Motor vehicle. Any self-propelled, wheeled vehicle designed primarily for transportation of persons or goods along streets, not intended to be used as a dwelling unit or accessory use.

Nonconforming building or structure. Any continuous, lawfully established building or structure erected or constructed prior to the time of adoption, revision or amendment of the zoning ordinance but which fails by reason of such adoption, revision or amendment to conform to the present requirements of the zoning district.

Nonconforming use. Any continuous, lawful land use having commenced prior to the time of adoption, revision or amendment of the zoning ordinance but which fails by reason of such adoption, revision or amendment to conform to the present requirements of the zoning district.

Noxious matter. Material which is capable of causing injury to living organisms by chemical reaction or is capable of causing detrimental effects upon the physical or economic well-being of individuals.

Nursery. Any land or structure used for the growing, harvesting, processing, storing, and/or selling of plants, shrubs, trees and flowers, including products used for gardening and landscaping, but not including fruit and vegetable sales and not including a retail establishment which sells plants as an accessory aspect of a large establishment.

Nursing home. A home for the care of children or the aged or infirm in which three (3) or more persons not of the immediate family are received, kept or provided with food and shelter, or care for compensation; but not including hospitals, clinics, or similar institutions devoted primarily to the diagnosis and treatment of the sick or injured.

Obstructions. An obstruction is any building or structure or parts thereof which is located so as to come in the way of any open area required by this chapter. Trees or shrubs planted in accordance with this chapter shall not be considered an obstruction.

Octave band. A term denoting all the frequencies between any given frequency and double that frequency.

Octave band filter. An electrical frequency designed according to standards formulated by the American Standards Association and used in conjunction with a sound level meter to take measurements in specific octave intervals.

Odor threshold value. The minimum concentration of odorous material in air which can be detected as determined by Manufacturing Chemists Association, or other qualified laboratory.

Open sales lot. Any land used or occupied for the purpose of buying and selling by way of merchandise, passenger cars, trucks, motor scooters, motorcycles, boats and monuments, or for the storing of same prior to sale.

Parking lot. The primary or accessory use of a lot or a portion of a lot for the parking of motor vehicles.

Parking space. An off-street dustless surfaced area, enclosed or unenclosed, sufficient in size to store one automobile not less than nine (9) feet wide and nineteen (19) feet long, together with a driveway connecting the parking space with a street, road or alley and permitting ingress and egress of that automobile without the necessity of moving any other automobile.

Particulate matter. Finely divided solid or liquid matter, other than water, which is released into the atmosphere.

Party wall. A wall starting from the foundation and extending continuously through all stories to or above the roof which separates one building from another and is in joint use by each building. (See Figure 8.)

Performance. Means any play, motion picture, dance or other exhibition or presentation, whether picture, animated or live, performed before an audience of one or more persons and excluding adult entertainment uses.

Permitted use. The use of land or the use of a building or structure on land which is allowed, either as a matter of right or under limited conditions (i.e., as a special exception, an accessory use, a home occupation, or a temporary use) in the zoning district applicable to the land.

Person. Any individual, firm, partnership or corporation.

Personal storage building. "Personal storage building" is explicitly designed to lease portions of said building for protected storage access or seasonal equipment normally owned by residents who do not have the storage facilities at their place of residence. The following types of storage shall not be permitted in a personal storage building: perishable or refrigerated food or product; flammable material; paint or corrosive liquids; livestock or pets; or substances or materials producing toxic or lethal fumes, gases or pollutants. Furthermore, a personal storage building shall not be used as a place of business, a machine or auto shop or service station or for the manufacture, construction, fabrication, production, repair, maintenance or upkeep of any product or commercial venture, or as a dwelling. One caretaker dwelling is allowed under a planned unit development.

Plan commission. The Town of Merrillville, Indiana Plan Commission.

Planned development. A use of land which offers benefits to the neighborhood of which it is a part or to the general public welfare beyond those required by this zoning ordinance, and which use of land will contain or provide amenities not otherwise required by law, including but not limited to provisions for common open spaces, recreational facilities or specific design, engineering, architectural, site planning or landscape features.

Pole building. A structure comprised of structural framework of wood posts and trusses (main frame) and secondary (girths and purlins) members of dimensional wood; covered by a skin of steel panels on the roof and/or walls, and not more than fifty (50) percent of any wall area in steel panels. The wall and roof panels can be an integral part of the structural soundness of the complete system.

Premises. A lot, together with all buildings and structures thereon.

Public utility. Any person, firm or corporation duly authorized to furnish essential services such as electricity, gas, steam, telephone, telegraph, cable access, water or sewage systems to the public under public regulation.

Recreational vehicle. Any boat, boat trailer, trailer, any camping trailer, travel trailer, pick-up coach, motor home or other unit built or mounted on a vehicle or chassis, without permanent foundation, which may legally be driven or towed by a motor vehicle on a street and not to be used as a dwelling unit.

Research laboratory. A building or group of buildings in which are located facilities for scientific research, investigation, testing, or experimentation, but not primarily facilities for the manufacture or sale of products.

Religious use. A land use and all buildings and structures associated therewith devoted primarily to the purpose of divine worship together with reasonably related accessory uses, which are subordinate to and commonly associated with the primary use, which may include but are not limited to educational, instructional, social, residential or child care ministry uses.

Residence. A dwelling, an abode, a domicile, a home, or a place in which a person resides.

Residential facility for the developmentally disabled. A residential facility established under a program authorized by IC 12-11-1 which provides residential services for not more than eight (8) developmentally disabled individuals.

Residential facility for the mentally ill. A residential facility established under a program authorized by IC 12-22-1-1 which provides residential services for mentally ill individuals.

Right-of-way. Specific and particularly described land, property, or interest therein devoted to and subject to the lawful use, typically as a thoroughfare for passage of pedestrians, vehicles, or utilities, as set forth in a written grant, declaration or conveyance that is recorded in the office of the Lake County Recorder.

Right-of-way, existing. The total right-of-way width of a street as created or expanded by the most recent grant, declaration or conveyance for that is recorded by the office of the Lake County Recorder.

Right-of-way, public. Specific and particularly described strip of land, property, or interest therein dedicated to and accepted by the municipality, county or state to be devoted to and subject to use by the general public for general transportation purposes or conveyance of utilities whether or not in actual fact improved or actually used for such purposes, as set forth in a written grant, declaration or conveyance that is recorded by the office of the Lake County Recorder.

Right-of-way, private. Specific and particularly described strip of privately-held land devoted to and subject to use for general transportation purposes or conveyance of utilities whether or not in actual fact improved or actually used for such purposes, as set forth in a written grant, declaration or conveyance that is recorded by the office of the Lake County Recorder.

Ringelmann number. The number of the shaded gray area on the Ringelmann Chart (U.S. Bureau of Mines Information Circular 6888) that coincides most nearly with the light obscuring capacity of smoke.

Screening. A structure erected or vegetation planted for concealing an area from view. (See Figure 15, 16 and 17.)

Smoke units, number of. The number obtained by multiplying the smoke density in Ringelmann numbers by the time of emission in minutes. For the purpose of this calculation, a Ringelmann density reading is made at least once every minute during the period observation; each reading is then multiplied by the time in minutes during which it is observed; the various products are then added together to give the total number of smoke units observed during the total period under observation. Steam or water vapor is not considered smoke.

Sound level meter. An instrument standardized by the American Standards Association for measurement of the intensity of sound.

Special exception use. The use of land or the use of a building or structure on land which is allowed in the zoning district applicable to the land only through the grant of a special exception by the board of zoning appeals and town council. (See section 21-11.)

Specified anatomical areas. Any of the following:

(1)

Less than completely opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areolae; or

(2)

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

Specified sexual activities. Any of the following:

(1)

Human genitals in a state of sexual stimulation or arousal;

(2)

Acts of human masturbation, sexual intercourse or sodomy;

(3)

Fondling or other erotic touchings of human genitals, pubic regions, buttocks or female breasts;

(4)

Flagellation or torture in the context of a sexual relationship;

(5)

Masochism, erotic or sexually oriented torture, beating or the infliction of pain;

(6)

Erotic touching, fondling or other such contact with an animal by a human being; or

(7)

Human excretion, urination, menstruation, vaginal or anal irrigation as part of or in connection with any of the activities set forth in the above definitions.

Staff. The community development director, or designated assistant or any attorney, employee or agent of the Town of Merrillville, Indiana, as designated by the plan commission.

Story. That portion of a building included between the surface of any floor and the surface of the floor next above; or if there is no floor above, the space between the floor and the ceiling next above. A basement shall be counted as a story and a cellar shall not be counted as a story.

Story, half. A space under a sloping roof which has the line of intersection of roof decking and wall not more than three (3) feet above the top floor level, and in which space not more than sixty (60) percent of the floor area is completed for principal or accessory use.

Street. Any public or private right-of-way, with the exception of alleys, essentially open to the sky and open and dedicated to the general public for the purposes of vehicular and pedestrian travel affording access to abutting property, whether referred to as a street, easement, lane road, drive, expressway, arterial, thoroughfare, highway, or any other term commonly applied to a right-of-way for said purposes. A street may be comprised of pavement, shoulders, gutters, curbs, sidewalks, parking space, and similar features. (See Figure 11.)

Street, private. Any privately held right-of-way, with the exception of alleys, essentially open to the sky and open to the general public for the purposes of vehicular and pedestrian travel affording access to abutting property, whether referred to as a street, easement, lane, road, drive, expressway, arterial, thoroughfare, highway, or any other term commonly applied to a right-of-way for said purposes. A private street may be comprised of pavement, shoulders, gutters, curbs, sidewalks, parking space, and similar features.

Street, public. Any publicly dedicated, accepted and maintained right-of-way, with the exception of alleys, essentially open to the sky and open to the general public for the purposes of vehicular and pedestrian travel affording access to abutting property, whether referred to as a street, easement, lane, road, drive, expressway, arterial, thoroughfare, highway, or any other term commonly applied to a right-of-way for said purposes. A public street may be comprised of pavement, shoulders, gutters, curbs, sidewalks, parking space, and similar features. (See section 19-224.)

Structural alteration. Any change, except those required by law or ordinance, which would prolong the life of the supporting members of a building or structure, such as bearing walls, columns, beams or girders, not including openings in bearing walls as permitted by other ordinances, laws or codes, except such changes as are ordered made pursuant to the provisions of Unsafe Building Law, IC 36-7-9-1, or any amendments thereto.

Structural alteration of an adult entertainment business. Any change which would prolong the life of the supporting members of a building or structure such as bearing walls, columns, beams or girders, except such changes as are ordered made pursuant to the provisions of the Unsafe Building Law, IC 36-7-9-1, and any amendments thereto.

Structure. Anything constructed or erected with a fixed location on the ground, or attached to something having a fixed location on the ground. Among other things, structures include buildings, walls, fences and signs.

Tavern. An business establishment where alcoholic beverages are sold to be consumed on the premises, but where a minor cannot be within the use and where food or packaged liquors may be served or sold only as accessory to the primary use.

Telecommunication facilities. See section 21-18(b), Definitions for wireless telecommunication facilities.

Temporary building or use. A building or land use established for a limited and fixed period of time with the intent to discontinue such use upon the expiration of the time period.

Toxic material. A substance, liquid or solid or gaseous, which by reason of an inherent deleterious property tends to destroy life or impair health.

Use. The purpose or activity for which the land or building thereon is designed, arranged or intended or for which it is occupied or maintained.

Variance. A waiver of specific terms of this chapter or a grant of relief from the requirements of this Code which permits construction or use in a manner that would otherwise be prohibited by this Code and which would impose an undue hardship.

Warehouse. A building or structure for the storage of goods, materials or products awaiting shipment to another location for wholesale or retail trade, or limited industrial use which may include office space for same business.

Yard. An open space, unobstructed to the sky, extending fully across the lot while situated between the front, side or rear lot line and the established front, side or rear building line. (See Figure 2.)

Yard, front. An open space, unobstructed to the sky, extending across the full width of the lot extending from the front building line to the front lot line. On corner lots, the front yard shall face the shortest street dimension of the lot, except that if the lot is square or almost square, i.e., has dimensions in a ratio of from 3.2 to 3.3, then the front yard may face either street. (See Figure 2.)

Yard, rear. An open space, unobstructed to the sky, extending fully across the lot between a rear lot line and the rear building line. (See Figure 2.)

Yard, side. An open space, unobstructed to the sky, extending yard between the established building line and the side lot line, and extending from the front lot building yard line to the rear lot building yard line. (See Figure 2.)

Yard, width and depth. The shortest horizontal distance from a lot line to the main building.

(Ord. No. 02-03, § 1, 2-12-02; Ord. No. 06-18, §§ 2—4, 7-11-06)

(a)

In their interpretation and application, the provisions of this chapter shall be held to be the minimum requirements for the promotion of the public health, safety, morals, and welfare.

(b)

Where the conditions imposed by any provision of this chapter upon the (1) use of land or buildings, (2) the bulk of buildings, (3) floor area requirements, (4) lot area requirements, and (5) yard requirements are either more restrictive or less restrictive than comparable conditions imposed by any other provisions of this chapter or of any other law, ordinance, resolution, rule, or regulation of any kind, the regulations which are more restrictive or which impose higher standards or requirements shall govern.

(c)

This chapter is not intended to abrogate any easement, covenant or other private agreement, provided that where the regulations of this chapter are more restrictive or impose higher standards or requirements than such easements, covenants, or other private agreements, the requirements of this chapter shall govern.

(d)

No building, structure, or use, not lawfully existing at the time of the adoption of this chapter shall become lawful or be made lawful solely by reason of the adoption of this chapter; and to the extent that, and in any manner that said unlawful building, structure, or use is in conflict with the requirements of this chapter, said building, structure, or use remains unlawful hereunder.

(e)

It is recognized that this chapter may require interpretation to assign all possible land uses to individual zoning districts. For any land use which is not specifically set forth in this chapter, the community development director shall review the land use for consistency with the intent set forth in each zoning district and for compatibility with land use characteristics typical of land uses permitted within those districts. Then, the community development director shall determine the appropriate zoning district for any land use which is not specifically set forth in this chapter. In case of disagreement with the determination of the community development director in assigning a land use to an appropriate zoning district, any aggrieved party may file an appeal with the board. If it is (i) determined by the community development director and no appeal of the that decision is filed with the board, or (ii) determined by the board that a particular use is not permitted in any agricultural, residential, commercial, industrial or other zoning district provided for in this chapter, then such use shall be deemed to require a special exception or use variance in the most intense agricultural, residential, commercial, industrial or other zoning district most similar to the particular use.

(Ord. No. 02-03, § 1, 2-12-02; Ord. No. 06-18, § 4, 7-11-06)

(a)

In all districts every principal building hereafter erected or structurally altered shall be located on one zoning lot, and there shall be located not more than one principal building on one zoning lot, except in a planned development.

(b)

These provisions may be varied upon a public hearing in the manner set forth in this chapter.

(c)

A variance may be allowed if:

(1)

The acreage is adequate for a planned development;

(2)

The lot area and density requirements are not met;

(3)

The building does not have street frontage;

(4)

The setback requirements are not met.

(Ord. No. 02-03, § 1, 2-12-02)

The following uses of land or buildings are allowed in the districts indicated hereinafter in Division 1, Article III of this chapter under the conditions specified in this chapter.

(1)

Uses lawfully established on the effective date of this chapter.

(2)

Permitted uses as designated in Division 1, Article III of this chapter.

(3)

Special exception procedures are designated in Article II of this chapter.

(4)

See Division 8, Regulations for All Districts.

(Ord. No. 02-03, § 1, 2-12-02)

No building or tract of land shall be devoted to any use other than one which is specified as a permitted use or special exception use in Division 8, Article III of this chapter, in the zoning district in which such building or land is located. However, where a building permit for a building or structure has been issued in accordance with law prior to the effective date of this chapter, and where construction has been begun within six (6) months of such effective date and diligently prosecuted to completion, said building or structure may be completed in accordance with approved plans on the basis of which the building permit was issued; and further, may upon completion be occupied under a certificate of occupancy by the use originally designated, subject to the provisions of section 21-15 of this Code.

(Ord. No. 02-03, § 1, 2-12-02)

No building or premises shall hereafter be used or occupied, and no building or structure, or part thereof, shall be erected, raised, moved, reconstructed, extended, enlarged, or altered, except in conformity with the regulations herein specified for the district in which it is located. However, in residential districts, a lot in an ownership which was of record at the time of adoption of this chapter, even though not meeting the requirements of this chapter as to area and width, may be used for single-family residential purposes, provided the use conforms with all other regulations of the district in which it is located, except where an adjoining vacant lot is in the same ownership, the owner shall combine the lots to conform with the requirements of that district.

(Ord. No. 02-03, § 1, 2-12-02)

Except in the case of planned development, all new buildings shall conform to the bulk regulations established herein for the district in which each building is located. Further, no existing building shall be enlarged, reconstructed, structurally altered, converted, or relocated in such a manner as to conflict or to further conflict with the bulk regulations of this chapter for the district in which such buildings shall be located.

(Ord. No. 02-03, § 1, 2-12-02)

(a)

Accessory uses shall be compatible with the principal use and shall not be established prior to the establishment of the principal use, and shall not include the keeping, propagation, or culture of pigeons, poultry, or livestock, whether or not for profit, except in the A1 district.

(b)

Unless otherwise provided by section 21-12 of this Code, no accessory building, unless it is structurally a part of the principal building and unless it conforms with requirements of accessory buildings, for special uses, shall be erected or altered at, nor moved to, a location within ten (10) feet of the nearest wall of the principal building, nor within required area for front or side yard of the lot, as set forth for the district, and in residential districts an accessory building in a rear yard shall be not less than six (6) feet from any property line.

(c)

No accessory building shall encroach upon a side yard of a corner lot which shall be considered as a front yard nor upon that side yard of a reversed corner lot which is adjacent to the street, nor upon the rear yard of a through lot.

(d)

No accessory building shall have more than one story nor exceed seventeen (17) feet in height unless otherwise permitted as accessory to business and manufacturing uses, or to authorized special exception uses.

(Ord. No. 02-03, § 1, 2-12-02)

(a)

To provide for the location of certain uses hereinafter specified which are deemed desirable for the public welfare within a given district or districts, but which might have an adverse effect upon nearby properties or upon the character and future development of the district in which they are located, a classification of special uses is hereby established. Procedures for special exception uses are set forth in Articles II and Article III, Division 8 of this chapter.

(b)

Where a use exists on the effective date of this chapter and it is classified as a special use by said chapter, it shall be considered to be a lawful special use. Additions or alterations to existing buildings or land improvements, for expansion of lawful special uses, may be made with the area of the lot included in the ownership existing at the time of adoption of this ordinance, and they shall be subject to yards, floor area ratio, and building height requirements set forth in this chapter for permitted uses in the districts in which they are located. (See section 21-42.)

(Ord. No. 02-03, § 1, 2-12-02)

(a)

Detached accessory structures shall:

(1)

Have a coverage of not more than thirty (30) percent of the area of a rear yard

(2)

Be located not less than six (6) feet from the nearest lot line except for fences which may be constructed up to the lot line;

(3)

Be located not less than six (6) feet from another accessory building;

(4)

Be no higher than twenty-four (24) inches above curb level, if located in that portion of a requested front or side yard situated within thirty (30) feet of the lot corner formed by the intersection of any two (2) streets. (See Figure 14.) This restriction shall apply to all obstructions including trees and shrubs.

(b)

The following structures and uses are permitted and may be encroachments in yards and courts as follows:

(Ord. No. 02-03, § 1, 2-12-02; Ord. No. 10-10, § 1, 4-27-10)

(a)

The minimum yard space required for one structure shall not again be considered as yard space for another adjoining structure.

(b)

No lot shall be reduced in area so that the yards or other open space become less than required by this chapter.

(c)

On streets where a front yard setback has been maintained for buildings existing on lots or tract having a total frontage of twenty-five (25) percent on one side of any street in a block, the front yard setback shall not be less than the average setback, but not less than ten (10) feet.

(Ord. No. 02-03, § 1, 2-12-02)

(a)

Except for telecommunication towers less than fifty (50) feet in height, television and radio towers, church spires, belfries, monuments, tanks, water and fire towers, stage towers or scenery lofts, cooling towers, ornamental towers and spires, chimneys, elevator bulkheads, stacks, conveyors and flagpoles which may be erected to such height as may be authorized by the board, all other uses shall conform to the height regulations for the district in which the use is located. Telecommunication towers fifty (50) feet or greater in height are regulated by section 21-18.

(b)

It is permissible to erect TV earth station antennas (satellite dishes) in agricultural districts and residential districts on roofs of structures whether or not the height requirements in each district are violated, provided the said satellite dishes in agricultural and residential districts do not exceed six (6) feet in diameter.

(c)

It is permissible to erect TV earth station antennas (satellite dishes) in commercial and office districts and industrial districts on roofs of structures whether or not the height requirements in each district are violated.

(Ord. No. 02-03, § 1, 2-12-02)

(a)

It is the intent of this chapter to permit nonconforming buildings, structures and uses to continue until they are removed, but not to encourage their survival. It is further the intent of this chapter that nonconforming buildings, structures and uses shall not:

(1)

Be enlarged upon, expanded or extended; or

(2)

Be used as grounds for adding other structures or uses which are prohibited elsewhere in the same district.

In addition, nonconforming lots of record, nonconforming buildings or structures, nonconforming uses of land, and nonconforming uses within nonconforming buildings or structures that are either illegal or not legally established on the effective date of this chapter shall not become legally established or validated by virtue of the enactment of this chapter.

(b)

Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the zoning district in which such nonconforming use is located. A nonconforming use of a building or structure, or a legally established nonconforming use of land, shall not be extended, expanded or enlarged, nor shall additional signs for such nonconforming use be erected on the lot, after the effective date of this chapter.

(c)

To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans for or construction of any building or structure, or the designation of use of any building or structure, for which an improvement location permit has been properly filed for or issued prior to the effective date of this chapter; provided that the construction of such building or structure is commenced within six (6) months of such effective date and diligently prosecuted to completion; and provided further however that such construction shall be completed within two (2) years of the issuance of said improvement location permit.

(d)

Any legally established lot recorded or any legally established platted lot recorded prior to the effective date of this chapter, having less than the required minimum lot area or minimum lot width required by the applicable zoning district regulations of this chapter, shall be deemed a permitted exception to such minimum lot area or minimum lot width and may be used for any use permitted within the applicable zoning district in which such lot is located provided that:

(1)

All other development standards are met; and

(2)

Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership.

(e)

Where a nonconforming building or structure exists on the effective date of this chapter that could not be built under the terms of this chapter, such building or structure may continue to exist so long as it remains otherwise lawful, subject to compliance with the following provisions:

(1)

Such nonconforming building or structure may not be enlarged, expanded or altered in a way which increases its nonconformity, provided such building or structure may be altered so as to decrease the extent of nonconformity;

(2)

Should such nonconforming building or structure, or nonconforming portion of a building or structure, be damaged or destroyed by any means to the extent of more than one-half (½) of the gross floor area of the building or structure immediately prior to the damage or destruction, said building or structure shall not be reconstructed except in conformity with the provisions of this chapter; and

(3)

Should such building or structure be moved for any reason for any distance whatsoever, such building or structure shall thereafter conform to the provisions of this chapter.

(f)

No building except single-family residences, which has been damaged by any cause whatsoever, to the extent of more than fifty (50) percent of the fair market value of the building immediately prior to the damage, shall be restored except in conformity with the regulations of this chapter, and all rights as a nonconforming use are terminated. If a building is damaged by less than fifty (50) percent of the fair market value, it may be repaired or reconstructed and used as before the time of damage, provided that such repairs or reconstruction be substantially completed within twelve (12) months of the date of such damage.

(g)

Where nonconforming uses of land exist on the effective date of this chapter which would not be permitted by the provisions of this chapter, such uses may be continued so long as they remain otherwise lawful provided that:

(1)

Such nonconforming uses shall not be enlarged, expanded, increased or extended to occupy a greater area of land than was occupied on the effective date of this chapter;

(2)

Such nonconforming uses shall not be moved in whole or in part to any portion of the lot or parcel other than that occupied by such uses on the effective date of this chapter; and

(3)

No additional building or structure shall be erected in connection with such nonconforming use of land.

(h)

If any nonconforming use of land is discontinued or abandoned for more than one hundred eighty (180) days (except when government action impedes access to the premises), any subsequent use of such land shall conform to the provisions of this chapter.

(i)

If any nonconforming use is located within a nonconforming building or structure and such nonconforming building or structure becomes unsafe or unlawful by reason of physical condition and is razed, the nonconforming use previously being conducted in such nonconforming building or structure shall be terminated and no longer permitted. If any nonconforming use is located within a nonconforming building or structure and such nonconforming use or structure is damaged or destroyed by any means to the extent of more than one-half (½) of the gross floor area of the building or structure immediately prior to the damage or destruction, the nonconforming use previously being conducted in such nonconforming building or structure shall be terminated and no longer permitted.

(j)

On any nonconforming building or structure, or portion of a building or structure containing a nonconforming use, work may be done on ordinary repairs or on the repair or replacement of nonbearing walls, fixtures, wiring or plumbing, provided that the cubic feet content existing when the building or structure, or portion of a building or structure containing a nonconforming use became nonconforming shall not be increased. Nothing herein shall be deemed to prevent the strengthening, repairing or restoring to safe condition of any building or structure, or part thereof, declared to be unsafe by any official charged with protecting the public safety, upon order of such official. If a nonconforming building or structure or portions of a building or structure becomes unsafe or unlawful by reason of physical condition and is razed, such building or structure shall not thereafter be rebuilt or used except in conformity with the provisions of this chapter.

(Ord. No. 02-03, § 1, 2-12-02)

(a)

Permitted temporary buildings and uses. A temporary building or use which is in compliance with the provisions of this article, shall be allowed in any zoning district. A temporary building or use which will be converted into a permanent primary or accessory building or use after the cessation of the temporary use shall be reviewed by the board of zoning of appeals and then approved by the town council as a special exception use prior to the establishment of the temporary building or use. A temporary building or use which will be removed from the site upon cessation of the temporary building or use may be approved by the community development director and shall not be required to obtain special exception use approval. By way of example only, permitted temporary buildings and uses include: construction trailers, portable buildings, mobile classrooms and development sales offices. (See Chapter 9, Article IV for special event permits.)

(b)

Improvement location permit and duration. An improvement location permit is required for all temporary buildings and uses. The permit application, together with the required fee shall be filed on forms available in the planning and building department. The community development director shall inspect the premises of the permit request and shall approve the permit if all requirements are met. The approval may be for a period not to exceed two (2) years and may be renewed for one additional year by the community development director upon showing of good cause.

(c)

Compliance with development standards. Any temporary building or use shall comply with all applicable development standards and setback requirements in the zoning district in which the temporary building or use is located.

(d)

Cessation of use. All buildings, structures or debris associated with the temporary building or use shall be removed from the site immediately upon completion or cessation of the temporary use or expiration of the time period set forth on the approved permit.

(e)

Additional regulations for garage sales/yard sales. (Improvement location permit not required.) Not withstanding any regulations above to the contrary, a garage sale/yard sale may be conducted only on premises located within an agricultural, residential or PUD district and shall be subject to the following additional regulations:

(1)

A garage sale/yard sale may be conducted two (2) times each calendar year and shall not exceed three (3) consecutive days in duration;

(2)

A garage sale/yard sale shall only be conducted during the hours from sunrise to sunset;

(3)

All personal property exhibited outdoors during a garage sale/yard sale shall be placed within a building or structure or otherwise removed from the premises immediately following the end of the garage sale/yard sale;

(4)

Garage sale/yard sale signs shall comply with the applicable provisions of Article VI of this chapter.

(5)

Nothing in this article shall be construed to prohibit one or more owners from conducting a combined garage sale/yard sale on one of the premises owned by the participants, provided that all other provisions of this article are complied with.

(Ord. No. 02-03, § 1, 2-12-02; Ord. No. 06-18, § 4, 7-11-06)

(a)

Purpose and intent. In the development and adoption of this section, the town council has recognized and acknowledged that there are some adult entertainment business uses which due to their very nature have certain operational characteristics which produce harmful secondary effects upon the areas in which they are located, particularly when they are located in close proximity to residential neighborhoods, thereby having a deleterious impact upon property values and the quality of life in such surrounding areas. It has been acknowledged by communities across the nation that state and local governmental entities have a special concern in regulating the operation of such adult entertainment businesses operating within their jurisdiction to ensure that such harmful secondary effects will not contribute to the blighting or down grading of adjacent neighborhoods or create an atmosphere in such areas more conducive to violence, sexual harassment, public intoxication, prostitution or the spread of sexually transmitted diseases. The special regulations deemed necessary to control the harmful secondary effects arising from these adult entertainment businesses are set forth in this section. The purpose of these controls and regulations is to preserve the integrity and character of residential neighborhoods, to deter the spread of urban blight and to protect minors from the harmful secondary effects caused by the operational characteristics of these adult entertainment business uses by restricting their close proximity to churches, parks, schools, day care and child care facilities and residential areas.

(b)

Definitions. As used in this section only, the following terms shall be defined as set forth below. All other terms shall have the meaning set forth in section 21-3, Definitions.

Adult bookstore. An establishment having as a preponderance of its stock in trade or its dollar volume in trade, books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, tapes, records or other forms of visual or audio representations which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Adult cabaret. A nightclub, bar, theater, restaurant or similar establishment which frequently features live performances by topless or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar entertainers, where such performances are distinguished or characterized by an emphasis on specified sexual activities or by exposure of specified anatomical areas or which regularly feature films, motion pictures, video cassettes, slides or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons.

Adult drive-in theater. An open lot or part thereof, with appurtenant facilities, devoted primarily to the presentation of motion pictures, films, theatrical productions and other forms of visual productions, for any form of consideration, to persons in motor vehicles or on outdoor seats in which a preponderance of the total presentation time is devoted to the showing of materials distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons.

Adult entertainment business. An adult bookstore, adult motion picture theater, adult mini motion picture theater, adult motion picture arcade, adult cabaret, adult drive-in theater, adult live entertainment arcade, or adult service establishment. Said definition does not include hospital, educational programs, library, etc.

Adult live entertainment arcade. Any building or structure which contains or is used for commercial entertainment where the patron directly or indirectly is charged a fee to view from an enclosed or screened area or booth a series of live dance routines, strip performance or other gyrational choreography which performances are distinguished or characterized by an emphasis on specified sexual activities or by exposure of specified anatomical areas.

Adult mini motion picture theater. An enclosed building with a capacity of more than five (5) but less than fifty (50) persons, used for presenting films, motion pictures, video cassettes, slides or similar photographic reproductions in which a preponderance of the total presentation time is devoted to the showing of materials which are distinguished or characterize by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

Adult motion picture arcade. Any place to which the public is permitted or invited wherein coin or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image-reducing devices are maintained to show images to five (5) or fewer persons per machine at one time, and where the images so displaced are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas.

Adult motion picture theater. An enclosed building with a capacity of fifty (50) or more persons used for presenting films, motion pictures, video cassettes, slide or similar photographic reproductions in which a preponderance of the total presentation time is devoted to showing of materials which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

Adult service establishment. Any building, structure, premises or other facility, or any part thereof, under common ownership or control which provides a preponderance of services involving specified sexual activities, display or specified anatomical areas or live modeling that involves payment of any compensation or gratuities by customers.

Enlargement of an adult entertainment business. An increase in the size of the building, structure or premises in which the adult entertainment business is conducted by either construction or use of:

(1)

An adjacent building;

(2)

An additional building; or

(3)

The construction or use of any portion of an adjacent or additional building, whether located on the same or an adjacent lot or parcel of land.

Establishing an adult entertainment business. Any of the following:

(1)

The opening or commencement of an adult entertainment business as a new business;

(2)

The conversion of any existing business, whether or not an adult entertainment business, to any of the adult entertainment businesses defined herein;

(3)

The addition of any of the features of one or more of the adult entertainment businesses defined herein to an existing business;

(4)

The addition of any of the adult entertainment businesses defined herein to any other existing adult entertainment business.

Services involving specified sexual activities or display of specified anatomical areas (as used to define an adult service establishment). Any combination of two (2) or more of the following activities:

(1)

The sale or display of books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, tapes, records, or other forms of visual or audio representations which are characterized by an emphasis upon the specified sexual activities or specified anatomical areas;

(2)

The presentation of films, motion pictures, video cassettes, slides, or similar photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons;

(3)

The operation of coin or slug operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image producing devices to show images to five (5) or fewer persons per machine at any one time and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas;

(4)

Live performances by topless or bottomless dancers, go-go dancers, exotic dancers, strippers, modeling or similar entertainers, where such performances are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

Specified anatomical areas. Any of the following:

(1)

Less than completely opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areolae; or

(2)

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

Specified sexual activities. Any of the following:

(1)

Human genitals in a state of sexual stimulation or arousal;

(2)

Acts of human masturbation, sexual intercourse or sodomy;

(3)

Fondling or other erotic touchings of human genitals, pubic regions, buttocks or female breasts;

(4)

Flagellation or torture in the context of a sexual relationship;

(5)

Masochism, erotic or sexually oriented torture, beating or the infliction of pain;

(6)

Erotic touching, fondling or other such contact with an animal by a human being; or

(7)

Human excretion, urination, menstruation, vaginal or anal irrigation as part of or in connection with any of the activities set forth in the above definitions.

Structural alteration of an adult entertainment business. Any change which would prolong the life of the supporting members of a building or structure such as bearing walls, columns, beams or girders, except such changes as are ordered made pursuant to the provisions of the Unsafe Building Law, IC 36-7-9-1, and any amendments thereto.

(c)

Prohibitions. The establishment, enlargement, structural alteration of any adult entertainment business shall be prohibited if such adult entertainment business is within one thousand (1,000) feet of any other adult entertainment businesses or within one thousand (1,000) feet of any existing church, school, day care facilities, child care facility, park, agricultural district, or residential zoning district within the corporate limits of the Town of Merrillville.

Provided further, that no adult entertainment business shall be established, enlarged, or structurally altered unless the site or proposed site is located in a C4E commercial entertainment district or the M-1 limited industrial district.

(d)

Measurement of distances. The distance between one adult entertainment business and another adult entertainment business shall be measured in a straight line, without regard to intervening structures of objects, from the closest exterior structural wall of each such business. The distance between an adult entertainment business and any church, school, park, day care facility, child care facility, agricultural district, or residential district, shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior structural wall of the adult entertainment business to the nearest lot line of the church, school, day care facility, child care facility, park, agricultural district or residential zoning district.

(e)

Exterior display. Notwithstanding any other provisions of this chapter to the contrary, all exterior displays for an adult entertainment business shall comply with the following regulations:

(1)

No adult entertainment business shall be conducted in any manner that permits the observation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas by display, decorations, sign, show window or other opening from any public right-of-way.

(2)

Number of signs. No more than one wall sign shall be permitted for an adult entertainment business and said wall sign shall be permitted only on the front facade of the building. In addition to the one permitted wall sign, an adult entertainment business may be permitted not more than one pole or ground sign structure if it is the zoning district in which it is located. All other permanent sign structures shall be prohibited. (See section 21-204.)

(3)

Sign surface area. The sign surface area of a wall sign for an adult entertainment business shall not exceed an amount equal to five (5) percent of the front building facade of the first floor elevation (first ten (10) feet) of the premises occupied by the adult entertainment business, or one hundred (100) square feet, whichever is the lesser. The maximum sign surface area of a ground or pole sign structure, where permitted, shall not exceed one square foot for each lineal foot of frontage of the lot, or thirty-six (36) square feet, which is the lesser.

(4)

Lighting, signs and sign structures used by an adult entertainment business may be illuminated, provided, however, such illumination shall not be by way of exposed neon, exterior lighting (e.g., spot or flood lights) or any flashing or animated lights (either interior to the sign, on the exterior of the signs, or as a border to sign).

(Ord. No. 02-03, § 1, 2-12-02)

(a)

Purpose and intent. The purpose of this section is to establish the guidelines for the placement of wireless telecommunications facilities. The intent of this section is to:

(1)

Encourage the location of telecommunication towers in non-residential areas and minimize the total number of telecommunication towers throughout the community.

(2)

Encourage strongly the joint use of new and existing telecommunication tower sites.

(3)

Encourages users of telecommunication towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal.

(4)

Encourage users of telecommunication towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas.

(5)

Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently.

These policies were designed to comply with the Federal Telecommunications Act of 1996, 47 U.S.C. §332(c)(7). The provisions of this section themselves shall not be interpreted to prohibit, or to have the effect of prohibiting, telecommunications or personal wireless services, television broadcast signals, multichannel multipoint distribution services or direct broadcast satellite services. This section shall not be applied or interpreted in such a manner as to unreasonably discriminate between providers of functionally equivalent personal wireless services.

(b)

Definitions. As used in this section only, the following terms shall be defined as set forth below. All other terms shall have the meaning set forth in section 21-3, Definitions.

Antenna. Any structure or device used to collect or radiate electromagnetic waves, including both directional antennas, such as panels, and dishes, and omni-directional antennas, such as whip antennas, but not including satellite earth stations.

Antenna array. A structure attached to a telecommunications tower that supports a telecommunications antenna.

EIA-222. Electronics Industries Association Standard 222, "Structural Standards for Steel Antenna Towers and Antenna Support Structures."

Fall zone. A prescribed area around the base of a telecommunications tower within which there is a potential hazard from falling debris or collapsing material.

FAA. The Federal Aviation Administration.

FCC. The Federal Communications Commission.

Guyed tower. A monopole that is tied to the ground or other surface by diagonal cables or guy wires.

Height. The distance measured from the ground level to the highest point on the telecommunications tower or other structure, including an antenna.

Monopole. A type of mount that is self supporting with a single shaft of wood, steel, or concrete and a platform or racks for panel Antennas arrayed at the top.

Mount. The structure or surface which antennas are mounted, including the following four (4) types of mounts:

(1)

Roof mounts. Mounted on the roof of a building.

(2)

Side mounts. Mounted on the side of a building.

(3)

Ground mounted. Mounted on the ground.

(4)

Structure mounted. Mounted on a structure other than a building.

Non-whip antenna. An antenna which is not a whip antenna, such as dish antennas, panel antennas, etc.

Telecommunications. The transmission between or among points specified by the user of information of the user's choosing, without change in the form or content of the information as sent and received.

Telecommunications antenna. An antenna used to provide a telecommunications service.

Telecommunications service. The offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

Telecommunications tower. A structure more than fifty (50) feet tall, built primarily to support one or more telecommunications antennas.

Whip antenna. An omni-directional dipole antenna of cylindrical shape which is no more than six (6) inches in diameter.

Wireless telecommunication facility. A facility used for telecommunications purposes, and may include antennas, equipment shelters, equipment cabinets, transmission equipment and cables, support structures to achieve necessary elevations or reception and transmission devices including but not limited to telecommunications towers.

(c)

Application. Notwithstanding any other provision of this chapter and in addition to other applicable provisions, wireless telecommunications facilities, when such are permitted by federal law and the laws of the State of Indiana, shall be regulated and governed by the use, regulations and requirements of this section. However, this section shall not apply nor be construed to apply to amateur radio operators who are licensed to operate a radio or transmitter by the Federal Communications Commission under Part 97 of the Federal Communications Commission's Rules.

(d)

Policies. Telecommunication towers and equipment buildings shall be located to minimize their number, height and obtrusiveness; to minimize visual impacts on the surrounding area; and, in accordance with the following telecommunications policies:

(1)

Ensure that the height of telecommunications towers should have the least visual impact necessary and should be no greater than required to achieve service area requirements and potential collocation, when visually appropriate.

(2)

The selected site for a new telecommunications tower should provide the least visual impact on residential areas or the public way and the selected site should provide the best opportunity to minimize the visual impact of the proposed facility.

(3)

Telecommunications towers should be located to minimize being visually solitary or prominent when viewed from residential areas or the public way. Telecommunications towers should be obscured by vegetation, tree cover, topographic features, and buildings or other structures to the maximum extent feasible.

(4)

Telecommunications towers should be located to ensure that historically significant landscapes are protected. The views of and vistas from architecturally or historically significant structures should not be impaired or diminished by the placement of telecommunications towers.

(5)

The board of zoning appeals and town council may grant a special exception use which does not fully comply with the telecommunications policies contained herein for telecommunications towers when the board of zoning appeals and town council determine that such a grant better accomplishes the telecommunications policies set out in this subsection than would a strict application of these telecommunications policies. Such deviations from these telecommunications policies shall be no greater than necessary to accomplish those policies.

(e)

Procedures. Telecommunications towers are hereby declared special exception uses in the agricultural district (A-1), highway commercial (C-3), commercial entertainment district (C-4E) and industrial corridor overlay district (M-2) contained in this chapter. (See section 21-136.)

The applicant for a telecommunications tower special exception shall demonstrate that they have exhausted all efforts to locate the proposed telecommunications antennas upon existing buildings or structures in the geographical area of the proposed telecommunications antennas. The applicant for a telecommunications tower special exception shall demonstrate in writing in its application with supporting evidence that the need for the location or the telecommunications tower is in compliance with and will promote the policies set forth in this section. The applicant shall submit a master plan for its telecommunications tower and facilities throughout the Town of Merrillville. The master plan shall demonstrate efforts to minimize the size and number of telecommunications tower locations throughout the geographical area, taking into consideration existing technology.

All applications for a telecommunications tower shall be reviewed by the community development director or designated agent with the recommendations becoming part of the record of the proceedings before the board of zoning appeals and shall be considered by the board of zoning appeals as conditions recommended to be imposed on the special exception use by the board of zoning appeals if the special exception use is granted and which conditions, if imposed, shall be satisfied before a certificate of use is issued.

The placement of telecommunications antennas upon existing telecommunications towers may be administratively approved by the community development director or designated agent.

If a portion of a telecommunications tower is to be leased to other telecommunications service providers, the portions of the actual or proposed lease that demonstrate compliance with the requirements of this paragraph shall be submitted with the application for special exception use approval.

(f)

Development standards. All wireless telecommunications facilities shall comply with the development standards set forth below.

(1)

In addition to complying with the requirements for a special exception use for the zoning district of the property, telecommunication towers shall comply with the following:

a.

The maximum height of a telecommunications tower, including antenna array, shall not exceed one hundred ninety-nine (199) feet above grade.

b.

No new telecommunications towers shall be located within five thousand (5,000) feet from another telecommunications tower.

c.

All guyed and guyed anchors shall be located within the buildable area of the lot and shall not be located within any front, side or rear yard setback and, in any event, no closer than ten (10) feet to any lot line.

d.

The base of a telecommunications tower shall be enclosed by security fencing.

e.

Equipment buildings must be similar in color and character to the main or adjoining building or structure or blend with the landscaping and other surroundings immediately adjacent to the equipment building and shall be screened by a chain link or wrought iron fence with landscaping installed in compliance with the provisions of section 21-119 (f)(2) of this chapter.

f.

A telecommunications tower shall be erected and operated in compliance with the most current FCC and FAA rules and regulations and other applicable federal and state laws, rules, and regulations. All telecommunications towers shall comply with all ordinances of the Town of Merrillville not in conflict with this section.

(g)

A telecommunications tower must be:

(1)

Used by three (3) or more wireless communication providers; or

(2)

Designed and built so as to be capable of use by three (3) or more wireless communication providers including providers such as cellular or PCS providers using antennas arrays of nine (9) to twelve (12) antennas each within fifteen (15) vertical feet of each other with no more than three (3) degrees of twist and sway at the top elevation and the owner of the telecommunications tower and the property on which it is located must certify to the town that the antenna is available for use by other telecommunications service providers on a reasonable and non-discriminatory basis and at a cost not exceeding the market value for the use of the facilities. If a portion of the telecommunications tower is to be leased to other telecommunications service providers, the portions of the actual or proposed lease that demonstrate compliance with the requirements of this paragraph shall be submitted with the application for special exception use approval.

(h)

All telecommunications towers shall be of a tapering monopole construction, except that another type of telecommunications tower may be allowed upon showing that the alternate type of telecommunications tower would cause less visual impact on surrounding property than a similar monopole structure.

(i)

No lettering, symbols, images, trademarks, signs, or advertising shall be placed on or affixed to any part of telecommunications tower, antenna array or antenna, other than as required by FCC or FAA regulations regarding telecommunications tower registration or other applicable law.

(j)

Telecommunications towers shall be constructed to minimize potential safety hazards. Telecommunications towers shall be constructed so as to meet or exceed the most recent EIA-222 standards, and prior to issuance of a building permit, the community development director shall be provided with an engineer's certification that the telecommunications tower's design meets or exceeds those standards. Guyed telecommunications towers shall be located in such a manner that if the telecommunications tower shall fall along its longest dimension, the telecommunications tower will remain within the lot lines and avoid habitable structures, public streets, utility lines and other telecommunications towers.

(k)

No signals or lights or illumination shall be permitted on telecommunications towers unless required by the Federal Communications Commission, the Federal Aviation Administration or the Town of Merrillville.

(l)

Wireless telecommunications facilities mounted on existing buildings or structures shall comply with the following:

(1)

Roof-mounted telecommunications antennas are allowed on non-residential buildings in all zoning districts without further zoning proceedings, provided a non-whip antenna does not exceed the height of the building by more than ten (10) feet and is screened from view from any adjacent public right-of-way and provided a whip antenna does not exceed the height of the building by more than fifteen (15) feet and is located no closer than fifteen (15) feet to the perimeter of the building. Prior to installation of a roof-mounted telecommunications antenna, the community development director shall be provided with an engineer's certification that the roof will support the proposed telecommunications antenna and associated roof-mounted equipment. Roof-mounted telecommunications antenna and associated equipment shall be screened with enclosures or facades having an appearance that blends with the building on which they are located or by locating them so that they are not visible from an adjacent public right-of-way.

(2)

Building-mounted telecommunications antennas of the non-whip antenna type are allowed on non-residential buildings in all zoning districts without further zoning proceedings, provided the non-whip antenna is mounted flush with the exterior of the building so that it projects no more than thirty (30) inches from the surface of the building to which it is attached and the non-whip antenna's appearance is such as to blend with the surrounding building.

(3)

Associated equipment shall be placed either within the same building or in a separate building which matches the existing building in character and building materials or blends with the landscaping and other surroundings immediately adjacent to the separate building housing the equipment. Associated equipment for roof-mounted telecommunications antennas may be located on the roof of the building if it is screened from view from any adjacent public right-of-way.

(4)

Telecommunications antennas are allowed without further zoning proceedings on existing utility, lighting, telecommunications towers and sign structures exceeding fifty (50) feet in height above grade, provided that the telecommunications antenna does not exceed the height of the structure by more than ten (10) feet if a non-whip antenna or fifteen (15) feet if a whip antenna. Existing structures may be rebuilt if necessary to support the load of the new telecommunications antenna without further zoning proceedings if the rebuilt structure is substantially similar in appearance to the existing structure it replaces.

(5)

Telecommunications antennas located on existing buildings or structures are not subject to the five thousand-foot separation requirement.

(6)

When an application is made to locate a telecommunications antenna on an existing building or other structure, the community development director shall be provided with color photo simulations showing the site of the existing structure with a photo-realistic representation of the proposed telecommunications antenna and the existing structure or any proposed reconstruction of the structure as it would appear viewed from the closest residential property and from adjacent public right-of-way. The applicant shall also submit photographs of the same views showing the current appearance of the site without the proposed telecommunications antenna.

(m)

Modifications. If any additions, changes, or modifications are to be made to a wireless communications facility, the community development director shall have the authority to require proof, through the submission of engineering and structural data, that the addition, change, or modification to such wireless communications facility, including a telecommunications tower, conforms to structural wind load and all other requirements of the current building code adopted by the Town of Merrillville.

(n)

Removal upon nonuse. Telecommunications towers which have not been used for a period of one year shall be removed. The last telecommunication service provider to use a telecommunications tower shall notify the community development director or its designee within thirty (30) days that use of a telecommunications tower has been discontinued.

(o)

Safety standards. To ensure the structural integrity of a wireless telecommunications facility, the owner of such a facility shall ensure that it is maintained in compliance with standards contained in applicable local building codes and the applicable standards for wireless telecommunications facilities that are published by the Electronic Industries Association, as amended. If a facility fails to comply with such codes and standards and/or constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such facility into compliance. Failure to do so will result in removal of the facility at the owner's expense.

(p)

Fall zone. In order to ensure public safety, the minimum distance from the base of any ground mounted facility to any property line, road, habitable dwelling, business or institutional use, or public recreational area shall be the height of the facility or mount, including any antennas. In the event an existing structure is proposed as a mount for an antenna, a fall zone shall not be required.

(q)

Master plans and updates. Within thirty (30) days of the enactment of this chapter, and during each January thereafter, providers of personal wireless services, as that term is defined by federal law, operating in the Town of Merrillville shall provide the town with their respective master plan for wireless telecommunications facilities, including detailed maps, showing the precise locations and characteristics of all telecommunications antennas and telecommunications towers serving any portion of the town and indicating coverage areas for current and future telecommunications antennas and telecommunications towers and shall provide the town with any updates to the above documents. Updated documents shall be provided to the town within three (3) months of their creation.

(r)

Severability. If any subsection, sentence, clause, or phrase of this section should be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect the validity or constitutionality of any other subsection, sentence, clause, or phrase of this section.

(Ord. No. 02-03, § 1, 2-12-02; Ord. No. 06-18, § 4, 7-11-06)

(a)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Applicant. The owner of the property upon which the excavation/fill is to take place, and the person who is to perform the excavation/fill.

Engineer. The town engineer or, if such person is unavailable, or if such position is vacant, the assistant town engineer, and if neither the town engineer or the assistant town engineer are available, or if both positions are vacant, then a person appointed by the town manager for the limited purpose of fulfilling the responsibilities of the engineer under this section.

Excavate. To move, remove, relocate, or otherwise change the existing contours or conditions of any natural surface or subsurface material or element including, but without limitation, sand, soil, earth, clay, slag, and other materials and elements.

Subsurface excavation. Excavation at a level below the average elevation for the area in which the excavation occurs, which average elevation shall be determined by the town engineer.

Surface excavation. Excavation at a level at or above the average elevation for the area in which the excavation occurs, which average elevation shall be determined by the town engineer.

Surface fill. Land fill at a level at or above the average elevation of the area in which the fill occurs. The average fill will be determined by the town engineer.

(b)

Findings and policy.

(1)

It is the findings of the town council that subsurface excavation and/or fill has a potential to create a hazard to the public health, safety, and welfare and to diminish the value of adjoining properties, and that such excavation shall be permitted only in circumstances wherein:

a.

The benefit to be realized by the public as a result of the excavation and/or fill is, on balance, greater than the hazard to be created thereby;

b.

Specific and continuing provision is made for protection of the public health, safety, and welfare and aesthetic screening of the excavation/fill activities from adjoining properties.

(2)

It is further findings of the town council that excavation and/or fill has substantial potential to cause the blowing or spilling over of excavated materials upon the properties of others, that such blowing and spilling constitutes a public nuisance, and that excavation/fill should be permitted only in circumstances wherein adequate provision has been made by the applicant to control such blowing and spilling.

(3)

It is the further finding of the town council that excavation and/or fill, whether surface or subsurface, has potential to create other hazards, the existence of which must be determined by the town, by and through its board of zoning appeals and town council, on a case-by-case basis.

(c)

Permit required. No person shall undertake any excavation and/or fill within the corporate boundaries of the Town of Merrillville without first having secured an excavation/fill permit issued by the town engineer and community development director.

(d)

Application.

(1)

All persons requesting the issuance of an land excavation/fill permit shall submit to the Town of Merrillville as a special exception, by delivering to the planning and building department an application therefore upon such form as the board of zoning appeals and town council may from time to time prescribe. The application shall contain at least the following information:

a.

The street address or general location of the excavation/fill site;

b.

The legal description of the excavation/fill site;

c.

The full name, and address of the applicant;

d.

The full name, street address and post office address of any person known to be hauling the excavated/fill materials from the excavation/fill site at the time of application, and be the same information for any subsequent haulers, (to be provided to the Town of Merrillville at least seven (7) days before said subsequent haulers begin to remove or fill any material);

e.

A licensed engineer's drawing of the proposed excavation/fill site, including clearly marked details of the area to be excavated, the elevation before and after the proposed excavation, and the elevations of adjoining properties; and such drawing shall bear the name, address, and license number of such engineer;

f.

The purpose for which the proposed excavation/fill is to be undertaken;

g.

What provision will be made to control the blowing and spilling of excavated/fill materials upon the properties of others;

h.

What traffic routes will be used for hauling of excavated/fill materials from the excavation site;

i.

A written plan for reclamation of the site upon expiration of the excavation/fill permit, which plan shall be approved in form and substance by the town engineer;

j.

In the case of an application for subsurface excavation, a statement of what benefit will be realized by the public as a result of the excavation, and a statement of what specific and continuing provisions will be made for protection of the public health, safety, and welfare, and for the aesthetic screening of the excavation activities from adjoining properties; and

k.

The names and mailing addresses of all adjoining landowners.

(2)

Each application shall be signed under oath and dated by the applicant, and the signature provision thereon shall recite, under penalties for perjury, that the applicant has read this section and understands and accepts the obligations hereby imposed.

State Law reference— Perjury, IC 35-44-2-1.

(e)

Application fee. Each applicant for a permit under this section shall be accompanied by a non-refundable application fee in the amount required in section 21-48.

(f)

Evaluation of application.

(1)

The town engineer shall preliminarily evaluate the application for a permit under this section solely for the purpose of determining whether it is complete and complies with this section. If not, it shall be returned to the applicant, and the town shall take no further action.

(2)

If the application is complete, the town engineer shall review the application, inspect the proposed excavation/fill site, and thereafter prepare his recommendation with respect thereto, which recommendation shall be in writing and shall be submitted to the board of zoning appeals. The town engineer shall submit his recommendation within forty-five (45) days after the application is submitted.

(3)

The board of zoning appeals shall follow normal special exception procedures in considering the application. This includes a review by the board of zoning appeals and final approval or review by the town council.

(g)

Review procedures.

(1)

If any applicant under this section is aggrieved by the decision of the town council, the applicant may file with the town council, within ten (10) calendar days following the date of the town council meeting, a written request for review of the decision. The request for review shall constitute a condition precedent to any action in the court system, and shall contain specific written allegations of error, in order that the town council may understand the nature of the grievance and have a meaningful opportunity to correct its own errors.

(2)

The town council shall consider the request for review within thirty (30) days after it is filed, at a regular or special meeting. The town council, in its sole discretion, may permit argument by the applicant or the applicant's representative, or may summarily consider the request for review.

(h)

Reapplication. If the town council denies an application for an excavation permit, no application for an excavation permit which includes any part of the site subject to denial shall be considered by the town council until six (6) months following the date of denial.

(i)

Expiration.

(1)

Any excavation/fill permit issued pursuant to this section shall expire and be of no further force and effect, upon the first of the following to occur:

a.

Three (3) months inactivity at the excavation/fill site; or

b.

One year after the date of issuance.

(2)

Upon expiration of the excavation/fill permit, the reclamation plan shall be implemented, starting within thirty (30) days of said expiration.

(3)

No renewals of excavation/fill permits shall be allowed, but a new permit must be sought according to the procedures of this section upon expiration of the existing permit. It shall be permissible to commence the application procedure prior to expiration of the existing permit, in order to avoid a lapse between permits.

(j)

Issuance and insurance. No excavation/fill permit shall be issued to any applicant until all of the following have occurred:

(1)

The town council has found that the application therefore should be granted.

(2)

The applicant has provided proof of liability insurance by which the Town of Merrillville, its agents, employees, elected and appointed officials are named as additional insureds, in an amount not less than three hundred thousand dollars ($300,000.00) per incident and one million dollars ($1,000,000.00) aggregate for subsurface excavation and in an amount not less than three hundred thousand dollars ($300,000.00) per incident and five hundred thousand ($500,000.00) aggregate for surface excavation, which liability insurance insures against all forms of loss arising from the excavation/fill, hauling of excavated/fill materials, and any related activities of the applicant.

(3)

The applicant has posted a surety bond issued by an insurance company in good standing with the state insurance commissioner, in an amount established by the town council, and sufficient to provide for the cost of restoration of the excavated/fill site to its original condition, and to repair and/or replace any streets or highways within the Town of Merrillville which may be damaged by the hauling of excavated/fill materials, and to construct adequate safety barriers, where appropriate, and to abate any public nuisance which may be caused by the excavation, and to pay the town's attorney's fee incurred by enforcing the provisions of this section, and to protect against any other specified and foreseeable loss or damage which the town council may find. Such bond shall specifically state the purposes for which it has been issued, and they shall be the purposes described in this section, provided, that no such bond shall be required of a governmental agency or body.

(4)

The applicant, if the application is for subsurface excavation, posts a surety bond issued by an insurance company in good standing with the state insurance commissioner for the reasons set forth in subsection (3) of this subsection (j) in the amount of seventy-five cents ($0.75) per cubic yard of material to be removed below grade.

(5)

The applicant has paid to the town a permit insurance fee in the amount required by the provisions of this section.

State Law reference— State insurance commissioner, IC 72-1-1-1 et seq.

(k)

Applicability. Notwithstanding the provisions of subsection (c) to the contrary, the provisions of this section shall not apply to excavation/fill necessary for the erection or alteration of a building or structure pursuant to a valid building permit issued by the planning and building department of the Town of Merrillville, provided that the person undertaking such excavation/fill diligently and without unnecessary or unreasonable delay completes such excavation/fill.

(l)

Transfer.

(1)

An excavation/fill permit issued pursuant to this section may only be transferred upon the approval of the town council. A request for transfer of an excavation/fill permit shall be made in writing to the town council by the proposed transferee and shall contain the following information:

a.

The full name, and address of the proposed transferee;

b.

The full name, and address of the transferor;

c.

The reason for the transfer; and

d.

Any other information which the board of zoning appeals or town council may reasonably request.

(2)

Each request for transfer of an excavation/fill permit shall have attached to it a copy of the excavation/fill permit for which the transfer is requested.

(3)

No transfer shall be effective until all of the following have occurred:

a.

The town council has found that the request for a transfer should be granted; and

b.

The transferee has provided proof of liability insurance and has posted a surety bond as required by the provisions of subsection (j).

(4)

Any excavation/fill permit transferred pursuant to this section shall be subject to all of the terms of the original permit unless modified by the town council and shall further be subject to any additional conditions imposed by the town council.

(5)

Under no circumstances may a permit issued pursuant to this section be transferred if:

a.

The site of the excavation/fill has changed.

b.

The scope of the excavation/fill has changed or the written plan for reclamation of the site upon expiration of the excavation/fill permit has been changed.

(6)

If any of the foregoing items has changed, the request for a transfer shall be treated as a new application for an excavation/fill permit, which shall be subject to all of the provisions and procedures of this article.

(7)

A transfer fee, in the amount required in section 21-48, shall be charged to transfer such permit to a new owner.

(m)

Attorneys' fees. In any action commenced by the town to enforce the provisions of this section, and in any legal proceeding initiated by any applicant or person to whom an excavation/fill permit has been issued, and if the Town of Merrillville shall prevail therein, the applicant shall pay the town's attorneys' fees incurred in connection with such proceedings at the rate customarily charged by the town's attorney to non-municipal clients.

(n)

Violations.

(1)

If any applicant shall, at the time of application for an excavation/fill permit, be in violation of this section, the board of zoning appeals and town council shall not consider the applicant.

(2)

If any person to whom an excavation/fill permit has been issued shall violate any of the provisions of this section, or shall cause or create a public nuisance, or create a condition which is hazardous to the public health, safety, or welfare, or excavate below the approved elevations, or otherwise act unlawfully in connection herewith, the town may take enforcement action as provided in section 21-24 (violations).

(3)

In addition to the remedies above provided, if any person to whom an excavation/fill permit has been issued shall violate any of the provisions of this section, the Town of Merrillville may, after five (5) days' notice to such person, take all appropriate legal action to call and collect upon the surety bond posted by the applicant.

(Ord. No. 02-03, § 1, 2-12-02; Ord. No. 06-18, § 4, 7-11-06)

(a)

Intent. It is the intent of lighting standards to provide for illumination levels on individual lots which are adequate for the safe and efficient movement of individuals or vehicles to and from a lot and within a lot. Light intensity shall not be so great as to cause objectionable glare beyond any lot line.

(b)

Lighting regulations. All lighting shall comply with the following regulations:

(1)

Light standards and fixtures on a lot, including free-standing light fixtures and those attached to buildings, security lights and architectural lights, shall be of consistent design and materials.

(2)

Parking lot lights shall be of uniform size, design and height.

(3)

All free-standing lights shall be of either: a "down lighting" style with the light element completely shielded on all sides and the top; or be equipped with a refractor so as to direct light down onto the lot.

(4)

Lighting shall not cause illumination beyond any lot line or onto any right-of-way, based upon the zoning district of the real estate on the opposite side of such lot line or right-of-way, in excess of:

a.

If adjoining commercial or industrial districts—Two (2) foot candles.

b.

If adjoining residential districts—One-half (0.5) foot candles.

(5)

Architectural or sign lighting shall be so directed and shielded that the light element is not visible from any point along an adjacent public right-of-way.

(Ord. No. 02-03, § 1, 2-12-02)

All private streets, interior access driveways and interior access drives shall be paved and developed to the following standards:

(1)

Minimum pavement width available for through traffic, exclusive of parking areas:

a.

Residential districts.

One-way traffic, no parking—Twelve (12) feet.

One-way traffic, parking on one or both sides—Twenty-four (24) feet.

Two-way traffic, no parking—Twenty (20) feet.

Two-way traffic, parking on both sides—Twenty-four (24) feet.

b.

Commercial or industrial districts.

One-way traffic, no parking—Eighteen (18) feet.

One-way traffic, parking on one or both sides—Thirty (30) feet.

Two-way traffic, no parking—Twenty-four (24) feet.

Two-way traffic, parking on one or both sides—Thirty-six (36) feet.

(2)

Minimum pavement depth and materials shall be those required by the town engineering standards booklet for public streets.

(3)

Private streets, interior access driveways and interior access drives shall be privately maintained in good repair and reasonable free of chuckholes, standing water, weeds, dirt, trash, debris, mud, ice and snow by the owner, project management, owner's association or other similar organization.

(Ord. No. 02-03, § 1, 2-12-02)

No building, structure or improvement, including landscaping, shall be erected, placed, planted or maintained so as to interfere with a vision clearance area located between the heights of two and one-half (2½) feet and nine (9) feet above the crown of a street, driveway or alley. A vision clearance area shall be established for all streets, whether public or private, in one of the following manners:

(1)

At the intersection of streets, vision clearance areas are formed at each corner by the street right-of-way lines and a line connecting points on the right-of-way lines located thirty (30) feet away from the intersection of such street right-of-way lines. In the case of a round or corner-cut right-of-way, the measurement shall be taken from the intersection of the right-of-way lines extended (see Figure 14); or

(2)

At the intersection of a street with a driveway or alley, vision clearance areas shall be formed by the intersection of the street right-of-way line and the driveway surface edge or the right-of-way of the alley and a line connecting points ten (10) feet from the intersection of such street right-of-way line and the driveway surface edge or alley right-of-way.

(Ord. No. 02-03, § 1, 2-12-02)

(a)

The plan commission and/or board of zoning appeals may, when in its discretion it is deemed necessary to:

(1)

Assure the compatibility of a proposed development with surrounding properties; or

(2)

To minimize the potential for the occurrence of detrimental affects from any attributes of a proposed development on surrounding properties, require or permit the owner of a parcel of property to make written commitments concerning the use or development of the subject property in connection with recommending approval of any petition contained in this chapter to the town council as a condition of development.

(b)

The commitments shall be reduced to writing in recordable form and signed by the owner(s) of the real estate. The commitments shall be in effect for:

(1)

As long as the real estate to which they apply remains zoned to the classification to which the real estate was zoned when the commitments were made; or

(2)

Modified or terminated as provided below.

The commitments shall be recorded in the office of the recorder of Lake County, Indiana upon the final approval. Following the recording of the commitments, the community development director shall retain a copy of the recorded commitments in its file.

(c)

The plan commission and/or board of zoning appeals, owners of all parcels of ground adjoining the real estate and all owners of real estate within the area included in the petition who were not petitioners for approval, and other specially affected persons designated in such commitments shall be entitled to enforce such commitments pursuant to IC 36-7-4-1015 or as otherwise provided by applicable law.

(d)

The commitments required by the plan commission and/or board of zoning appeals shall be in a form approved by the attorney for the Merrillville Plan Commission and/or Merrillville Board of Zoning Appeals.

(e)

Commitments required or permitted by the plan commission and/or board or zoning appeals may be modified or terminated by a decision of the plan commission and/or board of zoning appeals, made at a public hearing after notice to adjoining owners has been given pursuant to the rules of procedure of the plan commission. Any modification or termination of the commitments shall not be effective until:

(1)

Reduced to writing;

(2)

Approved by the plan commission attorney and/or board of zoning appeals attorney;

(3)

Executed and notarized by the present owner(s) of the real estate; and

(4)

Recorded in the office of the recorder of Lake County, Indiana.

(Ord. No. 02-03, § 1, 2-12-02; Ord. No. 06-18, § 4, 7-11-06)

(a)

The community development director or designated assistant is empowered to issue a stop-work order requiring the suspension of land improvement of any kind when any of the following circumstances exist:

(1)

A site improvement is occurring without any permit required by this chapter having first been obtained; or,

(2)

A site improvement is occurring in violation of: the terms, conditions or provisions of this chapter; the terms, provisions, conditions or commitments of a variance or special exception; or, commitments made in connection with a petition for zone map amendment or other approval authorized by this chapter.

The stop-work order shall be posted on the property in a conspicuous place, or personally delivered to the owner, tenant or occupant, or person in charge and state the conditions under which construction or other activity may be resumed. The community development director shall meet with the recipient of a stop-work order upon request to explain the conditions under which construction or other activity may be resumed.

The plan commission may institute a lawsuit in a court of competent jurisdiction to enforce the provisions of a stop-work order.

(b)

Each of the following shall be deemed civil zoning violation which may be enforced by the designated enforcement entity in accordance with the provisions set forth below:

(1)

The failure to obtain any permit when one is required by the terms and provisions of this chapter.

(2)

The location, erection, or maintenance of any sign not specifically permitted by this chapter.

(3)

The conduct of any activity in a zoning district that is not specifically enumerated as a permitted primary or accessory use in that zoning district, and which activity has not been legally established by a currently valid variance, special exception or other approval grant.

(4)

Failure to comply with zoning district development standards.

(5)

The failure to comply with: the terms, provisions, conditions or commitments of a variance grant or special exception; or commitments made in connection with a petition for zone map amendment or other granted approval authorized by this chapter.

(6)

The violation of a stop-work order issued pursuant to this chapter.

(7)

Failure to obtain contractors license and/or registration.

(8)

Failure to comply with Chapter 13 of the Merrillville Municipal Code.

(9)

Failure to comply with any other provision of this chapter.

(c)

Any person who commits a civil zoning violation as defined above may be issued a citation by appropriate enforcement official.

Subject to the provisions of subsection (1)a. and c. below, every ten (10) days a civil zoning violation remains uncorrected is a distinct and separate civil zoning violation subject to an additional citation and fine in the amount prescribed in this chapter.

(1)

Procedures.

a.

Appropriate enforcement official may issue a citation to a person who commits a civil zoning violation or allows a civil zoning violation to be committed on real estate in which the person has a possessory or ownership interest. The citation may be served by personal service, by certified mail, by First Class U.S. Mail, or by placement in a conspicuous place on the property where the violation occurs and shall serve as notice that a civil zoning violation has been committed.

b.

No citation shall be issued unless the person who commits a civil zoning violation or allows a civil zoning violation to be committed on real estate in which the person has a possessory or ownership interest has been served with a notice to correct the civil zoning violation at least ten (10) days before the issuance of a citation to allow said person an opportunity to correct the violation and to come into compliance with the prescribed zoning ordinance or regulation. However, the service of a notice to correct the civil zoning violation is not required before issuing a citation for violation of a stop-work order issued pursuant to this subsection b. or for the removal of a portable sign.

c.

If a person who is served with a notice of civil zoning violation or receives a citation elects to file a petition for zone map change, variance, special exception or other approval to correct such violation, then the person must indicate the intent to file such a petition on the served notice or citation and return a copy to the planning and building department. A person shall have ten (10) days from service of a notice of civil zoning violation or receipt of citation to file the petition. During the pendency of said petition the issuance of additional citations and additional monetary fines as prescribed in subsection b. shall be stayed. A person who files the petition within said time period shall pursue the petition in an expeditious and diligent manner. If the petition is denied, withdrawn or dismissed and the civil zoning violation continues, then a lawsuit may be commenced by the planning and building department or appropriate enforcement official as provided by applicable laws.

(d)

The monetary fine for the first citation for a civil zoning violation shall be fifty dollars ($50.00), and the following monetary fines shall apply for each subsequent citation:

Second citation .....$100.00

Third citation .....150.00

Fourth citation .....200.00

Each additional .....300.00

Provided, however, in no event shall a subsequent citation be issued within ten (10) days of the issuance of a previous citation, nor shall, the total monetary fine for each civil zoning violation exceed two thousand five hundred dollars ($2,500.00).

All fines prescribed by this section for civil zoning violations shall be paid to the town courts of the Town of Merrillville, who shall render to the person making the payment a receipt stating the amount and purpose for which the fine has been paid, a duplicate of which shall be made a part of the records of the town. Payment of fines by check shall be made out to "The Town of Merrillville." All fines thus received shall be deposited within the general fund of the Town of Merrillville.

(e)

A person who receives a citation for a civil zoning violation may elect to stand trial before the town court for the violation by indicating on the citation his intent to stand trial and returning a copy of the citation to the town courts. The returned copy of the citation shall serve as notice of the person's intent to stand trial, and the issuance of additional citations and additional monetary fines as prescribed in this section shall be stayed upon receipt of the notice. The notice shall be given at least five (5) days before the date that payment of the citation is due as set forth below. On receipt of the notice of intention to stand trial, a lawsuit may be commenced by the planning and building department or appropriate enforcement official as provided by applicable law to enforce the terms and provisions of this chapter if a person who receives a citation fails to:

(1)

Pay the assessed fine within thirty (30) days after the issuance of a citation;

(2)

File a petition as prescribed above; or,

(3)

Give notice of his intention to stand trial as prescribed above, the planning and building department or designated enforcement official may file a lawsuit as provided by applicable law to enforce the terms and provisions of this chapter.

(f)

Issuing a stop-work order or issuing a civil penalty does not preclude the designated enforcement entity from seeking alternative and additional relief from the court in the same action, or from seeking injunctive relief or any other remedy in a separate action.

(Ord. No. 02-03, § 1, 2-12-02; Ord. No. 06-18, § 4, 7-11-06)

It is hereby declared to be the intention of the town council that the several provisions of this chapter are separable in accordance with the following:

(1)

If any court of competent jurisdiction shall adjudge any provision of this chapter to be invalid, such judgment shall not affect any other provision of this chapter not specifically included in said judgment.

(2)

If any court of competent jurisdiction shall adjudge invalid the application of any provisions of this chapter to a particular property, building or structure, such judgment shall not affect the application of said provision to any other property, building or structure not specifically included in said judgment.

(Ord. No. 02-03, § 1, 2-12-02)

Ordinance 72-21 heretofore adopted on the twenty-sixth day of December, 1972, and as subsequently amended by Ordinance 78-5, is herewith and now comprehensively amended as herein provided, and all other ordinances previously adopted that are inconsistent herewith are now repealed

(Ord. No. 02-03, § 1, 2-12-02)

Since an emergency exists for an immediate taking effect of this chapter, the same shall be in full force and effect from and after its passage or as soon thereafter as otherwise provided by law.

(Ord. No. 02-03, § 1, 2-12-02)