Morgantown City Zoning Code

GENERAL PROVISIONS

§ 153.01 AUTHORITY.

This chapter is adopted pursuant to I.C. 36-7-4.

(Ord. passed - -1989)

§ 153.02 PURPOSE.

(A) This chapter is adopted for the following purposes:

(1) Securing adequate light, air, convenience of access, and safety from fire, flood, and other danger;

(2) Lessening or avoiding congestion in public ways;

(3) Promoting the public health, safety, comfort, morals, convenience, and general welfare;

(4) Otherwise accomplishing the purposes of I.C. 36-7-4; and

(5) Implementing the Comprehensive Plan of the town.

(B) In order to accomplish these purposes, this chapter does the following:

(1) Establishes districts for agricultural, commercial, industrial, residential, special, or unrestricted uses and any subdivision or combination of these uses;

(2) Regulates how real property is developed, maintained, and used, including the following:

(a) Requirements for the area of the front, rear, and side yards, courts, other open spaces, and total lot area;

(b) Requirements for site conditions, signs, and non-structural improvements, such as parking lots, ponds, fills, landscaping, and utilities;

(c) Provisions for the treatment of uses, structures, or conditions that are in existence at the time this chapter takes effect;

(d) Restrictions on development in areas prone to flooding;

(e) Requirements to protect the historic and architectural heritage of the community;

(f) Requirements for structures, such as location, height, area bulk, and floor space;

(g) Restrictions on the kind and intensity of uses;

(h) Performance standards for the emission of noises, gases, heat, vibration, or particulate matter into the air or ground or across lot lines;

(i) Standards for population density and traffic circulation; and

(j) Other provisions that are necessary to implement the purposes of this chapter.

(3) In districts containing areas with special or unusual development problems or needs for compatibility, requires that the Plan Commission approve development plans for consistency with general development standards;

(4) Provides for planned unit development; and

(5) Establishes in which districts the subdivision of land may occur.

(Ord. passed - -1989)

§ 153.03 JURISDICTION.

This chapter shall apply throughout the geographic areas within the jurisdiction of the Plan Commission of the town as established by resolution of the Plan Commission and included within the Comprehensive Plan of the town. This includes the incorporated area of the town and the extraterritorial jurisdiction in the county.

(Ord. passed - -1989; Ord. 2014-5, passed 5-5-2014)

§ 153.04 DEFINITIONS.

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. Words used in the present tense include the future tense; the singular includes the plural, and the plural includes the singular. The word may is permissive; shall is mandatory. Words not defined in this chapter shall be construed to have their customary meanings.

ACCESSORY BUILDING. A detached, subordinate building, located on the same lot with and clearly and customarily incidental to the main building.

ACCESSORY USE. A use clearly subordinate to the main use. In no case shall an ACCESSORY USE dominate, in area, extent, or purpose, the principal lawful use of the property.

ADULT USE. Any establishment consisting of, including, or having the characteristics of any or all of the following.

(1) ADULT BOOKSTORE or ADULT VIDEO STORE. An establishment having more than 20% of its stock-in-trade, floor area, or display area used for the sale, rental, or trade of books, magazines, publications, tapes, films, or any other form of media that is distinguished or characterized by the emphasis on sexually oriented material depicting, describing, or relating to sexual activities or anatomical genital areas.

(2) ADULT CABARET. An establishment, either with or without a liquor license, offering sexually oriented dancing or other live entertainment that may include persons who appear in a state of nudity or semi nudity.

(3) ADULT THEATER. A theater or similar venue, either indoors or outdoors, that regularly features motion pictures, films, live performances, or other displays of or by persons who appear nude of partially or that present content that depicts graphically relates to sexual activities.

(4) ADULT NOVELTY SHOP. An establishment offering, for sale or rent, items from any two of the following categories: sexually oriented books, magazines, and videos; leather goods marketed or presented in a context to suggest their use for sexual activities; sexually oriented toys and novelties; or video viewing booths; or an establishment that advertises or holds itself out in any forum as a sexually oriented business.

AGRICULTURAL USES. Farming activities such as growing of field crops, truck crops, horticulture, forestry, plant nurseries, greenhouses, or grazing of animals. Uses which are listed as special exceptions in districts where AGRICULTURAL USES are permitted, such as confined feeding operations, are not included.

ALLEY. A public way affording only secondary means of access to abutting property, not intended for general traffic circulation.

ALTERATION. As applied to a building, is a change or rearrangement in the structural parts or in the exit facilities, or an enlargement, whether by extending on a side or by increasing height, or the moving from one location or position to another.

ANIMAL HUSBANDRY. The raising, breeding, and maintaining of animals such as cattle, swine, sheep, goats, rabbits, fowl, and fish; fur-bearing animals for pelts; work animals for use or sale, and apiaries; not including confined feeding.

ATTACHED DWELLING. A one-family dwelling which shall be constructed as one of a sequence of three or more one-family dwellings attached horizontally by common fireproof party walls.

AUTOMOBILE. Passenger cars, pick-up trucks, recreational vehicles, travel trailers, motorcycles, mopeds, and boats.

AUTOMOBILE REPAIR SHOP. Any premises used for general repairs of motor vehicles including, without limitation, repair and replacement of engines, drive trains, transmissions, mufflers, brakes, tires, suspensions, and related components frame repairs and body repairs. Such business may include the sale of parts.

AUTOMOBILE SALES, NEW. A franchised retail automobile dealership that is primarily housed in a building and characterized by a mixture of secondary supporting uses; however, the principal use of the property shall be the marketing and display of new automobiles, whether by sale, rental, lease or other commercial or financial means. Secondary supporting uses may include an inventory of vehicles for sale or lease either on-site or at a nearby location of new or used automobiles in operating condition, and on-site facilities for the repair and service of automobiles previously sold, rented, or leased by the dealership as defined under “automobile repair shop” above. No abandoned vehicles shall be stored on the premises.

AUTOMOBILE SALES, USED. A retail business that sells operable, used automobiles. Secondary supporting uses may include the service of automobiles previously sold or traded as defined under “automobile repair shop” above. No automobile salvage or scrap activities shall be permitted and no abandoned vehicles shall be stored on the premises.

AUTOMOBILE SERVICE STATION. Any premises where gasoline, kerosene, diesel fuel, or any other motor fuel or lubricating oil or grease for operating motor vehicles is offered for sale to the public and deliveries are made directly into motor vehicles. Such operation may include sale of tires and automotive accessories to the general public. It may also include the making of minor repairs, but not major repairs as described under the definition for “automobile repair shop” above, and not including the outside storage of inoperable vehicles.

BED AND BREAKFAST. An owner-occupied dwelling containing not more than three separate units which are rented on a nightly basis for periods of one week or less. Meals may or may not be provided.

BILLBOARD. An outdoor advertising sign used to advertise a business, service, or activity sold or available elsewhere than on the premises on which the BILLBOARD is located.

BLOCK. An area of land bounded by streets, public or common land, railroad rights-of-way, or by other similar definite limits.

BOARD. The Town Board of Zoning Appeals.

BUILDING (includes STRUCTURE). Any structure having a roof supported by columns or walls for the shelter, enclosure, housing, or protection of persons, animals, or property.

BUILDING HEIGHT. The vertical measure from the finished grade to the highest point of the roof surface for flat roofs; to the deck line of mansard roofs; and to the average height between eaves and ridge for gable, hip, and gambrel roofs. Where a building is located on sloping terrain, the HEIGHT shall be measured from the average ground level of the grade at the building wall.

BUILDING LINE. A line, usually parallel to the street line and extending between the side lot lines, running along the front of the principal building and along which lot width is measured.

BUILDING SETBACK LINE. A line delineating the minimum allowable distance between a street line or a lot line and a building or structure. For irregularly shaped lots or those with curved lot lines, it shall be measured parallel to the line closest to the street, which forms a side of the largest rectangle that can be inscribed within the lot lines.

CAMPGROUND. A parcel of land used for temporary overnight recreational occupancy in shelters such as seasonal cabins, tents, recreational vehicles, travel trailers, or mobile homes.

CHURCH. A property or structure used by a congregation of persons meeting regularly to hold religious services or worship.

CLUB. A building or facility owned or operated by an organization for special purposes or for the promulgation of sports, arts, sciences, literature, politics, or the like, and open only to members and not to the general public.

COMMERCIAL DEVELOPMENT. A group of commercial uses under unified ownership or control, on one or more parcels of land, such as a shopping center or office park.

COMMON OPEN SPACE. All open space within the boundaries of a development designed and set-aside for use by all residents of the development and not designated as public lands.

CONDITIONAL USE. A use permitted by the Board of Zoning Appeals under the terms set forth in this chapter.

CONFINED FEEDING. The production, maintenance, and breeding of animals for food, fur, or pleasure purposes in lots, pens, ponds, sheds, or buildings where food is supplied to the animals by means other than grazing. For purposes of this chapter, CONFINED FEEDING shall include such operations exceeding the following numbers of animals per acre: four cattle; 20 swine; 700 poultry; ten sheep or goats; four horses.

DAY CARE CENTER. An establishment that offers general care of ten or more children (other than those related to the residents, if in a private home).

DAY CARE HOME. A residence in which the occupant cares for more than five but fewer than ten children unrelated to the occupant.

DEVELOPMENT PLAN. A specific plan of development for a parcel of land, containing the elements required by this chapter.

DWELLING, MULTIFAMILY. A building used primarily as a residence for more than two households, with separate kitchens, baths, and other facilities for each household.

DWELLING, SINGLE-FAMILY. A building used primarily as a residence for one household, containing at least 950 square feet in useable floor area, with at least 60% of the structure being at least 23 feet wide at its narrowest dimension, erected on a permanent perimeter retaining wall or foundation. Structures for temporary lodging, such as motels, hotels, and bed and breakfast operations are excluded from this definition, as are mobile homes, motorhomes, and trailers.

DWELLING, TWO-FAMILY. A building used primarily as a residence for two families, each with a separate kitchen, bath, and other facilities. Such dwelling units may be separated by a common vertical or horizontal wall.

DWELLING UNIT. A building or part of a building providing complete housekeeping facilities for one household.

EASEMENT. An acquired right of use, interest, or privilege in lands owned by another.

EDUCATIONAL USES. Public or private elementary or secondary schools, institutions of higher education, boarding schools, and similar uses.

ESSENTIAL SERVICES. Those land uses which are required in order for the community to provide adequate services to its citizens, including town halls, libraries, public utilities, sanitary landfills, incinerators, parking lots, fire and police stations, cemeteries, correctional institutions, and similar uses. Any such use not operated by a unit of government or by a regulated utility shall not be included in this definition.

FAMILY. An individual or two or more persons related by blood, marriage, or adoption living together in a single-family dwelling; or a group of not more than four persons, who need not be related, living together in a single-family dwelling.

FLOOD or FLOODWATER. The water of any water body that is above the banks and/or outside the channel and banks of such watercourse.

FORESTRY. The clearing or management of woodland areas for the purpose of selling timber, logs, or firewood.

FRONTAGE. The width of a lot measured along the right-of-way line of a street. For irregularly shaped lots or those with curved lot lines, it shall mean the line closest to the street which forms a side of the largest rectangle that can be inscribed within the lot lines.

GARAGE. An accessory building or portion of a principal building designed or used for the parking of temporary storage of motor vehicles and/or recreational vehicles of the occupants in the building to which the GARAGE is accessory.

HEALTH CARE USE. A medical, dental, psychological, psychiatric, or other similar clinic or hospital whether public or private.

HOME OCCUPATION. An occupation or gain or support conducted by members of a family residing on the premises and conducted entirely within the dwelling or accessory structure, provided that the use is clearly subordinate to the principal use of the property.

HORTICULTURE. The cultivation of ornamental plants or trees for sale for use in landscaping; orchards.

HOTEL or MOTEL. A building or group of buildings designed for temporary, overnight lodging with or without meals. Such structures may contain a restaurant, banquet halls, ballrooms, meeting rooms, or other such customary accessory uses.

IMPROVEMENT LOCATION PERMIT. A document that authorizes the proposed construction or alteration of a structure.

JUNKYARD. A lot or a part thereof that is used for the storage, keeping, dismantling, abandonment, or sale of junk, scrap metal, scrap vehicles, scrap machinery, paper, rags, rubber tires, bottles, or other similar items.

KENNEL. Any structure or premises used to board five or more dogs and/or cats six months of age or older.

LOT. A distinct parcel of land described by metes and bounds description or identified as a separate lot on a recorded plat, used, intended to be used, or useable as the site of a principal structure and accessory structures.

LOT, CORNER. A lot at the junction of and fronting on two intersecting streets.

LOT COVERAGE. Area of a lot that is covered by structures, including all accessory structures.

LOT DEPTH. The distances between the front lot line at its intersection with the street and the rear lot line, at right angles to both. For irregular lots, the LOT DEPTH is the maximum length, measured between the front and rear lot lines, of the largest rectangle that can be inscribed within the lot lines.

LOT LINE. A boundary line of a lot.

LOT, THROUGH. A lot having frontage on two streets that are parallel, or approximately parallel.

LOT WIDTH. The distance between the side lot lines, measured along the building line.

MOBILE HOME. A transportable dwelling unit larger than 320 square feet in floor area, whether used for a dwelling or other purpose that does not meet the criteria of “dwelling, single-family”.

MOBILE HOME PARK. Property that has been divided into sites, whether for sale or lease, for aggregations of mobile homes on single tracts and may include recreational, office, and other accessory uses.

OPEN SPACE USES. Uses which involve little or no construction of buildings, or paving. Examples include parks, golf courses, sanctuaries for birds or wildlife, campgrounds, and uses of similar intensity.

PERSONAL CONVENIENCE SERVICES. Services such as barber or beauty shops, dry cleaning, dressmaking or tailoring, shoe repair, home appliance repair, and similar uses.

PLAN COMMISSION. The Town Advisory Plan Commission.

PRINCIPAL or MAIN USE. The primary purpose for which a building, structure, and/or lot is designed, arranged, or intended, or for which it may be used, occupied, or maintained under the provisions of this chapter.

PROFESSIONAL AND BUSINESS SERVICES. Activities such as banking and associated services, financial institutions, real estate, management, tax consultant, engineer, accountant, photographer, lawyer, and medical services.

RECREATIONAL VEHICLE. A temporary dwelling for travel, recreation, and vacation use, including travel trailer, camping trailer, pick-up camper, motor coach, tent trailer, boat, or other vehicular structure mounted on a chassis.

RESEARCH USES. Laboratories, product research, or similar uses.

RESIDENTIAL DEVELOPMENT. The use of property for single- or multifamily development or a combination thereof. It does not include mobile homes or mobile home parks. This definition is distinct from an individual single-family dwelling on a lot meeting the minimum dimensional requirements of the district in which it is located.

RESORT MOTEL or INN. A motel or hotel which features sports or recreational facilities such as golf, tennis, skiing, or horseback riding, or which features a rural setting and is not primarily dependent upon visibility from a highway or overnight accommodations for the traveling public.

RETAIL SALES ESTABLISHMENT. A business conducted entirely within a building, the principal use of which is the display and/or sale of goods, merchandise, and products directly to consumers.

RETIREMENT HOME. An establishment, which provides convalescent or chronic care for the aged or infirm, not including intensive care commonly provided in hospitals.

SIGN. Any display figure, painting, drawing, placard, poster, or other device visible from a public way or parking lot or from off the premises on which it is located which is designed, intended, or used to convey a message, advertise, inform, or direct attention to a person, institution, organization, activity, place, object, or product. It may be a structure or part thereof painted on or attached directly or indirectly to a structure.

SIGN, AREA OF. The area within a line drawn around the surface of a sign including all decorations but excluding any supports whether decorative or not. In computing the AREA OF A SIGN, the area of all surface used for sign purposes shall be included.

SIGN HEIGHT. The vertical distance measured from the ground at the base of the sign to the highest point of any portion of the sign or supporting structure.

SIGN, OFF-PREMISES. Any sign or advertising device, including a billboard, which advertises a use or activity not located on, or a product not sold nor manufactured on, the lot on which the sign or device is located.

SIGN, OFF-SITE DIRECTIONAL. Any sign giving directions to the location of any use or activity not located upon the property upon which the sign is erected, and which may contain only the name of the use and necessary information giving directions to the use.

SIGN, POLE or HIGH RISE. Any freestanding sign or other sign supported by poles, pipes, braces or frame on the ground, or any sign supported by a roof, wall or other structure when the sign face is located above the elevation of the highest part of the structure to which it is attached.

SIGN, PORTABLE. Any sign not permanently attached to a building or structure of the ground and which is capable of being placed upon various locations. Such SIGNS shall include, but are not limited to, A-frame signs, gasoline price signs, temporary announcement signs, trailer signs, balloons, and the like.

STREET. A strip of land that provides the principal means of access to abutting property or other vehicular public right-of-way, other than an alley.

STREET, PRIVATE. A street that is not owned or maintained by or has not been dedicated to the public.

STREET RIGHT-OF-WAY. The area actually owned or dedicated for public use.

STRUCTURE (includes BUILDING). Anything constructed or erected with a fixed location on the ground or attached to something having a fixed location on the ground.

TRANSPORTATION USES. Uses directly related to any mode of vehicular or air transportation, including truck terminals, airports, railway or bus stations, and similar uses.

URBAN AREA. Any incorporated area and all land or lots used for residential purposes where there are at least eight residences within a one-quarter mile square area and other lands or lots that have been or are planned for residential areas contiguous to the municipality.

VARIANCE. An authorization from the Board of Zoning Appeals to use and/or develop property in a manner that does not comply with this chapter.

YARD. A required open space on the same lot with a building, unoccupied and unobstructed by any structure from the surface of the ground upward, except for drives, walks, fences, and customary yard accessories and other structures specifically permitted by this chapter.

YARD, FRONT. The yard between a street line and a line generally parallel thereto drawn through the nearest point of a building, extending between side lot lines. Each yard fronting on a street is a FRONT YARD, so that a corner lot has two FRONT YARDS. Fronting on an alley is not considered a FRONT YARD.

YARD, REAR. A yard extending across the full width of the lot between the principal structure and the rear lot line.

YARD, SIDE. The area between a building and the side lot line, extending from the front yard, or front lot line where not front yard is required, and the rear lot line. The width of the required SIDE YARD shall be measured horizontally from the nearest point of the side lot line to the nearest part of the main building.

(Ord. passed - -1989; Ord. 2014-5, passed 5-5-2014; Ord. 2015-12, passed 11-2-2015)

§ 153.05 SUBDIVISION OF LAND.

Subdivision of land may occur in any zoning district within the jurisdiction of the Plan Commission of the town.

(Ord. passed - -1989)

§ 153.06 LOCATION IMPROVEMENT PERMIT OR BUILDING PERMIT.

(A) The Zoning Administrator, as the authorized representative of the Plan Commission, shall be responsible for the issuance of an improvement location permit or building permit for any alteration to the condition of land and/or structures including construction, alteration, or additions to buildings, driveways, parking areas, signs, drainage, area lighting, swimming pools, or any other permanent improvements. Permits must be obtained prior to the start of any construction as required by and pursuant to a separate permit and fee schedule adopted by the Plan Commission from time to time.

(B) Building permits will be valid for a period of one year. One six-month extension may be authorized by the Zoning Administrator if an issue outside the control of the permit holder caused a delay.

(Ord. passed - -1989; Ord. 2014-5, passed 5-5-2014) Penalty, see § 153.99

§ 153.07 COMPLIANCE.

No building may be erected or use established on any property within the jurisdiction of the Plan Commission of the town except in compliance with the terms of this chapter and the State Building Code.

(Ord. passed - -1989) Penalty, see § 153.99

§ 153.08 ZONING MAP.

(A) An official zoning map is hereby adopted and made a part of this chapter.

(B) The official zoning map shall be kept on file in the office of the town’s Clerk-Treasurer.

(1) Boundaries shown on the zoning map as approximately following the centerlines of a highway, street, alley, railroad, water course, or body of water shall be construed to actually follow the centerlines thereof;

(2) Where the street layout on the ground varies from the street layout as shown on the official zoning map, the Plan Commission may apply the designations shown on the mapped streets in such a way as to carry out the intent and purposes of this chapter;

(3) Boundaries indicated on the zoning map as approximately following shorelines shall be construed to actually follow such shore lines, and in the event of change in the shore line, such boundaries shall be construed as moving with the actual shore line;

(4) Boundaries indicated on the zoning map as approximately following platted lot lines shall be construed as following such lot lines;

(5) Boundaries indicated on the zoning map as approximately following jurisdictional lines or section lines shall be construed as actually following such limits or lines; and

(6) In any other case where the location of the zoning line is unclear, the Plan Commission shall make a determination as to the location of such zoning line.

(Ord. passed - -1989; Ord. 2015-12, passed 11-2-2015)

§ 153.09 INTERPRETATION.

(A) The provisions of this chapter shall be the minimum requirements, adopted for the purposes stated herein.

(B) Except as expressly provided herein, this chapter shall not repeal, abrogate, annul, or in any way impair or interfere with any existing provision of law or town ordinance; provided that where this chapter is in conflict with or imposes a greater restriction than imposed or required by any such existing town ordinance, the provisions of this chapter shall control.

(C) Any use not expressly permitted in this chapter shall be a non-permitted use. The Plan Commission, on its own or upon request by the Town Council, the Zoning Administrator, or any third party, may interpret this chapter and decide whether a described use is permitted or the meaning, effect, or applicability of other provisions. Any such interpretation shall be made in a manner consistent with the intent and purposes of this chapter.

(Ord. passed - -1989; Ord. 2014-5, passed 5-5-2014)

§ 153.10 ENFORCEMENT.

(A) This chapter shall be enforced by the Plan Commission, and/or its duly appointed agent, pursuant to adopted enforcement procedures.

(B) After the effective date of this chapter, no land shall be used and no building, structure, or sign shall be used or erected unless it conforms to the provisions of this chapter and the State Building Code. No improvement location permit, building permit, or occupancy permit shall be issued until it has been determined that said permit is in conformity with the provisions of this chapter and the State Building Code. Uses and structures lawfully existing on the effective date of this chapter shall be permitted to continue under the provisions of § 153.54.

(Ord. passed - -1989; Ord. 2014-5, passed 5-5-2014)

§ 153.11 COMPLAINTS; VIOLATIONS.

(A) Any person may file with the Plan Commission a written complaint alleging a violation of this chapter. Upon its receipt of a written complaint, the Plan Commission, or its duly appointed agent, will investigate in a timely manner. If, based on its investigation, the Plan Commission concludes that a violation has occurred, the Plan Commission shall serve the person or persons believed to have violated this chapter with a written notice of violation and an order to correct the violation within a reasonable period of time, not to exceed 60 days. If the violation is not corrected within the time allotted, the Plan Commission may issue a civil penalty or fine. The Plan Commission may, by rule, delegate the duties under this section to an individual, department, or agency.

(B) Any building erected, raised, or converted, or land or premises used in violation of any provision of this chapter or the State Building Code is hereby declared to be a common nuisance and the owner thereof shall be liable for maintaining a common nuisance, which may be restrained or enjoined or abated in any appropriate action or proceeding.

(C) The Plan Commission, Board of Zoning Appeals, or any designee thereof may institute a suit for injunction in the Circuit or Superior Court of the county to restrain any person, firm, corporation, or governmental unit from violating the provisions of this chapter and may seek to recover from any party against whom an injunction is sought costs of the action and reasonable attorney’s fees.

(D) The Plan Commission, Board of Zoning Appeals, or any designee thereof may institute a suit for remedial action directing a property owner and/or occupant to remove a structure erected in violation of this chapter, or to bring it into compliance with this chapter, and may seek to recover from any party against whom an injunction is sought costs of the action and reasonable attorney’s fees.

(E) Nothing herein contained shall prevent the Town Council, the Plan Commission, Board of Zoning Appeals, or any designated official from taking such other lawful action as is necessary to prevent or remedy any violation.

(Ord. passed - -1989; Ord. 2014-5, passed 5-5-2014) Penalty, see § 153.99

§ 153.12 BOARD OF ZONING APPEALS.

(A) Establishment. A Board of Zoning Appeals is hereby established, which shall consist of five members representing the town and the land within its extraterritorial jurisdictions as follows:

(1) Three citizen members appointed by the President of the Town Council, one of whom shall be a member of the Plan Commission and two of whom shall not be members of the Plan Commission;

(2) One citizen member appointed by the Town Council, who shall not be a member of the Plan Commission; and

(3) One citizen member appointed by the Plan Commission, other than the Plan Commission member appointed by the President of the Town Council, who shall be one of the two members of the Plan Commission who resides within the unincorporated area over which extraterritorial jurisdiction is exercised.

(B) Other elective or appointive office. Other than the two Plan Commission members, no member of the Board of Zoning Appeals may hold other elective or appointive office in municipal, county, or state government.

(1) The terms of the initial members of the Board of Zoning appeals shall be as follows.

(a) One member appointed by the Town Council President shall have an initial term of one year.

(b) One member appointed by the Town Council President shall have an initial term of two years.

(c) The Plan Commission member appointed by the Town Council President shall have an initial term of the lesser of three years or the remainder of that person’s term on the Plan Commission.

(d) The member appointed by the Town Council shall have an initial term of four years.

(e) The member appointed by the Plan Commission shall have an initial term of the lesser of two years or the remainder of that person’s term on the Plan Commission.

(2) After the initial terms have expired, all appointments, except for the member who resides in the unincorporated area of extraterritorial jurisdiction, shall be for four years, expiring on the first Monday of January of the fourth year after appointment, except that the Plan Commission members may serve only for the remainder of their terms as members of the Plan Commission. The term of the member who resides in the unincorporated area of extraterritorial jurisdiction shall not exceed two years.

(3) In the event a vacancy occurs prior to the expiration of a member’s term (including a Plan Commission member whose remaining term on the Plan Commission is less than four years), the appropriate appointing authority shall appoint another member meeting the qualifications to complete the unexpired term.

(4) Members are eligible for reappointment.

(D) Alternate members.

(1) The Town Council President may appoint two alternate members, and the Town Council and the Plan Commission each may appoint one alternate member to the Board of Zoning Appeals, for a total of four alternate members.

(2) Alternate members shall have the same qualifications as regular appointees: the Town Council President may appoint one citizen member of the Plan Commission and one citizen member who is not a member of the Plan Commission as alternates; the Town Council may appoint one citizen member who is not a member of the Plan Commission as an alternate; and the Plan Commission may appoint the other member who resides in the unincorporated area as an alternate member.

(3) Alternate members shall have all of the rights and privileges of members of the Board of Zoning Appeals and may participate in the discussion and evaluation of petitions before the Board.

(4) An alternate member may serve as a voting member of the Board of Zoning Appeals when the regular member for whom he or she is alternate abstains or disqualifies himself or herself from participating in consideration of a matter before the Board.

(E) Conflict of interest.

(1) A member of the Board of Zoning Appeals shall not participate in a hearing or decision of the Board concerning a zoning matter if the member is biased or prejudiced or otherwise unable to be impartial or has a direct or indirect financial interest in the outcome of the hearing or the decision.

(2) In such an instance, the Board shall enter in its records:

(a) The fact that a regular member has such a disqualification; and

(b) The name of the alternate member, if any, who participates in the hearing or decision in place of the regular member.

(F) Removal of a member. The appointing authority may remove a member from the Board of Zoning Appeals for cause. The appointing authority shall mail notice of the removal, along with written reasons for the removal, to the member at his or her residence address. A member who is removed may, within 30 days after receiving notice of the removal, appeal the removal to the Circuit or Superior Court of the county.

(G) Promulgation of rules.

(1) The Board of Zoning Appeals shall adopt rules of procedure concerning the filing of appeals, applications for variances and conditional uses, giving of notice, conduct of hearings, and other such matters as may be necessary to carry out the duties of the Board under this chapter.

(2) An affirmative vote by a majority of the membership of the Board of Zoning Appeals shall be required to approve or deny a petition before the Board.

(3) Any petition approved by the Board of Zoning Appeals, unless otherwise stipulated, shall expire and become void one year after the date of its granting unless the variance or conditional use has been substantially put into place or an extension has been granted by the Board.

(H) Stays pending appeals.

(1) An appeal shall stay all proceeding in furtherance of the action appealed from, unless the administrative official or body from whom the appeal is taken certifies to the Board after the notice of appeal is filed that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. In such case, the proceeding or work shall not be stayed except by a restraining order which may be granted by the Board of Zoning Appeals or by the Circuit or Superior Court of the county, and such notice shall be given to the administrative official or body from whom the appeal is taken and to the owner of the premises affected.

(2) After the person in charge of the work on the premises affected has received notice that an appeal has been filed with the Board of Zoning Appeals, the designated administrative official or body shall have full power to order such work discontinued or stayed, and to call upon the police power of the town to give full force and effect to the order.

(I) Appeals of administrative decisions.

(1) The Board of Zoning Appeals shall hear and decide appeals where it is alleged there is error in any of the requirements, decisions, or determinations made by an administrative official or body charged with the administration and enforcement of this chapter.

(2) An appeal concerning interpretation or administration of this chapter may be taken by any person aggrieved by any decision of the administrative official or body charged with the administration and enforcement of this chapter.

(3) An appeal shall specify the grounds thereof and shall be filed within 30 days of the decision alleged to be in error. The administrative official or body from whom the appeal is taken shall forthwith transmit to the Board all documents, plans, and papers constituting the record of the action from which the appeal is taken.

(J) Conditional uses.

(1) The Board of Zoning Appeals shall hear and decide only such conditional uses as the Board is specifically authorized to permit by this chapter. The Board shall decide such questions as are involved in determining whether conditional uses should be granted and shall apply such conditions and safeguards as are necessary and appropriate under this chapter, or to deny conditional uses when incompatible or inconsistent with the purpose and intent of this chapter. Before any conditional use shall be granted, the Board shall make written findings certifying compliance with any specific regulations governing individual special exceptions and that satisfactory provisions and arrangements have been made concerning the following, where applicable:

(a) There will be adequate ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or other emergency;

(b) There will be conveniently located adequate off-street parking and loading areas. Special consideration shall be given to the location and use of these areas in relation to surrounding properties and reasonable assurance shall be provided that the use of these areas will not create noise, glare, or other adverse effects on adjoining and nearby properties;

(c) Adequate refuse disposal and service areas will be provided. Special consideration shall be given to the location and use of these areas in relation to surrounding properties and reasonable assurance shall be provided that the use of these areas will not create noise, glare, or other adverse effects on adjoining and nearby properties;

(d) Adequate utilities will be available to serve the use;

(e) Adequate screening and buffering will be provided to mitigate any adverse effects of the conditional use on surrounding properties;

(f) Any signs or lighting permitted in conjunction with the conditional use shall be appropriate to the location and in harmony with the general character of the properties in the area. Special consideration shall be given to the size, design, and location of these in relation to surrounding properties and reasonable assurance shall be provided that the use of these areas will not create noise, glare, or other adverse effects on adjoining and nearby properties; and/or

(g) Setback distances will provide adequate open space and separation from adjoining land uses.

(2) Before granting any conditional use, the Board shall make a written finding that such use will be in general compatibility with adjoining properties and will be consistent with the spirit and intent of this chapter.

(K) Variances.

(1) The Board of Zoning Appeals shall hear and decide variances of use and variances from development standards (such as height, bulk, or area) in accordance with the criteria established in this section.

(2) The Board may impose conditions as deemed necessary in the public interest. Failure to comply with any conditions imposed by the Board shall constitute a violation of this chapter.

(3) Conditions of variances may be in the form of written commitments signed by the owner of the real estate and shall authorize the Board to record such commitments in the office of the County Recorder upon the grant of the variance. The Board may require commitments to designate any specially affected persons who shall be entitled to enforce them.

(4) Before granting a variance of use, the Board must make written findings of fact that all the following criteria are met:

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

(b) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;

(d) The strict application of the terms of this chapter will constitute an unnecessary hardship if applied to the property for which the variance is sought; and

(e) The approval does not interfere substantially with the Comprehensive Plan.

(5) Before granting a variance from the development standards, the Board must make written findings of fact that all of the following criteria are met:

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

(b) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and

(c) The strict application of the terms of this chapter will result in practical difficulties in the use of the property. However, this chapter may establish a stricter standard.

(Ord. passed - -1989; Ord. 2014-5, passed 5-5-2014)

§ 153.13 AMENDMENTS.

(A) The text of this chapter may, from time to time, be amended in accordance with I.C. 36-7-4-600 et seq. An amendment to the text of this chapter may be initiated by the Plan Commission or by the Town Council. The Plan Commission shall hold a public hearing on proposed amendments to the text of this chapter in accordance with the state code and with the Plan Commission’s rules of procedure.

(B) The zoning map adopted as a part of this chapter by reference may, from time to time, be amended in accordance with I.C. 36-7-4-600 et seq. Amendments to the zoning map may be initiated by the Plan Commission, Town Council, or by petition of the owners of 50% or more of the area involved in the petition. The Plan Commission shall hold a public hearing on proposed amendments to the zoning map in accordance with the state code and the Plan Commission’s rules of procedure.