The purpose of this chapter is to promote and protect the public health, safety, morals, comfort, and general welfare of the people of the city. Associated with this purpose is the establishment of an effective administrative system to fulfill the objectives of good, sound zoning. The system should, among other things, expeditiously handle day-by-day matters concerning the citizens of the city and county with utmost care, courtesy, and exacting ability; protect the right of appeal from any decision of an administrative officer; deal fairly with deliberate or accidental infractions of this chapter; and through its function, create a climate as may deserve the respect of the community and the confidence of its citizens.

(Code 1968, § 130.250)

The administration of this chapter shall rest with three offices of local government, namely:

(A)

The administrative zoning officer;

(B)

The Dela-Muncie Metropolitan Plan Commission;

(C)

The Delaware-Muncie Metropolitan Board of Zoning Appeals.

(Code 1968, § 130.251)

(A)

Appointment. There shall be an administrative zoning officer who shall be the enforcement officer of this chapter. He shall be appointed by the mayor of the city. The administrative zoning officer may be the building commissioner of the city.

(B)

Qualifications. The administrative zoning officer shall be a person of proven responsibility and knowledgeable in zoning administration and practice. He shall enforce the provisions of this chapter to their literal meaning and shall not try to exercise independent discretion that may violate it. He shall not permit the violation of any of the provisions of this chapter just because he considers it unduly severe as applied to specific cases, inasmuch as this chapter provides the necessary remedies. He shall not refuse to issue a permit for the construction of a building or structure or for the use of land on the basis of what he considers to be lack of wisdom in any zoning provision. He shall use the powers of his position to encourage compliance and advise citizens how such compliance can be achieved without unnecessary hardship.

(C)

Duties. In addition to other administrative duties assigned to him periodically by the mayor of the city, the administrative zoning officer shall perform the following duties:

(1)

Issue all zoning permits and certificates of occupancy;

(2)

Conduct inspections of buildings, structures, and uses of land to determine compliance with the provisions of this chapter;

(3)

Maintain accurate records, including, but not limited to, maps, amendments, variations, conditional uses, and applications;

(4)

Receive and file applications for permits and forward details of any refusal to issue a permit to the board;

(5)

Revoke certificates of occupancy or zoning permits when violations of the provisions of this chapter are discovered by him; and

(6)

Initiate court action as may be deemed necessary to prevent or abate violations of the provisions of this chapter, report all violations for prosecution to the proper legal authority, by sign or cause to be signed all complaints to local courts prepared by the proper legal authority.

(D)

Inspections. The administrative zoning officer may, after giving at least 48 hours' notice to the proper person, examine premises to investigate possible violations. He shall state the nature of the violation to the owner or resident and give reasons for the inspection prior to obtaining entry into the premises.

(E)

Zoning permit.

(1)

No zoning permit pertaining to the use of land or building shall be issued by the administrative zoning officer unless the application for the permit has been examined and approved by the officer. Any zoning permit issued in conflict with the provisions of this chapter shall be cause for revocation. This application for a zoning permit shall include the following data:

(a)

Location of the proposed structure, including street name, house or lot number, and zone;

(b)

Name of the owner of the property, type of work proposed, and estimated cost of the work;

(c)

Use proposed for the building or structure, area of lot and dimensions of same, size of front, side, and rear yards;

(d)

Number of families that will occupy the building, height and number of stories of the building or structure, and number, size, and type of any accessory building; and

(e)

Sketch of the proposed layout of the lot, and affidavit attesting to the accuracy of the application.

(2)

Within two days after an application for a zoning permit is filed, the administrative zoning officer shall examine the application and shall advise the applicant or his agent as to whether or not the building, structure, or use thereof complies with the provisions of this chapter. If he finds the data in order, the administrative zoning officer shall issue the zoning permit. If he denies the permit, he shall inform the applicant of his findings and shall instruct him as to the applicant's right of appeal. He shall acquaint the applicant thoroughly with all current procedures to effect such an appeal. One copy of the application, together with the plans, shall be returned to the applicant after the administrative zoning officer shall have marked the copy either as approved or rejected, attesting to same by his signature on the copy. The original copy of the application, similarly marked, shall be retained by the administrative zoning officer as a part of the office's permanent record.

(F)

Certificate of occupancy. No new building or improvement shall be occupied, or land use started, unless and until the applicant shall have applied for in writing, and received a certificate of occupancy from the administrative zoning officer. The certificate shall be issued after the premises have been thoroughly inspected by the officer and found to be in full compliance with the provisions of this chapter.

(G)

Fees.

(1)

Applicants filing for changes in zoning, appeals, or review of shopping center plans shall be required to pay a filing fee in accordance with the following schedule:

(a)

Changes in zoning .....$100.00

(b)

Appeals from decision of zoning administrator .....100.00

(c)

Appeals for a variance .....100.00

(d)

Appeals for a special use to allow mineral extractions, salvage yards, refuse disposal sites, and planned unit developments .....200.00

(e)

Appeals for a special use other than those listed above .....100.00

(f)

Review of shopping center plans .....200.00

(2)

Fees required to cover the processing of zoning changes or appeals as well as fees for the processing of shopping center plans shall be paid to the county auditor and shall be credited to the budget of the commission. Zoning permit fees shall be paid to the administrative zoning officer of the city as the jurisdictional case may be.

(H)

Remedies. The commission, the board, or any designated enforcement official may institute a suit for injunction or damages in the county circuit court, the city court, or a court of competent jurisdiction, to prevent an individual or a governmental unit from violating the provisions of this chapter. These bodies may also institute a suit for mandatory injunction directing an individual or governmental unit to remove a structure erected in violation of the provisions of this chapter.

(Code 1968, § 130.252; Ord. No. 732-81, 10-5-81; Ord. No. 74-88, 12-15-88)

(A)

General. The metropolitan plan commission shall be Delaware-Muncie Metropolitan Plan Commission, created under the provisions of IC 18-7-3-1 et seq. It is not intended by this chapter to abrogate, annul, or dismiss the commission, but the same shall continue as currently organized.

(B)

Zoning amendments. From time to time and as conditions change, the provisions of this chapter may be amended, supplemented, or changed. Application for changes in zone may be initiated by the commission, or by owners of 50 percent or more of the area involved, in a petition, or by the common council of the city. Any proposed ordinance for amendment not originating from action of the commission shall be referred to it for consideration and report before final action is taken by the common council of the city.

(C)

Filing.

(1)

Any person seeking a change in zone shall make application for the change with the commission in forms prepared for the purpose. The commission may set the number of copies to be submitted and shall adjust each and every application to its regular schedule. The commission shall hold a public hearing on the proposed change in zone or amendment, giving public notice in at least two county newspapers of general circulation. The notice shall state the date and time of the hearing, the description of the change, and the exact location of the property involved. The notice shall appear in the newspapers at least ten days prior to the date of the public hearing.

(2)

The proponent of a zone change shall cause the notice of public hearing to be published in the newspapers and shall bear the expense involved in so doing. He shall also submit a complete list of all surrounding property owners within a 300-foot radius of the property, with the necessary postage to cause the mailing of notices to the owners; except where a 300-foot radius would include only the immediately abutting properties, irrespective of public ways, the owners of the property adjoining the immediately abutting properties, in an east, west, north, and south direction, shall also be notified.

(D)

Public hearing. The proponent of a zone change may appear in person, by agent, or by attorney. He shall be given proper consideration. All public hearings and all meetings of the commission shall be open to the general public. Opponents to a proposed change in zone shall be given adequate time to voice their opinions.

(E)

Disposition. The final disposition of a proposed change in zone shall be in the form of a motion, duly adopted, favorably or unfavorably recommending the change; or specifically setting forth modifications, variations or conditions. The commission's action shall be forwarded to the common council of the city for final action.

(F)

Basis for the decision. In making a decision on a proposed zoning change or amendment thereto, the commission shall substantially determine the following, that the:

(1)

Change in zone will not adversely affect the values of surrounding property;

(2)

Proposed use is the best and most adequate use of the property;

(3)

Proposed change in zone does not constitute spot zoning; the owner of the property in question is not being favored over surrounding property owners;

(4)

Owner can comply with all the requirements of this chapter;

(5)

Traffic congestion will not be unnecessarily increased;

(6)

Owner is not speculating on land values; and

(7)

Proposed changes are in line with good zoning practice.

(Code 1968, § 130.253; Ord. No. 11-88, 4-11-88)

(A)

General. The board shall be the Delaware-Muncie Metropolitan Board of Zoning Appeals created under the provisions of IC 18-7-3-11. It is not intended by this chapter to abrogate, annul, or dismiss the board as constituted at the time of the enactment of this chapter.

(B)

Appeals. All matters brought before the board shall be known as appeals. There shall be three types of appeals, namely:

(1)

From the review of an order, requirement, or decision of the administrative zoning officer. This shall include any interpretation rendered by the officer, which an applicant for a permit may deem questionable, or the refusal of the officer to issue a zoning permit;

(2)

In which a person is requesting a special use under the terms of this chapter; and

(3)

Requesting variances from the terms of this chapter when it is claimed that the literal enforcement of the provisions of this chapter may cause undue hardship.

(C)

Hearings.

(1)

All appeals shall be subject to public hearing. Prior to any public hearing an appeal shall be filed with the board on forms supplied by it and in full compliance with established schedules and procedures. The board shall give notice of the hearing in at least two newspapers of general circulation in the county, at least ten days in advance of the hearing. The appellant shall cause the notice of public hearing to be published as required and shall bear the expense involved in so doing. He shall submit a complete list of all property owners within a 300-foot radius of the property, with the necessary postage to satisfy the mailing of notices to the owners; and, where a 300-foot radius would include only the immediately abutting properties, irrespective of public ways, the owners of the properties adjoining the immediately abutting properties, in an east, west, north, and south direction, shall also be notified.

(2)

Applications for appeal shall be accompanied by a certificate from the administrative zoning officer stating the reasons for the appeal, the date on which he refused to issue the permit, and all other pertinent information. All hearings and meetings of the board shall be open to the general public. The applicant may appear in his own behalf or by an authorized agent or attorney.

(D)

Disposition.

(1)

The board shall keep minutes of its meetings and hearings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating that fact. Should the applicant fail to appear at the hearing or to appoint an agent or attorney to represent him, the board shall dismiss the case.

(2)

Decisions of the board shall be made within 30 days of the time of the hearing and shall be entered in the minutes. The decision shall include the reasons, the summary of evidence introduced, and the findings of fact made by the board. When a variance is granted, the record shall state in detail any exceptional difficulty and unnecessary hardship upon which the appeal was based. The board's decision may reverse, affirm, wholly or partly, the ruling of the administrative zoning officer, and shall be final unless judicial review is sought by the applicant.

(E)

Vote. The concurring vote of the majority of the members of the board shall be necessary to grant an appeal. Failure of a motion to receive a majority shall constitute a denial of the appeal.

Decisions of the board shall be available for inspection during normal office hours.

(F)

Withdrawal. An applicant may, in writing, withdraw his appeal at any time prior to the hearing or he may do so verbally at the hearing.

(G)

Time limitation. An appeal shall not be taken after 15 days have lapsed from the time of a zoning permit or a certificate of occupancy where denied by the administrative zoning officer. If an appeal is granted by the board, all necessary permits shall be obtained within 90 days, and construction shall be completed within six months from the time of the board's action, unless otherwise directed by the board.

(H)

Hearing. No second hearing shall be entertained by the board on a case ruled upon by it, unless new facts and evidence are submitted which, in the board's judgment, materially change the case. A plea for the second hearing shall be requested in writing to the board. The board shall determine prior to scheduling a second hearing if the facts and evidence do exist. Change in ownership of the property affected by an appeal shall be insufficient reason for hearing. Should the board, at a regularly scheduled meeting, decide that there are substantial grounds for a second hearing and it is fully satisfied that new evidence has been submitted, the applicant shall be advised in writing of the board's ruling and will then be entitled to refile for rehearing in conformance with established schedules and procedures. The proper legal notices shall be published and all interested parties shall be duly notified.

(I)

Advice. No informal request for advice, or moot questions, shall be considered by the board. Any advice, opinion, or information given by a board member shall not be binding on the board.

(J)

Proof for a variance. It shall be incumbent upon an applicant to conclusively prove at the public hearing that, if he is compelled to meet the provisions of this chapter, he cannot secure reasonable use of his property; that the hardship claimed by him results from the application of the provisions of this chapter; that the hardship claimed is suffered by his property directly, and not merely by other properties; that the hardship claimed is not the result of the applicant's own actions; that the granting of the variance will not be contrary to the planning goals of the city.

(K)

Judicial review. Each decision of the board of zoning appeals is subject to review by certiorari. Each person aggrieved by a decision of the board of zoning appeals may present, to the circuit or superior court of Delaware County, a verified petition setting forth that the decision is illegal in whole or in part and specifying the grounds of the illegality. The person shall present the petition to the court within 30 days after the date of that decision of the board of zoning appeals.

(Code 1968, § 130.254; Ord. No. 11-88, 4-11-88; Ord. No. 10-90, 5-14-90)