A.   PROCEDURE.

   1.   Prior to any amendment of this Ordinance, the Plan Commission shall give notice by publication and hold a public hearing on the proposed ordinance change, or amendment.

   2.   A petitioner who seeks to amend the zoning or other Comprehensive Plan elements shall file such petition in the office of the Zoning Administrator.

   3.   Two (2) copies of such petitions and plats must be filed with the Zoning Administrator at least twenty (20) calendar days prior to the next regular meeting of the Commission. Petitions filed too late to comply with this section shall be heard at public hearing at the succeeding regular meeting of the Commission. The purpose of this section is to enable the members to examine and study the pending petitions and to conduct any investigation deemed advisable.

   4.   All such petitions not initiated by the Commission itself shall be accompanied by a filing fee in an amount established by the Plan Commission to defray the administrative and investigative expenses of the Commission. In addition, the petition must contain:

      a.   Subject of the petition,

      b.   Name and address of the petitioner,

      c.   Name and address of the property owner,

      d.   A legal description of the property and a common description,

      e.   A statement as to the present zoning of the property,

      f.   A statement as to any covenants running with the property relative to the petition,

      g.   If the property owner is not the petitioner, a letter of consent from the owner must be submitted,

      h.   Any other information reasonably required by the Administrator.

   5.   If the Zoning Administrator finds that the petition is in good order with sufficient information, he will set a time and place for holding a public hearing.

   6.   The petitioner's responsibility in reference to notification for public hearing is as follows:

      a.   Once the petition has been accepted for public hearing by the Zoning Administrator, interested parties shall be notified of the time and place of the public hearing. This shall be done by certified letter with return receipt requested at the expense of the petitioner. At the public hearing the petitioner shall provide proof that he has conformed to the above.

      b.   At least ten (10) days prior to the date set for the hearing, the petitioner shall publish in a newspaper of general circulation, in the Town, the notice of time and place of hearing. The form of notice shall be approved by the Plan Commission.

      c.   The petitioner shall place a sign, stating the nature of the petition and the date, time and place of public hearing to be placed in a prominent location on the petitioned site. The location of the sign shall be at the option of the Zoning Administrator, but shall be not more than twenty-five (25) feet from the front property line.

   7.   The Zoning Administrator shall accept no petition unless accompanied by or included with all information, data, statistics, and/ or plats, which the Zoning Administrator may, in his discretion, deem necessary for an intelligent determination by the Commission.

   8.   Conduct of Hearing - The conduct of a public hearing shall be as established in the Plan Commission's Rules of Procedure.

   9.   In preparing and considering proposals to amend the text or maps of this Zoning Ordinance, the Plan Commission and the Town Council shall consider:

      a.   The Comprehensive Plan;

      b.   Current conditions and the character of current structures and uses in each district;

      c.   The highest and best use for which the land in each district is adapted;

      d.   The conservation of property values throughout the jurisdiction; and

      e.   Responsible development and growth.

   10.   All petitioners must share the burden of proving the following points to the satisfaction of the Commission:

      a.   That there was an error in the original zoning of the property when the ordinance was adopted or that the character of the area under consideration has changed either through technological advances or developmental changes.

      b.   That a change of zoning will not be injurious or detrimental to the surrounding property values.

      c.   That if the change was granted it would promote orderly community growth.

      d.   That the petition is not "spot zoning" which will confer a special benefit on a relatively small tract without commensurate benefit to the community.

   11.   Upon having satisfied itself that the petitioner has met the requirements of Section 3.01 above, the Commission shall then decide whether or not the proposed change meets the following requirements:

      a.   That the proposed change will not adversely affect the community.

      b.   That the neighborhood will not be disrupted or destroyed.

      c.   That the topography, soil condition, and other physical features of the land involved is suitable for the proposed use and zoning change.

      d.   That the proposed land use will not have an adverse effect upon the surrounding land.

      e.   That the proposed land use will be in general conformance with the Town's Comprehensive Plan.

B.   FINAL DISPOSITION OF PETITION.

   1.   The final disposition of any petition shall be in the form of an order setting forth the findings and determination of the Commission together with any modification, specification, or limitation which it makes. The Zoning Administrator shall provide a true copy of each order to all petitioners within ten (10) days of final disposition.

   2.   The Commission may dismiss a petition for want of prosecution or lack of jurisdiction. When a petitioner has failed to appear at a meeting for which his case has been placed upon the official docket, the case may be dismissed for want of prosecution.

   3.   A petitioner may not withdraw a petition after a roll call vote has been called by the President or requested by the Commission.

   4.   A petition, which has been withdrawn by the petitioner, shall not be again placed on the docket within a period of three (3) months after the date of withdrawal.

   5.   A petition, which has been decided adversely to the petitioner, shall not again be placed on the docket for consideration until six (6) months after the date of decision previously rendered.

   6.   All petitions shall be forwarded to the Town Council for further action.

   7.   When an amendment to the zoning map is approved, such amendment shall be incorporated into the official zoning map maintained by the Town of New Palestine.

   8.   When an amendment to the zoning text is approved, such change shall be incorporated into the official document according to the numbering system established with this Ordinance.

   9.   A proposal to the Plan Commission requesting amendments to the text and maps of the Zoning Ordinance shall be subject to written commitments adopted as set forth in Section C below.

C.   WRITTEN COMMITMENTS REGARDING AMENDMENTS TO THE TEXT AND MAPS OF THE ZONING ORDINANCE.

   1.   Written commitments may be requested or submitted by the Plan Commission, or interested parties that were entitled to receive notice per Title 9, Chapter 90, Section 3.01(A)(6)(a), and as set forth in the Rules of Procedure for the New Palestine Advisory Plan Commission. By permitting or requiring written commitments, the Town of New Palestine Advisory Plan Commission does not obligate itself to approve or deny any such request and specifically reserves the right to approve or disapprove any proposed commitment, modification or termination of a written commitment taking into account the same considerations as set forth in Title 9, Chapter 90, Section 3.01(A)(9), (10) and (11). The acceptance or approval of written commitments does not affect the validity of any covenant, easement, equitable servitude, or other land use restrictions created in accordance with law.

   2.   Procedures.

      a.   Written commitments are required to be reviewed by the Plan Commission, for recommendation to the Town Council, as related to annexation requests, amendments to the text and map of the Zoning Ordinance, or as part of the subdivision of real estate as regulated by I.C. 36-7-4-700 series.

      b.   In all cases, written commitments are required to be submitted to the Zoning Administrator a minimum of ten (10) days prior to the date of the Plan Commission hearing. Written commitments are required to be submitted in the form supplied by the Zoning Administrator.

      c.   Written commitments shall be recorded in the office of the county recorder and take effect upon approval of the proposal. An unrecorded commitment is binding on the owner of the parcel. An unrecorded commitment is binding on a subsequent owner of the parcel or a person acquiring an interest in the parcel only if the subsequent owner or person acquiring the interest has actual notice of the commitment.

   3.   Enforcement. Written commitments shall be binding on the owner, subsequent owners of the real estate and other persons acquiring an interest therein.

Written commitments may be enforced jointly or severally by:

      a.   The Town of New Palestine Advisory Plan Commission.

      b.   Owners of all parcels of ground adjoining the real estate to a depth of two (2) ownerships, but not exceeding six hundred sixty (660) feet from the perimeter of the real estate, and all owners of real estate within the area included in the petition who were not petitioners for the rezoning or approval. The identity of owners shall be determined from the records in the offices of the Assessors of Hancock County which list the current owners of record.

      c.   Any person, party, neighborhood association, or entity who demonstrates to the Plan Commission an interest in being a party to the written commitments.

      d.   The Town Council of New Palestine, Indiana.

   4.   Modification or Termination - Written commitments may be modified or terminated only by the Town Council of New Palestine upon a recommendation from the Plan Commission made at a public hearing after proper notice has been given. A request to modify or terminate commitments made during a land use hearing must be made in writing to the Zoning Administrator, to be submitted for hearing on the next available agenda, after proper notice has been given. The Plan Commission may consider a recommendation to modify written commitments taking into consideration the elements set forth in Title 9, Chapter 90, Section 3.01(A)(9), (10) and (11).

   5.   A written commitment automatically terminates after the adoption of the proposal, if:

      a.   The zone map applicable to the parcel is changed, or

      b.   The parcel is designated as a planned unit development district.

(Am. Ord. 012109, passed 2-18-2009)

A.   AUTHORITY.

The Board of Zoning Appeals shall hear and determine appeals from and review any order, requirement, decision, or determination made by an administrative official, Hearing Officer, or staff member under this Zoning Ordinance. The Board shall also hear and determine appeals from and review any order, requirement, decision, or determination made by an administrative board or other body, except the Plan Commission, in relation to the enforcement of this Zoning Ordinance or to the enforcement of any other titles of the Town Code requiring the procurement of a building permit or occupancy permit.

B.    INITIATION.

Any person aggrieved by the order, requirement, decision, or determination described in Section 8 may file an appeal with the Board of Zoning Appeals. An appeal filed with the Board must specify the grounds of the appeal and must be filed in the form and within the time limit established by rule of the Board.

C.    PROCESSING.

An appeal shall be filed with the Zoning Administrator, who shall forward such appeal to the Board of Zoning Appeals for processing in accordance with this Zoning Ordinance and applicable statutes of the State of Indiana.

D.    PUBLIC HEARING.

A public hearing shall be conducted by the Board of Zoning Appeals in compliance with I.C. 5-3-1-2 and I.C. 5-3-1-4 and the Board of Zoning Appeals Rules of Procedure. The party requesting the appeal shall be required to assume the cost of public notice and due notice to interested parties.

E.    DECISIONS.

The Board of Zoning Appeals shall hear testimony and evidence concerning appeals, and prepare findings of fact and shall render the final decision on all appeals. A written copy of such decision, as described in the Rules of Procedure, shall be available in the Town Hall within five (5) days after making such decision.

F.    ADDITIONAL CONSIDERATIONS.

   1.   The administrative official, Hearing Officer, administrative board, or other body from whom the appeal is taken shall on the request of the Board, transmit to the Board certified copies of all documents, plans, and papers constituting the record of the action from which an appeal was taken.

   2.   When an appeal from the decision of an official or board has been filed with the Board, proceedings and work on the premises affected shall be stayed unless the official or board certifies to the Board that, by reason of the facts stated in the certificate, a stay would cause imminent peril to life or property. In that case, proceedings or work may not be stayed except by court order.

A.   DEFINITION AND BASIS OF APPROVAL.

Special exceptions may be approved in zones as specified in Sections 1.04 through 1.07. The use approved shall be subject to any regulations or requirements imposed as a part of the special exception, in addition or in place of the other regulations and requirements of this Code. The provisions of a special exception shall replace and supersede the provisions of the base zone (except in the UD district), effective upon either construction of any facilities approved as a part of the special exception or upon beginning of operation of the use or uses specified, whichever occurs first. The provisions shall remain in effect until such time as the special exception use ceases to operate. Immediately prior to reuse of the structures or facilities used for the special exception, the provisions of the special exception shall become invalid and the regulations and requirements of the base zone shall again be in effect.

Any significant changes (as determined by the Board) in the use of a special exception or any construction of new facilities or structures, or major additions to existing facilities or structures (as determined by the Board) shall be subject to approval by the Board of Zoning Appeals using the same process as was used for the original approval.

B.    PROCEDURE FOR APPROVAL.

Upon receipt of an application for a special exception, the Zoning Administrator shall refer a copy of the application to the Board of Zoning Appeals for public hearing and final approval or denial of the petition.

   1.   Upon such hearing, if the Board finds that:

      a.   The establishment, maintenance, or operation of the special exception will not be detrimental to or endanger the public health, safety or general welfare;

      b.   The special exception will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood;

      c.   The establishment of the special exception will not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district;

      d.   Adequate utilities, access roads, drainage and other necessary facilities have been or are being provided; and

      e.   Adequate measures have been or will be taken to provide ingress or egress so designed as to minimize traffic congestion in the public streets;

      f.   The Board shall direct the Zoning Administrator to issue an Improvement Location Permit for such special exception; otherwise, the Board shall direct the Zoning Administrator to reject the application. The findings of the Board and its order to the Zoning Administrator shall be in writing.

   2.   The Board may impose additional conditions to assure that the special exception will conform to the intent of this Ordinance. These additional conditions may include, but are not limited to, the provision of the following:

      a.   Off-street parking and loading areas, with particular attention to the economic, noise, glare, or odor effects of the special exception on adjoining properties and properties generally in the district.

      b.   Refuse and service areas.

      c.   Special screening and buffering with reference to type, dimensions, and character.

      d.   Signs and proposed exterior lighting with reference to glare, traffic, safety, economic effect, and compatibility and harmony with properties in the district.

      e.   Additional setback distances, yards and other open spaces.

      f.   General compatibility with adjoining properties, with reference to site development standards designed for their mutual protection and the environmental harmony of the district.

      g.   A Development Plan, in the event such a plan is not already required for a particular special exception, is set forth in Section 4.

   3.   If the nature of the special exception involves more than one of those listed, the applicant may apply for an Improvement Location Permit for the special exception, which most closely relate to the primary use; provided that the requirements of the related uses will be met.

   4.   Any person, to whom is issued an Improvement Location Permit for a special exception, who fails to commence construction within twelve (12) months after such permit is issued, or who fails to carry to completion the total Development Plan thereof within two (2) years after such construction is begun, whichever is later, or who fails to conform to the provisions of the Development Plan and supporting data finally approved by the Board and upon the basis of which such Improvement Location Permit was issued, may be required by the Board upon its own motion, and shall be required by the Board upon written petition of any person deeming himself aggrieved, to show cause why such approval should not be withdrawn and such Improvement Location Permit revoked.

   5.   The holder of an Improvement Location Permit for a special exception may apply to the Board at any time for an alteration, change, amendment or extension of the application or Development Plan upon which such Permit was based.

      a.   Upon receipt of such application, the Board shall proceed as in the case of original applications for an Improvement Location Permit for a special exception.

      b.   In the event the Board shall approve and order such application or Development Plan changed, altered, amended or extended, it shall notify the Zoning Administrator who shall issue an amended Improvement Location Permit accordingly.

C.    EXISTING USE MAY BE A CONFORMING USE.

An existing use which is listed herein as a special exception, and which is located in a district in which such special exception may be permitted, is a Conforming Use, provided such use meets the minimum lot area requirements of the base zone. Any expansion of such special exception involving the enlargement of a building, structure, and land area devoted to such use shall be subject to the requirements and procedures described in this section.

D.    TEMPORARY CERTIFICATES.

Whenever a special exception has been approved and is of such a nature that the applicant desires to complete the structure and improvements shown in the Development Plan by stages, the applicant may make application for a Temporary Certificate of Occupancy for any portion of the plan that has been completed.

A.   REGULATIONS FOR USE AND DEVELOPMENT STANDARDS VARIANCES.

The regulations set forth or identified in this section are provided to establish procedures, criteria, and conditions, which shall be met before the Board of Zoning Appeals may approve a use or development standards variance from the terms of this ordinance.

B.    APPLICATION FOR VARIANCE.

A person desiring a variance from the terms of the Zoning Ordinance shall submit a written application for variance approval with the Zoning Administrator. An application for variance approval shall:

   1.   Be made on the forms available at the Plan Commission and signed by the owner of the property subject to the variance request ("subject property") or by a person who has been authorized to sign the form by the owner. If the form is signed by a person other than the owner, the person must submit written documentation of his/her authority to sign the form (such as a letter from the owner which states that the person has been authorized to sign the form);

   2.   Describe the specific use or standard for which the variance is sought;

   3.   Be presented to the Zoning Administrator;

   4.   Be accompanied by two (2) copies of an area map which shows the location of the subject property, the locations or related public and utility facilities (such as schools, sewer, and the like), the relationship of the subject property to the thoroughfare plans for the area;

   5.   Be accompanied by two (2) copies of a site plan, drawn to an appropriate scale, which shows:

      a.   The subject property;

      b.   The location of all existing and proposed buildings, structures, and improvements to be made to the subject property, including drainage and erosion control facilities and features;

      c.   Accurate dimensions of the parcel, buildings, parking areas and ingress/egress driveways;

      d.   Location, owner of record, zoning, and use of adjacent properties, including the location, size, and use of all structures within fifty (50) feet of the subject property;

      e.   Location, right-of-way and pavement width of all streets adjacent to the subject property; and

      f.   Proposed connections to public utilities.

   6.   Be accompanied by any other information reasonably required by the Zoning Administrator; and

   7.   Be accompanied by the fee established by the Plan Commission.

C.   VARIANCE APPROVAL PROCEDURE.

Applications for variance approval shall be considered in accordance with the following procedures:

   1.   Within thirty (30) days after receiving a complete application, the Zoning Administrator shall schedule and announce the date and time of the Board of Zoning Appeal's hearing on the application. At the time the hearing is scheduled, the Zoning Administrator shall provide the applicant with written notice of the hearing date and time.

   2.   Prior to the Board of Zoning Appeals hearing on the application, the Zoning Administrator shall review the application for compliance with the Zoning Ordinance. Following such review and prior to the hearing, the Administrator shall prepare and provide the Board of Zoning Appeals and the applicant with the Zoning Administrator's written comments and recommendation on the application, including the Zoning Administrator's opinion as to any effect the proposed variance might have upon the Comprehensive Plan.

   3.   The Board of Zoning Appeals, and its representatives, at its discretion, may visit the subject property at any reasonable time during the review process.

   4.   Notice of the Board of Zoning Appeals hearing on the application for variance approval shall be published in two (2) local newspapers of general circulation at least ten (10) days prior to the hearing, in accordance with I.C. 5-3-1.

   5.   At least ten (10) days prior to the Board of Zoning Appeals hearing on the application for variance approval, the applicant, in the manner prescribed in the Board of Zoning Appeals Rules of Procedure, shall notify all interested parties of the public hearing by certified mail. Prior to the hearing, the applicant shall provide the Zoning Administrator with certified mail receipts demonstrating that the required notices were delivered or returned as undeliverable.

   6.   At least ten (10) days prior to the Board of Zoning Appeals hearing on the application for variance approval, the applicant shall post and maintain a sign on the subject property notifying those passing the property that a request for variance approval for the property has been made. The sign shall be provided to the applicant by the Zoning Administrator. The cost of the sign shall be borne by the applicant.

   7.   The Board of Zoning Appeals shall conduct a public hearing on the application for variance approval in accordance with the Board of Zoning Appeals Rules of Procedure.

   8.   Following the Board of Zoning Appeals hearing on the application for variance approval, the Board shall take action on the applicant's request. The Board may table the application, approve the application, approve the application with conditions, or disapprove the application.

   9.   The Board of Zoning Appeals shall make written findings of fact in support of its decision. The Zoning Administrator shall promptly provide the applicant with a copy of the Board's written findings.

   10.   If the Board of Zoning Appeals approves the application for variance approval, the Zoning Administrator may issue the applicant an improvement location permit and/or land use certificate subject to the conditions of variance approval and the provisions of the ordinance.

   11.   If the Board of Zoning Appeals denies the application for variance approval, the applicant may file an amended application, but only if significant changes have been made to the application. If the amended application is filed within six (6) months of the Board's denial of the original application, the applicant shall not be charged an application fee.

D.   STANDARDS FOR USE VARIANCE APPROVAL.

In order to approve a use variance, the Board must find that:

   1.   The approval will not be injurious to the public health, safety, morals, and general welfare of the community;

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

   3.   The need for the variance arises from some condition peculiar to the property involved;

   4.   The strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and

   5.   The approval does not interfere substantially with the Comprehensive Plan.

E.   STANDARDS FOR DEVELOPMENT STANDARDS VARIANCE APPROVAL.

In order to approve an application for a design standards variance, the Board must find that:

   1.   The approval will not be injurious to the public health, safety, morals, and general welfare of the community;

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

   3.   The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property; and

   4.   That the degree of variance is the minimum amount necessary to properly address the situation for which the variance is sought while minimizing the deviation from the standards of the Zoning Ordinance.

F.   CONDITIONAL APPROVAL.

   1.   All variance approvals shall be considered to be conditional approvals. The Board shall have the authority to impose specific conditions as part of its approval in order to protect the public health and for reasons of safety, comfort and convenience (such as to ensure compatibility with surroundings). A variance approval may be denied or revoked where the applicant fails to comply with specific conditions made a part of the approval by the Board, or fails to comply with a reasonable request of the Board or Zoning Administrator for furnishing specific information related to the proposed variance. Failure to comply with the conditions of approval shall constitute a violation of the Zoning Ordinance.

   2.   The variance approval shall be effective for a period of one (1) year after the date of approval. If the variance approval has not been implemented on the property within the time period established above, the variance approval shall be null and void and the Applicant shall be required to resubmit a new application for variance approval subject to the zoning regulations in effect at the time of resubmission. Upon the request of the Applicant and upon a finding that the Applicant has been unable to implement the variance approval despite due diligence, the Board may extend the approval period for one (1) year beyond the expiration date of the original approval period, without further notice and public hearing, or for a longer period of time upon notice to interested parties and a hearing.

G.   RELATIONSHIP TO SUBJECT PROPERTY.

Variance approval applies to the subject property and may be transferred with ownership of the subject property contingent to the provisions and conditions prescribed by or made pursuant to the Zoning Ordinance.

A.    ZONING ANNEXED AREAS.

Territory, which may be hereafter annexed to the Town, shall be classified according to the district indicated on the Comprehensive Plan, unless changed by amendment to this Section.

B.    COMPREHENSIVE PLAN AS ZONING GUIDE.

On future annexation, the Plan Commission shall be guided by the principles and directives of the comprehensive plan of the town, as amended, in making zone district classification recommendations to the Council.