Newburgh City Zoning Code

ADMINISTRATION/ENFORCEMENT

§ 157.035 ADMINISTRATIVE PROCEEDINGS.

(A) The Planning Commission shall adopt rules of procedure necessary for the conduct of its affairs in keeping with the provisions of this chapter. Meetings shall be held at the call of the Chairperson and at such other times as the Commission may determine. All meetings shall be open to the public.

(B) At the first meeting of each year the Commission shall elect a President and Vice-President from among its members. The Commission shall keep minutes of its proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact and shall keep records of its examinations and other official actions of which shall be of public record and be immediately filed in the office of the Commission.

(Ord. 1997-1, § 130.2(A), passed 1-22-1997)

§ 157.036 PLAN COMMISSION.

For the purpose of this chapter, the Plan Commission shall have the following duties:

(A) Initiate proposed amendments to this chapter;

(B) Review all proposed amendments to this chapter and make recommendations to the Town Council;

(C) Review and make finding on development plans for subdivisions, commercial structures, planned unit developments and other similar plans for all proposed developments within the Commission’s jurisdiction;

(D) Render interpretations of this chapter as may be necessary from time to time;

(E) Initiate and/or perform other planning functions and perform studies as may be deemed appropriate;

(F) Hire or retain a Planning and Zoning Administrator, with the approval of the Town Council, to be the enforcement agent of this chapter at the direction of the Commission;

(G) Appoint various advisory bodies on matters pertaining to the enforcement of this chapter with the approval of the Town Council; and

(H) Take appropriate actions to ensure compliance with this chapter, including reviewing decisions of the Zoning Administrator when requested.

(Ord. 1997-1, § 130.2(B), passed 1-22-1997)

§ 157.037 ZONING ADMINISTRATOR.

For the purposes of this chapter, the Zoning Administrator hereinafter referred to as the “Administrator” shall have the following duties:

(A) Issue improvement location permits, temporary and occupancy permits, and conditional use permits;

(B) Maintain permanent records of improvement location permits, variances, conditional use permits and amendments to this chapter;

(D) Prepare factual reports pertaining to any variance, conditional use or amendment to this chapter; and

(E) Prepare variances and conditional uses provided for this section, and prepare amendments to this chapter.

(Ord. 1997-1, § 130.2(C), passed 1-22-1997)

§ 157.038 BOARD OF ZONING APPEALS.

(A) The Board of Zoning Appeals is established by this chapter. The appointment and terms of the Board shall be in accordance with I.C. 36-7-4-901 and I.C. 36-7-4-902.

(B) The Board of Zoning Appeals shall approve or deny all variances, conditional uses and appeals from the terms of the zoning chapter, but only in the classes of cases or in the specified situations specified in the zoning chapter. The Board may impose reasonable conditions as part of its approval.

(1) The notice of the public hearing shall be published ten days before the date of the hearing.

(2) Prior to the public hearing by the Board of Zoning Appeals, the petitioner must file in the office of the Administrator proof of notification.

(3) Cost of the notice must be borne by the petitioner.

(4) A person may not communicate with any member of the Board before the hearing with the intent to influence the members’ action on a matter pending before the Board. Not less than seven days before the hearing, however, the Administrator may file with the Board a written statement setting forth any facts or data pertinent to the matter.

(5) Should the petitioner fail to comply with the notice requirements, as provided by this section, before the second regular meeting of the Board of Zoning Appeals following the date said petition is filed, the petition shall be withdrawn by the Board of Zoning Appeals and shall not be accepted for rehearing for a period of not less than six months from the date of petition withdrawal by the Board of Zoning Appeals.

(Ord. 1997-1, § 130.2(D), passed 1-22-1997; Ord. 2001-14, passed 8-22-2001)

§ 157.039 SITE REVIEW ADVISORY COMMITTEE.

(A) The Plan Commission may establish a Site Review Advisory Committee to review and advise the Plan Commission about the acceptability of the site plan prior to action by the Plan Commission. The Site Review Advisory Committee is intended to provide a technical review of development site plans to ensure compliance with sound site design principles, to minimize traffic conflicts and improve safety for vehicles entering and leaving the site, to provide for access of public emergency vehicles, to reduce public service and maintenance burdens and to protect existing properties from adverse impacts caused by new development on surrounding parcels. The Site Review Advisory Committee will provide advice and recommendations to the Plan Commission and to the Board of Zoning Appeals for the action of each respective body.

(B) The Site Review Advisory Committee shall be comprised of the Town Administrative Manager, the Town Attorney, the Town Engineer and the Town Zoning Administrator.

(C) The Site Review Advisory Committee may establish rules of procedure, to be approved by the Plan Commission, for the conduct of its business. If rules of procedure are adopted each petitioner shall be informed of those procedures in advance of appearance or presentation of materials to the Site Review Advisory Committee.

(D) The Site Review Advisory Committee shall review site plans so as to:

(1) Minimize dangerous traffic movements;

(2) Reduce traffic congestion;

(3) Improve ingress and egress conditions;

(4) Maintain existing mature trees to the maximum extent possible;

(5) Provide for public view screens of unsightly activities;

(6) Protect and enhance the architectural integrity of the town;

(7) Eliminate hazards to public safety;

(8) Provide for efficient use of the site with respect to buildings, accessory structures and freestanding signs, so as not to impede safe traffic flow and pedestrian circulation; and

(9) Review other factors as may be requested by the Plan Commission or by the Board of Zoning Appeals on a case by case basis.

(E) Site plan requirements and acceptance.

(1) All site plans shall contain the following information, as well as the information requested at § 157.049.

(a) The location and exact dimensions of all property lines, existing and proposed structures, parking lots and drives, roadways and rights-of-way, sidewalks, bicycle paths, ground signs, refuse disposal areas, bicycle parking areas, fences, freestanding electrical equipment, recreational facilities, utility easements and other easements recorded or proposed and other freestanding structural features as determined to be necessary by the Administrator.

(b) A site vicinity map depicting the location of existing buildings, structures, roadways and rights-of-way, utility easements and parking areas on adjacent property within 100 feet of the site.

(d) The petitioner shall be required to supply a drainage plan showing the details of proposed storm water management features and off-site runoff characteristics with completion of the proposed improvements.

(2) Site plan review by the Committee or Administrator shall be required for all proposed new exterior structural construction except one and two household dwelling units, temporary uses, fences, permitted accessory buildings, structures and uses accessory to structures in any zoning district. Expansion of existing commercial structures shall require a site plan for review. Changes in use without structural change shall not be required to file a site plan.

(3) The Site Review Advisory Committee, if created, shall issue a statement of findings to the Plan Commission, the Board of Zoning Appeals and to the petitioner about the acceptability of the site plan and offer suggestions for improvement and additions if warranted. If the site plan is accepted by the Plan Commission, the Administrator shall issue an improvement location permit if the building and/or use conform to the other provisions of this chapter. If the petitioner requests a zoning chapter text amendment or zoning map change, the Site Review Advisory Committee shall file a report with the Plan Commission stating the findings and recommendations of the Site Review Committee regarding the acceptability of the site plan. If the petitioner seeks approval of a conditional use permit, the Site Review Advisory Committee shall inform the Board of Zoning Appeals of its findings.

(Ord. 1997-1, § 130.2(E), passed 1-22-1997; Ord. 2001-14, passed 8-22-2001)

§ 157.040 ZONING CHAPTER AMENDMENT OR REPEAL.

(A) A proposed ordinance for amendment or repeal of the zoning chapter, in whole or in part including the official zoning map, may be proposed by a member of the Town Council to the Town Council, the Plan Commission to the Town Council or by petition of owners of property of at least 50% of the parcel or parcels within the area involved in the petition either to the Town Council or to the Plan Commission.

(B) No later than 21 days prior to the first reading by the Town Council, the petitioner must provide the Town Council the following:

(1) A petition describing the property that is the subject of the desired amendment, the amendment desired, and any facts pertinent to the request;

(2) A location map;

(3) An ordinance;

(4) A site plan as defined in § 157.040;

(5) Costs of publication of the ordinance (see division (D) below); and

(6) Costs of recording the chapter (see division (E) below).

(C) All petitions shall be filed with the required number of copies on eight and one-half inch by 11 inch paper with the petition as the first document, map as second document, and ordinance as the third document. In addition, six copies of a site plan must accompany these documents.

(D) The petitioner shall determine from the designated newspaper the costs of publication of the chapter and shall file with his or her petition a certified check payable to that designated newspaper for required amount.

(E) The petitioner will file with his or her petition a certified check payable to the Town Clerk-Treasurer, for the costs of recording.

(F) The petition and ordinance shall be assigned to the Plan Commission for hearing and recommendations. A proposed ordinance for the amendment or repeal of the zoning chapter or map must be referred to the Plan Commission for consideration and report before any final action is taken by the Town Council. Upon receiving or initiating a proposed ordinance, the Commission shall, within 60 days hold a public hearing on the proposed ordinance.

(1) Notice of the public hearing shall be published one time at least ten days before the date of the Plan Commission hearing.

(2) A notice must be posted on the property by the petitioner, in a place visible to the public, no less than 12 days prior to the Plan Commission hearing.

(3) A notice of hearings must be mailed by the petitioner by certified mail, return receipt requested, to each of the abutting property owners, no less than 12 days prior to the Plan Commission hearing.

(4) Costs of the notices shall be borne by the petitioner.

(5) Should the petitioner fail to comply with the notice requirements, as provided by this section, before the second regular meeting of the Plan Commission following the date that said petition is filed, the petition shall be withdrawn. If withdrawn, the petitioner may not reapply for approval involving the same property for a period of not less than 12 months.

(G) Prior to the public hearing by the Commission, the petitioner must file with the Town Clerk-Treasurer a copy of the letter of notice, an affidavit listing the abutting property owners, and the date notices were mailed after the effective date.

(H) Whenever Town Council shall change by ordinance the district boundaries or classifications of property, the Town Clerk-Treasurer shall record a copy of the chapter with the County Recorder immediately after the effective date.

(Ord. 1997-1, § 130.2(F), passed 1-22-1997)

§ 157.041 USE OR DEVELOPMENT COMMITMENTS.

(A) At the time of filing the petition to amend zoning maps, or not later than ten days prior to hearing of the petition, to amend zoning maps, the petitioner may file a use or development commitment, or both. (See “development commitment” definition in § 157.021.)

(B) If a use or development commitment is filed or amended after consideration of the rezoning petition of the Plan Commission, the petition together with the use or development commitment, may be heard or reheard by the Plan Commission to enable the Plan Commission to vote on the petition with the use or development commitment in its final form. No use or development commitment shall be considered by the Town Council until it has been considered in its final form by the Plan Commission.

(C) If the petition is to be reheard by the Plan Commission, as provided, the petitioner shall again notify all abutting property-owners (listed in the affidavit filed pursuant to § 157.040(F) and counsel of record by certified mail.

(D) If a use or development commitment is to be included in an ordinance adopted by the Town Council to rezone property, the ordinance shall contain the following provisions:

“The subject property herein rezoned shall be used and developed only in accordance with the use or development commitment which is attached hereto and incorporated herein and no improvement location permits shall be issued until petitioner records said use or development commitment in the Office of the Recorder of Warrick County, Indiana.”

(Ord. 1997-1, § 130.2(G), passed 1-22-1997)

§ 157.042 COMMISSION ACTION AND COMMITMENTS.

(A) Following a public hearing at which any interested person may appear to testify against or support the petition, the Plan Commission shall recommend either the passage, denial or passage with amendments of the petition and chapter.

(B) The Commission and the Council shall pay reasonable regard to the following in granting petitions for development approval, chapter amendment and map changes:

(1) The amendment conforms to the Comprehensive Plan;

(2) Current conditions and the character of current structures and uses in each district and in the vicinity of the proposed project;

(3) The most desirable use for which the land in each districts is adapted;

(4) The conservation of property values throughout the jurisdiction;

(5) Responsible development and growth;

(6) The zoning classification of the property is improper and the amendment will correct the improper classification; and

(7) Major physical, economic or social changes have substantially altered the area in a manner not anticipated in the Comprehensive Plan, and the amendment will assist the development of the area consistent with the changes.

(Ord. 1997-1, § 130.2(H), passed 1-22-1997)

§ 157.043 TOWN COUNCIL ACTION.

Within 30 days after the hearing on the proposed ordinance for amendment or repeal of the zoning ordinance, the Secretary of the Plan Commission shall provide to the Town Council a written report that indicates the recommendations of the Commission concerning the ordinance. Within 90 days after receiving the report of the Commission concerning the proposed ordinance, the Town Council shall vote on the proposed ordinance or return the proposed ordinance to the Plan Commission with further amendment. If no vote is taken within 90 days after the Commission’s recommendations, the action of the Commission is final. (See I.C. 36-7-4-606(g).)

(Ord. 1997-1, § 130.2(I), passed 1-22-1997)

§ 157.044 TOWN COUNCIL; TIME LIMITS.

(A) The denial of a petition by the Town Council or the withdrawal of a petition by the petitioner from the Town Council prohibits the Plan Commission or Town Council from hearing a petition for amendment of that property or any part thereof for 12 months after the date of denial or withdrawal by the Commission or petitioner.

(B) Nothing contained in division (A) above shall prevent the Town Council from reconsidering a petition which has been previously defeated. A two-thirds vote of the elected members of the Town Council shall be required to approve the motion to reconsider. If the motion to reconsider is approved, the petition shall be returned to second reading. The hearing on second reading shall be not less than 25 days from the date of the vote on the motion to reconsider. The petitioner shall notify all adjoining property owners and the attorney or consultant for the remonstrators, if any, of the date of the hearing on second reading and of the reconsideration of the petition. The notice shall be sent certified mail, return receipt requested, not less than 15 days prior to the hearing date.

(Ord. 1997-1, § 130.2(J), passed 1-22-1997)

§ 157.045 APPEALS BEFORE THE BOARD OF ZONING APPEALS.

(A) The Board of Zoning Appeals shall hear and determine appeals from and review:

(1) Any order, requirement, decision or determination made by the Zoning Administrator or staff member under the zoning chapter; and

(2) Any order, requirement, decision or determination made by an administrative board or other body except the Plan Commission or Town Council in relation to the enforcement of an chapter requiring the procurement of an improvement location permit or occupancy permit.

(B) An appeal filed with the Board of Zoning Appeals must specify the grounds of the appeal and must be filed within such time and in such form as prescribed by the Board of Zoning Appeals by rule.

(C) The administrative official, administrative board or other body from whom the appeal is taken shall, on the request of the Board of Zoning Appeals, transmit to it all documents, plans and papers constituting the record of the action from which an appeal was taken.

(D) Upon appeal, the Board may reverse, affirm or modify the order, requirement, decision or determination appealed. For this purpose, the Board has all the powers of the official, officer, board or body from which the appeal was taken.

(E) Within five working days, the Board of Zoning Appeals shall file in the office of the Town Clerk-Treasurer a copy of its decision.

(Ord. 1997-1, § 130.2(K), passed 1-22-1997)

§ 157.046 BOARD OF ZONING APPEALS; TIME LIMITS.

(A) The denial of a petition for a variance, conditional use or an appeal by the Board of Zoning Appeals or the withdrawal of such a petition by the petitioner shall prohibit the Board of Zoning Appeals from hearing a petition for a variance, conditional use or an appeal for the subject property or a part thereof for 12 months from the date of the denial or withdrawal.

(B) An exception to division (A) above may be made upon unanimous vote of the Board of Zoning Appeals.

(Ord. 1997-1, § 130.2(L), passed 1-22-1997)

§ 157.047 APPEALS FROM BOARD DECISIONS.

The person or persons aggrieved by a decision of the Board of Zoning Appeals may appeal the decision in the manner provided in I.C. 36-7-4-1003.

(Ord. 1997-1, § 130.2(M), passed 1-22-1997)

§ 157.048 FEES.

(A) The Plan Commission shall recommend to Town Council a schedule of fees, charges and expenses for improvement location permits, appeals, petitions for amendments, zoning map changes, planned unit developments and other matters pertaining to this chapter. The Town Council shall establish a schedule of fees and shall post the schedule of fees in the offices of the Administrator and Town Clerk-Treasurer.

(B) The schedule of fees may be amended or altered only by the Town Council and shall not be a part of this chapter.

(C) Until all applicable fees, charges and expenses have been paid in full, no action shall be taken on any application or appeal.

(Ord. 1997-1, § 130.2(N), passed 1-22-1997)

§ 157.049 USE PERMITS.

(A) Issuance.

(1) No building or other structure shall be erected, moved, relocated, added to or structurally altered, nor shall any building, structure or land be established or changed in use without first applying for and obtaining an improvement location permit.

(2) The Administrator shall also issue an improvement location permit to all petitioners where the application indicates no exterior structural change or alteration and includes a change in use only if the use requested complies with the permitted uses in the zoning district of the property.

(3) An application for an improvement location permit involving any structural construction alterations or new development must be filed with the Administrator and must include the following:

(a) A site plan for the principal and accessory structures and uses, existing and proposed, showing size, location on lot and lot size and required setbacks and yards. (Also see § 157.039(E));

(b) Except for one and two-family dwellings and associated accessory buildings, the site plan must also show the following:

1. The exact property lines of property, including existing street and rights-of-way lines;

2. Adjacent properties on the same and the opposite frontage, indicating the entrance and exits to those properties, existing zoning and existing uses;

3. The exact location and dimension of access drives to the property, service drives, existing and proposed curb cuts, and proposed directions of traffic flow on the property and into and from public rights-of-way;

4. The exact location and dimensions of any necessary frontage roads and other traffic improvements necessary to accommodate the proposed development;

5. The exact location, dimensions and type of off-street parking and loading facilities; and

6. A plan detailing landscaping, buffering, fences, outdoor lighting and signage, in accordance with the provisions of this chapter.

(d) Any other plans or specifications which the Administrator deems necessary to determine whether the plans conform to this chapter.

(4) One-household dwellings, duplexes and permitted accessory structures in approved subdivisions shall be approved if applicable code requirements are met. All other applications shall undergo a site plan review process if applicable.

(5) The Administrator shall, after the site review process, issue an improvement location permit if the building and/or use conform to the provisions of this chapter.

(6) Land and building may be used or constructed only for the use for which the current improvement location permit was issued.

(7) The improvement location permit must be displayed on the premises during any construction or alteration.

(B) Improvement location permits: revocation and voiding.

(1) An improvement location permit may be revoked after at least ten days written notice, if the condition of the zoning code requirements and/or the conditions of the permit are not met.

(2) An improvement location permit is void if construction has not been started within six months or the use has not been established within one year of the date of issuance. The Zoning Administrator may issue up to six months in extensions upon the request of the petitioner provided the petitioner can demonstrate the delay was caused by unavoidable circumstances.

(Ord. 1997-1, § 130.2(P), passed 1-22-1997; Ord. 2001-14, passed 8-22-2001)

§ 157.050 CONDITIONAL USE PERMITS.

(A) Generally. A conditional use is a use of property, structure or building within a zoning district other than a principally permitted use, which is expressly permitted by the chapter. Conditional uses are generally considered undesirable or incompatible uses, therefore necessitating special or additional regulations than would otherwise be required in a specific zoning district.

(B) Conditional use versus variances.

(1) An application for a variance seeks permission to do something which is not in conformance with the zoning chapter. A variance is an overriding of the legislative judgment, justified by the existence of either an unnecessary hardship or a practical difficulty in physically or practically meeting the exact terms or specifications of the zoning chapter.

(2) In contrast, an applicant for a conditional use does not seek to “vary” the chapter. The permission he or she seeks is one permitted by the chapter, but with special conditions attached to ensure protection of the health, safety and welfare of the neighborhood and the general public.

(3) Accordingly, while the applicant for a variance must show both an unnecessary hardship or practical difficulty and consistency with the public interest, a conditional use petition generally involves only the latter issue.

(C) Authority to grant. The authority to review plans and grant conditional use permits shall rest with the Board of Zoning Appeals.

(D) Types of conditional use exceptions. Land uses which create safety, traffic, noise or other undesirable problems, and therefore require conditional use permits include:

(1) Uses deemed necessary for the convenience of the community’s residents which require special deliberation as to locale because of their inherent tendency to create noise, traffic or density problems;

(2) Uses which are necessary but incompatible uses within a specific zoning district; and

(3) Uses customarily sited in residential zones but which, because they attract great numbers of people, require special deliberation regarding conditions that must be attached to their permitted use and due consideration of their effect upon neighboring property owners.

(E) Factors of consideration. Before granting a conditional use permit, the Board of Zoning Appeals shall consider the following factors.

(1) Concept of highest and best use. If there are other valid reasons for denying a conditional use permit, the denial may be sustained even if the proposed use is the highest and best use which can be made of the land in question. While a conditional use permit is not generally utilized as a relief from hardship, the impact and financial consequences may properly be considered by the Board.

(2) Traffic congestion. Evidence that a proposed use will create a traffic hazard, undue congestion or some other severe or adverse impact on area traffic may justify denial of a conditional use permit.

(3) Public convenience and welfare. The Board of Zoning Appeals must consider regulations provided in the zoning chapter, including those necessary to protect the public health, safety, welfare and convenience. The applicant must show that the proposed uses will not be offensive to the community health, safety, welfare or convenience. On the other hand, evidence that a particular service is needed may indicate that the permit is reasonably necessary for the public convenience.

(4) Public safety. A conditional use permit may be denied if the proposed use would violate any specific health or safety regulations.

(5) Regulation of competitive uses. The Board of Zoning Appeals shall not deny a permit solely for the purpose of limiting the number of similar businesses in an area. However, the Board may invoke reasonable minimum distances between similar businesses for some legitimate reasons such as safety or traffic.

(6) Effect on neighboring property values. The intended use shall not cause a depreciation of value of adjacent property. In fact, such a finding may support the conclusion that the permit will conflict with the public interest. Future development of a given area should also be considered.

(7) Impact on Comprehensive Development Plan. The issuance or the denial of a conditional use permit may have a direct and significant effect upon the community’s planning scheme. This impact should not be of an adverse nature.

(8) Checklist of development standards. The basic checklist of development standards that may receive special consideration includes, but is not limited to, the following items; which are general criteria to which specific standards may be applied by the Board of Zoning Appeals: ingress and egress to the site and to structures; parking and loading facilities; refuse and other service areas; utility services and facilities; appropriate screening and buffering; yards and open space; health and safety standards; and compatibility with surrounding uses.

(9) Environmental impact statement. The Board of Zoning Appeals may require the applicant for a conditional use to perform an environmental impact study of the area in which the use is proposed. This condition may especially be applied to such examples as confined feed lots, mining or mineral extraction, landfills, stock yards, sewage treatment plants, chemical manufacturing and the like. An environmental impact study shall, if required, be conducted to meet the accepted standards of federal regulatory bodies such as FHWA (Federal Highway Administration).

(10) Legitimate conditional use. The Board of Zoning Appeals shall review the particular facts and circumstances of each application and determine through findings of fact that the proposed use is a appropriate conditional use as established under the provisions of this chapter.

(F) Conditional permit. The Board of Zoning Appeals shall have the authority to impose specific conditions on any conditional use permit. A conditional use permit may be denied where the applicant fails to comply with specific conditions made a part of the permit by the Board, or fails to comply with a reasonable request of the Board for furnishing specific information related to the proposed use.

(G) Filing and notification requirements. Filing and notification requirements for a conditional use are the same as prescribed for variances in § 157.051.

(H) Public hearing. The Board of Zoning Appeals shall hold a public hearing within a reasonable length of time after receipt of an application for a conditional use from the applicant. However, the public hearing shall not be held sooner than ten days after its receipt.

(I) Board action and findings.

(1) Either at the public hearing or within a reasonable length of time thereafter, the Board shall either approve, conditionally approve or disapprove the request. The Board shall further make a finding that the reasons set forth in the application are justifiable and that the development and zoning standards proposed are in conformance with the requirements and intent of the zoning chapter.

(2) No conditional use shall be granted by the Board except at a regular meeting thereof. Before granting a conditional use the Board shall make a determination in writing of its findings for each application. Such findings shall be based upon the Board’s review of the factors of consideration listed in division (E) above.

(Ord. 1997-1, § 130.2(Q), passed 1-22-1997)

§ 157.051 VARIANCE.

(A) A person desiring a variance from the requirements of this section must file a petition with the Board of Zoning Appeals describing the property that is the subject of variance, the type of variance required, the facts pertinent to the variance desired, and a site plan as defined in § 157.039(E).

(B) Following notice to adjoining property owners and the public hearing on the variance, the Board of Zoning Appeals must either grant or deny the petition. No variance may be granted except on a finding of all the following factors:

(1) The approval will not be injurious to the public health, safety, morals and general welfare of the community, nor will it adversely effect the adopted Comprehensive Plan;

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

(3) The strict application of the terms of the zoning chapter will result in practical difficulties in the use of the property;

(4) The variance is not a variance of the use of the property; and

(5) The need for the variance is not created by the applicant.

(C) The Board of Zoning Appeals shall not grant a variance from a use district or classification. The grant of a variance is by resolution of the Board of Zoning Appeals and is not an amendment of this chapter.

(D) The Board may incorporate into the granting of a variance whatever conditions or limitations are necessary to protect adjacent properties and the surrounding neighborhood and effectuate the purpose of this chapter.

(E) Any variance granted by the Board shall expire 12 months after the Board's granting of the variance unless a permit based upon and incorporating the variance is issued prior to the expiration of the 12-month period. The Board may extend the aforementioned 12-month period as the Board may determine is appropriate, provided good cause is shown. An extension of time pursuant to this division may be requested in the original application for variance or in a subsequent application after the grant of the variance but before its expiration.

(F) An improvement location permit that takes into account one or more approved variances may only be issued in conformance with the site plan that was submitted with the petition for variance.

(Ord. 1997-1, § 130.2(R), passed 1-22-1997; Ord. 2022-07, passed 1-25-2023)