North Manchester City Zoning Code
BOARD OF
ZONING APPEALS
§ 156.510 ESTABLISHMENT.
A Board of Zoning Appeals is hereby established with membership and appointment provided in accordance with the laws of the state (I.C. 36-7-4).
(Ord. passed 9-26-2006)
§ 156.511 ORGANIZATION.
At the first meeting of each year, the Board shall elect a Chairperson and a Vice-Chairperson from among its members, and it may appoint and fix the compensation of a Secretary and such employees as are necessary for the discharge of its duties, all in conformity to and compliance with salaries and compensation theretofore fixed by the legislative authority.
(Ord. passed 9-26-2006)
§ 156.512 RULES OF PROCEDURE.
The Board shall adopt rules and regulations as it may deem necessary to effectuate the provisions of this chapter.
(Ord. passed 9-26-2006)
§ 156.513 MEETINGS AND RECORDS.
All meetings of the Board shall be open to the public. The Board shall keep written minutes of its proceedings, keep records of its examinations and other official actions, prepare findings and record the vote of each member voting upon each question. All minutes and records shall be filed in the office of the Board and shall be a public record.
(Ord. passed 9-26-2006)
§ 156.514 APPEAL.
Any decision of the Building Commissioner in the enforcement of this chapter may be appealed to the Board of Zoning Appeals by any aggrieved person or party that is or may be adversely affected by such decision within 60 days of such decision.
(Ord. passed 9-26-2006)
§ 156.515 POWERS AND DUTIES OF THE BOARD.
(A) The Board shall have the following powers, and it shall be its duty to:
(1) Hear and determine appeals from and review any order, requirement, decision or determination made by the Building Commissioner in the enforcement of this chapter;
(2) Permit and authorize exceptions to the district regulations only in the classes or cases or in particular situation as specified in the ordinance or by state law;
(4) Authorize, upon appeal, in specific cases such variances from the terms of this chapter as will not be contrary to the public interest, where owing to special conditions, fully demonstrated on the basis of the facts presented, a literal enforcement of the provisions of this chapter will result in unnecessary hardship and so that the spirit of this chapter shall be observed and substantial justice done.
(B) In exercising its powers, the Board may reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination appealed from as in its opinion ought to be done in the premises, and to that end shall have all of the powers of the Building Commissioner from whom the appeal is taken.
(Ord. passed 9-26-2006)
§ 156.516 VARIANCES.
(A) General. The Board of Zoning Appeals may authorize upon appeal in specific cases such variances from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship. No non-conforming use of neighboring lands, structures or buildings in the same district and no permitted or non-conforming use of lands, structures or buildings in other districts shall be considered grounds for issuance of a variance. variances shall not be granted on the grounds of convenience or profit, but only where strict application of the provisions of this chapter would result in unnecessary hardship.
(B) Submission requirements. The following information is required for the application of a variance request:
(1) Name, address and phone number(s) of applicants;
(2) Legal description of property and location of map (sketch) showing relation of property to adjacent roads and property;
(3) Description of nature of variance requested; and
(4) A narrative statement demonstrating that the requested variance conforms to the requirements of this section.
(C) Granting variances. In carrying into effect its powers to grant variances, the Board shall be guided by the following criteria:
(1) There are exceptional or extraordinary circumstances or conditions applicable to the property or to the intended use that do not apply generally to the other property or class of use in the same vicinity and district;
(2) Because of the particular physical surroundings, shape or topographic conditions of the specific property involved, an unusual and unnecessary hardship to the owner would result, as distinguished from a mere inconvenience or economic hardship, if the strict letter of the ordinance were to be carried out;
(3) Such variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property in the same vicinity and district, but which is denied to the property in question;
(4) The alleged difficulty or hardship is caused by the ordinance and has not been caused by any persons presently having an interest in the property;
(5) Granting of the variance will not constitute a change of use in the district or classification;
(6) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;
(7) The approval will not be injurious to the public health, safety and general welfare of the community; and
(8) The approval does not interfere substantially with the comprehensive plan then in effect.
(D) Additional conditions and safeguards. The Board may further impose such conditions and restrictions on the use benefitted by a variance as are necessary to meet the standards established and the intent of this chapter.
(E) Expiration of variance. A variance granted by the Board shall be deemed null and void unless a building permit was issued and work thereon is substantially underway within 12 months of the granting of said variance, or within the period of time beyond 12 months as may be granted by the Board.
(F) Restrictions on Board actions on variances.
(1) Every decision of the Board shall be subject to review by certiorari.
(2) No variance in the application of the provisions of this chapter or to development standards (such as height, bulk, area or setbacks) shall be made by the Board relating to buildings, land or premises, now existing or to be used or constructed, unless after public hearing, the Board shall find that:
(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 the ordinance will result in practical difficulties in the use of the property.
(3) No variance in the application of the provisions of this chapter as to use shall be made by the Board of Zoning Appeals. The use of property shall be determined by the zoning districts provided or by the special exception provisions.
(Ord. passed 9-26-2006)
§ 156.517 NOTICE OF PUBLIC HEARING IN NEWSPAPER AND TO INTERESTED PARTIES.
Notice of public hearings for amendments to this chapter shall be as prescribed in I.C. 5-3-1.
(Ord. passed 9-26-2006)
§ 156.518 ACTION BY THE BOARD OF ZONING APPEALS.
Within 35 days after the public hearing required in § 156.517 of this chapter, the Board of Zoning Appeals shall either approve, approve with supplementary conditions or disapprove the request for an appeal or variance.
(Ord. passed 9-26-2006)
§ 156.519 SPECIAL EXCEPTION USES.
(A) Application. Upon receipt of a properly completed application and development plan for a special exception use permit, the Building Commissioner shall transmit to the Plan Commission for investigation as to the manner in which the proposed location and character of the special exception use will affect the comprehensive development plan of the town. The Plan Commission shall report the results of its study of the application to the Board of Zoning Appeals including the recommendation of any additional conditions recommended by the Commission and shall be scheduled for a public hearing in accordance with state statues.
(B) Notice. Notice of the public hearing for the special exception use shall be provided in accordance with the requirements of I.C. 36-7-4-920 through 36-7-4-921.
(C) Action by Board of Zoning Appeals.
(1) The Board of Zoning Appeals, shall, after public notice and the close of the hearing according to law, take one of the following actions:
(a) Approve the application as submitted;
(b) Approve the application subject to the additional conditions as recommended by the Plan Commission and set forth in § 156.448(A) of this chapter;
(c) Table the application for further consideration; or
(d) Deny the application.
(2) Upon reaching a decision, the Board of Zoning Appeals shall instruct the Building Commissioner to notify the applicant, in writing, of its decision. If the application is approved or approved with conditions, the Board of Zoning Appeals shall also instruct the Building Commissioner to issue a special exception permit which shall specify all conditions associated with the special exception approval.
(Ord. passed 9-26-2006)
§ 156.999 PENALTY.
(A) Notice. Any person or corporation who shall violate any of the provisions of this chapter or fail to comply therewith or with any of the requirements thereof, or who shall alter the use of land or build, reconstruct or structurally alter any building without first securing an improvement location permit, or who shall build, reconstruct or structurally alter any building in violation of any detailed statement of plan submitted and approved thereunder, or who shall occupy such altered land use or new or structurally altered building prior to securing a certificate of occupancy, shall, for each and every violation or non-compliance be guilty of a misdemeanor and, upon conviction, shall be fined up to the maximum permitted by state law per day that said violation continues to exist.
(B) Notice of violation. The notice of any violation of this chapter shall be as follows.
(1) Whenever the Building Commissioner determines that there is a violation of any provision of this chapter, a notice of such violation shall be issued. Such notice shall:
(a) Be in writing;
(b) Identify the violation;
(c) Include a statement of the reason or reasons why it is being issued and refer to the subchapter and section of this chapter being violated; and
(d) State the time by which the violation shall be corrected.
(2) Service of notice of the violation shall be as follows:
(a) By personal delivery to the person or persons responsible, or by leaving the notice at the usual place of residence of the owner with a person of 16 years or older;
(b) By certified mail, and first class mail simultaneously, addressed to the person or persons responsible at a last known address. Service shall be deemed complete when the fact of the mailing is entered of record, provided that the first class mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery; or
(c) By posting a copy of the notice form in a conspicuous place on the premises found in violation.
(C) Remedies.
(1) The Commission, the Board, the Building Commissioner or any designated enforcement official or any person or persons, firm or corporation jointly or severally aggrieved, may institute a suit for injunction in the Circuit Court of the county to restrain an individual or a government unit from violating the provisions of this chapter.
(2) The Commission or the Board may also institute a suit for mandatory injunction directing any individual, a corporation or a governmental unit to remove a structure erected in violation of the provisions of this chapter or the requirements thereof.
(3) Any building, erected, raised or converted, or land or premises used in violation of any provisions of this chapter or the requirements thereof, is hereby declared to be a common nuisance and as such may be abated in such a manner as nuisances are now or may hereafter be abated under existing law.
(Ord. passed 9-26-2006)