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

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

   (A)   A person desiring a variance from the terms of this subchapter shall submit a written application for variance approval with the Director.

   (B)   An application for variance approval shall:

      (1)   Be made on the forms available at the Planning Department office 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 or 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 Director;

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

      (5)   Be accompanied by two 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 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 Director; and

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

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

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

   (A)   Within 30 days after receiving a complete application, the Director 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 Director shall provide the applicant with written notice of the hearing date and time.

   (B)   Prior to the Board of Zoning Appeals hearing on the application, the Director shall review the application for compliance with this chapter. Following such review and prior to the hearing, the Director shall prepare and provide the Board of Zoning Appeals and the applicant with the Director’s written comments and recommendation on the application, including the Director’s opinion as to any effect which the proposed variance might have upon the Comprehensive Plan.

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

   (D)   Notice of the Board of Zoning Appeals hearing on the application for variance approval shall be published by the applicant in two local newspapers of general circulation at least ten days prior to the hearing, in accordance with I.C. 5-3-1. The applicant shall pay all fees and costs associated herewith.

   (E)   At least ten days prior to the Board of Zoning Appeals hearing on the application for variance approval, the Planning Director, 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. The applicant shall pay all fees and costs associated herewith.

   (F)   At least ten days prior to the Board of Zoning Appeals hearing on the application for variance approval, the Planning Director 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 Director. The cost of the sign shall be borne by the applicant.

   (G)   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.

   (H)   Following the Board of Zoning Appeals hearing on the application for variance approval, the Board shall take action on the applicant’s application. The Board may approve the application, approve the application with conditions or deny the application.

   (I)   The Board of Zoning Appeals shall make written findings of fact in support of its decision. The Director shall promptly provide the applicant with a copy of the Board’s written findings.

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

   (K)   If the Board of Zoning Appeals denies the application for variance approval, the applicant may file an amended application. If the amended application is filed within six months of the Board’s denial of the original application, the applicant shall not be charged an application fee.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003; BC Ord. 2006-6, passed 3-6-2006)

   With respect to use variances, the Board shall have the authority to require an applicant to perform an environmental impact study appropriate to the situation in which the use is proposed and to submit the results of the study to the Board.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

   In order to approve a use variance, the Board must 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;

   (C)   The need for the variance arises from some condition peculiar to the property involved;

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

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

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

   In order to approve an application for a design standards variance, the Board must 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 this chapter will result in practical difficulties in the use of the property.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)

   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 the Director for furnishing specific information related to the proposed variance. Failure to comply with the conditions of approval shall constitute a violation of this chapter.

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003) Penalty, see § 155.999

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

(BC Ord. passed 1-22-2003; BC Ord. passed 3-26-2003)