A.   The Board of Zoning Appeals shall consist of and continue as a five member board. Members shall be appointed pursuant to I.C. 36-7-4-902, as amended.

   A.   Each Board of Zoning Appeals member shall be appointed for a term of four years pursuant to I.C. 36-7-4-906. Each term shall expire at midnight on December 31 of the fourth year of the four year term; however, members of the Board of Zoning Appeals shall serve until successors are appointed and seated.

   B.   At the first meeting of each year, the Board of Zoning Appeals shall elect a Chairman and Vice-Chairman from its members. The Vice-Chairman may act as Chairman during the absence or disability of the Chairman pursuant to I.C. 36-7-4-912.

   C.   The Board of Zoning Appeals may appoint a Secretary and such employees as are necessary for the discharge of its duties pursuant to I.C. 36-7-4-913 as are approved and budgeted for by the Town Council.

   D.   If a vacancy occurs, the appointing authority shall appoint a member for the unexpired term. The appointing authority should be notified in writing by the Secretary when a member has been absent for three consecutive meetings. Such absences may constitute cause for removal from the Board of Zoning Appeals under I.C. 36-7-4-906(f).

   A.   The Board of Zoning Appeals shall have jurisdiction over all lands subject to the provisions of this appendix as specified in Section 1.3 herein.

   A.   The Board of Zoning Appeals shall have exclusive subject matter jurisdiction over:

      1.   Administrative appeals as described in I.C. 36-7-4-918.1, as amended from time to time;

      2.   Special exceptions;

      3.   Variances from development standards (height, area, bulk); and

      4.   Variances of use, special uses, contingent uses and conditional uses.

   A.   Official action of the Board of Zoning Appeals is not official unless it is authorized by a majority of the entire membership of the Board pursuant to I.C. 36-7-4-911, as may be amended.

   B.   The Town of Waterloo shall provide suitable facilities for the holding of Board of Zoning Appeals meetings and hearings and the storage of its records, documents, and accounts. The town shall also provide sufficient funds in its annual budget for the functioning of said Board and its staff.

   C.   The Board of Zoning Appeals shall have sole authority to adopt any and all rules under I.C. 36-7-4-916, as may be amended, and any and all procedures concerning organization, selection of officers, forms of applications, filing requirements, procedures, notices for and conduction of meetings and public hearings.

   D.   All applications for variances, special exceptions, and requests for appeal shall be filed by the applicant with the Zoning Administrator and in the form prescribed by said Board rules.

   A.   Pursuant to I.C. 36-7-4-909, as may be amended, a member of an Advisory Board of Zoning Appeals may not participate in a hearing or decision of that Board concerning a zoning matter in which such member has a direct or indirect financial interest. The Board of Zoning Appeals shall enter in its records the fact that its member has such a disqualification.

   B.   Pursuant to I.C. 36-7-4-907, as may be amended, the appointing authority may appoint an alternate member to participate with the Board of Zoning Appeals in any hearing or decision if the regular member it has appointed has a disqualification or is otherwise unavailable to participate.

   A.   The Board of Zoning Appeals shall fix a reasonable time for the hearing of administrative appeals, special exceptions, and variances.

   B.   The application and appropriate fee should be submitted a minimum of 30 days prior to the date set for the public hearing.

   C.   The party pursuing the appeal, or applying for the special exception or variance, shall be required to assume costs of public notice and notice to interested parties.

   D.   Public notice in accordance with I.C. 5-3-1-2, as may be amended, and I.C. 5-3-1-4, as may be amended, and due notice to interested parties shall be given at least ten days before the date set for the hearing.

   E.   For the purposes of a special exception, variance, or administrative appeal that may come before the Board of Zoning Appeals in a public hearing, interested parties shall include:

      1.   "Directly Affected" Parties. Parties that are determined to be all persons with a legal interest in the subject property.

      2.   Adjoining Property Owners. Owners of parcel(s) of land that share all, or part of a common lot line with the subject property, are across a street or alley, or are "caddy-corner" from the subject property.

      3.   Affected Property Owners. Those property owners designated by the Planning Department whose use and enjoyment of their property may be affected by the proposed amendment, but whose property does not directly adjoin the property that is subject to the petition.

   F.   The names and mailing addresses of the directly affected, adjoining and affected property owners to be notified are to be ascertained from the real estate tax assessment lists as they appear in the Office of the DeKalb County Auditor.

   G.   Other persons may appear and present relevant evidence at such public hearing.

   H.   Interested parties are to receive written notice by certified mail, or as follows:

      1.   Certified mail PS Form 3800 (or as revised by the United States Postal Service), or signatures of all interested parties on a form provided by the BZA shall be considered evidence that notices have been given. Personal appearance at the hearing shall constitute evidence of notice.

   I.   A notice of public hearing shall contain at a minimum the following information:

      1.   Docket number and the substance of the matter to be heard.

      2.   General location by address, or other identifiable geographic characteristics of the property.

      3.   Name of the person, agency, or entity initiating the matter to be heard.

      4.   Time and place of the hearing.

      5.   Statement that the petition may be examined at the Zoning Administrator's office.

      6.   Statement that any person may offer verbal comments at the hearing or may file written comments before, or at, the hearing.

      7.   Any other information that may be required by law to be contained in such notice.

   J.   A petitioner must provide the following items to the Zoning Administrator by 12:00 Noon on the Friday before the advertised hearing date:

      1.   A copy of their petition to the BZA.

      2.   A copy of their fee receipt.

      3.   The certified mail PS Form 3800 (or as revised by the United States Postal Service) sent to the identified adjoining /affected property owners, or the signed and notarized notice forms provided by the Waterloo Planning Department.

      4.   Proof of publication from Kendallville Publishing for the required hearing notices.

      5.   Proof of payment from Kendallville Publishing for the required hearing notice.

      Failure to provide any of these items by the aforementioned deadline will result in the hearing being canceled. The petitioner must re-advertise for a new public hearing to be held.

   K.   A person may not communicate with any member of the Board of Zoning Appeals before the hearing with intent to influence the member's action on a matter pending before the Board.

   L.   Special meetings may be called by the Chairman or by two members of the Board of Zoning Appeals upon written request to the Secretary. Notice including the time and place of the special meeting shall be given to all Board members at least three days before such special meeting. Written notice is not required if:

      1.   The date, time and place of the special meeting are announced at the regular meeting;

      2.   All members of the Board of Zoning Appeals are present at the regular meeting; and

      3.   The Secretary complies with the notice requirement of I.C. 5-14-1.5.

   A.   Any decision of the Zoning Administrator in the enforcement of this appendix may be appealed to the Board of Zoning Appeals by any person claiming to be adversely affected by such decision.

   B.   Decisions of the Board of Zoning Appeals shall be subject to review by a writ of certiorari as prescribed in I.C. 36-7-4-1000 series.

   A.   There shall be no cases or application, nor any particular situation, in which this appendix authorizes special exceptions without a recommendation by the Zoning Administrator and approval of the Board of Zoning Appeals. Further, no previous applications shall set a precedent for any other application before the Board of Zoning Appeals.

   B.   The Board of Zoning Appeals may grant a special exception for a use in a district if, after a public hearing, it makes written findings of facts, that:

      1.   The requirements and development standards for the requested use as prescribed by this appendix will be met;

      2.   Granting the special exception will not subvert the general purposes served by this appendix and will not be harmful to other properties or uses in the same district and vicinity;

      3.   The nature, size and location will be compatible with the immediate area; and

      4.   The use does not conflict with the Comprehensive Plan.

   C.   The Board of Zoning Appeals may impose such reasonable conditions upon its approval, to find that the requirements of subsection B above will be satisfied.

   D.   The Board of Zoning Appeals may permit or require the owner of the parcel of property to make a written commitment concerning the use or development of the parcel as specified in I.C. 36-7-4-921 and have such commitment recorded in the DeKalb County Recorder's Office.

   E.   The granting of a special exception is unnecessary for a use if that use existed on the date this appendix was adopted. However, this subsection shall not authorize the expansion of such a use if it involves the enlargement of a building, structure, or land area.

   F.   A use authorized by special exception may not be expanded, extended, or enlarged unless reauthorized by the Board of Zoning Appeals under the procedures set forth in this appendix for granting a special exception.

   G.   A special exception, granted for a specific use ceases to be authorized and is void if that use is not established within a 12 month period of the date the special exception was granted, or if that use is discontinued at that site for a 12 month period during which time it is not succeeded by the same use specifically authorized as a special exception.

   H.   A special exception may be terminated by the Board of Zoning Appeals, upon filing of an application by an interested person, a member of the staff, or the Zoning Administrator, and upon a finding at a public hearing, with notice to the property owner, that the terms of this appendix, or conditions of approval or commitments have not been complied with.

   A.   The Board of Zoning Appeals may grant a variance of use from the terms of the zoning ordinance if, after a public hearing, it makes a determination in the form of findings of fact in writing, 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 particular 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;

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

   B.   The Board of Zoning Appeals may grant a variance from development standards (such as height, bulk, area) of the zoning ordinance if, after a public hearing, it makes a determination in the form of findings of facts in writing, 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 will not be affected in a substantially adverse manner; and

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

   C.   Whether unnecessary hardships exist, (for a use variance), or whether practical difficulties exist, (for a development standard variance), there are fact questions to be determined by the Board. No single fact determines what constitutes unnecessary hardship, but all relevant factors taken together, must indicate such special conditions that the property cannot reasonably be put to a conforming use because of the limitations imposed by its classification under the zoning ordinance. The existence of unnecessary hardship is not governed by the size of the particular piece of property with respect to which the hardship is claimed. A petitioner for a variance from applicable development standards, seeking to establish practical difficulties in use of the property generally must prove significant economic injury from the enforcement of the zoning ordinance. The Board may also consider in determining the existence of practical difficulties whether any feasible alternative is available within the terms of the ordinance, which will achieve the same goals for the landowner.

   D.   A use variance granted by the Board of Zoning Appeals shall run with the land unless otherwise specifically provided, in writing, by the Board of Zoning Appeals.

   E.   Failure to comply with any conditions imposed by the Board of Zoning Appeals or any commitments made or required by the Board of Zoning Appeals in granting a variance shall be deemed in violation of the zoning ordinance and may be enforced as any other zoning ordinance violation.

(Ord. 05-03, passed 7-12-05)