A.

Establishment. The county advisory board of zoning appeals is hereby established in accordance with IC 36-7-4-900 et seq. For the purpose of this article, the term "board" refers to the county advisory board of zoning appeals.

B.

Composition, jurisdiction and appointment.

i.

The county advisory board of zoning appeals, as hereinabove provided, shall consist of five members.

ii.

The members of the county advisory board of zoning appeals shall be initially appointed pursuant to state law to staggered terms: two members for a four-year term; one member for a three-year term; one member for a two-year term; and one member for a one-year term; and thereafter, each member shall serve for a four-year term.

iii.

Each member shall reside in the geographic area under the jurisdiction of the division of the county advisory board of zoning appeals to which they are appointed.

iv.

Each appointing authority shall appoint one alternative member for each appointed regular member who shall be available to replace the regular member should the regular member become unavailable to attend a meeting.

v.

The county advisory board of zoning appeals shall be initially appointed and serve for the following primary terms:

a.

The board of county commissioners shall appoint a citizen member of the county plan commission who shall serve a term of one year.

b.

The board of county commissioners shall appoint a citizen member (not a member of the county plan commission) who shall serve a term of two years.

c.

The county plan commission shall appoint a citizen member from its own membership who shall serve a term of three years.

d.

The county commission shall appoint a citizen member (not a member of the county plan commission) who shall serve a term of four years.

e.

The board of county commissioners shall appoint a citizen member (not a member of the county plan commission) who shall serve a term of four years.

C.

Organization. At the first meeting of each year, each division of the board shall elect a chairperson and a vice- chairman from among its members. The board may appoint and fix the compensation of a secretary and those employees necessary for this discharge of its duties, all in conformity to and compliance with salaries and compensations fixed by the county commission and state law.

A.

Rules of procedure. In addition to other powers and duties specified by state law, the board shall adopt rules concerning the filing of appeals, applications for variances and special uses, the giving of notice, the conduct of hearings and other subjects or matters as required by state law or as deemed necessary or desirable by the board.

B.

Meetings and records. Except as otherwise provided by law, all meetings of the board shall be open to the public. The board shall keep minutes of its proceedings, keep records of its examinations and other official actions, make written findings of fact in all cases heard by it and record the vote, disqualification, abstention, or failure to vote of each member upon each question. All minutes and records shall be filed in the office of the board and are public records.

C.

Findings and decisions. All decisions of the board on all matters within their jurisdiction and authority shall be in writing supported by specific findings of fact on each material element pertaining to the matter under consideration.

D.

Review by certiorari. Each decision of the board is subject to review by certiorari as prescribed by state law.

A.

Powers and duties. The board:

i.

Shall hear and determine appeals from and review any order, requirement, decision, or determination made by the plan director, a staff member or administrative board designated by ordinance, other than the plan commission, made in the enforcement of the zoning ordinance or the issuance of building and occupancy permits under IC tit. 36, art. 7.

ii.

May reverse or affirm, wholly or partly, or may modify any 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 the powers vested in the person or board from whom the appeal is taken.

iii.

Shall hear, and approve or deny, all special uses as specified in the zoning ordinance. A special use may be approved under this section only upon a written determination as provided in this article.

iv.

The board shall make written findings of fact and decisions as provided in this article pursuant to and consistent with the following criteria:

v.

To grant a special use, the board shall find that:

a.

The establishment, maintenance, or operation of the special uses will not be injurious to the public health, safety, morals, or general welfare of the community.

b.

The special uses will not affect the use and value of other property in the immediate area in a substantially adverse manner.

c.

The establishment of the special uses will be consistent with the character of the district (particularly that area immediately adjacent to the special uses) and the land use permitted therein.

vi.

The board may impose conditions as part of its approval to protect the public health, and for reasons of safety, comfort, and convenience.

vii.

To approve or deny a variance from the development standards, as defined in the district regulations of the zoning ordinance, the board shall determine in writing 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 zoning ordinance would result in a practical difficulty in the use of the property.

viii.

To approve or deny variances of use from the terms of the zoning ordinance, the board shall determine in writing:

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 the zoning ordinance would 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 county comprehensive plan.

ix.

To reverse or modify, in whole or in part, an order, requirement, decision or determination of the plan director, staff member or administrative board (other than the plan commission), the board shall find that the plan director, staff member or administrative board:

a.

Improperly interpreted any relevant portion of a law, ordinance, or rule; or

b.

Improperly took administrative action pertaining to a relevant law, ordinance, or rule; or

c.

Improperly enforced a relevant law, ordinance, or rule.

B.

Commitments. The board may permit or require the owner of a parcel of property to make a written commitment concerning the use or development of that parcel to receive a special use or a variance from the terms of the zoning ordinance. Those commitments shall be recorded in the office of the county recorder and shall take effect upon the granting of the special use or variance. A recorded commitment shall be binding on the owner of the parcel, each subsequent owner, and each other person acquiring an interest in the parcel.

A commitment may be modified or terminated only by a decision of the board made at a public hearing after notice as provided by rule.

A.

Conflict of interest.

i.

No member of the board shall participate in a hearing or decision of the board concerning a matter in which they have a direct or indirect financial interest or, which for any other reason brought to the attention of the board, results in his disqualification either by himself/herself or by the board.

ii.

The board shall enter in its records the fact that a regular member has such a disqualification and the name of the alternate member, if any, who participates in the hearing or decision in place of the regular member.

iii.

Any participating alternate member shall be appointed by the same body which appointed the regular member who has been disqualified.

B.

Communication with board members. No person shall communicate with any board member prior to a hearing or decision with the intent to influence the actions of any member of the board regarding any matter pending before the board. However, the staff may file a written statement with the board setting forth facts or its opinions concerning that matter.