Chapter 18.05 GENERAL PROVISIONS

Chapter 18.05
GENERAL PROVISIONS

Sections:

18.05.040 Private agreements or deeds.

18.05.010 Title.

This title may be cited as the “zoning code.” [Ord. G-76-10, passed 2-28-77. 1962 Code, Art. 9, Ch. 1, § 2; 1982 Code § 153.001; 1983 Code § 15.153.001.]

The purpose of this title is to promote the public health, safety, and general welfare of the City, to enhance the use and enjoyment of property, and to provide for the regulation of land use in the community, while preserving the right of the individual property owner to use and enjoy his property. These purposes require a zoning ordinance which will define the districts into which the City is divided, the restrictions on the uses within the districts, and the minimum standards for the use of buildings, structures, and land within the districts. [Ord. G-89-17, passed 5-24-89; Ord. G-76-10, passed 2-28-77. 1962 Code, Art. 9, Ch. 1, § 1; 1982 Code § 153.002; 1983 Code § 15.153.002.]

18.05.030 Definitions.

For the purpose of this title, the following definitions shall apply unless the context clearly indicates or requires a different meaning. The Area Plan Commission shall have the right to adopt reasonable rules and regulations further defining the terms used in this code.

“Abutting property owner” means official owner of record whose property is contiguous to the subject property; any property which would touch at any point the subject property ignoring all rights-of-way, easements, alleys, and the like.

“Accessory structure” means a structure subordinate to the principal use of a building on the same lot, and serving a purpose customarily incidental and subordinate to the use of the principal building.

“Adult arcade” means a commercial establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors or similar machines, or other image-producing machines, for viewing by five or fewer persons per machine at any one time, in which a substantial portion (30 percent or more) of the total presentation time of the images so displayed is devoted to the showing of material which meets the definition of “harmful to minors” as specified in IC 35-49-2-2 (and as it may from time to time be amended) and/or represents or displays “sexual conduct” as defined in IC 35-42-4-4 (and as it may from time to time be amended).

“Adult bookstore,” “adult novelty store,” or “adult video store” means a commercial establishment which has a substantial (30 percent or more) portion of its revenues, floor space or advertising associated with the sale or rental, for any form of consideration, of any one or more of the following:

(1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, tapes, records, CD-ROMs or other forms of visual or audio representations which meet the definition of “harmful to minors,” under IC 35-49-2-2 (and as it may from time to time be amended) and/or represent or display “sexual conduct” as defined in IC 35-42-4-4 (and as it may from time to time be amended);

(2) Instruments, devices or paraphernalia which are designed for use in connection with “sexual conduct” as defined in IC 35-42-4-4 (and as it may from time to time be amended).

“Adult cabaret” means a nightclub, bar, restaurant, or similar establishment which features live performances which meet the definition of “harmful to minors” as set forth in IC 35-49-2-2 (and as may from time to time be amended) and/or represents or displays “sexual conduct” as defined in IC 35-42-4-4 to a clientele who pays any form of consideration for such live performance.

“Adult motion picture theater” means an indoor or outdoor facility with a capacity of six or more persons, where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are shown, and in which a substantial portion (30 percent or more) of the total revenue is derived from or substantial time (30 percent or more) is devoted to the showing of such material which meets the definition of “harmful to minors” as defined in IC 35-49-2-2 (and as may from time to time be amended) and/or displays “sexual conduct” as set forth in IC 35-42-4-4 (and as it may from time to time be amended), for observation by patrons.

“Adult theater” means a theater, concert hall, auditorium or similar establishment, either indoor or outdoor, which, for any form of consideration, regularly features live performances, and in which a substantial portion (30 percent or more) of the total presentation time is distinguished or characterized by an emphasis on activities which meet the definition of “harmful to minors” as set forth in IC 35-49-2-2 and/or “sexual conduct” as set for in IC 35-42-4-4.

“Alley” means a public right-of-way intended as a means of access to the rear or side of property.

“Apartment dwelling unit(s)” means a portion of a building containing a room or set of rooms fitted with living, sleeping and/or kitchen facilities and used as a dwelling for one or more persons, but incidental to the principal use. This includes multifamily dwellings rented or leased by bedroom unit.

“Artist” means an individual who practices in the creation, manufacture, exposition, display, sale, teaching, instruction, or assemblage of all art in any forms and media, including persons engaged in culinary arts (except as would qualify as a restaurant). The term “artist” shall apply to painters (excluding paint contractors), sculptors, authors, screenwriters, playwrights, film makers, dancers, potters, weavers, jewelers, exhibitors, printers, costumers, musicians, photographers, architects, engineers, designers, planners, computer programmers, video game developers, and other similar or related uses as approved by the Area Plan Commission Executive Director. The term “artist” shall not be applied to individuals engaged or in the practice of operating a sexually-oriented or adult business as defined with the zoning code.

“Bedroom” means a single bedroom with or without living facilities in an apartment dwelling unit.

“Board” means the Board of Zoning Appeals.

“Board of Health” means the Evansville-Vanderburgh County Health Department.

“Building” means a structure having a roof supported by columns or walls, used or intended to be used for the shelter or enclosure of persons, animals, or property.

“City park” means property owned by the City of Evansville and designated for use as a park or for recreational activities.

“Club” means a building or portion thereof or premises owned or operated for a social, literary, political, educational, or recreational purpose primarily for the exclusive use of members and their guests, but not including any organization, group, or association, the principal activity of which is to render a service usually and ordinarily carried on as a business.

“Commercial” means the purchase, sale, barter, or exchange of goods, wares, merchandise or services intended for profit, or the maintenance or operation of offices or enterprises intended for profit.

“Commercial vehicle” means any vehicle, other than private passenger vehicles, designed, intended, or used for transportation of persons, goods, or things. The term “commercial vehicle” shall also include private passenger vehicles such as pickup trucks, vans, and automobiles which have been structurally or materially altered for use in connection with a commercial use.

“Commission” means the Evansville-Vanderburgh County Area Plan Commission.

“Completely enclosed building” means a building separated on all sides from adjacent open space or from other buildings or other structures by a permanent roof and by exterior walls or party walls, pierced only by windows and entrance and exit doors.

“Corner lot” means a lot abutting on two or more streets at their intersection, or on two parts of the same street, the streets or parts of the same street forming an interior angle of less than 135 degrees.

“Detached building” means a building having no party wall in common with another building.

“Director” means the Director of the Evansville-Vanderburgh Area Plan Commission.

“Duplex” means a dwelling consisting of two dwelling units which may either be attached by a common wall or one above the other.

“Dwelling” means a building or a portion of a building occupied by one family for living and sleeping purposes with kitchen facilities.

“Dwelling unit” means a building or a portion of a building occupied by one family for living and sleeping purposes with kitchen facilities.

“Easement” means an authorization or grant by a property owner to specific persons or to the public to use land for specific purposes.

“Efficiency dwelling unit” means a building or a portion of a building occupied by one family with living, sleeping, and kitchen facilities in one room.

“Family” means one or more persons occupying a single dwelling unit; provided, that, unless all members are related by blood, adoption, or marriage, no such family shall contain over five persons. However, any such unrelated family must provide off-street parking for all “family” vehicles.

“Floodway” means the channel of a river or stream and those portions of the floodplains adjoining the channel which are reasonably required to efficiently carry and discharge peak flood flow of the regulatory flood of any river or stream.

“Floor area” means the sum, in square feet, of all roofed portions of a building, as measured from the outside measurements. Floor area includes the total of all space on all floors of the building.

“Front lot line” means a line separating a lot from a street. In the case of a corner lot, the front lot line is the shorter of any two adjacent lines separating the lot from a street.

“Frontage” means the property abutting one side of a street as measured along the street line, or as measured along the building line of a curve.

“Garage/yard sale” means a public or private sale conducted by the owner or occupant of the premises, conducted within a residence, garage, or other accessory building or outside thereof, which sale is of an item or items of personal property owned or in the possession of the occupant of the premises, which personal property was not acquired by the owner or occupant for the purposes of resale.

“Group home/community residential facility” means a facility which provides residential services for persons in a supervised group living program.

“Home occupation” means uses specifically listed in Use Group 2, conducted entirely within a dwelling and carried on by an occupant thereof, which is clearly incidental and secondary to the use of the dwelling for dwelling purposes and does not change the character thereof. Subject to restrictions as listed in EMC 18.30.010(A)(2). “Home occupation” may also include any such use approved as a special use per Chapter 18.145 EMC.

“Juice bar” means an adult cabaret which does not serve alcoholic beverages.

“Junkyards,” “salvage yards,” “buildings used principally for the storage of junk,” “shops selling principally junk,” and similar operations, means any land, property, structure, building or combination of the same, where junk is stored or processed. “Junk” or “salvage” includes but is not limited to wrecked or inoperable vehicles, parts of vehicles, scrap iron and other metals, wood, paper, rags, rubber, tires, bottles, etc.

“Land” includes water surface and land under water.

“Live/work unit” means a unit containing both a residential and commercial component within the same structure, where a resident of the unit works in the business enterprise that constitutes the commercial component of the unit.

“Lot” means an identifiable parcel of land having frontage on a public street or right-of-way, approved private streets, or acceptable easements.

“Manufactured/modular home” means a dwelling unit fabricated in an off-site manufacturing facility for installation or assembly at the building site, bearing a seal certifying that it is built in compliance with the Federal Manufactured Housing Construction and Safety Standards Code or IC 22-11-1-1 et seq., as promulgated by the Indiana Administrative Building Council. A modular housing unit is constructed in part or in whole at a place other than the foundation site, transported to the foundation site, and assembled on site to create one whole structure. The manufactured home or modular housing unit should include but not be limited to these features: asphalt roof, a roof pitch of at least 2.5:12, house-type windows, doors and siding, and must be placed on a permanent foundation. “Modular homes,” “prefabricated homes,” and other such implied terms shall be deemed to be the same as “manufactured homes.”

“Massage parlor” means any building, room, place or establishment where massages are practiced on the human body with or without the use of mechanical or bath devices, by anyone not a physician, surgeon, or of a similar status, duly registered with and licensed by the State of Indiana.

“Mobile home” means a factory-constructed, transportable structure designed for permanent residential use when placed on a lot and connected to utilities.

“Mobile home site” means that plot of ground within a mobile home park (as defined and controlled by the Indiana State Board of Health) designed for the accommodation of one mobile home.

“Nude model studio” means a place where a person who appears in a state of nudity is observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any other form of consideration, or such display is characterized by an emphasis on activities which meet the definition of “harmful to minors” as set forth in IC 35-49-2-2 (and as it may from time to time be amended) and/or “sexual conduct” as set forth in IC 35-42-4-4 (and as it may from time to time be amended). This definition shall not apply to colleges or universities which are accredited by a nationally recognized accrediting organization.

“Nudity” means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state. “Buttock” means either of the two rounded prominences on the human torso that are posterior to the hips and formed by the gluteal muscles to the hips and underlying structures.

“Open use” means that use of a lot without a building, or with a building incidental to the use with a ground floor area of five percent or less of the area of the lot (e.g., car sales lots, flea markets, etc.).

“Owner-occupied bed and breakfast/boardinghouse” means a bed and breakfast facility or boardinghouse which is individually owned, occupied and managed by the owner-operator who resides in the dwelling as their primary residence.

“Parking garage” means a building, except a “private garage,” used exclusively for public parking of motor vehicles.

“Peep show facility” means an establishment utilizing a device operated manually, mechanically, magnetically, electrically or electronically which exhibits, displays, projects or illuminates photographed, videotaped, or magnetically reproduced images, or exposes live entertainment to the viewer, which viewer is in a booth or stall, distinguished or characterized by an emphasis on matter depicting “sexual conduct” as defined by IC 35-42-4-4 (and as may from time to time be amended) or nudity for observation by patrons thereof.

“Platted ground” means ground platted as provided by Chapter 17.05 EMC.

“Premises” means a lot and the structures located on the lot.

“Principal building” means a building in which is conducted the principal use of the building site on which it is situated.

“Private garage” means a structure for inside parking of motor vehicles (or storage of tools) used solely by the occupants of the principal building.

“Public uses” means public parks, schools, fire stations, police stations, libraries, museums, zoological gardens and parks, City and Town Halls, County Courthouses, utility complexes, including, but not limited to, public land or buildings devoted solely to the storage and maintenance of equipment and materials, and public service facilities.

“Religious institution” means a church, synagogue, mosque, temple or building which is used primarily for religious worship of a supreme being or beings.

“Residence” and “residential” applies to a lot, a structure, or a portion of a structure which is used for any of the uses permitted in the residential districts.

“Right-of-way” means a strip of land occupied or intended to be occupied by transportation facilities, public utilities, or other special public uses. A right-of-way intended for any use involving maintenance by a public agency shall be dedicated to the public use by the maker of the plat on which the right-of-way is established.

“Setback” means the minimum distance between the street right-of-way, rear or side lot lines, and the front line, rear line, or side line of the building or any projection.

“Sexual encounter center” means an enterprise that, as one of its business purposes, offers for any form of consideration:

(1) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or

(2) Activities between male and female persons and/or persons of the same sex where one or more persons appears in a state of nudity; or

(3) Where the activities in subsection (1) or (2) of this definition are characterized by an emphasis on activities which meet the definition of “harmful to minors” as set forth in IC 35-49-2-2 (as it may from time to time be amended) and/or “sexual conduct” as set forth in IC 35-42-4-4 (as it may from time to time be amended).

“Site plan” means a map of a site showing lot dimensions, location and size of all buildings, setbacks, green space, ingress-egress, curb cuts, traffic flow plan, parking, or other improvements, whether existing or proposed.

“Street” means a public way established by or maintained under public authority, or a right-of-way dedicated to public use, whether constructed or not.

“Structural alterations” means a change in the structural members of a building, such as walls, columns, beams, or girders.

“Structure” means anything constructed or erected on the ground, or attached to something with a fixed location on the ground, including, but not limited to, buildings, walls, signs, and pools.

“Thoroughfare plan” means the portion of the thoroughfare plan adopted by the Area Plan Commission for the development, improvement, or extension of streets and roads in Evansville and Vanderburgh County, which includes an official map indicating the general location for controlled access, major arterial, minor arterial, and collector streets and roads.

“Thoroughfare setback” means a minimum setback line established by the thoroughfare plan which defines the distance between a structure and the centerline of the street. Thoroughfare line includes both right-of-way line and building setback.

“Use” means the purpose for which land or a structure is designed, occupied, or maintained.

“Use or development commitment” means a written commitment which conforms with IC 36-7-4-613 concerning real estate which is the subject of a petition to amend zoning maps.

“Yard” means space on the same lot with a structure or use, open and unobstructed.

“Zoning” means an enactment by the legislative body of local governments, in which the community is divided into districts or zones in which permitted and special uses are established, as are regulations governing lot size, building bulk, placement, and other development standards. Requirements vary from district to district, but they must be uniform within districts. This title consists of two parts: a text and a map. [Ord. G-2011-8 § 1, passed 5-16-11; Ord. G-96-11, passed 8-19-96; Ord. G-93-34, passed 1-25-94; Ord. G-93-24, passed 12-14-93; Ord. G-89-17, passed 5-24-89; Ord. G-88-29, passed 11-23-88; Ord. G-88-3, passed 3-14-88; Ord. G-78-13, passed 5-4-78; Ord. G-76-10, passed 2-28-77. 1962 Code, Art. 9, Ch. 1, § 3; 1982 Code § 153.003; 1983 Code § 15.153.003.]

18.05.040 Private agreements or deeds.

This title establishes minimum requirements and does not abrogate private agreements or covenants between parties which impose stricter requirements. Where those agreements or deeds impose less strict requirements, however, this title controls. [Ord. G-89-17, passed 5-24-89; Ord. G-76-10, passed 2-28-77. 1962 Code, Art. 9, Ch. 3, § 14; 1982 Code § 153.004; 1983 Code § 15.153.004.]