Chapter 17.36
ADMINISTRATION AND ENFORCEMENT
Sections:
17.36.010 Enforcement by plan commission.
17.36.020 Improvement location permits/ zoning use permits.
17.36.030 Improvement location permits--Temporary permits and occupancy permits.
17.36.040 Amendments.
17.36.050 Commission action and commitments.
17.36.060 County commission action.
17.36.070 Time limits.
17.36.080 Board of zoning appeals.
17.36.090 Procedures--Board of zoning appeals.
17.36.100 Requirements for variance.
17.36.110 Appeals before the board of appeals.
17.36.120 Time limits.
17.36.130 Appeals from board decisions.
17.36.140 Fees.
17.36.150 Violation--Penalty.
17.36.010 Enforcement by plan commission.
A. The area plan commission shall enforce this title by doing the following:
1. Conduct inspections of buildings and/or uses to determine compliance with this title;
2. Order discontinuance of violations in a written notice or in a Notice of Ordinance Violation sent or issued to the person responsible for the violation.
3. Issue civil penalties when appropriate to help bring about compliance with this title as prescribed in 17.36.150 A.1. and 17.26.050 B. 7.
B. The director, who may delegate to employees under his jurisdiction, shall have the following duties:
1. Issue improvement location permits, temporary and occupancy permits, and special use permits;
2. Maintain permanent records of improvement location permits, variances, special use permits, and amendments to this title;
3. Make amendments to the zoning district maps upon enactment, publication, and recording of rezoning ordinance;
4. Prepare factual reports pertaining to any variance, special use, or amendment to this title;
5. Prepare variances and special uses provided for in this title, and prepare amendments to this title.
(Ord. 07-09-013 § 1, amended 8/11/09; prior code § 153.155)
17.36.020 Improvement location permits/ zoning use permits.
A. For purposes of this chapter, the terms “improvement location permits” and “zoning use permits” have the same meaning.
B. Issuance.
1. No building or other structure shall be erected, moved, relocated, added to, or structurally altered; nor shall any building, structure or land be established or changed in use without first obtaining an improvement location permit from the area plan
commission.
2. An application for an improvement location permit must be filed with the commission and must include the following:
a. A site plan for the principal and accessory structures and uses, existing and proposed, showing size, location on lot, and lot size;
b. Except for one and two-family dwellings and accessory buildings, the site plan must also show the following:
i. The exact property lines of property, including existing street and right-of-way lines,
ii. Adjacent properties on the same and the opposite frontage, indicating the entrance and exits to those properties,
iii. The exact location and dimensions of access drives to the property, service drives, existing and proposed curbcuts, and proposed directions of traffic flow on the property and into and from public rights-of-way,
iv. The exact location and dimensions of any necessary frontage roads, acceleration and deceleration lanes, and passing blisters,
v. The exact location, dimension, and type of off-street parking and loading facilities;
vi. Use group 21 uses are subject to the additional requirements as detailed in 17.24.240;
c. The name and address of the person seeking approval;
d. Properties which abut any street designated as requiring a thoroughfare setback per Chapter 12.20, must indicate the appropriate setback on the site plan;
e. Any other plans or specifications which the area plan commission deems necessary to determine whether the plans conform to this title.
3. One-family dwellings, duplexes, and accessory structures in approved subdivisions shall not be forwarded to the site review committee, but shall be approved if applicable code requirements are met. All other applications shall be forwarded to the site review committee consisting of the following persons:
a. The director of the area plan commission, who shall serve as chairman;
b. A traffic engineer, appointed by the mayor;
c. The county engineer; and
d. One other person appointed by the president of the area plan commission.
4. The site review committee shall either approve the site plan or state in writing its reasons for disapproval. The disapproval of a site plan may be appealed to the board of zoning appeals.
5. The site review committee may allow exceptions from this section if the purposes of the code and of the general welfare of the community are not adversely affected. Any member of the committee may appeal decisions of the committee concerning exceptions to the board of zoning appeals.
6. Apartment complexes with eight or more units shall have subdivision review committee approval and drainage approval.
7. The director of the area plan commission shall, after approval of the site plan by the site review committee, issue an improvement location permit if the building and/or use conform to this title.
8. Land and buildings may be used or constructed only for the use for which the current improvement location permit was issued.
9. The improvement location permit must be displayed on the premises during any construction or alteration.
C. Improvement Location Permits-Revocation and Voiding.
1. An improvement location permit may be revoked after at least ten (10) days written notice, if the conditions of the zoning code requirements and/or the conditions of the permit are not met.
2. An improvement location permit is void if construction has not been started or the use has not been established within six months of the date of issuance.
(17.36.020 (B) (2) (b) (vi.) added, 7/15/2008) (Prior code § 153.156)
17.36.030 Improvement location permits--Temporary permits and occupancy permits.
Temporary permits and occupancy permits may be granted by the director of the area plan commission after approval of the site review committee.
(Prior code § 153.157)
17.36.040 Amendments.
A. A proposed ordinance for amendment or repeal of the zoning code may be proposed by a member of the county commission to the county commission; the area plan commission to the county commission; or by petition of owners of property of at least fifty (50) percent of the area involved in the petition either to the county commission or to the area plan commission.
B. No later than twenty-one (21) days prior to first reading by the county commission, the petitioner must provide to the county commission the following:
1. A petition describing the property that is the subject of the desired amendment, the amendment desired, and any facts pertinent to the request;
2. A location map;
3. An ordinance;
4. A site plan as defined in Section 17.36.020;
5. Costs of publication of the ordinance;
6. Costs of recording the ordinance.
C. All petitions shall be filed with the required number of copies on eight and one-half by eleven (11) inch paper with the petition as the first document, map as second document, and ordinance as the third document. In addition, six copies of a site plan must accompany these documents.
D. The petitioner shall determine from the designated newspaper the costs of publication of the ordinance and shall file with his petition a certified check made payable to that designated newspaper for required amount.
E. The petitioner will file with his petition a certified check made payable to the county recorder for the costs of recording.
F. The county commission shall assign the petition and ordinance to area plan commission for hearing and recommendations. A proposed ordinance for the amendment or repeal of the zoning code must be referred to the area plan commission for consideration and report before any final action is taken by the legislative body. Upon receiving or initiating a proposed ordinance, the commission shall, within sixty (60) days, hold a public hearing on the proposed ordinance.
1. Notice of the public hearing shall be published one time at least ten (10) days before the date of the area plan commission hearing.
2. A notice must be posted on the property by the petitioner, in a place visible to the public, no less than twelve (12) days prior to the area plan commission hearing.
3. A notice of hearings must be mailed by the petitioner by certified mail, return receipt, to each of the abutting property owners, no less than twelve (12) days prior to the area plan commission hearing.
4. Costs of the notices shall be borne by the petitioner.
G. Prior to the public hearing by the commission, the petitioner must file with the county auditor a copy of the letter of notice, an affidavit listing the abutting property owners, and the date notices were mailed and return receipts.
H. Whenever the County Commissioners shall change by ordinance the district boundaries or classifications of property, the County Auditor shall record a copy of the ordinance, including any use and development commitment, with the county Recorder immediately after the effective date.
I. Use or Development Commitments.
1. At the time of filing the petition to amend zoning maps, the petitioner may file a use or development commitment, or both, as defined in Section 17.08.030.
2. If a use or development commitment is filed or amended after consideration of the rezoning petition of the area plan commission, the petition together with the use or development commitment, may be heard or reheard by the area plan commission to enable the area plan commission to vote on the petition with the use or development commitment in its final form. No use or development commitment shall be considered by the Vanderburgh County commission until it has been considered in its final form by the area plan commission.
3. If the petition is to be reheard by the area plan commission, as provided in subsection (I)(2) of this section, the petitioner shall again notify all abutting property owners (listed in the affidavit filed pursuant to subsection F of this section) and counsel of record by certified mail.
4. If a use and development commitment is included in an ordinance adopted by the
County Commissioners to rezone property, the ordinance shall include the following language: “the subject property herein rezoned shall be used and developed only in accordance with the use and development commitment which is incorporated as part of this Petition for Rezoning and recorded in the office of the Recorder of Vanderburgh County, Indiana on _________ [date] at Instrument No. _______________. No improvement location permit shall be issued unless the proposed use is in compliance with said recorded use and development commitment.
J. An amendment to the submitted ordinance documents after final filing deadline shall be cause for automatic continuance of the hearing by area plan commission. The petitioner shall notify the abutting property owners pursuant to subsection F of this section.
(17.36.041 Subsections H & I amended 4/1/2008) (Ord. dated 2/22/94 §§ 1, 2; prior code § 153.158)
17.36.050 Commission action and commitments.
A. Following a public hearing at which any interested person may appear to testify against or support the petition, the area plan commission shall recommend either the passage, denial, or passage with amendments of the petition and ordinance.
B. The area plan commission and the legislative body shall pay reasonable regard to the following:
1. The amendment conforms to the comprehensive plan;
2. Current conditions and the character of current structures and uses in each district;
3. The most desirable use for which the land in each district is adapted;
4. The conservation of property values throughout the jurisdiction;
5. Responsible development and growth;
6. The zoning classification of the property is improper and the amendment will correct the improper classification;
7. Major physical, economic, or social changes have substantially altered the area in a manner not anticipated in the comprehensive plan, and the amendment will assist the development of the area consistent with the changes.
C. The commitments and recommendations of the commission shall become part of the record.
(Prior code § 153.159)
17.36.060 County commission action.
Within thirty (30) days after the hearing on the proposed ordinance for amendment or repeal of the zoning code, the secretary of the area plan commission shall provide to the county commission a written report that indicates the recommendations of the commission concerning the ordinance. Within ninety (90) days after receiving the report of the commission concerning the proposed ordinance, the county commission shall vote on the proposed ordinance without further amendment. If no vote is taken within ninety (90) days after the commission’s recommendations, the action of the commission is final.
(Prior code § 153.160)
17.36.070 Time limits.
A. The denial of a petition by the county commission or the withdrawal of a petition by the petitioner from the county commission prohibits the area plan commission or county commission from hearing a petition for amendment of that property or any part thereof for twelve (12) months after the date of denial or withdrawal by the commission or petitioner.
B. An exception may be made to subsection A of this section by unanimous vote of the county commission.
(Prior code § 153.161)
17.36.080 Board of zoning appeals.
Establishment. The board of zoning appeals is established by this title. The appointment and terms of the board shall be in accordance with IC 36-7-4-900 et seq.
(Prior code § 153.162)
17.36.090 Procedures--Board of zoning appeals.
A. The board of zoning appeals shall approve or deny all variances, special uses and appeals from the terms of the zoning code, but only in the classes of cases or in the specific situations specified in the zoning code. The board may impose reasonable conditions as part of its approval.
B. The board shall set a date for a public hearing on the petition.
1. Notice of the public hearing shall be published one time before the date of the hearing.
2. Prior to the public hearing by the board of zoning appeals, the petitioner must file in the area plan commission office proof of notification.
3. Cost of the notice must be borne by the petitioner.
4. When an appeal is filed by a member of the review committee regarding a decision made by that committee as set forth in Section 17.36.020(A)(5), notice shall only be sent to all other members of that review committee.
5. A person may not communicate with any member of the board before the hearing with the intent to influence the members’ action on a matter pending before the board. Not less than five days before the hearing, however, the staff of the area plan commission may file with the board a written statement setting forth any facts or data pertinent to the matter.
6. Should the petitioner fail to comply with the notice requirements, as provided by this section, before the second regular meeting of the board of zoning appeals following the date said petition is filed, the petition shall be withdrawn by the board of zoning appeals and the time limits imposed by Section 17.36.120 shall apply.
(Prior code § 153.163)
17.36.100 Requirements for variance.
A. A person desiring a variance from the requirements of this title must file a petition with the board of zoning appeals describing the property that is the subject of the variance, the type of variance required, the facts pertinent to the variance desired, and a site plan as defined in Section 17.36.020.
B. Following the public hearing on the variance, the board of appeals must either grant or deny the petition. No variance may be granted except on a finding of all the following factors:
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 strict application of the terms of the zoning code will result in practical difficulties in the use of the property;
4. The variance is not a variance of the use of the property;
5. The petitioner’s property is not located in a planned unit development; and
6. The need for the variance is not created by the applicant.
C. The board of zoning appeals may not grant a variance from a use district or classification. The grant of a variance is by resolution of the board of zoning appeals and is not an amendment of this title.
D. The board may incorporate into the granting of a variance whatever conditions or limitations are necessary to protect adjacent properties and the surrounding neighborhood and effectuate the purpose of this title.
(Prior code § 153.164)
17.36.110 Appeals before the board of appeals.
A. The board of zoning appeals shall hear and determine appeals from and review:
1. Any order, requirement, decision or determination made by an administrative official or staff member under the zoning code;
2. Any order, requirement, decision or determination made by an administrative board or other body except the Evansville and Vanderburgh County area plan commission in relation to the enforcement of an ordinance requiring the procurement of an improvement location permit or occupancy permit.
B. An appeal filed with the board of zoning appeals must specify the grounds of the appeal and must be filed within such time and in such form as prescribed by the board of zoning appeals by rule.
C. The administrative official, administrative board, or other body from whom the appeal is taken shall, on the request of the board of zoning appeals, transmit to it all documents, plans, and papers constituting the record of the action from which an appeal was taken.
D. Upon appeal, the board may reverse, affirm, or modify the order, requirement, decision, or determination appealed. For this purpose, the board has all the powers of the official, officer, board, or body from which the appeal was taken.
E. Within five days, the board of zoning appeals shall file in the office of the board a copy of its decision.
(Prior code § 153.165)
17.36.120 Time limits.
A. The denial of a petition for a variance, special use, or an appeal by the board of zoning appeals or the withdrawal of such a petition by the petitioner shall prohibit the board of zoning appeals from hearing a petition for a variance, special use, or an appeal for the subject property or a part thereof for twelve (12) months from the date of the denial or withdrawal.
B. An exception may be made to this section upon unanimous vote of the board of zoning appeals.
(Prior code § 153.166)
17.36.130 Appeals from board decisions.
A person aggrieved by a decision of the board of zoning appeals may appeal the decision in the manner provided in IC 36-7-4-1000 et seq.
(Prior code § 153.167)
17.36.140 Fees.
A. The area plan commission shall establish and collect a schedule of reasonable
fees associated with processing and hearing administrative appeals, petitions for rezoning, special uses, variances, subdivisions, reviewing permit applications, issuing permits, and other official actions taken under IC Title 36. The fee schedule shall be posted in a prominent place within the area plan commission office where the fee schedule is readily available to the public.
B. Where construction, remodeling, erection of a structure or placement of a sign, change of use of land or a structure, or any other use for which a permit, rezoning, variance, or special use is required, is started or proceeded with prior to obtaining the required permit, the fee above shall be doubled; but payment of the double fee shall not relieve any person from fully complying with the requirements of this title in the execution of the work or use, nor from any other penalties proscribed.
(Prior code § 153.168)(Updated 12/1/97 (part))
17.36.150 Violation--Penalty.
A. Any person who violates any provision of this title shall be subject to the penalties (or fines) set forth in Section 1.12.010 and the penalties (or fines) set forth below:
1. Any person who violates any provision of the County Zoning Code, Chapters 17.04 through 17.38, and who has received a citation from the Area Plan Commission in the form of a Notice of Ordinance Violation pursuant to Section 1.14.040 shall be subject to a civil penalty (or fine) of up to $500.00 for a first violation. Additional violations within any consecutive 12 month period shall be as follows:
Second violation - $1,000.00 penalty;
Third violation - $2,500.00 penalty;
Fourth violation - $5,000.00 penalty; and
Any additional violation - $7,500 penalty.
2. A court of law may assess additional civil penalties for non-compliance.
3. The civil penalties shall be paid to the County Treasurer within 30 days of the date the citation is issued and corrective action(s) shall be taken as soon as possible to immediately bring the property into compliance with this title as required by ordinance. Violations of a continuing nature shall each be considered a separate offense for each day the property is not in compliance with any provision in this title.
4. Failure to pay the penalty and take the necessary corrective action in a timely manner could result in the County filing suit in Vanderburgh Superior Court for payment of the civil penalty and all related court costs, and to bring about compliance of such property.
B. Any person, firm or corporation, or anyone acting in behalf thereof who shall violate or fail to comply with any of the provisions of this title by conduct or activity or the erection, construction, enlargement, conversion, moving, or maintenance of any building, structure, or use which is continued, operated or maintained, on land or water, used in whole or in part, contrary to any of the provisions of this title is declared to be in violation of this title. The Area Plan Commission may institute appropriate legal action to remove the violation and bring about compliance with this title. The action may also be instituted by any property owner who may be especially damaged by any violation of this title. The remedy provided for herein shall be cumulative and not exclusive and shall be in addition to any other remedies provided by law.
C. The Area Plan Commission may put a hold on issuing any new Improvement Location Permits authorized under this title for any property that is in violation of any provision of this title.
D. A change of venue from the County may not be granted in an action to enforce the provisions of this title.
(Ord. 07-09-013 § 2, amended 8/11/09; prior code § 153.999)