Chapter 18.115
BOARD OF ZONING APPEALS
Sections:
18.115.040 Terms of office – Meetings – Jurisdiction.
18.115.060 Variances from development standards.
18.115.010 Purpose.
The purpose of this chapter is to explain the makeup of, jurisdiction of and procedures to be used by the board of zoning appeals. It should be noted that use variances are permitted by state statute, but the practice of permitting them is not recommended. Use variances have virtually the same effect as rezoning, but without benefit of plan commission review for their relationship to the overall fabric of the comprehensive plan and the potential for adverse consequences thereto. [Ord. 1659 § 1, 2017].
18.115.020 Creation.
There is hereby established the board of zoning appeals of the town of Highland, Indiana. The board of zoning appeals shall be a continuation of the present board of zoning appeals of the town of Highland heretofore established under the advisory plan law, IC 36-7-4-900, as added by acts 1981, P.L. 309 Section 23. [Ord. 1659 § 1, 2017].
18.115.030 Membership.
The board of zoning appeals shall consist of and continue as a five-member board, appointed as follows:
(A) Three citizen members appointed by the town council president of the town of Highland, of whom one must be a member of the plan commission and two must not be members of the plan commission.
(B) One citizen member appointed by the town council (fiscal body) who must not be a member of the plan commission.
(C) One citizen member appointed by the plan commission who must be a member of the plan commission other than the member appointed by the town council of the town of Highland. [Ord. 1659 § 1, 2017].
18.115.040 Terms of office – Meetings – Jurisdiction.
(A) Terms of Office. The term of the board of zoning appeals of the town of Highland shall be as stated, and in accordance with applicable Indiana State statute (IC 36-7-4-902(a)(1) through (3)).
(B) Quorum. The presence of three members of the five-member board shall constitute a quorum.
(C) Territorial Jurisdiction. The board of zoning appeals shall have jurisdiction over all the land subject to the zoning ordinance.
(D) Subject Matter Jurisdiction. The board of zoning appeals shall have exclusive jurisdiction for:
(1) Variances under the statute and this title, except it shall have no jurisdiction to grant a variance from a use district or classification.
(2) Use variances (favorable or unfavorable recommendation to town council).
(3) Appeals, as provided by statute, and including requirements for procurement of improvement location or occupancy permits or any ordinance adopted under IC 36-7-4 or any prior zoning statute, and any other appeals authorized by statute.
(E) Staff. The staff of the board of zoning appeals shall consist of the administrator as defined in this title and such other persons employed by the town of Highland as may from time to time be assigned to assist him or her and the board of zoning appeals.
(F) Rules and Bylaws. The board of zoning appeals shall have sole authority to adopt any and all rules under IC 36-7-4-916 and any and all bylaws concerning organization, selection of officers, forms for applications, filing requirements, other than as to place of filing as herein provided for, procedures, notices for and conduct of meetings. Upon adoption of such rules and bylaws, they shall be applicable to the board of zoning appeals.
(G) Facilities and Funding. The town of Highland shall provide suitable facilities for the holding of board of zoning appeals hearings and the storage of its recorded documents and accounts, and in its annual budget to provide sufficient funds for the functioning of said board and staff.
(H) Filing. All applications for variances, use variances, and requests for appeal shall be filed by the applicant with the staff of the board of zoning appeals.
(I) Hearings. All hearings required for variances, use variances, and appeals shall be by the board of zoning appeals. As per subsection (F) of this section, procedures for public notice setting forth time and place for all hearings by the board of zoning appeals shall be established by the board of zoning appeals. [Ord. 1659 § 1, 2017].
18.115.050 Use variances.
In making its determination to grant or deny a request for a use variance, the board of zoning appeals shall take into consideration all of the following factors:
(A) There shall be no classes of cases or applications, nor any particular situation in which this title authorizes either special uses, special exceptions, or contingent uses.
(B) The board of zoning appeals may approve a use variance in a district if, after a hearing under HMC 18.115.040(I), it makes a finding of fact in writing, that:
(1) The requirements and development standards of the district in which the requested use variance is proposed to be located will be met.
(2) Granting the use variance will not subvert the general purposes served by this title and will not, because of traffic generation, placement of outdoor lighting, noise production or hours of operation, materially or permanently injure other property or uses in the same zoning district and vicinity.
(C) The board may impose such reasonable conditions upon its approval as it deems necessary to find that subsection (B)(2) of this section be served.
(D) The board 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 under IC 36-7-4-921.
(E) The approval of a use variance is unnecessary for a use that existed on the date of adoption or amendment of this title. However, this shall not authorize the expansion of such use if it involves the enlargement of a building, structure, or land area. For the purpose of this section, the use will be considered nonconforming.
(F) A use variance approved by the board may not be expanded, extended, or enlarged unless reapproved by the board under the provisions set forth in this chapter for approving a use variance.
(G) A use variance, approved under subsection (B) of this section or authorized by subsection (E) of this section, ceases to be authorized and is void if that use is not established within a 12-month period of the date the use variance was approved, or if that use is discontinued at that site for a 12-month period, during which time it is not succeeded by the same specifically approved use.
(H) A use variance may be terminated by the board of zoning appeals, upon filing of an application by an interested person or the administrator, and upon a finding at a public hearing, with notice to the property owner, that the terms of this title or conditions of approval or commitments have not been complied with.
(I) For a use variance to be eligible for a public hearing by the board under this section, an applicant must first receive a determination from the administrator that a use variance is required for the intended use or for the expansion, extension or enlargement of a use under subsection (F) of this section. If the board grants the use variance, it shall direct the applicant to apply for an improvement location permit under HMC 18.110.030. If such application complies with this title and with all other applicable codes and ordinances, the administrator shall issue the improvement location permit for the approved use variance. [Ord. 1659 § 1, 2017].
18.115.060 Variances from development standards.
In making its determination to grant or deny a request for a variance from developmental standards, the board of zoning appeals shall take into consideration all of the following factors:
(A) The board may grant a variance from the development standards (such as height, bulk, and area) of the zoning ordinance if, after a public hearing, it makes findings of fact in writing that:
(1) The administrator has determined that the variance is not for a use variance, i.e., a variance from a use district or classification per this section.
(2) The approval will not be injurious to the public health, safety, morals, and general welfare of the community.
(3) The strict application of the terms of this title:
(a) Is being applied to some condition peculiar to the property involved that is not common to other properties in the same zoning district.
(b) Will result in an unusual and unnecessary hardship. The situation shall not be solely self-imposed, nor be based on a perceived reduction of or restriction on economic gain.
(B) The board may permit or require the owner of a parcel to make written commitment concerning the use or development of that parcel or may impose conditions upon that grant of variance.
(C) The variance granted by the board shall run with the land until such time as:
(1) The use of the variance ends.
(2) The property conforms with the chapter as written.
(D) Where the owner has failed to comply with any condition and/or with any commitment permitted or required by the grant of the variance, the board may authorize any action as it may deem appropriate to obtain compliance by the owner with the condition or commitment of the grant, or with the terms of this title in the same manner as if the variance had not been granted. [Ord. 1659 § 1, 2017].
18.115.070 Appeals.
(A) A decision of the administrator enforcing this title may be appealed to the board of zoning appeals by any person who is adversely affected by the decision. On an appeal, the board of zoning appeals may make any decision that the administrator might have made.
(B) All appeals from a decision of the board of zoning appeals shall be made pursuant to IC 36-7-4-1001 through 36-7-4-1020. The person aggrieved by a decision of such board of zoning appeals shall present the petition provided for in IC 36-7-4-1003 to the court within 30 days after the entry of the decision of the board of zoning appeals. [Ord. 1659 § 1, 2017].