Local & State Law

MUNICIPAL CODE OF THE CITY OF GARY, INDIANA

VERSION APRIL 13, 2021 (CURRENT)
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PART II, CHAPTER 123, ARTICLE 2, DIVISION 1

Sec. 123-30 Board of zoning appeals (BZA).

(a)  A board of zoning appeals is created, as set forth in IC 36-7-4-901 and 36-7-4-902. None of the members may hold other elective or appointive office, except as set forth in IC 36-7-4-902. A member must be a resident of the jurisdictional area of the board.

(b)  The members of the board shall be appointed for the following terms: one for a term of one year; one for a term of two years; one for a term of three years; and two for a term of four years. The terms shall expire on the first day of January of the first, second, third, or fourth year, respectively, following the appointment. Thereafter, as the terms expire, each new appointment shall be for a term of four years. If a vacancy occurs, by resignation or otherwise, among the members of the board, the mayor shall appoint a member for the unexpired term.

(c)  At the first meeting of each year, the board shall elect a chairperson and vice-chairperson from its members. The vice-chairperson shall have authority to act as chairperson during the absence or disability of the chairperson. The presence of three members of the board shall be necessary to constitute a quorum. No action of the board is official, however, unless authorized by a majority of the board. The board may appoint and fix the compensation of a secretary and any other employees that are necessary for the discharge of its duties, all in conformity to and compliance with salaries and compensations fixed by the common council.

(d)  The common council shall provide suitable offices for the holding of hearings and the preservation of records, documents, and accounts. The common council may appropriate funds to carry out the duties of the board and the board shall have the authority to expend, under regular city or county procedure, all sums appropriated to it for the purposes and activities authorized herein.

(e)  The members of the board shall serve without salary.

(f)  The board shall adopt all rules concerning the filing of appeals and applications for variances and exceptions, giving of notice, and conduct of hearings, as shall he necessary to carry out its duties as defined herein. The board shall keep minutes of its proceedings, keep records of its examinations and other official acts, and shall record the vote on all actions taken. All minutes and records shall be filed in the office of the board and shall be a public record.

(g)  The board of zoning appeals shall have the powers and duties as set forth in IC 36-7-4-918.1 et seq., and as follows:

(1)  Hear and determine appeals from and review any order, requirement, decision, or determination made by the director of the department of development and planning under this chapter, and as set forth under IC 36-7-4-918.1.

(2)  Hear and pass upon applications for variations from the district regulations provided in this chapter, and as set forth under IC 36-7-4-918.3.

(3)  Authorize upon appeal the variations from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the chapter will result in unnecessary hardship, so that the spirit of the chapter shall be observed and substantial justice done.

(4)  Hear and decide special exceptions to the terms of this chapter upon which the board is required to act.

(5)  The board of zoning appeals shall forward to the common council a listing of all new petitions which are scheduled for hearing before the board, said listing to include the names, addresses, and requests of all petitioners. The listing shall be forwarded on a monthly basis.

(h)  All decisions and findings of the board of zoning appeals, on appeal or upon application for a variation after a hearing, shall be subject to review by court as by law may be provided.

(Code 1960, § 6-1302; Code 1989, § 163.021; Ord. No. 3376; Ord. No. 5737, 7-21-1981; Ord. No. 7414, § 1, 12-17-2002; Ord. No. 8256, § 1(163.021), 2-17-2009)

State Law reference— Authority to establish, IC 36-7-4-901 et seq.

https://library.municode.com/in/gary/codes/code_of_ordinances?nodeId=PTIILADEOR_CH123ZO_ARTIIADEN_DIV1GE_S123-30BOZOAPBZ

PART II, CHAPTER 123, ARTICLE 2, DIVISION 4

Sec. 123-107. - Application.

(a)  In order that the spirit of this chapter may be observed and substantial justice done, the board of zoning appeals may, upon application or appeal, grant the variations enumerated in section 123-108. The board of zoning appeals shall make a finding of fact that, owing to special conditions, a literal enforcement of the provision of this chapter would result in
unnecessary hardship.

(b)  In making its determination as to whether there is unnecessary hardship, the board of zoning appeals shall take into consideration the extent to which the following conditions, all favorable to the applicant or appellant, have been established by the evidence:

(1)  The particular physical surroundings shape or topographical conditions of the specific property involved would result in a particular hardship upon the owner, as distinguished from a mere inconvenience, if the strict letter of the regulations were carried out.

(2)  The conditions upon which the requested variation is based would not be applicable, generally, to other property within the same zoning classification.

(3)  The alleged difficulty or hardship has not been created by any person presently having an interest in the property.

(4)  The granting of the variation will not be materially detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.

(5)  The proposed variation is within the purposes of this chapter (section 123-2) and but more specifically, but not limited to the following: will not impair an adequate supply of light and air to adjacent property, substantially increase the congestion in the public streets, increase the danger of fire, endanger the public safety, substantially diminish or impair property values within the neighborhood; improves access management; or will not negatively impact or effect ecologically/scientifically significant natural areas, fish and wildlife habitat areas, or identified natural features or mitigate any negative impacts.

(c)  The board of zoning appeals may impose conditions and restrictions upon the premises benefited by a variation as may be necessary to prevent injurious effects therefrom upon other property in the neighborhood and better to carry out the general intent of this chapter.

(Code 1960, § 6-1306; Code 1989, § 163.030; Ord. No. 3376; Ord. No. 3761; Ord. No. 8256, § 1(163.030), 2-17-2009)

Sec. 123-108. - Standards for granting variances.

Variations from the regulations of this chapter shall be granted by the board of zoning appeals only in accordance with the standards set forth in section 123-107, and may be granted in the following instances only, and in no others:

(1)  Permit the use of a temporary building for the business of manufacturing, in any district, for a use otherwise excluded from that district, provided the use is incidental to the construction of new buildings and facilities and the development of that district and that the use shall not continue for a period of more than one year.

(2)  Permit the reconstruction within 12 months of a building located in a district restricted against the use, which has been damaged by fire or other causes to the extent of not more than 50 percent of its replacement value, exclusive of foundations and land; however, when the reconstruction becomes involved in litigation, the time involved shall not be counted as a part of the 12 months allowed for reconstruction.

(3)  Permit the extension of any district where the boundary line of a district divides a zoning lot, provided the zoning lot is in single ownership on May 19, 1964.

(4)  Permit any yard of less dimension than required by the applicable regulations.

(5)  Permit any building or structure to exceed the height limitations imposed by the applicable regulations.

(6)  Permit the use of a lot for a use otherwise prohibited because of insufficient lot dimensions or area, but in no event shall the area of the lot be less than 90 percent of the required lot area.

(7)  Permit the alteration or enlargement of an existing building or use located on premises in a district which prohibits the use of land or buildings, the height and area of buildings existing on December 3, 1957, where the alteration or enlargement is a necessary incident to the use of the structure existing on December 3, 1957. However, the alteration or enlargement shall in no case be extended more than 50 feet from a structure existing at the time of adoption or amendment of this chapter.

(8)  Extend the period within which a nonconforming business or manufacturing use is to be removed from a dwelling district when the owner or owners can furnish substantial proof that the building was so extensively remodeled, reconstructed, or structurally altered after the original construction that it practically resulted in a new building having a valuation of more than $5,000. However, the extension of the period shall not exceed the termination periods, established in section 123-88 from the date of the remodeling, reconstruction, or structural alteration.

(9)  Interpret the provisions of this chapter where the ground varies from the street layout as shown on the zoning map.

(10)  Reduce the applicable off-street parking or loading facilities required.

(11)  Increase by not more than 25 percent the maximum distance that required parking spaces are permitted to be located from the use served.

(12)  Permit the same off-street parking facilities to qualify as a required facility for two or more uses, provided the substantial use of the facility by each user does not take place at approximately the same hours of the same days of the week.

(13)  Permit front yard fences.

(14)  Permit other variances, not provided for in this section, which are required to expand, alter, or renovate institutions of public service, religious, philanthropic, or eleemosynary use existing on May 24, 1964.

(15)  Permit the use of a lot of record which is less than the prescribed zoning lot in lineal and area dimensions but whose frontage is greater than 50 percent in width of every improved zoning lot on the same block on the same side of the street at the time of construction. However, if the lot of record is in the same ownership on or after the effective date of the ordinance from which this chapter is derived as an adjoining unimproved lot on the same street, it shall not be improved with a residential use unless both lots are combined in a single zoning lot for this purpose or unless further subdivision produces the requisite minimum lot width.

(16)  Permit signs to exceed height limitations.

(17)  A proposed alteration or rehabilitation, development or redevelopment of land or a structure provides for the implementation of sustainable growth principles and initiatives as approved by the commission.

(Code 1960, § 6-1307; Code 1989, § 163.031; Ord. No. 3376; Ord. No. 3948; Ord. No. 4017; Ord. No. 4318; Ord. No. 8256, § 1(163.031), 2-17-2009)

Sec. 123-109. - Public hearing.

(a)  An application for a variation shall be filed with the board of zoning appeals. The application shall be in the form and shall contain the information that the board shall from time to time prescribe by general rule. Upon receiving an application for a variation, the board shall, according to its rules of procedure, fix a reasonable time for a public hearing thereon and give public notice of the hearing.

(b)  An appeal may be taken to the board of zoning appeals by any person, firm, or corporation, or office, department, board, or bureau affected by a decision of the office of the director of the department of development and planning. The appeal shall specify the grounds thereof and shall be filed within the time and in the form as may be prescribed by the board by general rule. The director shall, upon 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.

(c)  The board shall fix a reasonable time for the hearing of an appeal. Public notice shall be given of the hearing and due notice shall be given additionally to the interested parties. The board may require the party taking the appeal to assume the cost of public notice and due notice to interested parties. At the hearing, any party may appear in person, by agent, or by attorney.

(d)  When an appeal from the decision of the director has been taken and filed with the board of zoning appeals, all proceedings and work on the premises concerning which the decision was made shall be stayed unless the director certifies to the board that, by reason of facts stated in the certificate, a stay would cause imminent peril to life or property. In that case, proceedings or work shall not be stayed except by a restraining order which may be granted by the board of zoning appeals or by a circuit or superior court of Lake County, on application of notice to the director and the owner of the premises affected and on due cause shown. After the owner or his agents or persons, or a corporation in charge of the work on the premises affected have received notice that an appeal has been filed with the board, the director shall have full power to order the work discontinued or stayed and to call upon the police power of the city or county to give full force and effect to the order.

(e)  In exercising its powers, the board may, upon the concurring vote of three members, reverse or affirm, partly or wholly, or may modify the order, requirement, decision, or determination appealed from as in its opinion ought to be done in the premises; and to that end it shall have all the powers of the director.

(Code 1960, §§ 6-1308, 6-1309; Code 1989, § 163.032; Ord. No. 3376; Ord. No. 8256, § 1(163.032), 2-17-2009)

Sec. 123-110. - Special exceptions.

(a)  The board of zoning appeals shall hear and decide on applications for special exceptions to the terms of this zoning code in the classes of cases set forth in this section. The board may authorize an exception if it has determined that the authorization is consistent with the spirit of this chapter and that the exception will not be materially detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located. After a public hearing noticed and held in the manner prescribed in section 123-109 for variations and appeals, the board may allow as a special exception the following:

(1)  The same off-street parking facility to qualify as a shared parking facility for two or more uses, provided the substantial use of the facility by each user does not take place at approximately the same hours of the same days of the week.

(2)  A nonconforming use or building to be continued beyond the period of time prescribed in section 123-88 for the termination thereof is permitted; provided the extension of time is granted within six months before the end of the original period and is no longer than the original termination period. The board may, after public hearing noticed and-held, renew any extension of time within six months before the end thereof but not longer than the original termination period, and in no case for longer than ten years.

(3)  In a residentially zoned district on sites not less than ten acres in area, outdoor recreation uses, but not including the dispensing of food or beverages, or any merchandise or equipment not directly related to the recreational use, is permitted. In addition, the following requirements must be met.

a.  Paved off-street parking is provided in an amount as determined by the board of zoning appeals.

b.  Trash and litter control and waste collection areas are provided by the petitioner.

(4)  In M2 and M3 districts, the treatment, storage and disposal of toxic waste or infectious materials, but only if the use has:

a.  Been reviewed and a report issued by the city environmental affairs department, the city fire department and the city health and human services department. The review shall be conducted using any available information and shall include any applicable United States Environmental Protection Agency, the state department of environmental management or local, state or federal laws, regulations or standards;

b.  The department's report, including a recommendation as to whether the health and safety standards have met, has been submitted to the zoning administrator, and

c.  Met the health and safety standards set by the departments listed above.

(5)  The petitioner documents and presents to the commission that proposed special exception provides for the implementation of sustainable growth principles and initiatives as approved by the commission.

(b)  The board of zoning appeals may impose those restrictions and conditions upon the premises benefited by an exception as may be necessary to prevent injurious effects therefrom upon other property in the neighborhood and better to carry out the general intent of this chapter.

(Code 1960, § 6-1310; Code 1989, § 163.033; Ord. No. 3376; Ord. No. 4144; Ord. No. 4515, 12-13-1970; Ord. No. 7394, § 2, 11-6-2002; Ord. No. 8256, § 1(163.033), 2-17-2009)

PART II, CHAPTER 123, ARTICLE 3, DIVISION 1

ARTICLE III. - ZONING DISTRICTS
DIVISION 1. - GENERALLY

Sec. 123-134. - Division of districts.
In order to carry out the purposes and provisions of this article, the city is divided into the following zoning districts:

(1)  Residence districts.

PART II, CHAPTER 123, ARTICLE 3, DIVISION 2

DIVISION 2. - RESIDENCE DISTRICTS
Sec. 123-154. - Use and bulk regulations.
Use and bulk regulations applying specifically to residence districts are set forth in this division. Also applying to residence districts are additional regulations set forth as follows:

(1)  Article I of this chapter.
(2)  Article II of this chapter.
(3)  Article V of this chapter.
(4)   Chapter 117.

(Code 1960, § 6-601; Code 1989, § 163.050; Ord. No. 3376; Ord. No. 8256, § 1(163.050), 2-17-2009)

Sec. 123-155. - R1 and R1A One-Family Dwelling Districts.

(a)  The following land uses are authorized as permitted uses:

(1)  Residential uses, as follows: single-family detached dwellings.

(2)  Community services uses, as follows: schools, elementary and high, non-boarding and including playgrounds and athletic fields auxiliary thereto.

(3)  Miscellaneous uses, as follows: agricultural uses, including nurseries and truck gardens but not including the raising of poultry or livestock, provided no offensive odor or dust is created and there is no sale of products not produced on the premises.

(4)  Uses incidental to principal permitted uses, as follows:

a.  Accessory uses.

b.  Home occupations to permit by exception existing beauty shops and barbershops licensed by the state whose operation does not involve employed persons and is distinct and separate from residential quarters, provided the ownership, location, and license number are registered within 30 days after the adoption of this amendment in the office of the plan commission and the use is not reinstituted if terminated or relinquished for any reason by the original registrant.

c.  Temporary buildings for construction purposes, for a period not to exceed the duration of the construction.

(b)  The following land uses are authorized as transitional land uses section 123-59(a):

(1)  When bordering a residential or business district, a two-family detached dwellings and group living structures.

(2)  When tangential to a business district, principal offices of professional persons for the practice of medicine, dentistry, law, architecture, engineering and similar professions. Each office must he situated in the same dwelling unit as the home of the occupant, with not more than two persons other than members of the occupant's immediate family employed; and the residential character of the exterior of the dwelling shall be entirely maintained, except for the display of the accessory business signs permitted under the provisions of chapter 117.

(c)  The following land uses may be allowed as special uses by approval of the board of zoning appeals of the city in accordance with this chapter:

(1)  Cemeteries, including crematories and mausoleums in conjunction therewith, if not located within 300 feet of any other property in a residence district.

(2)  Colleges or universities, but not business colleges or trade schools.

(3)  Convents and monasteries.

(4)  Hospitals, nursing home/convalescent center; assisted living center; intermediate care facility; independent living center; group home - community residence, state-licensed;

(5)  Golf courses, but not including commercially-operated driving ranges or miniature golf courses.

(6)  Institutions for children.

(7)  Open spaces, parks, playgrounds, and community centers, publicly and privately owned and operated.

(8)  Planned developments, residential.

(9)  Public utility and public service uses, including the following:

a.  Bus turnarounds (off-street).

b.  Fire stations.

c.  Police stations.

d.  Public art galleries and museums.

e.  Telephone exchanges.

f.  Railroad facilities.

g.  Water filtration plants.

h.  Water pumping stations.

i.  Public libraries.

j.  Water reservoirs.

k.  Electric and gas public utilities.

(10)  Community and recreational buildings, privately owned and operated, not-for profit.

(11)  Nursery schools and day care.

(12)  Type I manufactured homes.

(13)  Accessory off-street motor vehicle parking lots for other than residential uses.

(14)  Churches, temples, mosques, or other places of religious worship, including rectors and parish houses.

(d)  Every single-family detached dwelling hereafter erected and every two-family detached dwelling hereafter established as a transitional land use shall be on a zoning lot having a minimum area of 5,000 square feet and a minimum width of 59 feet at the building line. However, a lot of record on the effective date of the ordinance from which this chapter is derived which is less than 5,000 square feet in area or 40 feet in width may be improved with a single-family detached dwelling or a two-family detached dwelling as a transitional land use where authorized by the board of appeals in accordance with the provisions of this chapter.

(e)  Minimum lot sizes for special uses shall be prescribed by the common council with the advice of the plan commission at the time a special use permit is authorized, but in no case shall any lot size be less than 12,000 square feet in area nor less than 80 feet in width.

(f)  The floor area ratio of buildings and structures on a zoning lot shall not exceed 0.5.

(g)  The maximum building coverage on a zoning lot shall not exceed 40 percent.

(h)  On every zoning lot, a front yard shall be provided. In no case shall the front yard be less in depth than 25 feet or 20 percent of the lot depth, whichever is less. The minimum depth shall be extended to not more than 40 feet where lots comprising 40 percent of the frontage on the same street and within the same block are developed, with buildings having front yards with a variation of not more than ten feet in depth, the average of front, yards to establish the minimum front yard depth for the entire frontage of the street within the same block.

(1)  For buildings exceeding 25 feet in height, the minimum front yard determined above shall be increased by one foot for each two feet or fraction thereof by which the building height exceeds 25 feet, but in no case shall a front yard of more than 40 feet be required.

(2)  Required front yards shall be unobstructed from ground level to sky except as otherwise provided in section 123-333.

(i)  On every zoning lot, side yards shall be provided as follows:

(1)  On a lot improved with a single-family detached dwelling of one story in height, a side yard shall be provided along each side lot line. The combined widths of both side yards shall be at least 12 feet or 20 percent of the lot width, whichever is less, provided neither side yard is less than five feet in width.

(2)  On a lot improved with a one-family detached dwelling of more than one story in height above grade, or with a two-family detached dwelling as a transitional land use, a side yard shall be provided along each side lot line. The combined widths of both side yards shall be at least 15 feet or 25 percent of the lot width, whichever is less, provided neither side yard is less than five feet in width.

(3)  For all other buildings on a lot improved with a building other than a residential dwelling, a side yard shall be provided along each side lot line. Each side yard shall be not less in width than one-half of the building height as defined in this chapter, but in no case less than 15 feet; however, this paragraph shall not pertain to section 123-155(a).

(4)  On a reversed corner lot, the side yard adjacent to the street shall not in any case be less than ten feet in width, except as provided in section 123-155(i)(5).

(5)  If a lot of record on the effective date of the ordinance from which this chapter is derived which is 40 feet or less in width is to be improved with a one-family detached dwelling, and if an adjacent lot is already improved with a principal building, the side yard contiguous to the adjacent improved lot may be reduced below five feet but not below three feet, provided there is a minimum distance of ten feet between buildings and provided the combined width of both side yards of the subject lot shall in no case be less than eight feet.

(6)  Required side yards shall be unobstructed from ground level to sky except as otherwise provided in section 123-333.

(j)  On every zoning lot, a rear yard shall be provided. The rear yard shall be not less in depth than two-thirds of the building height, as defined in this chapter, but in no case less than 30 feet. Required rear yards shall be unobstructed from ground level to sky, except as otherwise provided in section 123-333.

(k)  A one-story residential dwelling hereafter erected shall not have a total ground floor area of less than 1,200 square feet, and a dwelling of more than one story shall not have a total floor area of less than 1,500 square feet. For the purposes of this determination, each floor shall be considered to be a continuous and unbroken surface extending to the exterior surfaces of exterior walls, but the following shall not be included in the measurement of floor area: basements or cellars if more than 25 percent of the story height is below finished grade; open porches; breezeways; accessory buildings, attached or detached; and other spaces not designed primarily for dwelling purposes.

(Code 1960, §§ 6-602—6-605, 6-607—6-610, 6-611—6-613; Code 1989, § 163.051; Ord. No. 3376; Ord. No. 3376; Ord. No. 3402; Ord. No. 3752; Ord. No. 3764; Ord. No. 3812; Ord. No. 3924; Ord. No. 3937; Ord. No. 4016; Ord. No. 4018; Ord. No. 4058; Ord. No. 4264; Ord. No. 4316; Ord. No. 4515, 12-13-1970; Ord. No. 5965, 2-7-1984; Ord. No. 6894, §§ 2—4, 5-20-1997; Ord. No. 8256, § 1(163.051), 2-17-2009)

DIVISION 18. - BOARD OF ZONING APPEALS[27]
Footnotes: --- (27) ---
State Law reference— Board of zoning appeals, IC 36-7-4-901 et seq.

Sec. 2-1693. - Members of board of zoning appeals.

The board of zoning appeals consists of five members as follows:

(1)  Three citizen members appointed by the mayor, of whom one must be a member of the plan commission and two must not be members of the plan commission.

(2)  One citizen member appointed by the common council, who must not be a member of the plan commission.

(3)  One member appointed by the plan commission from the plan commission's membership, who must be a county agricultural agent or a citizen member of the

plan commission other than the member appointed under subsection (1) of this section.

(Code 1982, § 35.022)

State Law reference— Similar provisions, IC 36-7-4-902.

common council ...

Sec. 2-476. - Ethics commission and hearing procedure.

(a)  There shall be an ethics commission which shall consist of three members as follows:

(1)  An ethics officer who shall be a resident of the city appointed by majority vote of the common council and who shall be subject to removal by majority vote of the common council. In the event the ethics officer is determined to have engaged in unethical conduct and is removed from that position, he may request a due process review by the common council. The duties of the ethics officer include, but are not limited to the following:

a.  Investigate reports of possible unethical activity.

b.  Review case dispositions of possible unethical activity.

c.  Create ethics and compliance training programs.

d.  Encourage city officials, appointees and employees to comply with applicable laws and regulations and adhere to the highest standards of ethical behavior.

The ethics officer shall serve with or without compensation as determined by the common council. Persons who have been city employees or officials or an independent contractor hired by the city during the preceding 12-month period shall be ineligible to serve as the ethics officer.

(2)  The mayor.

(3)  The chairperson or president of the board, commission or committee of the alleged noncompliant person or other member of the board, commission or committee if the alleged noncompliant person is the chairperson or president. If the situation involves a department head or a member of the common council, the director of human resources may serve.

(b)  The ethics committee shall conduct the hearing using the following procedure:

(1)  The ethics commission shall have the power to pass rules of procedure as necessary and proper to carry out its duties.

(2)  The affected party may request the presence of, or representation by, an attorney or other person during the hearing, provided that written notice is given at least seven calendar days in advance of the hearing.

(3)  A complaint alleging a violation of this division shall be in writing and notarized. Complaints should be submitted to the mayor, the president of the common council and the ethics commission chairperson who shall distribute a copy of the complaint to all members of the ethics commission. The ethics officer, who shall serve as chairperson of the ethics commission, shall serve written notice by certified mail to the affected party that a complaint has been filed against him and a copy of the complaint.

(4)  If the ethics commission determines that there has been a violation of a state statute, the ethics commission may immediately refer the complaint to the appropriate law enforcement agency and the county prosecutor.

(5)  In the event the ethics commission finds there is reason to believe there was noncompliance with this division, the clerk shall notify the affected public official or employee within two business days after said determination has been made that a preliminary hearing will take place not later than ten days from the date of said notice. The affected person may request a continuance of said hearing and, if approved by the commission, a date will be scheduled not later than 30 days after the original preliminary hearing date. The person accused of the violation shall have the right to be represented by counsel and shall be allowed to examine evidence presented to the commission. The only evidence to be considered must be given under oath or affirmation.

(6)  If the commission does not find that a violation of this division has occurred, the complaint will be dismissed and a written dismissal shall be submitted to the affected public official. If the commission has determined a violation of this division, it may recommend discipline and/or sanctions up to and including dismissal from employment to the appropriate office or board of the city. A sanction may include a requirement that a gift or loan be returned, or that the appointing authority consider removing the person in violation from the appointed position for just cause consistent with state law.

(Ord. No. 8119, § 11, 9-4-2007)

State Law

IC 36-4-5-3

Powers and duties [mayor]

     Sec. 3. The executive shall:

(1) enforce the ordinances of the city and the statutes of the state;

(2) provide a statement of the finances and general condition of the city to the city legislative body at least once a year;

(3) provide any information regarding city affairs that the legislative body requests;

(4) recommend, in writing, to the legislative body actions that the executive considers proper;

(5) call special meetings of the legislative body when necessary;

(6) supervise subordinate officers;

(7) insure efficient government of the city;

(8) fill vacancies in city offices when required by IC 3-13-8;

(9) sign all bonds, deeds, and contracts of the city and all licenses issued by the city; and

(10) approve or veto ordinances, orders, and resolutions of the legislative body under IC 36-4-6-15.

[Pre-Local Government Recodification Citation: 18-1-6-2 part.]

As added by Acts 1980, P.L.212, SEC.3. Amended by P.L.5-1986, SEC.49.

IC 36-7-1-4

"Board of zoning appeals"

     Sec. 4. "Board of zoning appeals", unless preceded by a qualifying adjective, refers to a board of zoning appeals under either the advisory planning law, the area planning law, or the metropolitan development law.

[Pre-Local Government Recodification Citations: 18-7-4-104; 18-7-4-2 part.]

As added by Acts 1981, P.L.309, SEC.4.

IC 36-7-4-909

Board of zoning appeals; members; conflict of interest; disqualification

     Sec. 909. (a) A member of a board of zoning appeals is disqualified and may not participate in a hearing or decision of that board concerning a zoning matter if the member:

(1) is biased or prejudiced or otherwise unable to be impartial; or

(2) has a direct or indirect financial interest in the outcome of the hearing or the decision.

     (b) The board shall enter in the board's records:

(1) the fact that a regular member has such a disqualification; and

(2) the name of the alternate member, if any, who participates in the hearing or decision in place of the regular member.

[Pre-Local Government Recodification Citations: 18-7-4-909; 18-7-5-1 part.]

As added by Acts 1981, P.L.309, SEC.23. Amended by Acts 1981, P.L.310, SEC.44; P.L.357-1983, SEC.6; P.L.126-2011, SEC.29.

IC 36-7-4-914

Board of zoning appeals; facilities

     Sec. 914. The plan commission shall provide for suitable facilities for the holding of board of zoning appeals' hearings and for the preserving of records, documents, and accounts.

[Pre-Local Government Recodification Citations: 18-7-2-66; 18-7-4-914; 18-7-4-74; 18-7-5-78.]

As added by Acts 1981, P.L.309, SEC.23. Amended by P.L.357-1983, SEC.7.

IC 36-7-4-915

Board of zoning appeals; minutes and records

     Sec. 915. The board of zoning appeals shall keep minutes of its proceedings and record the vote on all actions taken. All minutes and records shall be filed in the office of the board and are public records. The board shall in all cases heard by it make written findings of fact.

[Pre-Local Government Recodification Citations: 18-7-2-69 part; 18-7-4-915; 18-7-4-77 part; 18-7-5-81 part.]

As added by Acts 1981, P.L.309, SEC.23. Amended by Acts 1981, P.L.310, SEC.46.

IC 36-7-4-916

Board of zoning appeals; rules

     Sec. 916. (a) The board of zoning appeals shall adopt rules, which may not conflict with the zoning ordinance, concerning:

(1) the filing of appeals;

(2) the application for variances, special exceptions, special uses, contingent uses, and conditional uses;

(3) the giving of notice;

(4) the conduct of hearings; and

(5) the determination of whether a variance application is for a variance of use or for a variance from the development standards (such as height, bulk, or area).

     (b) The board of zoning appeals may also adopt rules providing for:

(1) subject to section 916.5 of this chapter (in the case of a metropolitan board of zoning appeals), the allocation of cases filed among the divisions of the board of zoning appeals; and

(2) the fixing of dates for hearings by the divisions.

     (c) Rules adopted by the board of zoning appeals shall be printed and be made available to all applicants and other interested persons.

[Pre-Local Government Recodification Citations: 18-7-2-59 part; 18-7-2-69 part; 18-7-4-916; 18-7-4-77 part; 18-7-5-81 part.]

As added by Acts 1981, P.L.309, SEC.23. Amended by Acts 1981, P.L.310, SEC.47; Acts 1982, P.L.212, SEC.4; P.L.357-1983, SEC.8; P.L.161-2021, SEC.8.

IC 36-7-4-918.5

Board of zoning appeals; variance from development standards

     Sec. 918.5. (a) A board of zoning appeals shall approve or deny variances from the development standards (such as height, bulk, or area) of the zoning ordinance. The board may impose reasonable conditions as a part of the board's approval. A variance may be approved under this section only upon a determination 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; and

(3) the strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property. However, the zoning ordinance may establish a stricter standard than the "practical difficulties" standard prescribed by this subdivision.

IC 36-7-4-919

Board of zoning appeals; appeal to board; grounds; record; decision

     Sec. 919. (a) 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 may be prescribed by the board of zoning appeals by rule.

     (b) The administrative official, hearing officer, 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.

     (c) Certified copies of the documents, plans, and papers constituting the record may be transmitted for purposes of subsection (b).

     (d) Upon appeal, the board may reverse, affirm, or modify the order, requirement, decision, or determination appealed from. For this purpose, the board has all the powers of the official, officer, board, or body from which the appeal is taken.

     (e) The board shall make a decision on any matter that it is required to hear under the 900 series either:

(1) at the meeting at which that matter is first presented; or

(2) at the conclusion of the hearing on that matter, if it is continued.

     (f) Within five (5) days after making any decision under the 900 series, the board of zoning appeals shall file in the office of the board a copy of its decision.

[Pre-Local Government Recodification Citations: 18-7-2-70 part; 18-7-4-919; 18-7-4-79; 18-7-5-83.]

As added by Acts 1981, P.L.309, SEC.23. Amended by Acts 1981, P.L.310, SEC.49; P.L.357-1983, SEC.16.

IC 36-7-4-1016

Judicial review of zoning decisions

     Sec. 1016. (a) Final decisions of the board of zoning appeals under:

(1) the 900 series of this chapter (administrative appeals, exceptions, uses, and variances); or

(2) section 1015 of this chapter (appeals of commitment modifications or terminations);

are considered zoning decisions for purposes of this chapter and are subject to judicial review in accordance with the 1600 series of this chapter.

     (b) The following decisions of the plan commission are considered zoning decisions for purposes of this chapter and are subject to judicial review in the same manner as that provided for the appeal of a final decision of the board of zoning appeals under subsection (a):

(1) A final decision under the 700 series of this chapter (subdivision control).

(2) A final decision under section 1015 of this chapter (appeal of a commitment modification or termination).

(3) A final decision under the 1400 series of this chapter (development plans).

(4) A final decision under the 1500 series of this chapter (planned unit development), when authority to make a final decision is delegated to the plan commission by the legislative body under section 1511 of this chapter.

     (c) Notwithstanding subsection (b)(2), decisions of a legislative body under section 1015(b)(6) or 1015(b)(10) of this chapter are not considered zoning decisions for purposes of this chapter and are not subject to judicial review in accordance with the 1600 series of this chapter.

     (d) Final decisions of preservation commissions under IC 36-7-11, IC 36-7-11.1, IC 36-7-11.2, or IC 36-7-11.3 (certificates of appropriateness) are considered zoning decisions for purposes of this chapter and are subject to judicial review in the same manner as that provided for the appeal of a final decision of the board of zoning appeals under subsection (a).

     (e) Final decisions of zoning administrators under IC 14-28-4-18 (improvement location permits within flood plain areas) are considered zoning decisions for purposes of this chapter and are subject to judicial review in the same manner as that provided for the appeal of a final decision of the board of zoning appeals under subsection (a).

     (f) The following actions are legislative acts and are not considered zoning decisions for purposes of this chapter:

(1) Adopting or approving a comprehensive plan under the 500 series of this chapter.

(2) Certifying with or without a recommendation a proposal under the 600 series of this chapter.

(3) Adopting, rejecting, or amending a zoning ordinance under the 600 series of this chapter.

(4) Adopting, rejecting, or amending an impact fee ordinance under the 1300 series of this chapter.

(5) Designating a zoning district where a development plan is required under the 1400 series of this chapter.

(6) Adopting, rejecting, or amending a PUD district ordinance under the 1500 series of this chapter.

(7) Adopting, rejecting, or amending a flood plain zoning ordinance under IC 14-28-4.

(8) Certifying a recommendation, or modifying or terminating a commitment, under section 1015(b)(6) or 1015(b)(10) of this chapter.

[Pre-Local Government Recodification Citations: 18-7-4-1016; 18-7-5-57.]

As added by Acts 1981, P.L.309, SEC.23. Amended by Acts 1981, P.L.310, SEC.57; P.L.320-1995, SEC.21; P.L.126-2011, SEC.37; P.L.130-2014, SEC.2.

IC 36-7-4-1600

1600 Series-Judicial review

     Sec. 1600. This series (sections 1600 through 1699 of this chapter) may be cited as follows: 1600 SERIES─JUDICIAL REVIEW.

As added by P.L.126-2011, SEC.47.

IC 36-7-4-1601

Exclusive means for judicial review of zoning decisions

     Sec. 1601. (a) This series establishes the exclusive means for judicial review of zoning decisions as described in section 1003 or 1016 of this chapter, made by a board of zoning appeals, legislative body, plan commission, preservation commission, or zoning administrator (referred to as the "board" in this series).

     (b) A legislative act is not subject to judicial review under this series.

As added by P.L.126-2011, SEC.48.

IC 36-7-4-1602

Initiation of judicial review; required showing

     Sec. 1602. (a) Judicial review of a zoning decision is initiated by filing a petition for review in the appropriate court.

     (b) Only a person who qualifies under:

(1) section 1603 of this chapter concerning standing;

(2) section 1604 of this chapter concerning exhaustion of administrative remedies;

(3) section 1605 of this chapter concerning the time for filing a petition for review; and

(4) section 1613 of this chapter concerning the time for filing the board record for review;

is entitled to judicial review of a final zoning decision.

     (c) A person is entitled to judicial review of a nonfinal zoning decision only if the person establishes both of the following:

(1) Immediate and irreparable harm.

(2) No adequate remedy exists at law. The failure of a person to comply with the procedural requirements of this chapter may not be the basis for a finding of an inadequate remedy at law.

As added by P.L.126-2011, SEC.49.

IC 36-7-4-1603

Standing

     Sec. 1603. (a) The following have standing to obtain judicial review of a zoning decision:

(1) A person to whom the zoning decision is specifically directed.

(2) A person aggrieved by the zoning decision who participated in the board hearing that led to the decision, either:

(A) by appearing at the hearing in person, by agent, or by attorney and presenting relevant evidence; or

(B) by filing with the board a written statement setting forth any facts or opinions relating to the decision.

(3) A person that is a public use airport owner or operator has standing to obtain judicial review of a zoning decision that may have a negative impact on the safety of civilian or military flight operations to or from the airport.

(4) A person otherwise aggrieved or adversely affected by the zoning decision.

     (b) A person has standing under subsection (a)(4) only if:

(1) the zoning decision has prejudiced or is likely to prejudice the interests of the person;

(2) the person was eligible for an initial notice of a hearing under this chapter, was not notified of the hearing in substantial compliance with this chapter, and did not have actual notice of the hearing before the last date in the hearing that the person could object or otherwise intervene to contest the zoning decision;

(3) the person's asserted interests are among those that the board was required to consider when it made the challenged zoning decision; and

(4) a judgment in favor of the person would substantially eliminate or redress the prejudice to the person caused or likely to be caused by the zoning decision.

As added by P.L.126-2011, SEC.50. Amended by P.L.71-2020, SEC.3.

IC 36-7-4-1604

Exhaustion of remedies

     Sec. 1604. (a) A person may file a petition for judicial review under this chapter only after exhausting all administrative remedies available within the board whose zoning decision is being challenged.

     (b) A person who fails to timely object to a zoning decision or timely petition for review of a zoning decision within the period prescribed by this chapter waives the person's right to judicial review under this chapter.

As added by P.L.126-2011, SEC.51.

IC 36-7-4-1605

Timeliness of petition for review

     Sec. 1605. A petition for review is timely only if the petition for review is filed not later than thirty (30) days after the date of the zoning decision that is the subject of the petition for judicial review.

As added by P.L.126-2011, SEC.52.

IC 36-7-4-1609

Petition for order staying zoning decision pending review

     Sec. 1609. (a) A person seeking judicial review may seek, by filing a verified petition, an order of the court staying the zoning decision pending review by the court. The court may enter an order staying the zoning decision pending a final determination if:

(1) the court finds that the petition for review and the petition for a stay order show a reasonable probability that the zoning decision appealed from is invalid or illegal; and

(2) a bond is filed that is conditioned upon the due prosecution of the proceeding for review and that the petitioner will pay all court costs and abide by the zoning decision if it is not set aside. The bond must be in the amount and with the surety approved by the court. However, the amount of the bond must be at least five hundred dollars ($500).

     (b) If a petition for review concerns a revocation or suspension of a previously approved variance, exception, or use, any stay ordered under subsection (a) is effective during the period of the review and any appeal from the review and until the review is finally determined, unless otherwise ordered by the court granting the stay. If the stay is granted as provided in this section and the zoning decision is approved on final determination, the revocation or suspension of the variance, exception, or use immediately becomes effective.

As added by P.L.126-2011, SEC.56.