Bill Text: IN HB1245 | 2010 | Regular Session | Introduced
Bill Title: Numerous changes to planning and zoning law.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2010-01-12 - First reading: referred to Committee on Local Government [HB1245 Detail]
Download: Indiana-2010-HB1245-Introduced.html
Citations Affected: IC 14-28-4-18; IC 36-7.
Synopsis: Numerous changes to planning and zoning law. Eliminates
review of zoning decisions by certiorari, and establishes a judicial
review procedure. Provides procedures for vacation of a plat, including
any recorded covenants. Allows a plan commission to adopt a rule to
limit further consideration for up to one year after its disapproval of a
plat or vacation request. Allows a plan commission (or plat committee
acting in its behalf) to: (1) grant waivers from the subdivision control
ordinance; and (2) allow or require a commitment to be made as a
condition of granting a waiver. Makes changes regarding: (1)
qualifications of citizen members of plan commissions and boards of
zoning appeals; (2) appointment of alternate members to all plan
commissions (current law allows only an area plan commission to
appoint alternate members); (3) disqualification of plan commission
and board of zoning appeals members due to financial interest or bias;
(4) publication of the zoning ordinance; and (5) commitments and
conditions. Makes other changes to the planning and zoning law.
Repeals superseded statutes concerning vacation of plats,
commitments, and writ of certiorari.
Effective: July 1, 2010; January 1, 2011.
January 12, 2010, read first time and referred to Committee on Local Government.
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A BILL FOR AN ACT to amend the Indiana Code concerning local
government.
(1) the county auditor;
(2) the county surveyor; or
(3) the municipal clerk or clerk-treasurer;
as applicable, as the zoning administrator who issues improvement location permits within the jurisdiction of the commission and in conformance with the flood plain ordinance.
(b) A final decision of the zoning administrator may be judicially reviewed
a final decision of a board of zoning appeals under IC 36-7-4.
(b) Sections 3 through 9 of this chapter apply only to:
(1) areas subject to the jurisdiction of an advisory plan commission under this article; and
(2) areas subject to the jurisdiction of no plan commission under this article.
(c) Sections 10,
(d) Sections 12, 13, and 15 of this chapter apply to all areas of the state, except in a county having a consolidated city.
(1) this section; or
(2) IC 36-7-4-711.
(b) In a case in which all the owners of land in a plat are in agreement regarding a proposed vacation, the owners may file a written instrument to vacate all or part of that plat. All the owners of land in the plat must declare the plat or part of the plat to be vacated in
(1) the county executive, in the case of land located in an unincorporated area; or
(2) the municipal works board, in the case of land located inside the corporate boundaries of a municipality.
The instrument may be approved under this section without notice or a hearing. The provisions of IC 36-7-4 concerning notice and hearing do not apply to the approval of an instrument under this section.
(1) The vacation would hinder the growth or orderly development of the unit or neighborhood in which it is located or to which it is contiguous.
(2) The vacation would make access to the lands of the aggrieved person by means of public way difficult or inconvenient.
(3) The vacation would hinder the public's access to a church, school, or other public building or place.
(4) The vacation would hinder the use of a public way by the neighborhood in which it is located or to which it is contiguous.
(b) AREA. After the planning department is established and the participating legislative bodies have adopted a zoning ordinance, the
planning department shall exercise exclusively the planning and zoning
functions of the county and of the participating municipalities, except
as provided in section 918 of the area planning law. 901(i) of this
chapter. Where other statutes confer planning and zoning authority on
a participating municipality or a county, their plan commissions shall
continue to exercise that authority until such time as the planning
department is established and the participating legislative bodies adopt
a zoning ordinance.
(1) One (1) member appointed by the county executive from its membership.
(2) One (1) member appointed by the county fiscal body from its membership.
(3) The county surveyor or the county surveyor's designee.
(4) The county agricultural extension educator. However, if the county does not have a county agricultural extension educator, the county extension board shall select a resident of the county who is a property owner with agricultural interest to serve on the commission under this subdivision for a period not to exceed one (1) year.
(5) Five (5) members appointed in accordance with one (1) of the following:
(A) Four (4) citizen members, of whom no more than two (2)
may be of the same political party. Each of the four (4)
members must be:
(i) a resident of an unincorporated area of the county; or
(ii) a resident of the county who is also an owner of real
property located in whole or in part in an unincorporated
area of the county;
appointed by the county executive. However, at least two (2)
of the citizen members must be residents of the unincorporated
area of the county. Also one (1) township trustee, who must be
a resident of an unincorporated area of the county appointed
by the county executive upon the recommendation of the
township trustees whose townships are within the jurisdiction
of the county plan commission.
(B) Five (5) citizen members, of whom not more than three (3)
may be of the same political party. Each of the five (5)
members must be:
(i) a resident of an unincorporated area of the county; or
(ii) a resident of the county who is also an owner of real
property located in whole or in part in an unincorporated
area of the county;
appointed by the county executive. However at least two (2)
members must be residents of the unincorporated area of the
county.
If a county executive changes the plan commission from having
members described in clause (B) to having members described in
clause (A), the county executive shall appoint a township trustee
to replace the first citizen member whose term expires and who
belongs to the same political party as the township trustee. Each
member appointed to the commission is entitled to receive
compensation for mileage at the same rate and the same
compensation for services as a member of a county executive, a
member of a county fiscal body, a county surveyor, or an
appointee of a county surveyor receives for serving on the
commission, as set forth in section 222.5 of this chapter.
(b) ADVISORY. The metropolitan plan commission consists of nine
(9) members, as follows:
(1) One (1) member appointed by the county legislative body
from its membership.
(2) One (1) member appointed by the second class city legislative
body from its membership.
(3) Three (3) citizen members who:
(A) reside in an unincorporated area of the county; or
(B) reside in the county and also own real property located in whole or in part in an unincorporated area of the county;
of whom no more than two (2) may be of the same political party, appointed by the county legislative body. One (1) of these members must be actively engaged in farming.
(4) Four (4) citizen members, of whom no more than two (2) may be of the same political party, appointed by the second class city executive. One (1) of these members must be from the metropolitan school authority or community school corporation and a resident of that school district, and the other three (3) members must be residents of the second class city.
(c) AREA. When there are six (6) county representatives, they are as follows:
(1) One (1) member appointed by the county executive from its membership.
(2) One (1) member appointed by the county fiscal body from its membership.
(3) The county superintendent of schools, or if that office does not exist, a representative appointed by the school corporation superintendents within the jurisdiction of the area plan commission.
(4) One (1) of the following appointed by the county executive:
(A) The county agricultural extension educator.
(B) The county surveyor or the county surveyor's designee.
(5) One (1) citizen member who is:
(A) a resident of the unincorporated area of the county; or
(B) a resident of the county who is also an owner of real property located in whole or in part in the unincorporated area of the county;
appointed by the county executive.
(6) One (1) citizen member who is:
(A) a resident of the unincorporated area of the county; or
(B) a resident of the county who is also an owner of real property located in whole or in part in the unincorporated area of the county;
appointed by the county fiscal body.
(d) AREA. When there are five (5) county representatives, they are the representatives listed or appointed under subsection (c)(3), (c)(4), (c)(5), and (c)(6) and:
(1) the county surveyor or the county surveyor's designee if the county executive appoints the county agricultural extension educator under subsection (c)(4); or
(2) the county agricultural extension educator if the county executive appoints the county surveyor under subsection (c)(4).
(b) AREA. When the number of representatives for a municipality is three (3), one (1) is a member of the legislative body appointed by the legislative body and two (2) are citizen members appointed by the executive.
(c) AREA. When the number of representatives for a municipality is four (4), one (1) is a member of the works board or the board of sanitary commissioners, appointed by the executive, one (1) is a member of the legislative body appointed by the legislative body, and two (2) are citizen members appointed by the executive.
(d) AREA. When the number of representatives for a municipality is five (5) or more, one (1) is a member of the works board or the board of sanitary commissioners, appointed by the executive, one (1) is a member of the legislative body appointed by the legislative body, and the remainder are citizen members appointed by the executive.
(b) A citizen member may not hold:
(1)
IC 3-5-2-17); or
(2) any other appointed office in municipal, county, or state
government;
except for membership on the board of zoning appeals as required
by section 902 of this chapter and, in the case of an area plan
commission, membership on the school board, the park board, or the
board of directors for public utilities or board of trustees for utilities
created under IC 8-1-11.1. body from which the member must be
appointed under this series.
(c) Except as provided in section 208(a)(5), 208(b)(3), 208(c)(5),
and 208(c)(6) of this chapter, a citizen member must be a resident of
the jurisdictional area of the plan commission.
(b) If a vacancy occurs in the office of the county surveyor while the county surveyor is serving on the plan commission, then the county engineer shall
(c) An appointed member who misses three (3) consecutive regular meetings of the
(b) A member of a plan commission or a legislative body is disqualified and may not participate as a member of the plan commission or legislative body in a hearing or
matter legislative act under the 600 series, 1300 series, or 1500
series of this chapter in which the member has a direct or indirect
financial interest. The commission or body shall enter in its records the
fact that its member has such a disqualification.
(c) A member of a plan commission is disqualified and may not
participate in a hearing of that commission concerning a zoning
decision as described in section 1016 of this chapter if:
(1) the member is biased or prejudiced or otherwise unable to
be impartial; or
(2) the member has a direct or indirect financial interest in
the outcome of the zoning decision.
(d) The plan commission shall enter in the plan commission's
records:
(1) the fact that a regular member has a disqualification
under subsection (c); and
(2) the name of the alternate member, if any, who participates
in the hearing in place of the regular member.
(c) (e) A member of a plan commission or a legislative body may
not directly or personally represent another person in a hearing before
that commission or body concerning a zoning matter. decision or a
legislative act.
(d) (f) A member of a plan commission may not receive any mileage
or compensation under section 222.5 of this chapter for attendance at
a meeting if the member is disqualified under subsection (b) during any
part of this section from participating in the entire meeting.
(b) AREA. Each area plan commission shall prescribe the qualifications of, and with the consent of the executive director, fix the compensation of the employees of the planning department, which compensation must conform to salaries and compensations fixed before that time by the county fiscal body. The commission shall delegate authority to its employees to perform ministerial acts in all cases except where final action of the commission or the board of zoning appeals is
required by the area planning law.
(c) METRO. The metropolitan development commission shall
delegate authority to employees of the department of metropolitan
development to perform all ministerial acts in all cases except where
final action of the commission or a board of zoning appeals is required
by the metropolitan development law.
(d) The plan commission may designate delegate to a hearing
examiner or a committee of the commission the authority to conduct
any public hearing required to be held by the commission or make any
decision required to be made by the commission, or both. However,
only a plat committee appointed under section 701(e) of this
chapter may be delegated the authority to make decisions under
the 700 series of this chapter. Such a hearing must be held upon the
same notice and under the same rules as a hearing before the entire
commission, and the examiner or committee shall report findings of
fact and recommendations for decision to the commission The
commission shall by rule provide reasonable opportunity for interested
persons to file exceptions to the findings and recommendations, and if
any exception is filed in accordance with those rules, the commission
shall hold the prescribed hearing. If no exception is filed, the
commission shall or make the decision on behalf of the commission.
A decision made under the authority of this subsection may not be
a basis for judicial review, but it may be appealed to the plan
commission. An interested person who wishes to appeal a decision
made under the authority of this subsection must file the appeal
not later than fourteen (14) days after the date the decision is
made, and the plan commission shall then hold the prescribed
hearing and render its decision. without further hearing.
(e) METRO. The metropolitan development commission may
designate a historic preservation commission created under
IC 36-7-11.1-3 to conduct the public hearing required to be held by the
metropolitan development commission under the 600 series of this
chapter relative to the territory included in a historic area or historic
zoning district created under IC 36-7-11.1-6. The hearing must be held
upon the same notice and under the same rules as a hearing before the
metropolitan development commission. The historic preservation
commission shall report to the metropolitan development commission
the historic preservation commission's findings of fact and
recommendations for decision. The metropolitan development
commission shall by rule provide reasonable opportunity for interested
persons to file exceptions to the findings and recommendations. If an
exception is filed in accordance with the rules, the metropolitan
development commission shall hold the prescribed hearing. If an
exception is not filed, the metropolitan development commission shall
render a decision without further hearing. However, this subsection
does not eliminate the need for a historic preservation commission to
issue a certificate of appropriateness under IC 36-7-11.1-8(e) before the
approval of a rezoning by the metropolitan development commission.
(1) Powers of the hearing examiner or committee under section 402(d) of this chapter in relation to the 600 series of this chapter.
(2) Powers of the plat committee under the 700 series of this chapter.
(3) Powers of a board of zoning appeals under the 900 series of this chapter.
(4) Powers of the plan commission staff or a hearing examiner or committee of the plan commission under the 1400 series of this chapter.
(b) Decisions of the hearing examiner or committee of the plan commission under the combined hearing procedure may be excepted to or appealed as follows:
(1) Decisions under the authority of section 402(d) of this chapter in relation to powers granted under the 600 series of this chapter shall be
(2) Decisions under the authority of the 700 series of this chapter shall be appealed to the plan commission in the same manner as decisions of the plat committee may be appealed.
(3) Decisions under the authority of the 900 series of this chapter shall be appealed to the plan commission, within
(c) The plan commission shall make rules governing the hearing of cases under the combined hearing procedure. The rules may not require
a petitioner or an applicant to use the combined hearing procedure
authorized under this section.
(d) The plan commission may adopt rules setting specific
procedures to facilitate informal settlement of matters. The rules
may grant procedural rights to persons in addition to those
conferred by this chapter, so long as the rights conferred upon
other persons are not substantially prejudiced. This subsection
does not require any person to settle a matter under the plan
commission's informal procedures.
(b) ADVISORY. Whenever a municipality designates a county plan commission as its municipal plan commission under subsection (a), residents of that municipality are eligible to be appointed citizen members of the commission under section 208(a)(5) of this chapter. Whenever a county board of zoning appeals has jurisdiction within the corporate boundaries of a municipality, residents of that municipality are eligible to be appointed citizen members of the board of zoning appeals under section 902 of this chapter.
(1) summarize the subject matter of the ordinance;
(2) give the date of adoption;
(3) specify the places or areas that would be directly affected by
the ordinance (this subdivision does not require the identification
of any real property by metes and bounds);
(4) specify the penalty or forfeiture prescribed for a violation of
the ordinance; and
(5) give two (2) locations open to the public where the entire text
of the ordinance is available for inspection.
(b) After adoption of a zoning ordinance under section 606 or 607
of this chapter, the plan commission shall print the text of the
ordinance in book or pamphlet form (or arrange for the inclusion of the
zoning ordinance in the code of ordinances printed by the unit under
IC 36-1-5), and no other printing or publication of any zoning
ordinance is required. Printing of the text of a zoning ordinance in
compliance with this subsection constitutes presumptive evidence:
(1) of the text of the ordinance that is contained in the code of
ordinances, book, or pamphlet (and supplement, if any);
(2) of the date of adoption of the ordinance, and of any
amendment to the ordinance that is contained in the code of
ordinances, book, or pamphlet (and supplement, if any); and
(3) that the ordinance, along with any amendment to the
ordinance that is contained in the code of ordinances, book, or
pamphlet (and supplement, if any), has been properly signed,
attested, and recorded.
(c) Zone maps incorporated by reference into the zoning ordinance
are not required to be printed in the code of ordinances, book, or
pamphlet printed under this section, but the plan commission shall
keep them available at its office for public inspection.
(d) Unless a zoning ordinance provides for a later effective date, the
ordinance takes effect when it is adopted under section 606, 607, or
608 of this chapter, subject to subsection (e).
(e) When a provision prescribing a penalty or forfeiture for a
violation is printed under this section, it may not take effect until
fourteen (14) days after the later of the following:
(1) The final day on which notice of its adoption is published
under subsection (a).
(2) The day on which it is filed in the clerk's office under
subsection (f).
(f) A If the zoning ordinance is not required to be included in the
code of ordinances printed by a unit under IC 36-1-5: However, if the
zoning ordinance is not included in that code, then:
(1) the book or pamphlet (and supplement, if any) that
comprises the zoning ordinance shall be incorporated by
reference into the code of ordinances;
(2) two (2) copies of the book or pamphlet (and supplement, if any) as printed under this section shall be filed in the office of the clerk of each participating legislative body, and these copies shall be kept on file in that office for public inspection as required by IC 36-1-5-4; and
(3) the clerk shall keep additional copies of the book or pamphlet (and supplement, if any) in the clerk's office for the purpose of sale or distribution.
(g) If a unit includes the zoning ordinance
(h) This chapter does not prohibit a unit from adopting a unified development ordinance that combines the unit's zoning and subdivision control ordinances into a single book, pamphlet, or code title, article, or chapter.
(b) The subdivision control ordinance must specify the standards
(1) minimum width, depth, and area of lots in the subdivision;
(2) public way widths, grades, curves, and the coordination of subdivision public ways with current and planned public ways; and
(3) the extension of water, sewer, and other municipal services.
The ordinance may also include standards for the allocation of areas to be used as public ways, parks, schools, public and semipublic buildings, homes, businesses, and utilities, and any other standards related to the purposes of this chapter.
(c) The standards fixed in the subdivision control ordinance under subsection (b) may
commission or committee may allow or require a commitment to
be made under section 1015 of this chapter.
(d) As a condition of primary approval of a plat, the commission or
committee may specify:
(1) the manner in which public ways shall be laid out, graded, and
improved;
(2) a provision for water, sewage, and other utility services;
(3) a provision for lot size, number, and location;
(4) a provision for drainage design; and
(5) a provision for other services as specified in the subdivision
control ordinance.
(e) The subdivision control ordinance may not regulate
condominiums regulated by IC 32-25.
(b) If, after the hearing, the plan commission or plat committee disapproves the plat,
committee. However, if the plat committee grants primary approval for
the subdivision of land without public notice and hearing under section
701(d) of this chapter, an interested party may appeal the approval to
the plan commission by filing a notice of appeal with the plan
commission not more than ten (10) fourteen (14) days after a copy of
the plat committee's action is mailed to the interested party. Notice
shall be given and a hearing held by the commission in the same
manner as in the case of the plat committee.
(b) The commission has the same power as the plat committee to
approve, disapprove, or impose conditions on the approval of plats.
(c) The primary approval by the commission of a plat must be
certified on behalf of the commission by an official designated in the
subdivision control ordinance.
(d) The primary approval or disapproval of a plat by the plan
commission or the imposition of a condition on primary approval is a
final decision of the plan commission that may be reviewed as provided
by section 1016 of this chapter.
(1) the applicant provides a bond, or other proof of financial responsibility as prescribed by the legislative body in the subdivision control ordinance, that:
(A) is an amount determined by the plan commission or plat committee to be sufficient to complete the improvements and installations in compliance with the ordinance; and
(B) provides surety satisfactory to the plan commission or plat committee; or
(2) with respect to the installation or extension of water, sewer, or other utility service:
(A) the applicant shows by written evidence that it has entered into a contract with the political subdivision or utility providing the service; and
(B) the plan commission or plat committee determines based on written evidence that the contract provides satisfactory assurance that the service will be installed or extended in compliance with the subdivision control ordinance.
(b) Any money received from a bond or otherwise shall be used only for making the improvements and installments for which the bond or
other proof of financial responsibility was provided. This money may
be used for these purposes without appropriation. The improvement or
installation must conform to the standards provided for such
improvements or installations by the municipality in which it is located,
as well as the subdivision control ordinance.
(c) The plan commission shall, by rule, prescribe the procedure for
determining whether all improvements and installations have been
constructed and completed as required by the subdivision control
ordinance. The rule must designate the person or persons responsible
for making the determination.
(b) Secondary approval may be granted, after expiration of the time provided for appeal under section 708 of this chapter.
(c) No notice or hearing is required, and the provisions of this series concerning notice and hearing do not apply to secondary approvals.
(d) A plat of a subdivision may not be filed with the auditor, and the recorder may not record it, unless it has been granted secondary approval and signed and certified by the official designated in the subdivision control ordinance governing the area. The filing and recording of the plat is without legal effect unless approved by the commission ,
(b) In a case in which not all the owners of land in a plat are in agreement regarding a proposed vacation, this section provides an alternate procedure under which one (1) or more owners of land in the plat may file with the plan commission a petition to vacate all the plat or only that part of the plat that pertains to land owned by the petitioner or petitioners. A petition under this section must:
(1) state the reasons for and the circumstances prompting the request;
(2) specifically describe the property in the plat proposed to be vacated; and
(3) give the name and address of every other owner of land in
the plat.
(c) Subject to section 714 of this chapter, a petition under this
section may also include a request to vacate any recorded
covenants filed as a part of the plat.
(d) Not more than thirty (30) days after receipt of a petition
under this section, the plan commission staff shall announce the
date for the hearing before the plan commission (or plat committee
acting on the plan commission's behalf). The plan commission shall
adopt rules prescribing procedures for setting hearing dates and
for providing other notice as may be required in accordance with
this chapter. The petitioner shall pay all expenses of providing the
notice required by this subsection.
(e) The plan commission shall adopt rules prescribing
procedures for the conduct of the hearing, which must include a
provision giving every other owner of land in the plat an
opportunity to comment on the petition.
(f) After hearing the petition, the plan commission or plat
committee shall approve or disapprove the request. The
commission or committee may approve the vacation of all or part
of a plat only upon a determination that:
(1) conditions in the platted area have changed so as to defeat
the original purpose of the plat;
(2) it is in the public interest to vacate all or part of the plat;
and
(3) the value of that part of the land in the plat not owned by
the petition will not be diminished by the vacation.
(g) The commission or committee may impose reasonable
conditions as part of any approval. The commission or committee
shall furnish a copy of the commission's or committee's decision to
the county recorder for recording.
(h) An applicant or other interested party may appeal the
approval or disapproval of a vacation by the plat committee in the
manner prescribed by section 402(d) of this chapter.
(1) plats or parts of plats; and
(2) public ways, easements, or public places, or parts of any of them, whether or not they are included in an approved plat;
in the county. The plat committee may adopt rules governing the procedure for these vacations. The vacation of public ways, easements, or public places, or parts of any of them may be made only upon a
finding by the plat committee that the vacation is in the public interest.
The plat committee may accomplish the vacation of plats or parts of
plats by proceeding in accordance with IC 36-7-3-10 or IC 36-7-3-11.
Vacation or replatting may include the vacation or amendment of any
recorded covenant running in favor of any governmental agency, or
restriction, that was contained in the original plat. section 711 of this
chapter.
(b) METRO. An applicant or other interested party may appeal the
approval or disapproval of a vacation in the manner prescribed by
section 708 402(d) of this chapter.
(1) the platted area is within an area needing redevelopment and the covenant vacation would promote a recovery of property values in the area needing redevelopment by allowing or encouraging normal development and occupancy of the platted area;
(2) the covenant vacation is needed to secure for the public adequate light, air, convenience of access, or safety from fire, flood, or other danger; or
(3) the covenant vacation is needed to lessen or avoid congestion in the public ways.
(1) Primary approval or disapproval of a plat.
(2) Imposition of a condition on primary approval of a plat.
(3) Approval or disapproval of the vacation of all or part of a plat.
(4) Approval or disapproval of the vacation of any recorded covenants filed with the plat.
(5) Imposition of a condition on approval of the vacation of all or part of a plat (which may include the vacation of any recorded covenants filed with the plat).
(b) The plan commission may adopt a rule to limit further consideration for up to one (1) year after its disapproval, of a plat or vacation request that is disapproved under section 707, 708, 711,
712, or 714 of this chapter.
(1) an additional division of the board of zoning appeals shall be established under section 901(b) of this chapter that will have territorial jurisdiction only in the unincorporated area and consist only of residents of the unincorporated area; or
(2) the municipal plan commission shall designate, as its appointment to the municipal board of zoning appeals under section 902(a)(3) of this chapter, one (1) of the
(b) Notwithstanding section 902(g) of this chapter, if the zoning ordinance provides for an additional division of the board of zoning appeals under subsection (a)(1), the ordinance may also provide for the appointment of one (1) or more members of that division by elected officials of the county or township.
(1) an elected office (as defined in IC 3-5-2-17); or
(2) any other appointed office, except as permitted by section 902 of this chapter, in municipal, county, or state government.
(b) Except as provided in section 208(a)(5), 208(b)(3), 208(c)(5), and 208(c)(6) of this chapter, a member of the board of zoning appeals must be a resident of the jurisdictional area of the board.
under section 909 of this chapter or is otherwise unavailable to
participate in the hearing or decision. An alternate member shall have
all of the powers and duties of a regular member while participating in
the hearing or decision.
(b) METRO. A member of the metropolitan board of zoning appeals
who misses three (3) consecutive regular meetings of the board shall
may be treated as if he the member had resigned, at the discretion of
the appointing authority.
(c) METRO. Members serving in any division of the metropolitan
board of zoning appeals shall may also serve as alternate members for
the other divisions of the metropolitan board of zoning appeals.
Whenever regular and alternate members serving in a particular
division are unavailable, the chairman or vice chairman chairperson
or vice chairperson of the affected division may select members from
other divisions in order to assemble up to five (5) members to
participate in any hearing or decision.
(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
(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.
(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.
(b) Before approval of a proposal involving a structure regulated
under IC 8-21-10 may become effective, the board of zoning appeals
must have received:
(1) a copy of:
(A) the permit for the structure issued by the Indiana
department of transportation; or
(B) the Determination of No Hazard to Air Navigation issued
by the Federal Aviation Administration; and
(2) evidence that notice was delivered to a public use airport as
required in IC 8-21-10-3 not less than sixty (60) days before the
proposal is considered.
(c) Only the plan commission (or plat committee acting on the
commission's behalf) may grant a waiver from standards that are
fixed in the subdivision control ordinance, as provided in section
702(c) of this chapter.
(1) a variance from the development standards of the zoning ordinance in accordance with section 918.5 of this chapter; or
(2) a special exception, special use, contingent use, or conditional use from the terms of the zoning ordinance in accordance with section 918.2 of this chapter; or
(3) a variance of use from the terms of the zoning ordinance in accordance with section 918.4 of this chapter. However, the authority of a hearing officer under this subdivision may be exercised only if:
(A) the area planning law is not applicable; and
(B) the variance of use would allow all of the following:
(i) The expansion of a use currently existing on the tract.
(ii) A use that is consistent with the comprehensive plan.
(b) All requirements for variances, exceptions, and uses imposed by the 900 series of this chapter apply to the alternate procedure, except
to the extent that a provision of section 924 of this chapter imposes a
different requirement.
(c) The alternate procedure does not apply in any excluded city as
described in IC 36-3-1-7. Sections 919(f) and 922 of this chapter do not
apply to the alternate procedure.
(d) The hearing officer (who may be a board member, a staff
member, or any other person) shall be appointed by the plan
commission. More than one (1) hearing officer may be appointed. A
hearing officer may be removed from his the officer's responsibilities
at any time by the plan commission.
(e) METRO. The plan commission may adopt other rules or
recommend ordinances for the alternate procedure not inconsistent
with the 900 series of the metropolitan development law. this chapter.
These rules or ordinances may specify the period during which the
staff may indicate whether the staff objects to the proposed variance,
exception, or use. These rules or ordinances may also provide for
public notice and due notice to interested parties in accordance with
section 920(b), 920(c), and 920(d) of this chapter, but the rules or
ordinances may, because of the nature of the petitions heard under the
alternate procedure, provide for a less inclusive definition of
"interested person" and provide for a quicker and less burdensome
method of giving notice to interested persons than rules applicable to
petitions not filed under the alternate procedure.
(f) METRO. For purposes of subsection (d), the director of the
department of metropolitan development shall nominate, and the plan
commission shall appoint, all hearing officers. Such a hearing officer
may be removed from his the officer's responsibilities at any time by
either the director or the plan commission.
(f) (g) METRO. The plan commission may, if requested by a
historic preservation commission created under IC 36-7-11.1-3,
appoint:
(1) a member of the historic preservation commission;
(2) a member of the historic preservation staff; or
(3) a person who is an employee of the department of
metropolitan development;
as a hearing officer to act in a historic area or historic zoning district
created under IC 36-7-11.1-6. The hearing officer may be removed
from the hearing officer's responsibilities at any time by either the
historic preservation commission or the plan commission.
the plan commission may adopt rules or recommend ordinances:
(1) limiting the kinds of variance, special exception, special use,
contingent use, or conditional use petitions or applications that
may be filed under the alternate procedure;
(2) permitting the hearing officer, in appropriate circumstances,
to transfer a petition or an application filed under the alternate
procedure to the board of zoning appeals;
(3) requiring the creation of minutes and records of the
proceedings before the hearing officer and the filing of the
minutes and records as public records; and
(4) regulating conflicts of interest and communication with the
hearing officer, so as to require the same level of conduct as is
required by the 900 series of this chapter.
(b) The staff (as defined by the zoning ordinance), if any, may file
a written objection to a petition or an application for a variance,
exception, or use if:
(1) it would be injurious to the public health, safety, morals, and
general welfare of the community; or
(2) the use or value of the area adjacent to the property included
would be affected in a substantially adverse manner.
(c) If a written objection is filed under subsection (b), the petition
or application shall:
(1) be considered withdrawn; or
(2) be transferred to the board of zoning appeals if requested by
the petitioner or applicant.
(d) The staff (as defined by the zoning ordinance), if any, may
indicate that it does not object to the approval of the variance,
exception, or use if specified conditions are attached. If the petitioner
or applicant does not accept these conditions, the petition or
application shall:
(1) be considered withdrawn; or
(2) be transferred to the board of zoning appeals if requested by
the petitioner or applicant.
(e) The hearing officer may impose conditions and may permit or
require the owner of a parcel of property to make a written commitment
concerning the use or development of that parcel, as provided in
section 921 1015 of this chapter. If the petitioner or applicant for the
variance, exception, or use does not accept these conditions or make
the commitment, the petition or application shall:
(1) be considered withdrawn; or
(2) be transferred to the board of zoning appeals if requested by
the petitioner or applicant.
(f) The hearing officer may not modify or terminate any commitment, whether made under this section or section
(g) A decision of a hearing officer under the alternate procedure may not be a basis for judicial review, but it may be appealed to the board of zoning appeals. An interested person who wishes to appeal a decision of a hearing officer under the alternate procedure must file the appeal with:
(1) the board of zoning appeals if the board of zoning appeals consists of only one (1) division; or
(2) a division of the board of zoning appeals if the board of zoning appeals consists of more than one (1) division;
within fourteen (14) days after the decision is made.
review. by certiorari, in accordance with this section. The official or
department of metropolitan development may not seek judicial review
by certiorari of a decision of a board of zoning appeals or the
commission sitting as a board of zoning appeals.
(b)
(c)
(d) The services of
(e) In civil actions for the enforcement of
plan commission, board of zoning appeals, or any enforcement
official designated in the zoning ordinance may bring an action in the
circuit or superior court of the county under IC 36-1-6 to invoke any
legal, equitable, or special remedy for the enforcement of this chapter
or enforce any ordinance adopted or action taken under this chapter.
(b) The plan commission, board of zoning appeals, or any
enforcement official designated in the zoning ordinance may also bring
an action in the circuit or superior court of the county to enforce:
(1) conditions imposed by the commission or board of zoning
appeals under this chapter; or
(2) covenants made in connection with a subdivision plat, a
development plan, or a PUD district ordinance (as defined in
section 1503 of this chapter). or
(3) commitments made in accordance with this chapter.
(c) ADVISORY. In addition, in each county having a metropolitan
plan commission, if the county or second class city adopts a zoning
ordinance under this chapter, then that unit may also invoke any
remedy under this section. However, the county may do so only outside
the corporate boundaries of the city, and the city may do so only within
its corporate boundaries.
(d) METRO. The metropolitan development commission may also
bring an action in the circuit or superior court of the county to enforce:
(1) conditions imposed under this chapter;
(2) covenants made in connection with a subdivision plat, a
development plan, or a PUD district ordinance (as defined in
section 1503 of this chapter); or
(3) commitments made in accordance with this chapter.
The metropolitan development plan commission, board of zoning
appeals, or designated enforcement official may invoke any legal,
equitable, or special remedy in such an action described in subsection
(a) or (b).
(e) An action for the levy of a fine or penalty for enforcement of a
zoning ordinance may be brought in any court located within the
jurisdiction of the plan commission or board of zoning appeals.
(f) If the plan commission, board of zoning appeals, or designated
enforcement official is successful in the an action brought under this
section, the respondent shall bear the costs of the action. A change of
venue from the county may not be granted in such an action.
injunction in the circuit or superior court of the county to restrain a
person from violating this chapter or an ordinance adopted under this
chapter.
(a) As a condition to the:
(1) adoption of a rezoning proposal;
(2) primary approval of a proposed subdivision plat or
development plan; or
(3) approval of an application for a:
(A) special exception;
(B) special use;
(C) contingent use;
(D) conditional use; or
(E) variance;
the owner of a parcel of real property may be required or allowed
to make a commitment to the plan commission or board of zoning
appeals, as applicable, concerning the use or development of that
parcel.
(b) ADVISORY.AREA. The board of zoning appeals may also
bring an action in the circuit or superior court of the county for a
mandatory injunction, directing a person to remove a structure erected
in violation of this chapter or of an ordinance adopted under this
chapter.
(b) Commitments are subject to the following provisions:
(1) A commitment must be in writing.
(2) Unless the written commitment is modified or terminated
in accordance with this subsection, a written commitment is
binding on:
(A) the owner of the parcel;
(B) a subsequent owner of the parcel; and
(C) a person who acquires an interest in the parcel.
(3) A commitment shall be recorded in the office of the county
recorder. However, a commitment is binding on the owner
who makes the commitment even if the commitment is
unrecorded. An unrecorded commitment is binding on a
subsequent owner or other person acquiring an interest in the
parcel only if that subsequent owner or other person has
actual notice of the commitment.
(4) A commitment automatically terminates if the zone map
applicable to the parcel to which the commitment relates is
changed.
(5) Except for a commitment automatically terminated under
subdivision (4), a commitment may be modified or terminated
only by a decision of the plan commission or board of zoning
appeals to which the commitment was made. The decision
must be made at a public hearing after notice of the hearing
has been provided under the rules of the plan commission or
board of zoning appeals, as the case may be.
(6) During the time a rezoning proposal is being considered by
the legislative body under the 600 or 1500 series of this
chapter, the owner may make a new commitment to the plan
commission or modify the terms of a commitment that was
made when the proposal was being considered by the plan
commission.
(7) No further action of the plan commission is required for a
new commitment made under subdivision (6) to be effective.
(8) If a commitment is modified under subdivision (6):
(A) no further action is required by the plan commission
for the commitment to be effective if the effect of the
modification is to make the commitment more stringent; or
(B) the modified commitment must be ratified by the plan
commission if the effect of the modification is to make the
commitment less stringent.
(9) Requiring or allowing a commitment to be made does not
obligate the plan commission, board of zoning appeals, or
legislative body, as applicable, to adopt, approve, or favorably
recommend the proposal or application to which the
commitment relates.
(c) ADVISORY.AREA. If the board of zoning appeals is successful
in its action, the respondent shall bear the costs of the action. A change
of venue from the county may not be granted in such an action.
(c) The plan commission or board of zoning appeals may adopt
rules:
(1) governing the creation, form, recording, effectiveness,
modification, and termination of commitments; and
(2) designating which specially affected persons and classes of
specially affected persons are entitled to enforce
commitments.
(d) An action to enforce a commitment made in accordance with
this chapter may be brought in the circuit or superior court of the
county by:
(1) the plan commission or board of zoning appeals to which
the commitment was made;
(1) (2) any person who was entitled to enforce a commitment
under the rules of the plan commission or board of zoning appeals
in force at the time the commitment was made; or
(2) (3) any other specially affected person who was designated in
the commitment.
(e) A person bringing an action to enforce a commitment made
under this chapter may request mandatory or prohibitory injunctive
relief through the granting of a temporary restraining order, preliminary
injunction, or permanent injunction. If an action to enforce a
commitment is successful, the respondent shall bear the costs of the
action. A change of venue from the county may not be granted in
such an action.
(f) In an action to enforce a commitment, it is not a defense that:
(1) no consideration was given for the commitment;
(2) that the commitment does not benefit any designated parcel of
property;
(3) that the document setting forth the commitment lacks a seal;
(4) that there is no privity of estate;
(5) that there is not privity of contract; or
(6) that there is no proof of damages.
(g) The following types of conditions, as authorized by this
chapter, are not considered commitments and are not subject to
subsection (b):
(1) A condition imposed upon primary approval of a plat that
must be met before secondary approval of the plat may be
granted under the 700 series of this chapter.
(2) A condition imposed upon the approval of an exception, a
use, a variance, or a development plan that must be met
before an improvement location permit may be issued under
the 800 series of this chapter.
(3) A condition imposed upon an approval relative to any
other development requirement that must be met before any
other secondary approval may be granted or building permit
may be issued under this chapter.
(h) Covenants, easements, equitable servitudes, and other land
use restrictions created in accordance with law are not considered
commitments and are not subject to subsection (b).
(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
(1) A final decision under the 700 series of this chapter (subdivision control).
(2) A final decision under
(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) 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).
(d) 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).
(e) 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.
(b) A
(1) a permit; or
(2) an approval of a land use or an approval for the construction of a development, a building, or another structure.
(b) As used in this section, "permit" means any of the following:
(1) An improvement location permit.
(2) A building permit.
(3) A certificate of occupancy.
(4) Approval of a site-specific development plan.
(5) Approval of a primary or secondary plat.
(6) Approval of a conditional use, special exception or special use.
(7) Approval of a planned unit development.
(c) Subject to section 1110 of this chapter, if a person files a complete application as required by the effective ordinances or rules of a local governmental agency for a permit with the appropriate local governmental agency, the granting of the permit, and the granting of any secondary, additional, or related permits or approvals required
from the same local governmental agency with respect to the general
subject matter of the application for the first permit, are governed for
at least three (3) years after the person applies for the permit by the
statutes, ordinances, rules, development standards, and regulations in
effect and applicable to the property when the application is filed, even
if before the issuance of the permit or while the permit approval
process is pending, or before the issuance of any secondary, additional,
or related permits or approvals or while the secondary, additional, or
related permit or approval process is pending, the statutes, ordinances,
rules, development standards, or regulations governing the granting of
the permit or approval are changed by the general assembly or the
applicable local legislative body or regulatory body. However, this
subsection does not apply if the development or other activity to which
the permit relates is not completed within seven (7) years after the
development or activity is commenced.
(d) Subsection (e) applies if:
(1) either:
(A) a local governmental agency issues to a person a permit or
grants a person approval for the construction of a
development, a building, or another structure; or
(B) a permit or approval is not required from the local
governmental agency for the construction of the development,
building, or structure;
(2) before beginning the construction of the development,
building, or structure, the person must obtain a permit or approval
for the construction of the development, building, or structure
from a state governmental agency; and
(3) the person has applied for the permit or requested the approval
for the construction of the development, building, or structure
from the state governmental agency within ninety (90) days of
issuance of the permit by the local governmental agency.
(e) Subject to subsection (f) and section 1110 of this chapter, if the
conditions of subsection (d) are satisfied:
(1) a permit or approval issued or granted to a person by the local
governmental agency for the construction of the development,
building, or structure; or
(2) the person's right to construct the development, building, or
structure without a permit or approval from the local
governmental agency;
is governed for at least three (3) years after the person applies for the
permit by the statutes, ordinances, rules, development standards,
regulations, and approvals in effect and applicable to the property when
the person applies for the permit or requests approval from the state
governmental agency for the construction of the development, building,
or structure, even if before the commencement of the construction or
while the permit application or approval request is pending with the
state governmental agency the statutes governing the granting of the
permit or approval from the local governmental agency are changed by
the general assembly or the ordinances, rules, development standards,
or regulations of the local governmental agency are changed by the
applicable local legislative body or regulatory body. However, this
subsection does not apply if the development or other activity to which
the permit or approval request relates is not completed within seven (7)
years after the development or activity is commenced.
(f) Subsection (d) does not apply to property when it is
demonstrated by the local or state governmental agency that the
construction of the development, building, or structure would cause
imminent peril to life or property.
(g) This section does not apply to building codes under IC 22-13.
SECTION 40. IC 36-7-4-1110, IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2010]: Sec. 1110. (a) As used in this section,
"permit or right" refers to:
(1) the granting of a permit, and the granting of any
secondary, additional, or related permits or approvals, in
response to an application filed:
(A) before January 1, 2011; and
(B) as described in section 1109(c) of this chapter;
(2) a permit issued or approval granted:
(A) before January 1, 2011; and
(B) as described in section 1109(e)(1) of this chapter; and
(3) the right to construct a development, building, or
structure:
(A) that inures before January 1, 2011; and
(B) is described in section 1109(e)(2) of this chapter.
(b) Before January 1, 2013, the changes made to IC 14-28-4-18
and IC 36-7 by the enrolled act enacted during the 2010 regular
session of the general assembly do not apply to a permit or right.
(c) After December 31, 2012, and notwithstanding section 1109
of this chapter, the changes made to IC 14-28-4-18 and IC 36-7 by
the enrolled act enacted during the 2010 regular session of the
general assembly apply to a permit or right.
(d) This section expires December 31, 2013.
FOLLOWS [EFFECTIVE JANUARY 1, 2011]: Sec. 1335. (a) As used
in this section, "improvement" means an improvement under section
1313(2) of this chapter or a site improvement, land, or real property
interest as follows:
(1) That is to be used for at least one (1) of the infrastructure
purposes specified in section 1309 of this chapter.
(2) That is included in or intended to be used relative to an
infrastructure type for which the unit has imposed an impact fee
in the impact zone.
(3) That is not a type of improvement that is uniformly required
by law or rule for the type of development on which the impact
fee has been imposed.
(4) That is or will be:
(A) public property; or
(B) furnished or constructed under requirements of the unit
and is or will be available for use by other development in the
area.
(5) That is beneficial to existing development and future
development in the impact zone and is not beneficial to only one
(1) development.
(6) That either:
(A) allows the removal of a component of infrastructure
planned for the impact zone;
(B) is a useful addition to the zone improvement plan; or
(C) is reasonably likely to be included in a future zone
improvement plan for the impact zone.
(7) That is:
(A) constructed, furnished, or guaranteed by a bond or letter
of credit under a request by an authorized official of the:
(i) applicable infrastructure agency; or
(ii) unit that imposed the impact fee; or
(B) required to be constructed or furnished under a written
commitment that:
(i) is requested by an authorized official of the applicable
infrastructure agency or the unit that imposed the impact
fee;
(ii) concerns the use or developing of the development
against which the impact fee is imposed; and
(iii) is made under section 613, 614, or 921 1015 of this
chapter.
(b) A fee payer is entitled to a credit against an impact fee if the
owner or developer of the development constructs or provides:
(1) infrastructure that is an infrastructure type for which the unit imposed an impact fee in the impact zone; or
(2) an improvement.
(c) A fee payer is entitled to a credit under this section for infrastructure or an improvement that:
(1) is constructed or furnished relative to a development after January 1, 1989; and
(2) meets the requirements of this section.
(d) The amount of a credit allowed under this section shall be determined at the date the impact fee is assessed. However, if an assessment is not requested, the amount of the credit shall be determined at the time the structural building permit is issued. The amount of the credit shall be:
(1) determined by the:
(A) person constructing or providing the infrastructure or improvement; and
(B) applicable infrastructure agency; and
(2) equal to the sum of the following:
(A) The cost of constructing or providing the infrastructure or improvement.
(B) The fair market value of land, real property interests, and site improvements provided.
(e) The amount of a credit may be increased or decreased after the date the impact fee is assessed if, between the date the impact fee is assessed and the date the structural building permit is issued, there is a substantial and material change in the cost or value of the infrastructure or improvement that is constructed or furnished from the cost or value determined under subsection (d). However, at the time the amount of a credit is determined under subsection (d), the person providing the infrastructure or improvement and the applicable infrastructure agency may agree that the amount of the credit may not be changed. The person providing the infrastructure or improvement may waive the person's right to a credit under this section.
(b) The plan commission has exclusive authority to approve or disapprove a development plan for real property located within the plan
commission's jurisdiction.
(c) Designation by the legislative body of a zoning district where a
development plan is required is a legislative act, and is not subject to
review by certiorari under section 1016 of this chapter.
(1) is consistent with the comprehensive plan; and
(2) satisfies the development requirements specified in the zoning ordinance under sections 1402 and 1403 of this chapter.
(b) The plan commission may do the following:
(1) Impose conditions on the approval of a development plan if the conditions are reasonably necessary to satisfy the development requirements specified in the zoning ordinance for approval of the development plan.
(2) Provide that approval of a development plan is conditioned on the furnishing to the plan commission of a bond or written assurance that:
(A) guarantees the timely completion of a proposed public improvement in the proposed development; and
(B) is satisfactory to the plan commission.
(3) Permit or require the owner of real property to make a written commitment under section
(1) Impose reasonable conditions on a proposed planned unit development.
(2) Condition issuance of an improvement location permit on the furnishing of a bond or a satisfactorily written assurance guaranteeing the timely completion of a proposed public improvement in a planned unit development or serving a planned unit development.
(3) Allow or require an owner of real property to make a written commitment in the manner authorized under section
(b) When recommending adoption of a PUD district ordinance to the legislative body, granting an approval under section 1511 of this chapter, or making a modification under section 1511(b) of this chapter, the bodies or persons authorized under section 1511(c) of this
chapter may:
(1) impose the conditions described in subsection (a)(1) and
(a)(2); and
(2) allow or require a written commitment as authorized under
section 614 or 615 1015 of this chapter.
(b) A legislative act is not subject to judicial review under this series.
(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.
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JANUARY 1, 2011]: Sec. 1603. (a) The following have
standing to obtain judicial review of a zoning decision:
(1) A person to whom the decision is specifically directed.
(2) A person (other than staff) 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 otherwise aggrieved or adversely affected by the
zoning decision.
(b) A person has standing under subsection (a)(3) 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.
(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.
the petition for judicial review.
(b) If more than one (1) person may be aggrieved by the zoning decision, only one (1) proceeding for review may be had, and the court in which a petition for review is first properly filed has jurisdiction.
(c) The rules of procedure governing civil actions in the courts govern pleadings and requests under this chapter for a change of judge or change of venue to another judicial district described in subsection (a).
(d) Each person who:
(1) was a petitioner or applicant at the hearing before the board; or
(2) entered a written appearance as an adverse party to the petitioner or applicant before the board hearing that led to the zoning decision, as described in section 920(h) of this chapter;
is a party to the petition for review.
(e) Any other person who participated, in the manner described in section 1603(a)(2) of this chapter, in the board hearing that led to the zoning decision may, not later than fourteen (14) days after the decision is made, file with the board a written request that the person receive notice of any petition for review that may be filed. The written request must include the person's full name and correct mailing address and a reference to the board's docket number relative to the zoning decision.
(b) A petition for review must be verified and set forth the following:
(1) The name and mailing address of the petitioner.
(2) The name and mailing address of the board whose zoning decision is at issue.
(3) Identification of the decision at issue, together with a copy, summary, or brief description of the decision.
(4) Identification of persons who participated in any hearing,
as described in section 1603(a)(2) of this chapter, that led to
the decision.
(5) Specific facts to demonstrate that the petitioner is entitled
to obtain judicial review under section 1602 of this chapter.
(6) Specific facts to demonstrate that the petitioner has been
prejudiced by one (1) or more of the grounds described in
section 1614 of this chapter.
(7) A request for relief, specifying the type and extent of relief
requested.
(b) The petitioner shall use means provided by the rules of procedure governing civil actions in the courts to give notice of the petition for review:
(1) to all parties to the petition for review, as described in section 1606(d) of this chapter; and
(2) to persons who, in the manner described in section 1606(e) of this chapter, filed with the board making the zoning decision written requests that they receive notice of any petition for review, according to the public records of the board. However, if the public records of the board show that the board received written requests for notice from more than three (3) persons, the petitioner shall give notice only to the first three (3) persons who requested notice according to those records. Notice to any additional persons who requested notice is not required.
(c) This section does not require the petitioner to name the persons who must be given notice under subsection (b)(2) as parties to the petition for review.
(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.
(1) the issue concerns whether a person who was required to be notified by this chapter or other law of a board hearing was notified in substantial compliance with this chapter or other law; or
(2) the interests of justice would be served by judicial resolution of an issue arising from a change in controlling law occurring after the zoning decision.
zoning decision at the time the decision was made and is needed to
decide disputed issues regarding one (1) or both of the following:
(1) Improper constitution as a decisionmaking body or
grounds for disqualification of those making the zoning
decision.
(2) Unlawfulness of procedure or of decisionmaking process.
This subsection applies only if the additional evidence could
not, by due diligence, have been discovered and raised in the
board proceeding giving rise to a proceeding for judicial
review.
(b) The court may remand a matter to the board before final
disposition of a petition for review with directions that the board
conduct further factfinding or that the board prepare an adequate
record, if:
(1) the board failed to prepare or preserve an adequate
record;
(2) the board improperly excluded or omitted evidence from
the record; or
(3) a relevant law changed after the zoning decision and the
court determines that the new provision of law may control
the outcome.
(1) any board documents expressing the decision;
(2) other documents identified by the board as having been considered by the board before its decision and used as a basis for its decision; and
(3) any other material described in this chapter or other law as the board record for the type of zoning decision at issue, subject to this section.
(b) An extension of time in which to file the record shall be granted by the court for good cause shown. Inability to obtain the record from the responsible board within the time permitted by this section is good cause. Failure to file the record within the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on petition of any party
of record to the proceeding.
(c) Upon a written request by the petitioner, the board making
the zoning decision being reviewed shall prepare the board record
for the petitioner. If part of the record has been preserved without
a transcript, the board shall, if practicable, prepare a transcript
for inclusion in the record transmitted to the court, except for
parts that the parties to the judicial review proceeding stipulate to
omit in accordance with subsection (e).
(d) Notwithstanding IC 5-14-3-8, the board shall charge the
petitioner with the reasonable cost of preparing any necessary
copies and transcripts for transmittal to the court, unless a person
files with the court, under oath and in writing, the statement
described by IC 33-37-3-2.
(e) By stipulation of all parties to the review proceedings, the
record may be shortened, summarized, or organized.
(f) The court may tax the cost of preparing transcripts and
copies for the record:
(1) against a party to the judicial review proceeding who
unreasonably refuses to stipulate to shorten, summarize, or
organize the record; or
(2) in accordance with the rules governing civil actions in the
courts or other law.
(g) Additions to the record concerning evidence received under
section 1612 of this chapter must be made as ordered by the court.
The court may require or permit subsequent corrections or
additions to the record.
(b) The validity of a zoning decision shall be determined in accordance with the standards of review provided in this section, as applied to the decision at the time it was made.
(c) The court shall make findings of fact on each material issue on which the court's decision is based.
(d) The court shall grant relief under section 1615 of this chapter only if the court determines that a person seeking judicial relief has been prejudiced by a zoning decision that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or
immunity;
(3) in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.
(1) remand the case to the board for further proceedings; or
(2) compel a decision that has been unreasonably delayed or unlawfully withheld.
(b) The ordinance may provide qualifications for members of the commission, but members must be residents of the unit who are interested in the preservation and development of historic areas. The members of the commission should include professionals in the disciplines of architectural history, planning, and other disciplines related to historic preservation, to the extent that those professionals are available in the community. The ordinance may also provide for the appointment of advisory members that the legislative body considers
appropriate.
(c) The ordinance may:
(1) designate an officer or employee of the unit to act as
administrator;
(2) permit the commission to appoint an administrator who shall
serve without compensation except reasonable expenses incurred
in the performance of the administrator's duties; or
(3) provide that the commission act without the services of an
administrator.
(d) Members of the commission shall serve without compensation
except for reasonable expenses incurred in the performance of their
duties.
(e) The commission shall elect from its membership a chairman and
vice chairman, who shall serve for one (1) year and may be reelected.
(f) The commission shall adopt rules consistent with this chapter for
the transaction of its business. The rules must include the time and
place of regular meetings and a procedure for the calling of special
meetings. All meetings of the commission must be open to the public,
and a public record of the commission's resolutions, proceedings, and
actions must be kept. If the commission has an administrator, the
administrator shall act as the commission's secretary, otherwise, the
commission shall elect a secretary from its membership.
(g) The commission shall hold regular meetings, at least monthly,
except when it has no business pending.
(h) A final decision of the commission is subject to judicial review
under IC 4-21.5-5 IC 36-7-4 as if it was were a final decision of a state
agency. board of zoning appeals.
(b) The commission may impose any reasonable conditions, consistent with the historic preservation plan, upon the issuance of a certificate of appropriateness, including the requirement of executing and recording covenants or filing a maintenance or performance bond. If the commission determines that a certificate of appropriateness should not be issued, the commission shall forthwith place upon its records the reasons for the determination and may include recommendations respecting the proposed construction, reconstruction, alteration, or demolition. The secretary of the commission shall
forthwith notify the applicant of the determination transmitting to him
the applicant an attested copy of the reasons and recommendations, if
any, of the commission.
(c) Every A final determination of the commission upon an
application for certificate of appropriateness is subject to judicial
review by certiorari upon petition to the circuit or superior court of the
county by any aggrieved person, in the same manner and subject to the
same limitations as a final decision of a board of zoning appeals under
IC 36-7-4. However, upon notice of the filing of the petition for writ of
certiorari, judicial review, all proceedings and work on the subject
premises are automatically stayed.
(d) An appeal may be taken to the court of appeals of Indiana from
the final judgment of the court reversing, affirming, or modifying the
determination of the commission in the same manner and upon the
same terms, conditions, and limitations as appeals in other civil actions.
is considered without force and effect pending a final judgment by the
court. If the final determination was made with respect to a petition for
approval of a proposed rezoning or zoning variance, the approval by
the commission is considered nonexistent pending final judgment.
SECTION 66. THE FOLLOWING ARE REPEALED [EFFECTIVE
JANUARY 1, 2011]: IC 36-7-3-11; IC 36-7-4-613; IC 36-7-4-614;
IC 36-7-4-615; IC 36-7-4-921; IC 36-7-4-1005; IC 36-7-4-1006;
IC 36-7-4-1007; IC 36-7-4-1008; IC 36-7-4-1009; IC 36-7-4-1010;
IC 36-7-4-1011.