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IC 36-7-11.3-1
Purpose of chapter
Sec. 1. (a) The purpose of this chapter is to preserve:
(1) from deterioration;
(2) from improperly conceived or implemented change; and
(3) for the continued health, safety, enjoyment, and general
welfare of the citizens of Indiana;
a historic, scenic, aesthetically pleasing, and unique part of a street
lying within a city or town constituting the backbone of a unique
residential area.
(b) The general assembly intends, by passage of this chapter, to:
(1) encourage private efforts to maintain and preserve that part
of the street and other similar streets and areas in Indiana;
(2) promote orderly and proper land usage; and
(3) preserve significant tourist attractions of historical and
economic value in Indiana;
by limiting and restricting unhealthful, unsafe, unaesthetic, or other
use of unique areas that would be inconsistent with their character as
tourist attractions and with the general welfare of the public.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-2
"Commission" defined
Sec. 2. As used in this chapter, "commission" refers to a
preservation commission created under this chapter.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-3
"Development commission" defined
Sec. 3. As used in this chapter, "development commission" means
the governmental authority having primary jurisdiction over:
(1) recommending; and
(2) recommending alterations or changes in;
the comprehensive plan for land use applicable to the municipality
in which the preservation area created under this chapter lies.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-4
"Family" defined
Sec. 4. (a) As used in this chapter, "family" means any number of
individuals who:
(1) are all related to each other by marriage, consanguinity, or
legal adoption; and
(2) live together as a single household with a single head of the
household.
(b) The term includes the following:
(1) Live-in paid domestic employees.
IC 36-7-11.3-5
"Interested party" defined
Sec. 5. As used in this chapter, "interested party" means the
following:
(1) The governor.
(2) The Indiana department of transportation.
(3) The department of natural resources.
(4) The executive of the city or town.
(5) The municipal plan commission.
(6) The society.
(7) Each owner or occupant owning or occupying primary or
secondary property to a depth of two (2) ownerships of the
perimeter of the property.
(8) An owner, occupant, or other person having a legal or
equitable interest in the subject property.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-6
"Notice" defined
Sec. 6. As used in this chapter, "notice" means written notice:
(1) served personally upon the person, official, or office entitled
to the notice; or
(2) served upon the person, official, or office by placing the
notice in the United States mail, first class postage prepaid,
properly addressed to the person, official, or office. Notice is
considered served if mailed in the manner prescribed by this
subdivision properly addressed to the following:
(A) The governor, both to the address of the governor's
official residence and to the governor's executive office in
Indianapolis.
(B) The Indiana department of transportation, to the
commissioner.
(C) The department of natural resources, both to the director
of the department and to the director of the department's
division of historic preservation and archeology.
(D) The municipal plan commission.
(E) An occupant, to:
(i) the person by name; or
(ii) if the name is unknown, the "Occupant" at the address
of the primary or secondary property occupied by the
person.
(F) An owner, to the person by the name shown to be the
name of the owner, and at the person's address, as appears in
the records in the bound volumes of the most recent real
estate tax assessment records as the records appear in:
(i) the offices of the township assessors (if any); or
(ii) the office of the county assessor.
IC 36-7-11.3-7
"Occupant" defined
Sec. 7. As used in this chapter, "occupant" means a person:
(1) occupying:
(A) under a written lease; or
(B) as an owner; and
(2) using for residential purposes;
a single family or double family residential dwelling located upon
primary or secondary property.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-8
"Owner" defined
Sec. 8. As used in this chapter, "owner" means a person who owns
a legal or an equitable interest in primary or secondary property.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-9
"Person" defined
Sec. 9. As used in this chapter, "person" means an individual, a
corporation, a partnership, an association, a trust, a governmental
body or an agency, or other entity, public or private, capable of
entering into an enforceable contract.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-10
"Primary property" defined
Sec. 10. As used in this chapter, "primary property" means
property within an area designated as a primary area by the
legislative body.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-11
"Secondary property" defined
Sec. 11. As used in this chapter, "secondary property" means
property within an area designated as a secondary area by the
legislative body.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-12
"Single family or double family residential dwellings" defined
Sec. 12. As used in this chapter, "single family or double family
residential dwellings" means residential structures that:
(1) do not share a common wall with any other residential
structures;
IC 36-7-11.3-13
"Society" defined
Sec. 13. As used in this chapter, "society" refers to the Indiana
historical society or the successor to the society.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-14
"Subject property" defined
Sec. 14. As used in this chapter, "subject property" means primary
or secondary property or existing or proposed construction on the
property:
(1) that is the subject of:
(A) a filing made with;
(B) a hearing or meeting of; or
(C) an appeal from;
the commission; or
(2) with respect of which there is claimed to be a violation of
this chapter.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-15
Designation of preservation area
Sec. 15. The legislative body of a municipality may adopt an
ordinance or a resolution to designate an area in the municipality that
is subject to a comprehensive plan for land use, whether adopted by
the municipality or the county in which the municipality is located,
as a preservation area. This chapter applies to the area.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-16
Primary and secondary areas
Sec. 16. (a) A preservation area consists of:
(1) a primary area; and
(2) a secondary area;
designated by the legislative body.
(b) The primary area is a primarily residential area that the
legislative body finds after a public hearing to be a clearly definable
area that:
(1) should be preserved from deterioration or destruction in
furtherance of the purpose of this chapter because the area:
(A) is; or
(B) contains structures that are;
historically, architecturally, or ecologically significant; and
(2) if not subject to this chapter, is in danger of deterioration or
destruction.
IC 36-7-11.3-17
Size of preservation area
Sec. 17. A preservation area may not be larger than the legislative
body considers required to accomplish the purposes of this chapter.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-18
Creation of preservation commission
Sec. 18. (a) Upon designating a preservation area and the primary
and secondary areas of the preservation area, the legislative body of
the municipality shall create a commission to be known as the
"______________ Preservation Commission". The legislative body
shall give:
(1) the name of the city or town in which the area to be
preserved is located;
(2) the name of the area to be preserved; or
(3) both;
to the preservation commission.
(b) The commission has the powers and shall exercise the duties
prescribed by this chapter for the area.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-19
Members of commission
Sec. 19. A preservation commission created under this chapter is
composed of nine (9) members as follows:
(1) The executive of the city or town:
(A) shall serve as a member of the commission; or
(B) may appoint an individual residing in the city or town to
serve in place of the executive.
(2) The executive of the city or the legislative body of the town
shall appoint the following:
(A) An architect registered under IC 25-4-1 who is
practicing in Indiana.
(B) A professional city planner employed by a planning
authority:
(i) of the city;
(ii) if a city planning authority does not exist, of the
county; or
(iii) if a county planning authority does not exist, in
Indiana.
IC 36-7-11.3-20
Term of office
Sec. 20. An appointed member of the commission holds office for
the term that the legislative body of the municipality sets forth in the
ordinance or resolution creating the commission.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-21
Adoption of rules
Sec. 21. The commission shall prepare, adopt, and promulgate the
rules and regulations that are necessary, desirable, or convenient to
the orderly administration of commission affairs and to the
implementation of this chapter in accordance with the intent and
purpose. The rules and regulations shall be made available in writing
to any person requesting a copy.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-22
Material filed with commission
Sec. 22. Notices, petitions, requests, or other written materials to
be filed with the commission shall be filed with the clerk or
clerk-treasurer and directed to the attention of the commission. The
clerk or clerk-treasurer shall:
(1) maintain; and
(2) make available for public inspection;
all records of the commission at the offices of the clerk or
clerk-treasurer.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-23
Notice
Sec. 23. (a) Whenever notice is required to be given under this
chapter with respect to a matter coming or pending before a
commission created under this chapter, the notice shall be sent to the
persons designated as interested parties under this chapter.
(b) A public officer or office entitled to receive notice may
designate in writing filed with the commission alternate or additional
persons to whom notice required to be served upon the officer or
office shall also be served. The commission shall maintain a
complete list of the persons and their addresses.
(c) A person, an official, or an office who or that is not served
notice in the manner prescribed by this chapter is not considered
properly notified unless the person has waived notice in writing.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-24
Attorney
Sec. 24. The attorney general or a deputy attorney general selected
by the attorney general is the attorney for the commission. The
commission may employ other legal counsel that the commission
considers necessary, convenient, or desirable.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-25
Regular meetings
Sec. 25. (a) The rules and regulations of the commission must
specify a particular time on a particular day of the week in a
particular week of the month for holding regular meetings to consider
any matters properly coming before the commission. Except as
provided in subsection (b), the commission shall regularly meet at
the designated time if there is any matter requiring consideration or
determination as specified in this chapter.
(b) The commission may designate in the rules and regulations
July or August as a vacation month during which the commission
will not hold a regular meeting despite the existence of matters
requiring consideration or determination. A person desiring the
commission to consider or determine any matter that is within the
commission's jurisdiction under this chapter must, at least thirty (30)
days before a regular meeting date of the commission upon which the
person desires the commission to determine or consider the matter,
file with the commission a petition that does the following:
(1) Specifies in detail the matter the petitioner desires the
commission to consider or determine.
(2) Requests that the matter be placed upon the commission's
docket for matters to be considered and determined at the
meeting.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-26
Special meetings
Sec. 26. (a) The chairman of the commission:
(1) may, in the chairman's discretion; or
(2) shall, at the written request of at least two (2) members of
the commission;
call a special meeting of the commission to consider or determine a
matter for which a petition has been filed.
(b) The meeting shall be scheduled for a date:
(1) not less than thirty (30); and
IC 36-7-11.3-27
Continuance
Sec. 27. For good cause shown, the chairman of the commission
may, at or before a regular or special meeting, continue any matter
docketed for consideration or determination at the meeting until:
(1) the next regular meeting of the commission; or
(2) a special meeting set for a date not more than thirty (30)
days following the date of the meeting for which the matter was
previously docketed.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-28
Evidence filed by person with interests adverse to petitioner
Sec. 28. The commission may, before a hearing on a petition filed
with the commission, require the person filing the petition or a
person whose interests appear adverse to those of the petitioner to
file with the commission before the hearing the following:
(1) Maps, plot plans, structural drawings and specifications,
landscaping plans, floor plans, elevations, cross-sectional plans,
architectural renderings, diagrams, or any other technical or
graphic materials.
(2) Additional information concerning the petitioner's or the
adverse person's intentions or interest with respect to primary
or secondary property.
(3) Any other additional information that the commission
considers relevant to the matters concerning the petition.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-29
Quorum
Sec. 29. (a) A quorum of the commission consists of six (6)
members. A quorum must be present for a public hearing on and the
determination of a matter coming before the commission for which
a public hearing is required under this chapter.
(b) Except as otherwise provided in this chapter, a majority vote
of the members of the commission present and voting is required for
the commission to take action.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-30
Disqualification of member
Sec. 30. (a) A member of the commission is not disqualified from
hearing and voting upon a matter coming before the commission
because the member:
(1) owns or occupies primary or secondary property; or
(2) belongs to a neighborhood association.
IC 36-7-11.3-31
Private deliberations; conditions of favorable vote; private
agreement on conditions
Sec. 31. (a) Upon the conclusion of the hearing on a matter and
before the voting, the commission members shall, if requested by:
(1) the petitioner;
(2) an interested party; or
(3) a commission member;
deliberate in private before voting.
(b) The commission shall, before voting, consider conditions
proposed to the commission at the hearing by a person, including a
commission member, concerning the restrictions, limitations,
commitments, or undertakings that might be required by the
commission as the condition of a vote favorable to the petitioner.
(c) The commission may:
(1) on the commission's own motion; or
(2) at the request of a person;
before voting on a matter, continue the matter for a vote to a future
meeting so that the petitioner and a person appearing adverse to the
petitioner might privately agree upon the restrictions, limitations,
commitments, or undertakings to be proposed to the commission as
a condition to a vote by the commission favorable to the petitioner.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-32
Final written orders
Sec. 32. (a) Not later than thirty (30) days after a vote by the
commission finally determining a matter, the commission shall enter
a written final order stating the following:
(1) The names of the members present and voting.
(2) Whether the vote cast by each member was negative or
affirmative.
(3) The basic facts found by the members whose vote for or
against the petitioner determined the matter.
(b) If a tie vote occurs, the petition is considered to be determined
adversely to the petitioner, with the members casting a vote
adversely to the petitioner considered to be the majority.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-33
Temporary orders
Sec. 33. (a) If the commission determines affirmatively a matter
conditioned upon:
(1) the observance by a person of a restriction or limitation; or
(2) the commitment made by or the undertaking of a person;
the commission shall, not later than ten (10) days after the vote
determining the matter conditionally, enter a temporary order setting
forth the restriction, limitation, commitment, or undertaking.
(b) The commission shall enter a final order approving the
petition upon and after a hearing at which the petitioner must satisfy
the commission that the restriction, limitation, commitment, or
undertaking has been formalized so that an interested party may
enforce the restriction, limitation, commitment, or undertaking in a
private action.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-34
Proposed temporary or final orders
Sec. 34. (a) Not later than five (5) days after the commission has
determined a matter by vote, other than a rezoning matter referred to
the commission by the development commission, a party who
appeared at the hearing shall, upon request of the commission, file
with the commission a proposed temporary or final order.
(b) A proposed final order must state in detail the basic facts that
could have been found by the commission based upon substantial
evidence of probative value actually introduced into evidence before
the commission at a hearing on the matter.
(c) A proposed temporary order must state the basic facts:
(1) that could have been found by the commission based upon
substantial evidence of probative value actually introduced into
evidence before the commission at a hearing on the matter; and
(2) upon which the commission could properly have required a
restriction, a limitation, a commitment, or an undertaking as a
condition to a final affirmative determination of the matter.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-35
Prohibited actions
Sec. 35. The commission may not take action on a petition,
approve a proposed rezoning or zoning variance, or issue a certificate
of appropriateness based upon verbal assurances or unwritten
agreements or commitments made by a person concerning any of the
following:
(1) A future use or development of the subject property.
(2) A restriction or limitation in the character, nature, or style
of a contingent, possible, or proposed use or construction:
(A) for which the person seeks; or
(B) that would be permitted by;
the rezoning, zoning variance, or certificate of appropriateness.
(3) An undertaking concerning the planning, design, or
implementation of a contingent or possible use or proposed
construction.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-36
Written agreement required for zoning variance or certificate of
appropriateness
Sec. 36. (a) The commission may, by the vote of at least six (6) of
the members or for a certificate of appropriateness by a majority of
the members, as a condition of approval of a zoning variance or of
issuance of a certificate of appropriateness, require:
(1) the petitioner;
(2) a person described by section 50(a)(2)(D) of this chapter;
and
(3) the owner of the land for which the zoning variance or
certificate of appropriateness is sought;
to prepare and execute in a form acceptable by the commission and
to file with the commission a written agreement notarized by each
signatory party.
(b) By the agreement signed under subsection (a) each party
agrees for the party and for the party's heirs, successors, and assigns,
and for a party with a legal or an equitable interest in the subject
property, covenants for the party and for a successor to the legal or
equitable interest in the property, to be bound by the following:
(1) The restrictions or limitations that the commission has, in
furtherance of the intent and purpose of this chapter, specified
concerning the future use or development of or construction
upon the subject property.
(2) The restrictions or limitations that the commission has, in
furtherance of the intent and purpose of this chapter, specified
concerning the character, nature, or style of a proposed,
contingent, or possible use or construction:
(A) for which the zoning variance or certificate of
appropriateness is sought; or
(B) that would be permitted by the zoning variance or
certificate of appropriateness.
(3) Undertakings that the commission has, in the furtherance of
the intent and purpose of this chapter, required concerning the
planning, design, or implementation of a proposed, contingent,
or possible use or construction.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-38
Filing of agreement before hearing; notice
Sec. 38. A petitioner shall do the following:
(1) File an agreement signed under section 36 of this chapter,
including a request for a public hearing, at least fourteen (14)
days before the regular meeting of the commission at which the
petitioner requests the hearing.
(2) On or before the date of the filing, serve in the manner that
notices must be served under this chapter a copy of the request
and the agreement upon the following:
(A) Each neighborhood association.
(B) Each interested party who, not later than five (5) days
after the hearing for which the commission entered a
temporary order concerning the zoning variance or the
certificate of appropriateness sought by the petitioner, filed
with the commission a request that the agreement or request
be served upon the interested party.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-39
Filing of agreement with county recorder
Sec. 39. (a) If after a public hearing the commission approves in
form and substance, by the vote of:
(1) at least six (6) members; or
(2) for a certificate of appropriateness, a majority of the
members present;
the agreement as filed, the commission shall enter a final order
expressing the commission's approval of the zoning variance or
issuance of the certificate of appropriateness as sought by the
petitioner.
(b) The commission shall, at the petitioner's expense, immediately
file the agreement with the county recorder.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-40
Amended agreement; dismissal of petition
Sec. 40. (a) If after a public hearing the commission disapproves
the agreement in form or substance, the petitioner shall, under a
temporary order of the commission, make and cause to be executed
an amended agreement meeting the commission's requirements as to
form and substance.
(b) If the petitioner fails or refuses, for longer than sixty (60) days
after entry of a temporary order requiring the petitioner to do so, to
file an amended agreement meeting with commission requirements
for form and substance, the commission may require the petitioner
to appear at a meeting of the commission and show cause why the
petition of the petitioner should not be dismissed.
(c) If the petitioner fails:
(1) to appear at the meeting; or
(2) to show good and sufficient cause why the petition should
not be dismissed;
the commission shall, upon the vote of a majority of the members,
dismiss the petition.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-41
Abrogation of covenant or agreement
Sec. 41. (a) A covenant or an agreement made under this chapter
may be abrogated by six (6) affirmative votes of the commission
upon petition and after notice to all interested parties and a public
hearing if the commission determines that the covenant or agreement
no longer accomplishes in a substantial manner any of the purposes
of this chapter.
(b) A covenant or an agreement is considered abrogated upon
dissolution of the commission under section 61 of this chapter.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-42
Minutes of meetings
Sec. 42. (a) The commission shall keep complete minutes of
meetings. The minutes must reflect the following:
(1) Action taken by the commission.
(2) The reasons for the action.
(3) The factors considered by the commission in taking the
action.
IC 36-7-11.3-43
Fees
Sec. 43. (a) The commission shall, by rule adopted under section
21 of this chapter, set fees to be paid by a person filing a petition
with the commission. If the commission has not set a fee by rule for
a type of petition, the fee is twenty-five dollars ($25).
(b) A person filing a petition with the commission shall pay the
fee required for the filing to the clerk or clerk-treasurer. The clerk or
clerk-treasurer shall pay the fee to the treasurer of the commission.
(c) The clerk or clerk-treasurer has no duty regarding the fees
collected under this section except those imposed under subsection
(b). Fees collected under this section:
(1) do not belong to the city or town; and
(2) are not subject to any of the following:
(A) IC 5-11-10.
(B) IC 36-2-6.
(C) IC 36-3.
(D) IC 36-4-8.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-44
Money for administration of chapter
Sec. 44. The commission may accept money from any source for
use in administering this chapter.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-45
Zoning variance; approval by commission
Sec. 45. An administrative, a legislative, or other governmental
body may not grant a zoning variance relating to the use of primary
or secondary property without the prior approval of the commission
upon the affirmative vote of at least six (6) members. The
commission may approve the variance only if:
(1) the petition establishes by substantial evidence of probative
value the correctness of the conclusions stated in section 47 of
this chapter; and
(2) notices of the hearing have been given to all interested
parties in the manner required by this chapter.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-46
Zoning ordinance pertaining to primary or secondary property
prohibited
Sec. 46. (a) The development commission may not:
(1) approve a petition for the amendment or adoption of a
zoning ordinance pertaining or applying to primary or
secondary property; or
(2) adopt or amend an ordinance to the extent the ordinance
pertains or applies to primary or secondary property;
until the events described in subsection (b) have occurred.
(b) The following must occur before the development commission
may take action under subsection (a):
(1) Notice of the filing of the petition before the development
commission has been given by the petitioner to all interested
parties not later than ten (10) days after the filing.
(2) The matter has been referred to the commission, which has:
(A) considered the matter applying the standards stated in
section 47 of this chapter and made a recommendation to the
development commission; or
(B) failed to make a recommendation for a period of one
hundred twenty (120) days following the referral of the
matter to the commission for the commission's
recommendations, unless the time has been extended by the
development commission for good cause shown.
(3) A duly advertised public hearing on the matter has been held
by the development commission.
(4) The conclusions stated in section 47 of this chapter have
been established by substantial evidence of probative value.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-47
Prohibited results of zoning ordinance or amendment
Sec. 47. The conclusions required by sections 45 and 46 of this
chapter are that the requested variance, the proposed new zoning
ordinance, or the amendment to an existing zoning ordinance will not
do any of the following:
(1) Tend to undermine or detract from the general residential
character of the following:
(A) The primary area.
(B) Primary property.
(C) Secondary property lying between primary property and
the property for which the new zoning ordinance, zoning
ordinance amendment, or zoning variance is sought.
(2) Affect in an adverse manner the value for single family
residential usage of the following:
(A) Primary property.
(B) Secondary property lying between primary property and
the property for which the new zoning ordinance, zoning
ordinance amendment, or zoning variance is sought.
(3) Alter or adversely affect, either in inherent nature or method
of implementation, the historic or architectural character or
style of the area comprised of:
(A) primary and secondary property; or
IC 36-7-11.3-48
Notice of filing of petition; evidence available to commission
Sec. 48. (a) Notice of:
(1) the filing of a petition with the commission for approval of
a proposed use variance; and
(2) the filing of a petition with the development commission for
approval of an amendment or the adoption of a zoning
ordinance pertaining or applying to primary or secondary
property;
is jurisdictional.
(b) Before referral of a matter to the commission, the development
commission or other referring body must be satisfied of the
following:
(1) That proper notice of the filing of the petition as required by
this chapter has been given.
(2) That copies of:
(A) all petitions, exhibits, drawings, pictures, and other
documents intended to be offered in support of the proposed
new zoning ordinance or amendment to an existing zoning
ordinance; and
(B) the contract described by section 50 or 51 of this
chapter;
have been made available to the commission without expense
to the commission.
(c) If the development commission discovers, upon hearing,
substantial departure from, addition to, or modification of materials
presented to the commission, the matter shall be remanded to the
commission for an additional sixty (60) day period for
reconsideration and further recommendation, if any. The commission
may, however, take additional evidence that the commission
considers necessary for the purpose of making recommendations on
the proposed new zoning ordinance or amendment to an existing
zoning ordinance.
(d) The development commission or other referring body:
(1) shall thoughtfully consider the recommendations of the
commission; and
(2) may overrule or ignore the recommendations only if the
recommendations are:
(A) unsupported by substantial evidence; or
(B) contradicted by a clear preponderance of the evidence;
presented before the development commission.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-50
Requirements for petition filed by person seeking zoning variance
Sec. 50. (a) A petition that is filed by a person seeking approval
of the commission for a zoning variance of or for subject property
must:
(1) be under oath; and
(2) state the following:
(A) The full name and address of the petitioner and of each
attorney acting for and on behalf of the petitioner.
(B) The street address.
(C) The name of the owner of the property.
(D) The full name and address of and the type of business,
if any, conducted by:
(i) a person who at the time of the filing is a party to; and
(ii) a person who is a disclosed or an undisclosed principal
for whom the party was acting as agent in entering into;
a contract of sale, lease, option to purchase or lease,
agreement to build or develop, or other written agreement of
any kind or nature concerning the subject property or the
present or future ownership, use, occupancy, possession, or
development of the subject property.
(E) A description of the contract of sale, lease, option to
purchase or lease, agreement to build or develop, or other
written agreement sufficient to disclose the full nature of the
interest of the party or of the party's principal in the subject
property or in the present or future ownership, use,
occupancy, possession, or development of the subject
property.
(F) The date of the regular meeting of the commission at
which the petitioner requests the petition be considered and
determined.
(G) A detailed description of the proposed use for which the
zoning variance is sought.
(H) Other information that the commission requires by rule
or regulation.
(b) A petition must be accompanied by the following:
IC 36-7-11.3-51
Requirements for petition filed by person requesting new or
amended zoning ordinance affecting primary or secondary
property
Sec. 51. (a) A petition that is filed by a person requesting the
adoption of a new zoning ordinance or the amendment of an existing
zoning ordinance directly pertaining to or affecting primary or
secondary property must, in addition to all other applicable
requirements concerning the petitions generally:
(1) be under oath; and
(2) state the following:
(A) The street address of the primary or secondary property
to which the new zoning ordinance or amendment to an
existing zoning ordinance would directly pertain or affect.
(B) The name of each owner of the property.
(C) The name and address of each person, including
principals, if any, who at the time of filing is a party to a
contract of sale, lease, option to purchase or lease,
agreement to build or develop, or other written agreement,
excluding insurance policies, mortgage deeds, fuel service
contracts, and similar documents, concerning the subject
property or the present or future ownership, use, occupancy,
possession, or development of the subject property. The
petition must also describe all businesses in which the
persons, jointly or severally, are engaged.
(D) A detailed description of the proposed use for which the
new zoning ordinance or amendment of an existing zoning
ordinance is sought.
(E) Other information that the development commission
requires by rule or regulation.
(b) The petition must be accompanied by the following:
(1) A complete copy of each contract described by subsection
(a)(2)(C) or a description of the contract sufficient to disclose
the full nature of the interest of the party and principals, if any,
in the subject property or in the present or future ownership,
use, occupancy, possession, or development of the subject
property.
(2) Other documents that the development commission requires
by rule or regulation.
As added by P.L.1-1995, SEC.84.
who are owners.
As added by P.L.1-1995, SEC.84. Amended by P.L.219-2007,
SEC.124; P.L.146-2008, SEC.721.
IC 36-7-11.3-53
Preservation area exemptions
Sec. 53. Sections 54, 55, and 56 of this chapter do not apply to a
preservation area except to the extent the legislative body adopts an
ordinance or a resolution after notice and a public hearing to
substitute for sections 54, 55, and 56 of this chapter the land
development and use standards applicable to the primary area or
primary properties that are appropriate to accomplish the purposes of
this chapter.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-54
Conditions for erection of new structure on primary property
Sec. 54. A new structure may not be erected upon a parcel of
primary property and an existing structure upon the property may not
be altered if the structure would do any of the following:
(1) Permit a residential usage that, in relation to the parcel upon
which situated, would be of a substantially greater density than
the average residential density of primary property lying within
one thousand (1,000) feet of the property in question, excluding
for purposes of determining the average primary property used
for multiple family residential or commercial purposes.
(2) Appear substantially smaller or larger in size and scale than
the average size and scale of the single and double family
residential dwellings situated upon primary property lying
within one thousand (1,000) feet of the property in question.
(3) Have a set-back from the primary area significantly less than
the average set-back of structures facing upon the primary area
that are situated upon primary property lying within one
thousand (1,000) feet of the property in question.
(4) Have side lots measuring less than fifteen (15) feet from the
property line of the subject property to the wall of the structure
erected or altered.
(5) If primarily a residential dwelling, have a ground floor area
of less than two thousand (2,000) square feet or forty percent
(40%) of the total area of the parcel of land upon which the
dwelling lies, whichever is less.
(6) Including all other structures upon the parcel, have a total
ground floor area greater than fifty percent (50%) of the total
area of the parcel of land upon which the structure lies.
(7) Substantially encroach upon the view and exposure of a
residential structure on a neighboring property.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-55
Subdivision of primary property into lots
Sec. 55. A parcel of primary property may not be subdivided into
lots having:
(1) an area of less than fifteen thousand (15,000) square feet; or
(2) frontage of less than one hundred (100) feet upon the
primary area or upon an east-west street intersecting with the
primary area.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-56
Conditions for altering structure or feature on primary property
Sec. 56. (a) A person may not construct on primary property a
structure or feature or reconstruct, alter, or demolish primary
property unless the following conditions have been met:
(1) The person has previously filed with the commission an
application for a certificate of appropriateness in the form and
with the plans, specifications, and other materials that the
commission prescribes.
(2) A certificate of appropriateness has been issued by the
commission as provided in this section.
(b) After the filing of an application for a certificate of
appropriateness, the commission shall determine whether the
proposed construction, reconstruction, or alteration of the structure
in question:
(1) will be appropriate to the preservation of the area comprised
of primary and secondary property; and
(2) complies with the architectural and construction standards
then existing in the area.
(c) In determining appropriateness, the commission shall consider,
in addition to other factors that the commission considers pertinent,
the historical and architectural style, general design, arrangement,
size, texture, and materials of the proposed work and the relation of
the proposed work to the architectural factor of other structures in the
area. The entity responsible for issuing building permits may not
issue a permit for the construction, reconstruction, alteration, or
demolition of a structure in the area unless the application for the
permit is accompanied by a certificate of appropriateness.
(d) The issuance of or refusal to issue a permit is a final
determination appealable under section 59 of this chapter. With
respect to a certificate of appropriateness, the commission may, by
rule or regulation, provide for:
(1) the public hearings;
(2) notice of the hearings; or
(3) the filing of the application for the certificate;
that the commission considers necessary.
(e) Notwithstanding this section, the commission may, by rule or
regulation:
(1) define; and
(2) exempt from the application of this section;
specific types and categories of construction, reconstruction,
alterations, and demolition for which the commission determines
commission action and review are not necessary or desirable to effect
the purposes of this chapter.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-57
Restrictions on owners and occupants of primary and secondary
property
Sec. 57. (a) As used in this section, "bedroom" means a room that:
(1) consists of not less than eighty (80) usable square feet and
one (1) built-in closet; and
(2) is located on or above the first floor of a structure.
(b) Each owner and occupant of primary or secondary property
shall do the following:
(1) Permit not more than one (1) family to inhabit a
single-family dwelling.
(2) Permit not more than two (2) families to inhabit a double
family dwelling.
(3) Permit to inhabit a dwelling unit not more than the number
of individuals derived by multiplying the total number of
bedrooms in the unit by three (3).
(4) Maintain and prevent cleared areas from becoming
overgrown.
(5) Permit no trash, scrap, refuse, dead matter, or other debris
of any kind to accumulate on the property so as to make:
(A) the property unhealthful, unsightly, or dangerous; or
(B) a residential structure or other structure appurtenant to
a residential structure unsuitable for the residential or
appurtenant purposes.
(6) Maintain in good repair and appearance all exterior surfaces.
(7) Maintain in good and safe repair all walls, roofs,
foundations, ceilings, floors, stairways, or other structures upon
the property.
(8) Repair promptly broken windows or panes of glass in a
structure upon the property.
(9) Secure from unauthorized access an unused or unoccupied
structure upon the property.
(10) Maintain in a safe, habitable condition each residential
structure upon the property.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-58
Powers of interested parties; private right of action to restrain,
enjoin, or enforce orders
Sec. 58. (a) Each interested party:
(1) has a private right of action to:
(A) enforce; and
(B) prevent violation of;
this chapter; and
(2) may, with respect to primary or secondary property:
(A) restrain or enjoin, temporarily or permanently, a person
from violating; and
(B) enforce by restraining order or injunction;
this chapter.
(b) The powers described in subsection (a) include the following:
(1) To enforce written commitments, agreements, or covenants
made in accordance with or under this chapter.
(2) To prevent and obtain full relief from a threatened or
existing violation of section 54, 55, 56, or 57 of this chapter.
(3) To prevent:
(A) a person from seeking or having the benefits of; or
(B) a governmental body from granting;
a rezoning of or zoning variance for primary or secondary
property for which the commission or development commission
for rezoning has not granted prior approval in the manner
required by this chapter.
(4) To:
(A) prevent construction, reconstruction, alteration, or
demolition work upon; and
(B) obtain full relief from work previously done upon;
primary property for which a certificate of appropriateness was
required but was not issued by the commission. A showing that
issuance of certificates of appropriateness for the work could
not properly have been denied by the commission if a proper
application had been made is a complete defense to an action
under this subdivision.
(5) To prevent further construction work upon and obtain full
relief from construction work previously done upon primary
property that fails in a substantial manner to comply with all the
terms and conditions:
(A) of a certificate of appropriateness issued by the
commission; or
(B) of the petition and documents filed with the commission
upon which the commission is presumed to have based
approval of the certificate.
(6) To prevent usage of primary or secondary property for
which a rezoning or zoning variance:
(A) would be required; and
(B) has not been obtained.
(7) To prevent a violation of the terms and conditions of the
approval by the commission of a zoning variance as petitioned
for and obtained from the commission.
(c) For purposes of obtaining relief sought under this section, it is
not necessary to allege or prove irreparable harm or injury to a
person or property. A person entitled to bring an action under this
section is not required to post a bond unless the court, after a hearing,
determines that a bond should be required in the interests of justice.
A person who brings an action under this section is not, however,
liable to a person for any damages resulting from the bringing or
prosecuting of the action unless the action was not brought:
(1) in good faith; or
IC 36-7-11.3-59
Judicial review
Sec. 59. A final determination by the commission is subject to
judicial review 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, notwithstanding IC 36-7-4-1609, upon notice of
the filing of the petition for judicial review, all proceedings and work
on the subject premises are automatically stayed.
As added by P.L.1-1995, SEC.84. Amended by P.L.126-2011,
SEC.67.
IC 36-7-11.3-60
Appeals
Sec. 60. An appeal may be taken to the court of appeals from the
final judgment of the court under section 59 of this chapter 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.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-61
Dissolution of commission
Sec. 61. (a) The legislative body that created a commission under
this chapter may:
(1) at any time in the discretion of the legislative body; or
(2) by application of at least fifty-one percent (51%) of the
owners of property in the primary area;
dissolve the commission by ordinance or resolution if the legislative
body in the discretion of the legislative body determines that the
commission has failed to accomplish the purpose for which the
commission was created.
(b) If the legislative body dissolves the commission, the
preservation area ceases to exist and this chapter does not apply.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-63
Cumulative nature of chapter
Sec. 63. This chapter is cumulative to and does not supersede,
preempt, or invalidate a zoning, building, health, or other law,
ordinance, or code in effect as of April 16, 1971, except to the extent
the law, ordinance, or code is in irreconcilable conflict with this
chapter. If an irreconcilable conflict exists, only those parts of the
law, ordinance, or code that conflict with this chapter are
inapplicable as the parts pertain to the subject matter of this chapter.
As added by P.L.1-1995, SEC.84.