CHAPTER 11.3. MUNICIPAL PRESERVATION
IC 36-7-11.3
Chapter 11.3. Municipal Preservation
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 generalwelfare of the citizens of Indiana;
a historic, scenic, aesthetically pleasing, and unique part of a streetlying within a city or town constituting the backbone of a uniqueresidential area.
(b) The general assembly intends, by passage of this chapter, to:
(1) encourage private efforts to maintain and preserve that partof 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 andeconomic value in Indiana;
by limiting and restricting unhealthful, unsafe, unaesthetic, or otheruse of unique areas that would be inconsistent with their character astourist 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 apreservation 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" meansthe governmental authority having primary jurisdiction over:
(1) recommending; and
(2) recommending alterations or changes in;
the comprehensive plan for land use applicable to the municipalityin 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 ofindividuals who:
(1) are all related to each other by marriage, consanguinity, orlegal adoption; and
(2) live together as a single household with a single head of thehousehold.
(b) The term includes the following:
(1) Live-in paid domestic employees. (2) Not more than two (2) nontransient guests of the household.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-5
"Interested party" defined
Sec. 5. As used in this chapter, "interested party" means thefollowing:
(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 orsecondary property to a depth of two (2) ownerships of theperimeter of the property.
(8) An owner, occupant, or other person having a legal orequitable 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 entitledto the notice; or
(2) served upon the person, official, or office by placing thenotice in the United States mail, first class postage prepaid,properly addressed to the person, official, or office. Notice isconsidered served if mailed in the manner prescribed by thissubdivision properly addressed to the following:
(A) The governor, both to the address of the governor'sofficial residence and to the governor's executive office inIndianapolis.
(B) The Indiana department of transportation, to thecommissioner.
(C) The department of natural resources, both to the directorof the department and to the director of the department'sdivision 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 addressof the primary or secondary property occupied by theperson.
(F) An owner, to the person by the name shown to be thename of the owner, and at the person's address, as appears inthe records in the bound volumes of the most recent realestate 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. (G) The society, to the organization at the latest address asshown in the records of the commission.
As added by P.L.1-1995, SEC.84. Amended by P.L.219-2007,SEC.123; P.L.146-2008, SEC.720.
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 uponprimary 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 ownsa 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, acorporation, a partnership, an association, a trust, a governmentalbody or an agency, or other entity, public or private, capable ofentering 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" meansproperty within an area designated as a primary area by thelegislative 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" meansproperty within an area designated as a secondary area by thelegislative 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 familyresidential dwellings" means residential structures that:
(1) do not share a common wall with any other residentialstructures; (2) were designed and built for occupancy by not more than two(2) separate families; and
(3) contain not more than two (2) separate living quarters.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-13
"Society" defined
Sec. 13. As used in this chapter, "society" refers to the Indianahistorical 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 primaryor secondary property or existing or proposed construction on theproperty:
(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 ofthis 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 anordinance or a resolution to designate an area in the municipality thatis subject to a comprehensive plan for land use, whether adopted bythe 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 thelegislative body finds after a public hearing to be a clearly definablearea that:
(1) should be preserved from deterioration or destruction infurtherance 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 ordestruction. (c) The secondary area is an area surrounding the primary areathat the legislative body finds after a public hearing to be an area thecontrol of the development or change of which is necessary ordesirable to the preservation of the primary area. The legislative bodymay decide to not designate a secondary area if the legislative bodydetermines that a secondary area is not needed or required topreserve the primary area from deterioration or destruction.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-17
Size of preservation area
Sec. 17. A preservation area may not be larger than the legislativebody 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 primaryand secondary areas of the preservation area, the legislative body ofthe municipality shall create a commission to be known as the"______________ Preservation Commission". The legislative bodyshall give:
(1) the name of the city or town in which the area to bepreserved 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 dutiesprescribed 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 iscomposed 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 toserve in place of the executive.
(2) The executive of the city or the legislative body of the townshall appoint the following:
(A) An architect registered under IC 25-4-1 who ispracticing in Indiana.
(B) A professional city planner employed by a planningauthority:
(i) of the city;
(ii) if a city planning authority does not exist, of thecounty; or
(iii) if a county planning authority does not exist, inIndiana. (C) A landscape architect practicing in Indiana.
(D) A civil engineer certified under Indiana law who ispracticing:
(i) in the county in which the area is located; or
(ii) if a civil engineer is not practicing in the county, inIndiana.
(E) Two (2) owners and occupants of residential dwellingsin the primary area.
(F) Two (2) individuals from a list of at least four (4)nominees submitted by the society.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-20
Term of office
Sec. 20. An appointed member of the commission holds office forthe term that the legislative body of the municipality sets forth in theordinance 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 therules and regulations that are necessary, desirable, or convenient tothe orderly administration of commission affairs and to theimplementation of this chapter in accordance with the intent andpurpose. The rules and regulations shall be made available in writingto 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 tobe filed with the commission shall be filed with the clerk orclerk-treasurer and directed to the attention of the commission. Theclerk or clerk-treasurer shall:
(1) maintain; and
(2) make available for public inspection;
all records of the commission at the offices of the clerk orclerk-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 thischapter with respect to a matter coming or pending before acommission created under this chapter, the notice shall be sent to thepersons designated as interested parties under this chapter.
(b) A public officer or office entitled to receive notice maydesignate in writing filed with the commission alternate or additionalpersons to whom notice required to be served upon the officer or
office shall also be served. The commission shall maintain acomplete list of the persons and their addresses.
(c) A person, an official, or an office who or that is not servednotice in the manner prescribed by this chapter is not consideredproperly 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 selectedby the attorney general is the attorney for the commission. Thecommission may employ other legal counsel that the commissionconsiders 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 mustspecify a particular time on a particular day of the week in aparticular week of the month for holding regular meetings to considerany matters properly coming before the commission. Except asprovided in subsection (b), the commission shall regularly meet atthe designated time if there is any matter requiring consideration ordetermination as specified in this chapter.
(b) The commission may designate in the rules and regulationsJuly or August as a vacation month during which the commissionwill not hold a regular meeting despite the existence of mattersrequiring consideration or determination. A person desiring thecommission to consider or determine any matter that is within thecommission's jurisdiction under this chapter must, at least thirty (30)days before a regular meeting date of the commission upon which theperson 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 thecommission to consider or determine.
(2) Requests that the matter be placed upon the commission'sdocket for matters to be considered and determined at themeeting.
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 ofthe commission;
call a special meeting of the commission to consider or determine amatter for which a petition has been filed.
(b) The meeting shall be scheduled for a date:
(1) not less than thirty (30); and (2) not more than forty-five (45);
days after the filing of the petition.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-27
Continuance
Sec. 27. For good cause shown, the chairman of the commissionmay, at or before a regular or special meeting, continue any matterdocketed 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 waspreviously 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 filedwith the commission, require the person filing the petition or aperson whose interests appear adverse to those of the petitioner tofile 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 orgraphic materials.
(2) Additional information concerning the petitioner's or theadverse person's intentions or interest with respect to primaryor secondary property.
(3) Any other additional information that the commissionconsiders 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 thedetermination of a matter coming before the commission for whicha public hearing is required under this chapter.
(b) Except as otherwise provided in this chapter, a majority voteof the members of the commission present and voting is required forthe 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 fromhearing and voting upon a matter coming before the commissionbecause the member:
(1) owns or occupies primary or secondary property; or
(2) belongs to a neighborhood association. (b) A member of the commission may abstain from voting on amatter if the member states reasons in the record.
(c) A member of the commission is disqualified from voting if:
(1) the member is an owner or occupant of:
(A) the subject property; or
(B) primary or secondary property of which a part lies withinone hundred (100) feet of the subject property; or
(2) the member is a person described by section 50(a)(2)(D) ofthis chapter.
(d) If by virtue of the abstention of a member of the commissionthere is not present at a hearing upon a matter at least six (6)members of the commission able to vote on the matter, the chairmanshall redocket the matter for a hearing or rehearing at:
(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 at which the matter wasor was to be heard.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-31
Private deliberations; conditions of favorable vote; privateagreement on conditions
Sec. 31. (a) Upon the conclusion of the hearing on a matter andbefore 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 conditionsproposed to the commission at the hearing by a person, including acommission member, concerning the restrictions, limitations,commitments, or undertakings that might be required by thecommission 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 futuremeeting so that the petitioner and a person appearing adverse to thepetitioner might privately agree upon the restrictions, limitations,commitments, or undertakings to be proposed to the commission asa 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 thecommission finally determining a matter, the commission shall entera 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 oragainst the petitioner determined the matter.
(b) If a tie vote occurs, the petition is considered to be determinedadversely to the petitioner, with the members casting a voteadversely 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 matterconditioned 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 votedetermining the matter conditionally, enter a temporary order settingforth the restriction, limitation, commitment, or undertaking.
(b) The commission shall enter a final order approving thepetition upon and after a hearing at which the petitioner must satisfythe commission that the restriction, limitation, commitment, orundertaking has been formalized so that an interested party mayenforce the restriction, limitation, commitment, or undertaking in aprivate 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 hasdetermined a matter by vote, other than a rezoning matter referred tothe commission by the development commission, a party whoappeared at the hearing shall, upon request of the commission, filewith the commission a proposed temporary or final order.
(b) A proposed final order must state in detail the basic facts thatcould have been found by the commission based upon substantialevidence of probative value actually introduced into evidence beforethe 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 uponsubstantial evidence of probative value actually introduced intoevidence before the commission at a hearing on the matter; and
(2) upon which the commission could properly have required arestriction, a limitation, a commitment, or an undertaking as acondition 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 certificateof appropriateness based upon verbal assurances or unwritten
agreements or commitments made by a person concerning any of thefollowing:
(1) A future use or development of the subject property.
(2) A restriction or limitation in the character, nature, or styleof 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, orimplementation of a contingent or possible use or proposedconstruction.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-36
Written agreement required for zoning variance or certificate ofappropriateness
Sec. 36. (a) The commission may, by the vote of at least six (6) ofthe members or for a certificate of appropriateness by a majority ofthe members, as a condition of approval of a zoning variance or ofissuance 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 orcertificate of appropriateness is sought;
to prepare and execute in a form acceptable by the commission andto file with the commission a written agreement notarized by eachsignatory party.
(b) By the agreement signed under subsection (a) each partyagrees 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 subjectproperty, covenants for the party and for a successor to the legal orequitable interest in the property, to be bound by the following:
(1) The restrictions or limitations that the commission has, infurtherance of the intent and purpose of this chapter, specifiedconcerning the future use or development of or constructionupon the subject property.
(2) The restrictions or limitations that the commission has, infurtherance of the intent and purpose of this chapter, specifiedconcerning the character, nature, or style of a proposed,contingent, or possible use or construction:
(A) for which the zoning variance or certificate ofappropriateness is sought; or
(B) that would be permitted by the zoning variance orcertificate of appropriateness.
(3) Undertakings that the commission has, in the furtherance ofthe intent and purpose of this chapter, required concerning theplanning, design, or implementation of a proposed, contingent,or possible use or construction.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-37
Provisions in agreement
Sec. 37. An agreement signed under section 36 of this chaptermust do the following:
(1) Refer to the proceeding before the commission.
(2) Contain a full legal description of the subject property.
(3) Specifically provide for the following:
(A) That the agreement is contingent upon the grant of avariance for or issuance of a certificate of appropriatenessconcerning the subject property.
(B) That the agreement will be construed strictly againstthose parties from whom the agreement is required by thecommission.
(C) That the agreement, if executed by a party with a legalor an equitable interest in the subject property, is intended tocreate a covenant that:
(i) runs with the subject property; and
(ii) is binding upon the successors to the fee or to aninterest in the fee.
(D) That the agreement is intended to benefit and to beenforced by a person who, under this chapter, would beconsidered an interested party concerning the subjectproperty.
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 thepetitioner requests the hearing.
(2) On or before the date of the filing, serve in the manner thatnotices must be served under this chapter a copy of the requestand the agreement upon the following:
(A) Each neighborhood association.
(B) Each interested party who, not later than five (5) daysafter the hearing for which the commission entered atemporary order concerning the zoning variance or thecertificate of appropriateness sought by the petitioner, filedwith the commission a request that the agreement or requestbe 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 inform 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 orderexpressing the commission's approval of the zoning variance orissuance of the certificate of appropriateness as sought by thepetitioner.
(b) The commission shall, at the petitioner's expense, immediatelyfile 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 disapprovesthe agreement in form or substance, the petitioner shall, under atemporary order of the commission, make and cause to be executedan amended agreement meeting the commission's requirements as toform and substance.
(b) If the petitioner fails or refuses, for longer than sixty (60) daysafter entry of a temporary order requiring the petitioner to do so, tofile an amended agreement meeting with commission requirementsfor form and substance, the commission may require the petitionerto appear at a meeting of the commission and show cause why thepetition 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 shouldnot 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 chaptermay be abrogated by six (6) affirmative votes of the commissionupon petition and after notice to all interested parties and a publichearing if the commission determines that the covenant or agreementno longer accomplishes in a substantial manner any of the purposesof this chapter.
(b) A covenant or an agreement is considered abrogated upondissolution 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 ofmeetings. 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 theaction. (b) Copies of the minutes of a meeting shall be provided to aperson requesting a copy.
(c) An interested party who desires a transcript of a matter heardby the commission may, at the interested party's expense, have atranscript prepared.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-43
Fees
Sec. 43. (a) The commission shall, by rule adopted under section21 of this chapter, set fees to be paid by a person filing a petitionwith the commission. If the commission has not set a fee by rule fora type of petition, the fee is twenty-five dollars ($25).
(b) A person filing a petition with the commission shall pay thefee required for the filing to the clerk or clerk-treasurer. The clerk orclerk-treasurer shall pay the fee to the treasurer of the commission.
(c) The clerk or clerk-treasurer has no duty regarding the feescollected 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 foruse 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 governmentalbody may not grant a zoning variance relating to the use of primaryor secondary property without the prior approval of the commissionupon the affirmative vote of at least six (6) members. Thecommission may approve the variance only if:
(1) the petition establishes by substantial evidence of probativevalue the correctness of the conclusions stated in section 47 ofthis chapter; and
(2) notices of the hearing have been given to all interestedparties 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 propertyprohibited Sec. 46. (a) The development commission may not:
(1) approve a petition for the amendment or adoption of azoning ordinance pertaining or applying to primary orsecondary property; or
(2) adopt or amend an ordinance to the extent the ordinancepertains or applies to primary or secondary property;
until the events described in subsection (b) have occurred.
(b) The following must occur before the development commissionmay take action under subsection (a):
(1) Notice of the filing of the petition before the developmentcommission has been given by the petitioner to all interestedparties 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 insection 47 of this chapter and made a recommendation to thedevelopment commission; or
(B) failed to make a recommendation for a period of onehundred twenty (120) days following the referral of thematter to the commission for the commission'srecommendations, unless the time has been extended by thedevelopment commission for good cause shown.
(3) A duly advertised public hearing on the matter has been heldby the development commission.
(4) The conclusions stated in section 47 of this chapter havebeen 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 thischapter are that the requested variance, the proposed new zoningordinance, or the amendment to an existing zoning ordinance will notdo any of the following:
(1) Tend to undermine or detract from the general residentialcharacter of the following:
(A) The primary area.
(B) Primary property.
(C) Secondary property lying between primary property andthe property for which the new zoning ordinance, zoningordinance amendment, or zoning variance is sought.
(2) Affect in an adverse manner the value for single familyresidential usage of the following:
(A) Primary property.
(B) Secondary property lying between primary property andthe property for which the new zoning ordinance, zoningordinance amendment, or zoning variance is sought.
(3) Alter or adversely affect, either in inherent nature or methodof implementation, the historic or architectural character orstyle of the area comprised of:
(A) primary and secondary property; or (B) the part of the area comprised of the property lyingwithin five hundred (500) feet of the subject property.
(4) If the request is a zoning variance, violate a rule orregulation that the commission has adopted to accomplish thepurposes of this chapter.
As added by P.L.1-1995, SEC.84.
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 ofa proposed use variance; and
(2) the filing of a petition with the development commission forapproval of an amendment or the adoption of a zoningordinance pertaining or applying to primary or secondaryproperty;
is jurisdictional.
(b) Before referral of a matter to the commission, the developmentcommission or other referring body must be satisfied of thefollowing:
(1) That proper notice of the filing of the petition as required bythis chapter has been given.
(2) That copies of:
(A) all petitions, exhibits, drawings, pictures, and otherdocuments intended to be offered in support of the proposednew zoning ordinance or amendment to an existing zoningordinance; and
(B) the contract described by section 50 or 51 of thischapter;
have been made available to the commission without expenseto the commission.
(c) If the development commission discovers, upon hearing,substantial departure from, addition to, or modification of materialspresented to the commission, the matter shall be remanded to thecommission for an additional sixty (60) day period forreconsideration and further recommendation, if any. The commissionmay, however, take additional evidence that the commissionconsiders necessary for the purpose of making recommendations onthe proposed new zoning ordinance or amendment to an existingzoning ordinance.
(d) The development commission or other referring body:
(1) shall thoughtfully consider the recommendations of thecommission; and
(2) may overrule or ignore the recommendations only if therecommendations 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 36-7-11.3-49
Procedures for consideration of zoning matters referred bydevelopment commission
Sec. 49. (a) The provisions of this chapter concerning:
(1) meetings and hearings of the commission; and
(2) the manner in which matters will be taken up and consideredby the commission;
do not apply in the commission's consideration of rezoning mattersreferred to the commission by the development commission.
(b) With respect to the matters described in subsection (a), thecommission may by rule determine procedures to dispose of thematters within the mandatory one hundred twenty (120) day period.
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 approvalof the commission for a zoning variance of or for subject propertymust:
(1) be under oath; and
(2) state the following:
(A) The full name and address of the petitioner and of eachattorney 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 principalfor 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 ofany kind or nature concerning the subject property or thepresent or future ownership, use, occupancy, possession, ordevelopment of the subject property.
(E) A description of the contract of sale, lease, option topurchase or lease, agreement to build or develop, or otherwritten agreement sufficient to disclose the full nature of theinterest of the party or of the party's principal in the subjectproperty or in the present or future ownership, use,occupancy, possession, or development of the subjectproperty.
(F) The date of the regular meeting of the commission atwhich the petitioner requests the petition be considered anddetermined.
(G) A detailed description of the proposed use for which thezoning variance is sought.
(H) Other information that the commission requires by ruleor regulation.
(b) A petition must be accompanied by the following: (1) A true copy of each contract of sale, lease, option topurchase or lease, agreement to build or develop, or otherwritten agreement described in the petition.
(2) The maps, plot plans, structural drawings and specifications,landscaping plans, floor plans, elevations, cross-sectional plans,architectural renderings, diagrams, or any other technical orgraphic materials that the commission requires by rule orregulation.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-51
Requirements for petition filed by person requesting new oramended zoning ordinance affecting primary or secondaryproperty
Sec. 51. (a) A petition that is filed by a person requesting theadoption of a new zoning ordinance or the amendment of an existingzoning ordinance directly pertaining to or affecting primary orsecondary property must, in addition to all other applicablerequirements concerning the petitions generally:
(1) be under oath; and
(2) state the following:
(A) The street address of the primary or secondary propertyto which the new zoning ordinance or amendment to anexisting zoning ordinance would directly pertain or affect.
(B) The name of each owner of the property.
(C) The name and address of each person, includingprincipals, if any, who at the time of filing is a party to acontract of sale, lease, option to purchase or lease,agreement to build or develop, or other written agreement,excluding insurance policies, mortgage deeds, fuel servicecontracts, and similar documents, concerning the subjectproperty or the present or future ownership, use, occupancy,possession, or development of the subject property. Thepetition must also describe all businesses in which thepersons, jointly or severally, are engaged.
(D) A detailed description of the proposed use for which thenew zoning ordinance or amendment of an existing zoningordinance is sought.
(E) Other information that the development commissionrequires 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 disclosethe 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 subjectproperty.
(2) Other documents that the development commission requiresby rule or regulation.
As added by P.L.1-1995, SEC.84.
IC 36-7-11.3-52
Notice requirements
Sec. 52. (a) A person who has filed a petition under section 50 or51 of this chapter shall, not later than ten (10) days after the filing,serve notice upon all interested parties. The notice must state thefollowing:
(1) The full name and address of the following:
(A) The petitioner.
(B) Each attorney acting for and on behalf of the petitioner.
(2) The street address of the primary and secondary property forwhich the petition was filed.
(3) The name of the owner of the property.
(4) The full name and address of and the type of business, ifany, conducted by:
(A) each person who at the time of the filing is a party to;and
(B) each person who is a disclosed or an undisclosedprincipal for whom the party was acting as agent in enteringinto;
a contract of sale, lease, option to purchase or lease, agreementto build or develop, or other written agreement of any kind ornature concerning the subject property or the present or futureownership, use, occupancy, possession, or development of thesubject property.
(5) A description of the contract of sale, lease, option topurchase or lease, agreement to build or develop, or otherwritten agreement sufficient to disclose the full nature of theinterest of the party or of the party's principal in the subjectproperty or in the present or future ownership, use, occupancy,possession, or development of the subject property.
(6) A description of the proposed use for which the rezoning orzoning variance is sought, sufficiently detailed to appraise thenotice recipient of the true character, nature, extent, andphysical properties of the proposed use.
(7) The date of the filing of the petition.
(8) The date, time, and place of the next regular meeting of thecommission if a petition is for approval of a zoning variance. Ifa petition is filed with the development commission, the noticedoes not have to specify the date of a hearing before thecommission or the development commission. However, theperson filing the petition shall give ten (10) days notice of thedate, time, and place of a hearing before the commission on thepetition after the referral of the petition to the commission bythe development commission.
(b) For purposes of giving notice to the interested parties who areowners, the records in the bound volumes of the recent real estate taxassessment records as the records appear in:
(1) the offices of the township assessors (if any); or
(2) the office of the county assessor;
as of the date of filing are considered determinative of the persons
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 apreservation area except to the extent the legislative body adopts anordinance or a resolution after notice and a public hearing tosubstitute for sections 54, 55, and 56 of this chapter the landdevelopment and use standards applicable to the primary area orprimary properties that are appropriate to accomplish the purposes ofthis 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 ofprimary property and an existing structure upon the property may notbe altered if the structure would do any of the following:
(1) Permit a residential usage that, in relation to the parcel uponwhich situated, would be of a substantially greater density thanthe average residential density of primary property lying withinone thousand (1,000) feet of the property in question, excludingfor purposes of determining the average primary property usedfor multiple family residential or commercial purposes.
(2) Appear substantially smaller or larger in size and scale thanthe average size and scale of the single and double familyresidential dwellings situated upon primary property lyingwithin one thousand (1,000) feet of the property in question.
(3) Have a set-back from the primary area significantly less thanthe average set-back of structures facing upon the primary areathat are situated upon primary property lying within onethousand (1,000) feet of the property in question.
(4) Have side lots measuring less than fifteen (15) feet from theproperty line of the subject property to the wall of the structureerected or altered.
(5) If primarily a residential dwelling, have a ground floor areaof less than two thousand (2,000) square feet or forty percent(40%) of the total area of the parcel of land upon which thedwelling lies, whichever is less.
(6) Including all other structures upon the parcel, have a totalground floor area greater than fifty percent (50%) of the totalarea of the parcel of land upon which the structure lies.
(7) Substantially encroach upon the view and exposure of aresidential 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 intolots having:
(1) an area of less than fifteen thousand (15,000) square feet; or
(2) frontage of less than one hundred (100) feet upon theprimary area or upon an east-west street intersecting with theprimary 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 astructure or feature or reconstruct, alter, or demolish primaryproperty unless the following conditions have been met:
(1) The person has previously filed with the commission anapplication for a certificate of appropriateness in the form andwith the plans, specifications, and other materials that thecommission prescribes.
(2) A certificate of appropriateness has been issued by thecommission as provided in this section.
(b) After the filing of an application for a certificate ofappropriateness, the commission shall determine whether theproposed construction, reconstruction, or alteration of the structurein question:
(1) will be appropriate to the preservation of the area comprisedof primary and secondary property; and
(2) complies with the architectural and construction standardsthen existing in the area.
(c) In determining appropriateness, the commission shall consider,in addition to other factors that