IC 36-7-11.1
Chapter 11.1. Historic Preservation in Marion County
IC 36-7-11.1-1 Application of chapter
Sec. 1. This chapter applies to each county having a consolidated
city. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-2 Definitions
Sec. 2. As used in this chapter:
"Commission" refers to the historic preservation commission
appointed under section 3 of this chapter.
"Historic area" means an area, within the county, declared by
resolution of the historic preservation commission to be of historic
or architectural significance and designated as a "historic area" by
the historic preservation plan. This area may be of any territorial size
or configuration, as delineated by the plan, without a maximum or
minimum size limitation, and may consist of a single historic
property, landmark, structure, or site, or any combination of them,
including any adjacent properties necessarily a part of the historic
area because of their effect on and relationship to the historic values
and character of it.
"Historic preservation plan" means a plan designating one (1) or
more historic areas, prepared and setting forth a plan for historic
preservation by the historic preservation commission under this
chapter, and adopted by the metropolitan development commission
as a part of the county's comprehensive plan. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-3 Historic preservation commission; appointments; terms;
vacancies; salary; officers; procedural rules; quorum; absentee
members voting
Sec. 3. (a) The executive and the legislative body of the
consolidated city shall appoint a commission of nine (9) members to
be known as the "__________ Historic Preservation Commission"
(including the name of the city).
(b) The following apply to the appointment of members:
(1) The executive shall appoint five (5) members of the
commission. The executive:
(A) may select two (2) members from lists of names
submitted by the Historic Landmarks Foundation of Indiana
and the historical society of the consolidated city's county;
(B) may select one (1) member who is a member of the
metropolitan development commission; and
(C) may select one (1) member from a list of names
submitted by the local chapter of the American Institute of
Architects.
(2) The legislative body shall appoint four (4) members of the
commission. The legislative body:
(A) shall select one (1) member who is a resident of a
historic area of the consolidated city;
(B) may select one (1) member from lists of names
submitted by the Historic Landmarks Foundation of Indiana
and the historical society of the consolidated city's county;
and
(C) may select one (1) member from a list of names
submitted by the local chapter of the American Institute of
Architects.
(c) Each appointment to the commission is for a term of four (4)
years, commencing on January 1 following the appointment, and
until a successor is appointed and is qualified. A member is eligible
for reappointment.
(d) If a vacancy occurs in the commission during any term, a
successor shall be appointed by the appointing authority to serve for
the remainder of the vacated term. Any member of the commission
may be removed for cause by the appointing authority. All members
must be residents of the county.
(e) The members receive no salary, but are entitled to
reimbursement for any expenses necessarily incurred in the
performance of their duties.
(f) At its first scheduled meeting each year, the commission shall
hold a meeting for the purpose of organization. The commission shall
elect from its membership a president, vice president, secretary, and
treasurer who shall perform the duties pertaining to those offices.
The officers serve from the date of their election until their
successors are elected and qualified. The commission may adopt
bylaws and rules for the proper conduct of its proceedings, the
carrying out of its duties, and the safeguarding of its funds and
property. A majority of the members of the commission constitute a
quorum, and the concurrence of a majority of the commission is
necessary to authorize any action.
(g) A member of the commission is not disqualified from hearing
and voting upon any matter coming before the commission because
that member owns or occupies property within or adjacent to a
historic area, unless that property is the subject property or located
within two hundred (200) feet of it.
(h) A member of the commission who is absent from three (3)
consecutive regular meetings of the commission shall be treated as
if the member had resigned, unless the appointing authority reaffirms
the member's appointment. However, the counting of such a member
toward a quorum requirement or the voting by such a member does
not invalidate any official action taken by the commission before the
time that the minutes of the commission reflect that the member has
resigned. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.88-2009,
SEC.11.
IC 36-7-11.1-3.1 Terms of certain members of commission; appointment of
successor; expiration of section
Sec. 3.1. (a) A member appointed to the commission under section
3 of this chapter before July 1, 2009, shall continue to serve as a
member of the commission after June 30, 2009, until:
(1) the end of the term for which the member was appointed; or
(2) the executive removes the member for cause.
If the executive removes the member for cause, the executive shall
appoint a successor to serve for the remainder of the vacated term.
(b) This section expires July 1, 2014. As added by P.L.88-2009, SEC.12.
IC 36-7-11.1-4 Administrator; staff; work program; information; offices and
facilities; annual budget
Sec. 4. (a) After consulting with the executive of the consolidated
city and the director of the department of metropolitan development,
the commission may appoint or remove an administrator. The
administrator shall, in accordance with the personnel policies and
practices of the city, hire and discharge additional staff, following
the standards and qualifications established by the commission. No
consideration may be given to political affiliation in the selection and
tenure of the staff. The commission shall determine the
compensation of the administrator and other staff consistent with
ordinances of the legislative body adopted under IC 36-3-6-3.
(b) Before December 1 each year, the commission shall adopt a
work program defining the activities that are proposed to be carried
out by staff during the next calendar year. At least forty-five (45)
days before the commission desires to adopt a work program, it shall
submit a copy of the proposed work program to the executive of the
consolidated city and to the director of the department of
metropolitan development. The executive and director shall, within
thirty (30) days after submission, review and provide comments to
the commission regarding the proposed work program. After
comments have been received from the executive and the director
and considered by the commission or after thirty (30) days have
elapsed from the date of submission (whichever occurs first), the
commission shall adopt a work program. Activities carried out during
the calendar year must conform to or not substantially depart from
the work program. The work program may be modified during the
applicable calendar year in the same manner as the adoption of the
original work program, except that the executive and the director
have only ten (10) days in which to review and comment on the
proposed work program modification, and the commission may then
immediately adopt a work program modification.
(c) The administrator shall provide information that will allow the
director of the department of metropolitan development to coordinate
the activities of the department of metropolitan development with the
activities of the commission and its staff. In order to achieve
consistency in administrative practices and policies between the
consolidated city and the staff of the commission, the administrator
shall seek the advice and guidance of the director regarding such
matters as budgeting and fiscal control, personnel administration, and
purchasing.
(d) The commission shall establish and maintain offices and
facilities as may be necessary for the performance of its duties, the
activities of its staff, and the preservation of its records, documents,
and accounts. The location of the offices must be approved by the
executive of the consolidated city.
(e) The commission shall prepare and submit annually to the
fiscal officer of the consolidated city its estimate of the expenditures
required for its operations and fiscal responsibilities for the ensuing
fiscal year. The budget of the commission and its staff constitutes a
part of the consolidated city budget and shall be determined in
accordance with IC 36-3-6, and the county comprises the taxing
district for the commission. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-5 Powers and duties of commission
Sec. 5. (a) The commission may do the following:
(1) Acquire by purchase, gift, grant, bequest, devise, or lease
any real or personal property needed for carrying out any of the
purposes of this commission. Title to or interest in any real
property acquired or held by the commission must be in the
name of the consolidated city for the use and benefit of the
commission.
(2) Hold, use, sell, lease, rent, or otherwise dispose of any
property acquired for use in the carrying out of any of the
purposes of the commission at public or private sale and on
terms and conditions as the commission considers best,
notwithstanding any other law.
(3) Preserve and restore areas and structures of historic or
architectural significance.
(4) Conduct research and prepare a countywide comprehensive
survey and inventory, and review and evaluate areas, structures,
and sites of historic importance in the county for use by
planning agencies and governmental officials.
(5) Identify by declaratory resolution areas, structures, and sites
in the county having historic or architectural significance, and
prepare historic preservation plans for them. The commission
may prepare proposed historic district zoning classifications,
including proposals for controlling the use and development of
any historic area or areas, including standards and restrictions
regarding permitted uses, and development, performance, and
maintenance standards for public and private structures and
sites, and prepare criteria and architectural standards of
historical significance.
(6) Submit proposed historic preservation plans to the
metropolitan development commission for consideration for
adoption as a segment of the comprehensive plan of the county.
(7) After adoption of a historic preservation plan, assist in the
plan's administration and implementation, including the
issuance of permits and licenses, together with other
governmental agencies, and hear and determine applications for
certificates of appropriateness as provided in this chapter.
(8) Manage and operate historic structures and areas for any
purpose consistent with the applicable historic preservation
plan, authorize necessary agents and employees to convey or
lease any properties for any purpose or use to further the plan,
and do all necessary acts and things incidental to operations,
management, and leasing, including charging reasonable
admission fees to any of these properties.
(9) Assist other governmental agencies regarding historic
preservation, including the development of a state preservation
plan as the plan relates to the county, and work with other
governmental agencies in the development and carrying out of
plans to preserve, restore, and rehabilitate any historic area,
including the elimination of blight and deterioration, the
demolition and removal of unsafe, unhealthful structures, and
the repair and appropriate alteration of structures.
(10) Acquire any properties, structures, or sites for any purpose
of the commission by conveyance from the redevelopment
commission or from any other person or governmental agency,
upon such terms and conditions, and with or without
compensation, as may be agreed upon.
(11) Establish and maintain a register of historic properties in
the county.
(12) Make any recommendation and reports the commission
considers appropriate to the executive of the consolidated city,
metropolitan development commission, or other governmental
agency concerning historic preservation in the county.
(13) Prepare, publish, present, or distribute, with or without
charge, any information, reports, graphic or audiovisual
presentations, documents, or other materials relative to historic
preservation.
(14) Conduct, attend, or participate in any conferences,
presentations, seminars, or programs regarding historic
preservation.
(15) Encourage and promote historic preservation, particularly
preservation by private means, provide technical assistance to
local preservation or historical associations, individuals, or
groups, in accordance with the historic preservation plan, and
recognize excellence in historic preservation efforts by
awarding citations.
(16) Establish citizens advisory councils or special committees
regarding historic preservation.
(17) Prescribe the duties and qualifications of its administrator
and other staff in accordance with section 4 of this chapter.
(18) Contract with architects, engineers, attorneys, urban
planners, or any other consultants in connection with any
purpose of the commission, such as the conducting of a survey
of historic properties, preparation of proposed plans,
ordinances, reports, surveys, drawings, maps of historic areas,
or any other project provided in this chapter.
(19) Appoint a hearing officer (who may be a commission
member, a member of the staff, or any other person) to hear and
determine, on behalf of the commission, applications for
certificates of appropriateness.
(20) Prepare and submit an annual budget in the manner
prescribed by section 4 of this chapter.
(21) Participate, in conjunction with the consolidated city, in a
retirement system for commission employees.
(22) Accept or contract with the consolidated city or with other
persons for the furnishing of professional staff or any other
services, office facilities, equipment, and supplies to the extent
and for compensation as may be agreed upon, with or without
compensation, and to receive and expend any funds, grants, or
gifts for carrying out any function of the commission under this
chapter.
(23) Enter into and carry out contracts with federal or state
agencies, subject to the approval of the city executive, regarding
grants of financial or other assistance to the county, city, or
commission, accept and expend grant money or other
assistance, and enter into and carry out contracts with other
persons or governmental agencies for any purpose of the
commission.
(24) Exercise the powers of a board of zoning appeals in a
historic area or historic zoning district, if authorized by a zoning
ordinance adopted under IC 36-7-4.
(25) Conduct public hearings required to be held by the
metropolitan development commission under the 600 series of
IC 36-7-4 relative to territory included in a historic area or
historic zoning district, if designated by the metropolitan
development commission.
(b) The commission shall provide technical services and advice
about historic preservation to the consolidated city when necessary
or useful in connection with the planning, development, or
redevelopment of the county.
(c) This subsection applies to the sale or disposal of real property
by the commission. If the property is sold by acceptance of bids, a
bid submitted by a trust (as defined in IC 30-4-1-1(a)) must identify
each:
(1) beneficiary of the trust; and
(2) settlor empowered to revoke or modify the trust. As added by Acts 1982, P.L.77, SEC.6. Amended by
P.L.336-1989(ss), SEC.49; P.L.321-1995, SEC.6.
IC 36-7-11.1-6 Proposed historic preservation plans; recommendations; approval
proceedings; official markers
Sec. 6. (a) The commission shall have its staff prepare proposed
historic preservation plans for all appropriate areas of the county.
Upon the commission's declaratory resolution of the historic or
architectural significance of any area, structure, or site designated in
it, the proposed historic preservation plan shall be presented to the
metropolitan development commission for public hearing and
adoption as a part of the comprehensive plan of the county.
(b) The proposed historic preservation plan must officially
designate and delineate historic areas and identify any individual
structures or sites in it of particular historic or architectural
significance, which structures and sites must be listed on the county
register of historic places.
(c) With the designation of a historic structure, the plan may
additionally expressly identify and designate the interior, or any
interior architectural or structural feature of it, having exceptional
historic or architectural significance.
(d) The historic preservation plan may include any of the material
listed in IC 36-7-4-503 as it relates to historic preservation. Any plan
designating one (1) or more historic areas, and any historic structures
and sites located in it, must include a historic and architectural or
design analysis supporting the significance of the historic area,
general or specific criteria for preservation, restoration,
rehabilitation, or development, including architectural and design
standards, and a statement of preservation objectives.
(e) In preparing a proposed historic preservation plan, the staff of
the commission shall inform, consult, and cooperate with the staff of
the department of metropolitan development. In carrying out its
planning and redevelopment responsibilities in an area for which a
historic preservation plan is being prepared or is in effect, the staff
of the department of metropolitan development shall inform, consult,
and cooperate with the staff of the commission. To the extent
possible, commission staff and department staff shall carry out a
joint planning effort relative to proposed historic areas with the
resulting information and conclusions relating to historic
preservation being placed in the proposed historic preservation plan.
(f) Concurrently or subsequently, the commission may prepare
and recommend to the metropolitan development commission, for its
initiation, approval, and recommendation to the legislative body for
adoption, a historic district zoning ordinance or ordinances to
implement the historic preservation plan.
(g) Each historic area or historic zoning district must be of such
territorial extent and configuration as will best serve the purposes of
this chapter, there being no maximum or minimum size limitations
thereon whether applied to single or multiple historic properties or
sites, and may include any adjacent area necessarily a part thereof
because of its effect upon and relationship to the historic values and
character of the area.
(h) The proposed historic preservation plan, if approved and
adopted by the metropolitan development commission, constitutes
part of the comprehensive plan of the county.
(i) The proceeding for approval of this plan, including notice and
hearing requirements, is governed by the same rules and
requirements applicable to petitions to the metropolitan development
commission for amendment of zoning ordinances and for creation of
new district classifications, and by all statutory requirements relative
to the metropolitan development commission; however, individual
notice of the hearing shall be given each owner of property in any
proposed historic area, according to the metropolitan development
commission's rules and requirements or, alternatively, the owner's
consent to the proposed historical area designation may be obtained
and filed with the metropolitan development commission.
(j) Amendments to any historic preservation plan, or any segment
of it, shall be made in the same manner as the original plan.
(k) The commission shall receive and consider any pertinent
information or exhibits such as historical data, architectural plans,
drawings and photographs, regarding any proposed or designated
historic area, structure, or site, and any request for historic
designation or for the exclusion of any property or structure from any
proposed or designated historic area.
(l) The commission may adopt any operating guidelines for the
evaluation and designation of historic areas, structures, and sites, so
long as they are in conformity with the objectives of this chapter.
(m) Upon the adoption of the historic preservation plan, the
commission may at any time identify by appropriate markers any
historic areas, structures, and sites designated by the plan, or any
historic area properties in the process of restoration under the plan.
These markers may be erected on public right-of-ways or, with the
consent of the owner, on any subject historic property. These official
informational or identification markers, whether permanent or
temporary, constitute an exception to any codes and ordinances
establishing sign regulations, standards, and permit requirements
applicable to the area. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-7 Categories of work exempted by historic preservation plan;
premature issuance of permits for work
Sec. 7. (a) The historic preservation plan may provide that certain
categories of work accomplished in the historic area are exempt from
the requirement imposed by section 9 of this chapter that a certificate
of appropriateness be issued. Categories of work that may be
exempted by a historic preservation plan include the construction,
reconstruction, alteration, or demolition of a structure or feature.
Various historic preservation plans may exempt different categories
of work.
(b) After the commission has adopted a declaratory resolution
relative to a historic area and presented the historic preservation plan
to the metropolitan development commission for adoption or
rejection as a segment of the comprehensive plan of the county, no
permits may be issued by the department of metropolitan
development for the construction, reconstruction, or alteration of any
exterior architectural structure or feature in the area or the demolition
of any structure or feature in the area until the metropolitan
development commission has taken official action on the proposed
plan or within ninety (90) days after the date of adoption of the
declaratory resolution by the commission, whichever occurs first. If
such a permit has been issued before the adoption of a declaratory
resolution by the commission, the agency issuing the permit may
order that the work allowed by the permit, or a part of the work, be
suspended until the metropolitan development commission has
adopted or rejected the historic preservation plan. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-8 Permits for work; application; certificate of appropriateness
Sec. 8. (a) After adoption of the historic preservation plan for any
historic area, permits may be issued by the department of
metropolitan development for the construction of any structure in the
area or the reconstruction, alteration, or demolition of any structure
in the area only if the application for the permit is accompanied by
a certificate of appropriateness issued under section 10 of this
chapter.
(b) Notwithstanding subsection (a), if the historic preservation
plan for the historic area specifically exempts certain categories of
work involving the construction, reconstruction, alteration, or
demolition of structures in that area from the requirement that a
certificate of appropriateness be issued, then a permit for the work
may be obtained from the department of metropolitan development
without the issuance of a certificate of appropriateness.
(c) After the adoption of the historic preservation plan for any
area, all governmental agencies shall be guided by and give due
consideration to the plan in any official acts affecting the area.
(d) On application by any governmental agency or interested party
in accordance with section 9 of this chapter, the commission shall
make a determination of the appropriateness of any proposed
governmental action affecting a historic area. Any official action in
conflict with the plan or determined by the commission to be
inappropriate is presumed to be not in the public interest and is
subject to the enforcement provisions of section 12 of this chapter.
(e) The commission's determination of appropriateness is a
prerequisite to any governmental order or action to alter or demolish
any designated historic site or any structure in a historic area. No
rezoning or variance applicable to a historic area, or any part of it,
may be approved by the metropolitan development commission or
granted by a board of zoning appeals, except on the commission's
prior issuance of a certificate of appropriateness. As added by Acts 1982, P.L.77, SEC.6. IC 36-7-11.1-9 Necessity of certificate of appropriateness; filing application;
issuance procedure
Sec. 9. (a) A person may not construct any exterior architectural
structure or feature in any historic area, or reconstruct, alter, or
demolish any such exterior or designated interior structure or feature
in the area, until the person has filed with the secretary of the
commission an application for a certificate of appropriateness in such
form and with such plans, specifications, and other material as the
commission may from time to time prescribe and a certificate of
appropriateness has been issued as provided in this section.
However, this chapter does not:
(1) prevent the ordinary maintenance or repair of any such
exterior or designated interior architectural structure or feature
that does not involve a change in design, color or outward
appearance of it;
(2) prevent any structural change certified by the department of
metropolitan development as immediately required for the
public safety because of a hazardous condition; or
(3) require a certificate of appropriateness for work that is
exempted by a historic preservation plan under section 7 of this
chapter.
(b) The commission shall hold a public hearing on any application
for certificate of appropriateness. At least ten (10) days before the
date set for the hearing, notice shall be published in accordance with
IC 5-3-1, and notice shall be given additionally to the affected parties
in accordance with the commission's rules of procedure.
(c) Upon hearing the application for a certificate of
appropriateness, the commission shall determine whether the
proposal will be appropriate to the preservation of the area and to the
furtherance and development of historic preservation.
(d) In determining appropriateness of any proposed construction,
reconstruction, or alteration, the commission shall consider, in
addition to any other pertinent factors, the visual compatibility,
general design, arrangement, color, texture, and materials in relation
to the architectural or other design standards prescribed by the plan
or any applicable zoning regulation, the design and character of the
historic area, and the architectural factors of other structures in it. In
determining appropriateness of any proposed demolition, the
commission shall consider, in addition to any other pertinent factors,
the character and significance of the subject structure in relation to
the historic area and any other structures or sites in it, including its
relative contribution to the historic and architectural values and
significance of the area.
(e) However, if the commission finds under subsection (d) any
application to be inappropriate, but that its denial would result in
substantial hardship or deprive the owner of all reasonable use and
benefit of the subject property, or that its effect upon the historic area
would be insubstantial, the commission shall issue a certificate of
authorization, which constitutes a certificate of appropriateness for
purposes of this chapter.
(f) Issuance of a certificate of appropriateness is subject to review
by the metropolitan development commission as to its
appropriateness in relation to the comprehensive plan. This review
must be in accordance with the same procedures and limitations
applicable to appeals of decisions of boards of zoning appeals, as
provided in IC 36-7-4, and must be initiated only upon notice of
appeal by the division of planning and zoning certifying that this
determination interferes with the comprehensive plan. All
proceedings and work on the subject premises under the certificate
of appropriateness are automatically stayed upon notice of the
appeal. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-10 Certificate of appropriateness; determination of commission
Sec. 10. (a) If the commission determines that the proposed
construction, reconstruction, alteration, or demolition will be
appropriate, the secretary of the commission shall forthwith issue to
the applicant a certificate of appropriateness.
(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 an attested copy of the reasons and
recommendations, if any, of the commission.
(c) Every determination of the commission upon an application
for certificate of appropriateness is subject to 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 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, 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. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-11 Hearing officer; powers and duties
Sec. 11. (a) A hearing officer designated by the commission may
conduct the public hearing provided for in this chapter on
applications for a certificate of appropriateness. The commission
may limit by rule or resolution the applications that a hearing officer
may hear and determine.
(b) The hearing officer shall hold a public hearing under the same
notice and procedural requirements as are applicable to a hearing
before the commission. After the hearing on an application for a
certificate of appropriateness, the hearing officer shall make a
determination.
(c) The hearing officer may not issue a certificate of
authorization.
(d) The hearing officer shall set forth the reasons for the
determination and may impose conditions in accordance with section
10 of this chapter.
(e) The commission shall provide reasonable opportunity by rules
for the applicant, any commission member, the administrator, or any
interested person to file exceptions to the determination of the
hearing officer. If an exception is properly filed, the commission
shall hold a de novo hearing and make a determination. If such an
exception is not filed, the determination of the hearing officer
constitutes the final decision of the commission. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-12 Enforcement of chapter, ordinance, and covenants; notice to
correct failures or violations
Sec. 12. (a) Whenever the commission finds that the owner of
property in any historic area has neglected to keep the property and
premises in a clean, sanitary, and tidy condition or has failed to
maintain any structure in a good state of repair and in a safe
condition, the commission may give the owner written notice to
correct the failures or violations within thirty (30) days after receipt
of notice, and if the owner fails to comply, then the commission may
bring appropriate enforcement actions as provided by subsection (b).
(b) The commission, or any enforcement official of the
consolidated city designated by the commission, may enforce this
chapter, any ordinance adopted under it, and any covenants or
conditions required or imposed by the commission by civil action in
the circuit or superior court. Any legal, equitable, or special remedy
may be invoked, including mandatory or prohibitory injunction or a
civil fine. These enforcement actions (except those seeking a civil
fine) may also be brought by any interested person or affected owner.
(c) Ordinances adopted under this chapter may provide for
penalties for violations, subject to IC 36-1-3-8.
(d) No costs may be taxed against the commission or any of its
members in any action.
(e) In actions brought under subsection (b), there may not be
changes of venue from the county. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.16-1995,
SEC.14. IC 36-7-11.1-13 Nonconforming uses
Sec. 13. (a) Except as provided in section 13.1 of this chapter, any
building, structure, or land use in existence at the time of the
adoption of the historic preservation plan that is not in conformity to
or within the zoning classification or restrictions or requirements or
architectural standards of this plan, shall be considered to be a
nonconforming use and may continue, but only so long as the owner
or owners continuously maintain this use.
(b) Except as provided in section 13.1 of this chapter, in addition
to the requirements pertaining to certificates of appropriateness, the
ownership of a nonconforming use is subject to the additional
restriction that a nonconforming use may not be reconstructed or
structurally altered to an extent exceeding in aggregate cost fifty
percent (50%) of the market value thereof unless the structure is
changed to a conforming use. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.113-1998,
SEC.2.
IC 36-7-11.1-13.1 Agricultural nonconforming use
Sec. 13.1. (a) The definitions used in this section apply only to
this section.
(b) As used in this section, "agricultural use" refers to land that is
used for:
(1) the production of livestock or livestock products,
commercial aquaculture, equine or equine products, poultry or
poultry products, horticultural or nursery stock, fruit,
vegetables, forage, grains, timber, trees, bees and apiary
products, tobacco, or other agricultural crops, in the case of
land that was not subject to a comprehensive plan or zoning
ordinance before the most recent plan or zoning ordinance,
including any amendments, was adopted; or
(2) agricultural purposes as defined in or consistent with a
comprehensive plan or zoning ordinance that:
(A) the land was subject to; and
(B) was repealed before the adoption of the most recent
comprehensive plan or zoning ordinance, including any
amendments.
(c) As used in this section, "agricultural nonconforming use"
means the agricultural use of the land is not permitted under the most
recent comprehensive plan or zoning ordinance, including any
amendments, for the area where the land is located.
(d) An agricultural use of land that constitutes an agricultural
nonconforming use may be changed to another agricultural use of
land without losing agricultural nonconforming use status.
(e) A county or municipality may not, through the county or
municipality's zoning authority, do any of the following:
(1) Terminate an agricultural nonconforming use if the
agricultural nonconforming use is maintained for at least any
three (3) year period in a five (5) year period.
(2) Restrict an agricultural nonconforming use.
(3) Require any of the following for the agricultural
nonconforming use of the land:
(A) A variance for the land.
(B) A special exception for the land.
(C) A special use for the land.
(D) A contingent use for the land.
(E) A conditional use for the land.
(F) A permit for work under section 8 of this chapter.
(G) A certificate of appropriateness.
(f) Notwithstanding subsection (e), this section does not prohibit
a county, a municipality, or the state from requiring an agricultural
nonconforming use to be maintained and operated in compliance
with all:
(1) state environmental and state health laws and rules; and
(2) requirements to which conforming agricultural use land is
subject under the county's comprehensive plan or zoning
ordinance. As added by P.L.113-1998, SEC.3. Amended by P.L.106-1999,
SEC.3.
IC 36-7-11.1-14 Effect of chapter on existing laws
Sec. 14. This chapter does not supersede IC 36-7-11.2 or
IC 36-7-11.3 and is intended to supplement the following:
(1) IC 36-7-4.
(2) IC 36-7-11.2.
(3) IC 36-7-11.3. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.1-1995,
SEC.82.
IC 36-7-11.1
Chapter 11.1. Historic Preservation in Marion County
IC 36-7-11.1-1 Application of chapter
Sec. 1. This chapter applies to each county having a consolidated
city. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-2 Definitions
Sec. 2. As used in this chapter:
"Commission" refers to the historic preservation commission
appointed under section 3 of this chapter.
"Historic area" means an area, within the county, declared by
resolution of the historic preservation commission to be of historic
or architectural significance and designated as a "historic area" by
the historic preservation plan. This area may be of any territorial size
or configuration, as delineated by the plan, without a maximum or
minimum size limitation, and may consist of a single historic
property, landmark, structure, or site, or any combination of them,
including any adjacent properties necessarily a part of the historic
area because of their effect on and relationship to the historic values
and character of it.
"Historic preservation plan" means a plan designating one (1) or
more historic areas, prepared and setting forth a plan for historic
preservation by the historic preservation commission under this
chapter, and adopted by the metropolitan development commission
as a part of the county's comprehensive plan. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-3 Historic preservation commission; appointments; terms;
vacancies; salary; officers; procedural rules; quorum; absentee
members voting
Sec. 3. (a) The executive and the legislative body of the
consolidated city shall appoint a commission of nine (9) members to
be known as the "__________ Historic Preservation Commission"
(including the name of the city).
(b) The following apply to the appointment of members:
(1) The executive shall appoint five (5) members of the
commission. The executive:
(A) may select two (2) members from lists of names
submitted by the Historic Landmarks Foundation of Indiana
and the historical society of the consolidated city's county;
(B) may select one (1) member who is a member of the
metropolitan development commission; and
(C) may select one (1) member from a list of names
submitted by the local chapter of the American Institute of
Architects.
(2) The legislative body shall appoint four (4) members of the
commission. The legislative body:
(A) shall select one (1) member who is a resident of a
historic area of the consolidated city;
(B) may select one (1) member from lists of names
submitted by the Historic Landmarks Foundation of Indiana
and the historical society of the consolidated city's county;
and
(C) may select one (1) member from a list of names
submitted by the local chapter of the American Institute of
Architects.
(c) Each appointment to the commission is for a term of four (4)
years, commencing on January 1 following the appointment, and
until a successor is appointed and is qualified. A member is eligible
for reappointment.
(d) If a vacancy occurs in the commission during any term, a
successor shall be appointed by the appointing authority to serve for
the remainder of the vacated term. Any member of the commission
may be removed for cause by the appointing authority. All members
must be residents of the county.
(e) The members receive no salary, but are entitled to
reimbursement for any expenses necessarily incurred in the
performance of their duties.
(f) At its first scheduled meeting each year, the commission shall
hold a meeting for the purpose of organization. The commission shall
elect from its membership a president, vice president, secretary, and
treasurer who shall perform the duties pertaining to those offices.
The officers serve from the date of their election until their
successors are elected and qualified. The commission may adopt
bylaws and rules for the proper conduct of its proceedings, the
carrying out of its duties, and the safeguarding of its funds and
property. A majority of the members of the commission constitute a
quorum, and the concurrence of a majority of the commission is
necessary to authorize any action.
(g) A member of the commission is not disqualified from hearing
and voting upon any matter coming before the commission because
that member owns or occupies property within or adjacent to a
historic area, unless that property is the subject property or located
within two hundred (200) feet of it.
(h) A member of the commission who is absent from three (3)
consecutive regular meetings of the commission shall be treated as
if the member had resigned, unless the appointing authority reaffirms
the member's appointment. However, the counting of such a member
toward a quorum requirement or the voting by such a member does
not invalidate any official action taken by the commission before the
time that the minutes of the commission reflect that the member has
resigned. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.88-2009,
SEC.11.
IC 36-7-11.1-3.1 Terms of certain members of commission; appointment of
successor; expiration of section
Sec. 3.1. (a) A member appointed to the commission under section
3 of this chapter before July 1, 2009, shall continue to serve as a
member of the commission after June 30, 2009, until:
(1) the end of the term for which the member was appointed; or
(2) the executive removes the member for cause.
If the executive removes the member for cause, the executive shall
appoint a successor to serve for the remainder of the vacated term.
(b) This section expires July 1, 2014. As added by P.L.88-2009, SEC.12.
IC 36-7-11.1-4 Administrator; staff; work program; information; offices and
facilities; annual budget
Sec. 4. (a) After consulting with the executive of the consolidated
city and the director of the department of metropolitan development,
the commission may appoint or remove an administrator. The
administrator shall, in accordance with the personnel policies and
practices of the city, hire and discharge additional staff, following
the standards and qualifications established by the commission. No
consideration may be given to political affiliation in the selection and
tenure of the staff. The commission shall determine the
compensation of the administrator and other staff consistent with
ordinances of the legislative body adopted under IC 36-3-6-3.
(b) Before December 1 each year, the commission shall adopt a
work program defining the activities that are proposed to be carried
out by staff during the next calendar year. At least forty-five (45)
days before the commission desires to adopt a work program, it shall
submit a copy of the proposed work program to the executive of the
consolidated city and to the director of the department of
metropolitan development. The executive and director shall, within
thirty (30) days after submission, review and provide comments to
the commission regarding the proposed work program. After
comments have been received from the executive and the director
and considered by the commission or after thirty (30) days have
elapsed from the date of submission (whichever occurs first), the
commission shall adopt a work program. Activities carried out during
the calendar year must conform to or not substantially depart from
the work program. The work program may be modified during the
applicable calendar year in the same manner as the adoption of the
original work program, except that the executive and the director
have only ten (10) days in which to review and comment on the
proposed work program modification, and the commission may then
immediately adopt a work program modification.
(c) The administrator shall provide information that will allow the
director of the department of metropolitan development to coordinate
the activities of the department of metropolitan development with the
activities of the commission and its staff. In order to achieve
consistency in administrative practices and policies between the
consolidated city and the staff of the commission, the administrator
shall seek the advice and guidance of the director regarding such
matters as budgeting and fiscal control, personnel administration, and
purchasing.
(d) The commission shall establish and maintain offices and
facilities as may be necessary for the performance of its duties, the
activities of its staff, and the preservation of its records, documents,
and accounts. The location of the offices must be approved by the
executive of the consolidated city.
(e) The commission shall prepare and submit annually to the
fiscal officer of the consolidated city its estimate of the expenditures
required for its operations and fiscal responsibilities for the ensuing
fiscal year. The budget of the commission and its staff constitutes a
part of the consolidated city budget and shall be determined in
accordance with IC 36-3-6, and the county comprises the taxing
district for the commission. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-5 Powers and duties of commission
Sec. 5. (a) The commission may do the following:
(1) Acquire by purchase, gift, grant, bequest, devise, or lease
any real or personal property needed for carrying out any of the
purposes of this commission. Title to or interest in any real
property acquired or held by the commission must be in the
name of the consolidated city for the use and benefit of the
commission.
(2) Hold, use, sell, lease, rent, or otherwise dispose of any
property acquired for use in the carrying out of any of the
purposes of the commission at public or private sale and on
terms and conditions as the commission considers best,
notwithstanding any other law.
(3) Preserve and restore areas and structures of historic or
architectural significance.
(4) Conduct research and prepare a countywide comprehensive
survey and inventory, and review and evaluate areas, structures,
and sites of historic importance in the county for use by
planning agencies and governmental officials.
(5) Identify by declaratory resolution areas, structures, and sites
in the county having historic or architectural significance, and
prepare historic preservation plans for them. The commission
may prepare proposed historic district zoning classifications,
including proposals for controlling the use and development of
any historic area or areas, including standards and restrictions
regarding permitted uses, and development, performance, and
maintenance standards for public and private structures and
sites, and prepare criteria and architectural standards of
historical significance.
(6) Submit proposed historic preservation plans to the
metropolitan development commission for consideration for
adoption as a segment of the comprehensive plan of the county.
(7) After adoption of a historic preservation plan, assist in the
plan's administration and implementation, including the
issuance of permits and licenses, together with other
governmental agencies, and hear and determine applications for
certificates of appropriateness as provided in this chapter.
(8) Manage and operate historic structures and areas for any
purpose consistent with the applicable historic preservation
plan, authorize necessary agents and employees to convey or
lease any properties for any purpose or use to further the plan,
and do all necessary acts and things incidental to operations,
management, and leasing, including charging reasonable
admission fees to any of these properties.
(9) Assist other governmental agencies regarding historic
preservation, including the development of a state preservation
plan as the plan relates to the county, and work with other
governmental agencies in the development and carrying out of
plans to preserve, restore, and rehabilitate any historic area,
including the elimination of blight and deterioration, the
demolition and removal of unsafe, unhealthful structures, and
the repair and appropriate alteration of structures.
(10) Acquire any properties, structures, or sites for any purpose
of the commission by conveyance from the redevelopment
commission or from any other person or governmental agency,
upon such terms and conditions, and with or without
compensation, as may be agreed upon.
(11) Establish and maintain a register of historic properties in
the county.
(12) Make any recommendation and reports the commission
considers appropriate to the executive of the consolidated city,
metropolitan development commission, or other governmental
agency concerning historic preservation in the county.
(13) Prepare, publish, present, or distribute, with or without
charge, any information, reports, graphic or audiovisual
presentations, documents, or other materials relative to historic
preservation.
(14) Conduct, attend, or participate in any conferences,
presentations, seminars, or programs regarding historic
preservation.
(15) Encourage and promote historic preservation, particularly
preservation by private means, provide technical assistance to
local preservation or historical associations, individuals, or
groups, in accordance with the historic preservation plan, and
recognize excellence in historic preservation efforts by
awarding citations.
(16) Establish citizens advisory councils or special committees
regarding historic preservation.
(17) Prescribe the duties and qualifications of its administrator
and other staff in accordance with section 4 of this chapter.
(18) Contract with architects, engineers, attorneys, urban
planners, or any other consultants in connection with any
purpose of the commission, such as the conducting of a survey
of historic properties, preparation of proposed plans,
ordinances, reports, surveys, drawings, maps of historic areas,
or any other project provided in this chapter.
(19) Appoint a hearing officer (who may be a commission
member, a member of the staff, or any other person) to hear and
determine, on behalf of the commission, applications for
certificates of appropriateness.
(20) Prepare and submit an annual budget in the manner
prescribed by section 4 of this chapter.
(21) Participate, in conjunction with the consolidated city, in a
retirement system for commission employees.
(22) Accept or contract with the consolidated city or with other
persons for the furnishing of professional staff or any other
services, office facilities, equipment, and supplies to the extent
and for compensation as may be agreed upon, with or without
compensation, and to receive and expend any funds, grants, or
gifts for carrying out any function of the commission under this
chapter.
(23) Enter into and carry out contracts with federal or state
agencies, subject to the approval of the city executive, regarding
grants of financial or other assistance to the county, city, or
commission, accept and expend grant money or other
assistance, and enter into and carry out contracts with other
persons or governmental agencies for any purpose of the
commission.
(24) Exercise the powers of a board of zoning appeals in a
historic area or historic zoning district, if authorized by a zoning
ordinance adopted under IC 36-7-4.
(25) Conduct public hearings required to be held by the
metropolitan development commission under the 600 series of
IC 36-7-4 relative to territory included in a historic area or
historic zoning district, if designated by the metropolitan
development commission.
(b) The commission shall provide technical services and advice
about historic preservation to the consolidated city when necessary
or useful in connection with the planning, development, or
redevelopment of the county.
(c) This subsection applies to the sale or disposal of real property
by the commission. If the property is sold by acceptance of bids, a
bid submitted by a trust (as defined in IC 30-4-1-1(a)) must identify
each:
(1) beneficiary of the trust; and
(2) settlor empowered to revoke or modify the trust. As added by Acts 1982, P.L.77, SEC.6. Amended by
P.L.336-1989(ss), SEC.49; P.L.321-1995, SEC.6.
IC 36-7-11.1-6 Proposed historic preservation plans; recommendations; approval
proceedings; official markers
Sec. 6. (a) The commission shall have its staff prepare proposed
historic preservation plans for all appropriate areas of the county.
Upon the commission's declaratory resolution of the historic or
architectural significance of any area, structure, or site designated in
it, the proposed historic preservation plan shall be presented to the
metropolitan development commission for public hearing and
adoption as a part of the comprehensive plan of the county.
(b) The proposed historic preservation plan must officially
designate and delineate historic areas and identify any individual
structures or sites in it of particular historic or architectural
significance, which structures and sites must be listed on the county
register of historic places.
(c) With the designation of a historic structure, the plan may
additionally expressly identify and designate the interior, or any
interior architectural or structural feature of it, having exceptional
historic or architectural significance.
(d) The historic preservation plan may include any of the material
listed in IC 36-7-4-503 as it relates to historic preservation. Any plan
designating one (1) or more historic areas, and any historic structures
and sites located in it, must include a historic and architectural or
design analysis supporting the significance of the historic area,
general or specific criteria for preservation, restoration,
rehabilitation, or development, including architectural and design
standards, and a statement of preservation objectives.
(e) In preparing a proposed historic preservation plan, the staff of
the commission shall inform, consult, and cooperate with the staff of
the department of metropolitan development. In carrying out its
planning and redevelopment responsibilities in an area for which a
historic preservation plan is being prepared or is in effect, the staff
of the department of metropolitan development shall inform, consult,
and cooperate with the staff of the commission. To the extent
possible, commission staff and department staff shall carry out a
joint planning effort relative to proposed historic areas with the
resulting information and conclusions relating to historic
preservation being placed in the proposed historic preservation plan.
(f) Concurrently or subsequently, the commission may prepare
and recommend to the metropolitan development commission, for its
initiation, approval, and recommendation to the legislative body for
adoption, a historic district zoning ordinance or ordinances to
implement the historic preservation plan.
(g) Each historic area or historic zoning district must be of such
territorial extent and configuration as will best serve the purposes of
this chapter, there being no maximum or minimum size limitations
thereon whether applied to single or multiple historic properties or
sites, and may include any adjacent area necessarily a part thereof
because of its effect upon and relationship to the historic values and
character of the area.
(h) The proposed historic preservation plan, if approved and
adopted by the metropolitan development commission, constitutes
part of the comprehensive plan of the county.
(i) The proceeding for approval of this plan, including notice and
hearing requirements, is governed by the same rules and
requirements applicable to petitions to the metropolitan development
commission for amendment of zoning ordinances and for creation of
new district classifications, and by all statutory requirements relative
to the metropolitan development commission; however, individual
notice of the hearing shall be given each owner of property in any
proposed historic area, according to the metropolitan development
commission's rules and requirements or, alternatively, the owner's
consent to the proposed historical area designation may be obtained
and filed with the metropolitan development commission.
(j) Amendments to any historic preservation plan, or any segment
of it, shall be made in the same manner as the original plan.
(k) The commission shall receive and consider any pertinent
information or exhibits such as historical data, architectural plans,
drawings and photographs, regarding any proposed or designated
historic area, structure, or site, and any request for historic
designation or for the exclusion of any property or structure from any
proposed or designated historic area.
(l) The commission may adopt any operating guidelines for the
evaluation and designation of historic areas, structures, and sites, so
long as they are in conformity with the objectives of this chapter.
(m) Upon the adoption of the historic preservation plan, the
commission may at any time identify by appropriate markers any
historic areas, structures, and sites designated by the plan, or any
historic area properties in the process of restoration under the plan.
These markers may be erected on public right-of-ways or, with the
consent of the owner, on any subject historic property. These official
informational or identification markers, whether permanent or
temporary, constitute an exception to any codes and ordinances
establishing sign regulations, standards, and permit requirements
applicable to the area. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-7 Categories of work exempted by historic preservation plan;
premature issuance of permits for work
Sec. 7. (a) The historic preservation plan may provide that certain
categories of work accomplished in the historic area are exempt from
the requirement imposed by section 9 of this chapter that a certificate
of appropriateness be issued. Categories of work that may be
exempted by a historic preservation plan include the construction,
reconstruction, alteration, or demolition of a structure or feature.
Various historic preservation plans may exempt different categories
of work.
(b) After the commission has adopted a declaratory resolution
relative to a historic area and presented the historic preservation plan
to the metropolitan development commission for adoption or
rejection as a segment of the comprehensive plan of the county, no
permits may be issued by the department of metropolitan
development for the construction, reconstruction, or alteration of any
exterior architectural structure or feature in the area or the demolition
of any structure or feature in the area until the metropolitan
development commission has taken official action on the proposed
plan or within ninety (90) days after the date of adoption of the
declaratory resolution by the commission, whichever occurs first. If
such a permit has been issued before the adoption of a declaratory
resolution by the commission, the agency issuing the permit may
order that the work allowed by the permit, or a part of the work, be
suspended until the metropolitan development commission has
adopted or rejected the historic preservation plan. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-8 Permits for work; application; certificate of appropriateness
Sec. 8. (a) After adoption of the historic preservation plan for any
historic area, permits may be issued by the department of
metropolitan development for the construction of any structure in the
area or the reconstruction, alteration, or demolition of any structure
in the area only if the application for the permit is accompanied by
a certificate of appropriateness issued under section 10 of this
chapter.
(b) Notwithstanding subsection (a), if the historic preservation
plan for the historic area specifically exempts certain categories of
work involving the construction, reconstruction, alteration, or
demolition of structures in that area from the requirement that a
certificate of appropriateness be issued, then a permit for the work
may be obtained from the department of metropolitan development
without the issuance of a certificate of appropriateness.
(c) After the adoption of the historic preservation plan for any
area, all governmental agencies shall be guided by and give due
consideration to the plan in any official acts affecting the area.
(d) On application by any governmental agency or interested party
in accordance with section 9 of this chapter, the commission shall
make a determination of the appropriateness of any proposed
governmental action affecting a historic area. Any official action in
conflict with the plan or determined by the commission to be
inappropriate is presumed to be not in the public interest and is
subject to the enforcement provisions of section 12 of this chapter.
(e) The commission's determination of appropriateness is a
prerequisite to any governmental order or action to alter or demolish
any designated historic site or any structure in a historic area. No
rezoning or variance applicable to a historic area, or any part of it,
may be approved by the metropolitan development commission or
granted by a board of zoning appeals, except on the commission's
prior issuance of a certificate of appropriateness. As added by Acts 1982, P.L.77, SEC.6. IC 36-7-11.1-9 Necessity of certificate of appropriateness; filing application;
issuance procedure
Sec. 9. (a) A person may not construct any exterior architectural
structure or feature in any historic area, or reconstruct, alter, or
demolish any such exterior or designated interior structure or feature
in the area, until the person has filed with the secretary of the
commission an application for a certificate of appropriateness in such
form and with such plans, specifications, and other material as the
commission may from time to time prescribe and a certificate of
appropriateness has been issued as provided in this section.
However, this chapter does not:
(1) prevent the ordinary maintenance or repair of any such
exterior or designated interior architectural structure or feature
that does not involve a change in design, color or outward
appearance of it;
(2) prevent any structural change certified by the department of
metropolitan development as immediately required for the
public safety because of a hazardous condition; or
(3) require a certificate of appropriateness for work that is
exempted by a historic preservation plan under section 7 of this
chapter.
(b) The commission shall hold a public hearing on any application
for certificate of appropriateness. At least ten (10) days before the
date set for the hearing, notice shall be published in accordance with
IC 5-3-1, and notice shall be given additionally to the affected parties
in accordance with the commission's rules of procedure.
(c) Upon hearing the application for a certificate of
appropriateness, the commission shall determine whether the
proposal will be appropriate to the preservation of the area and to the
furtherance and development of historic preservation.
(d) In determining appropriateness of any proposed construction,
reconstruction, or alteration, the commission shall consider, in
addition to any other pertinent factors, the visual compatibility,
general design, arrangement, color, texture, and materials in relation
to the architectural or other design standards prescribed by the plan
or any applicable zoning regulation, the design and character of the
historic area, and the architectural factors of other structures in it. In
determining appropriateness of any proposed demolition, the
commission shall consider, in addition to any other pertinent factors,
the character and significance of the subject structure in relation to
the historic area and any other structures or sites in it, including its
relative contribution to the historic and architectural values and
significance of the area.
(e) However, if the commission finds under subsection (d) any
application to be inappropriate, but that its denial would result in
substantial hardship or deprive the owner of all reasonable use and
benefit of the subject property, or that its effect upon the historic area
would be insubstantial, the commission shall issue a certificate of
authorization, which constitutes a certificate of appropriateness for
purposes of this chapter.
(f) Issuance of a certificate of appropriateness is subject to review
by the metropolitan development commission as to its
appropriateness in relation to the comprehensive plan. This review
must be in accordance with the same procedures and limitations
applicable to appeals of decisions of boards of zoning appeals, as
provided in IC 36-7-4, and must be initiated only upon notice of
appeal by the division of planning and zoning certifying that this
determination interferes with the comprehensive plan. All
proceedings and work on the subject premises under the certificate
of appropriateness are automatically stayed upon notice of the
appeal. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-10 Certificate of appropriateness; determination of commission
Sec. 10. (a) If the commission determines that the proposed
construction, reconstruction, alteration, or demolition will be
appropriate, the secretary of the commission shall forthwith issue to
the applicant a certificate of appropriateness.
(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 an attested copy of the reasons and
recommendations, if any, of the commission.
(c) Every determination of the commission upon an application
for certificate of appropriateness is subject to 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 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, 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. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-11 Hearing officer; powers and duties
Sec. 11. (a) A hearing officer designated by the commission may
conduct the public hearing provided for in this chapter on
applications for a certificate of appropriateness. The commission
may limit by rule or resolution the applications that a hearing officer
may hear and determine.
(b) The hearing officer shall hold a public hearing under the same
notice and procedural requirements as are applicable to a hearing
before the commission. After the hearing on an application for a
certificate of appropriateness, the hearing officer shall make a
determination.
(c) The hearing officer may not issue a certificate of
authorization.
(d) The hearing officer shall set forth the reasons for the
determination and may impose conditions in accordance with section
10 of this chapter.
(e) The commission shall provide reasonable opportunity by rules
for the applicant, any commission member, the administrator, or any
interested person to file exceptions to the determination of the
hearing officer. If an exception is properly filed, the commission
shall hold a de novo hearing and make a determination. If such an
exception is not filed, the determination of the hearing officer
constitutes the final decision of the commission. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-12 Enforcement of chapter, ordinance, and covenants; notice to
correct failures or violations
Sec. 12. (a) Whenever the commission finds that the owner of
property in any historic area has neglected to keep the property and
premises in a clean, sanitary, and tidy condition or has failed to
maintain any structure in a good state of repair and in a safe
condition, the commission may give the owner written notice to
correct the failures or violations within thirty (30) days after receipt
of notice, and if the owner fails to comply, then the commission may
bring appropriate enforcement actions as provided by subsection (b).
(b) The commission, or any enforcement official of the
consolidated city designated by the commission, may enforce this
chapter, any ordinance adopted under it, and any covenants or
conditions required or imposed by the commission by civil action in
the circuit or superior court. Any legal, equitable, or special remedy
may be invoked, including mandatory or prohibitory injunction or a
civil fine. These enforcement actions (except those seeking a civil
fine) may also be brought by any interested person or affected owner.
(c) Ordinances adopted under this chapter may provide for
penalties for violations, subject to IC 36-1-3-8.
(d) No costs may be taxed against the commission or any of its
members in any action.
(e) In actions brought under subsection (b), there may not be
changes of venue from the county. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.16-1995,
SEC.14. IC 36-7-11.1-13 Nonconforming uses
Sec. 13. (a) Except as provided in section 13.1 of this chapter, any
building, structure, or land use in existence at the time of the
adoption of the historic preservation plan that is not in conformity to
or within the zoning classification or restrictions or requirements or
architectural standards of this plan, shall be considered to be a
nonconforming use and may continue, but only so long as the owner
or owners continuously maintain this use.
(b) Except as provided in section 13.1 of this chapter, in addition
to the requirements pertaining to certificates of appropriateness, the
ownership of a nonconforming use is subject to the additional
restriction that a nonconforming use may not be reconstructed or
structurally altered to an extent exceeding in aggregate cost fifty
percent (50%) of the market value thereof unless the structure is
changed to a conforming use. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.113-1998,
SEC.2.
IC 36-7-11.1-13.1 Agricultural nonconforming use
Sec. 13.1. (a) The definitions used in this section apply only to
this section.
(b) As used in this section, "agricultural use" refers to land that is
used for:
(1) the production of livestock or livestock products,
commercial aquaculture, equine or equine products, poultry or
poultry products, horticultural or nursery stock, fruit,
vegetables, forage, grains, timber, trees, bees and apiary
products, tobacco, or other agricultural crops, in the case of
land that was not subject to a comprehensive plan or zoning
ordinance before the most recent plan or zoning ordinance,
including any amendments, was adopted; or
(2) agricultural purposes as defined in or consistent with a
comprehensive plan or zoning ordinance that:
(A) the land was subject to; and
(B) was repealed before the adoption of the most recent
comprehensive plan or zoning ordinance, including any
amendments.
(c) As used in this section, "agricultural nonconforming use"
means the agricultural use of the land is not permitted under the most
recent comprehensive plan or zoning ordinance, including any
amendments, for the area where the land is located.
(d) An agricultural use of land that constitutes an agricultural
nonconforming use may be changed to another agricultural use of
land without losing agricultural nonconforming use status.
(e) A county or municipality may not, through the county or
municipality's zoning authority, do any of the following:
(1) Terminate an agricultural nonconforming use if the
agricultural nonconforming use is maintained for at least any
three (3) year period in a five (5) year period.
(2) Restrict an agricultural nonconforming use.
(3) Require any of the following for the agricultural
nonconforming use of the land:
(A) A variance for the land.
(B) A special exception for the land.
(C) A special use for the land.
(D) A contingent use for the land.
(E) A conditional use for the land.
(F) A permit for work under section 8 of this chapter.
(G) A certificate of appropriateness.
(f) Notwithstanding subsection (e), this section does not prohibit
a county, a municipality, or the state from requiring an agricultural
nonconforming use to be maintained and operated in compliance
with all:
(1) state environmental and state health laws and rules; and
(2) requirements to which conforming agricultural use land is
subject under the county's comprehensive plan or zoning
ordinance. As added by P.L.113-1998, SEC.3. Amended by P.L.106-1999,
SEC.3.
IC 36-7-11.1-14 Effect of chapter on existing laws
Sec. 14. This chapter does not supersede IC 36-7-11.2 or
IC 36-7-11.3 and is intended to supplement the following:
(1) IC 36-7-4.
(2) IC 36-7-11.2.
(3) IC 36-7-11.3. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.1-1995,
SEC.82.
IC 36-7-11.1
Chapter 11.1. Historic Preservation in Marion County
IC 36-7-11.1-1 Application of chapter
Sec. 1. This chapter applies to each county having a consolidated
city. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-2 Definitions
Sec. 2. As used in this chapter:
"Commission" refers to the historic preservation commission
appointed under section 3 of this chapter.
"Historic area" means an area, within the county, declared by
resolution of the historic preservation commission to be of historic
or architectural significance and designated as a "historic area" by
the historic preservation plan. This area may be of any territorial size
or configuration, as delineated by the plan, without a maximum or
minimum size limitation, and may consist of a single historic
property, landmark, structure, or site, or any combination of them,
including any adjacent properties necessarily a part of the historic
area because of their effect on and relationship to the historic values
and character of it.
"Historic preservation plan" means a plan designating one (1) or
more historic areas, prepared and setting forth a plan for historic
preservation by the historic preservation commission under this
chapter, and adopted by the metropolitan development commission
as a part of the county's comprehensive plan. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-3 Historic preservation commission; appointments; terms;
vacancies; salary; officers; procedural rules; quorum; absentee
members voting
Sec. 3. (a) The executive and the legislative body of the
consolidated city shall appoint a commission of nine (9) members to
be known as the "__________ Historic Preservation Commission"
(including the name of the city).
(b) The following apply to the appointment of members:
(1) The executive shall appoint five (5) members of the
commission. The executive:
(A) may select two (2) members from lists of names
submitted by the Historic Landmarks Foundation of Indiana
and the historical society of the consolidated city's county;
(B) may select one (1) member who is a member of the
metropolitan development commission; and
(C) may select one (1) member from a list of names
submitted by the local chapter of the American Institute of
Architects.
(2) The legislative body shall appoint four (4) members of the
commission. The legislative body:
(A) shall select one (1) member who is a resident of a
historic area of the consolidated city;
(B) may select one (1) member from lists of names
submitted by the Historic Landmarks Foundation of Indiana
and the historical society of the consolidated city's county;
and
(C) may select one (1) member from a list of names
submitted by the local chapter of the American Institute of
Architects.
(c) Each appointment to the commission is for a term of four (4)
years, commencing on January 1 following the appointment, and
until a successor is appointed and is qualified. A member is eligible
for reappointment.
(d) If a vacancy occurs in the commission during any term, a
successor shall be appointed by the appointing authority to serve for
the remainder of the vacated term. Any member of the commission
may be removed for cause by the appointing authority. All members
must be residents of the county.
(e) The members receive no salary, but are entitled to
reimbursement for any expenses necessarily incurred in the
performance of their duties.
(f) At its first scheduled meeting each year, the commission shall
hold a meeting for the purpose of organization. The commission shall
elect from its membership a president, vice president, secretary, and
treasurer who shall perform the duties pertaining to those offices.
The officers serve from the date of their election until their
successors are elected and qualified. The commission may adopt
bylaws and rules for the proper conduct of its proceedings, the
carrying out of its duties, and the safeguarding of its funds and
property. A majority of the members of the commission constitute a
quorum, and the concurrence of a majority of the commission is
necessary to authorize any action.
(g) A member of the commission is not disqualified from hearing
and voting upon any matter coming before the commission because
that member owns or occupies property within or adjacent to a
historic area, unless that property is the subject property or located
within two hundred (200) feet of it.
(h) A member of the commission who is absent from three (3)
consecutive regular meetings of the commission shall be treated as
if the member had resigned, unless the appointing authority reaffirms
the member's appointment. However, the counting of such a member
toward a quorum requirement or the voting by such a member does
not invalidate any official action taken by the commission before the
time that the minutes of the commission reflect that the member has
resigned. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.88-2009,
SEC.11.
IC 36-7-11.1-3.1 Terms of certain members of commission; appointment of
successor; expiration of section
Sec. 3.1. (a) A member appointed to the commission under section
3 of this chapter before July 1, 2009, shall continue to serve as a
member of the commission after June 30, 2009, until:
(1) the end of the term for which the member was appointed; or
(2) the executive removes the member for cause.
If the executive removes the member for cause, the executive shall
appoint a successor to serve for the remainder of the vacated term.
(b) This section expires July 1, 2014. As added by P.L.88-2009, SEC.12.
IC 36-7-11.1-4 Administrator; staff; work program; information; offices and
facilities; annual budget
Sec. 4. (a) After consulting with the executive of the consolidated
city and the director of the department of metropolitan development,
the commission may appoint or remove an administrator. The
administrator shall, in accordance with the personnel policies and
practices of the city, hire and discharge additional staff, following
the standards and qualifications established by the commission. No
consideration may be given to political affiliation in the selection and
tenure of the staff. The commission shall determine the
compensation of the administrator and other staff consistent with
ordinances of the legislative body adopted under IC 36-3-6-3.
(b) Before December 1 each year, the commission shall adopt a
work program defining the activities that are proposed to be carried
out by staff during the next calendar year. At least forty-five (45)
days before the commission desires to adopt a work program, it shall
submit a copy of the proposed work program to the executive of the
consolidated city and to the director of the department of
metropolitan development. The executive and director shall, within
thirty (30) days after submission, review and provide comments to
the commission regarding the proposed work program. After
comments have been received from the executive and the director
and considered by the commission or after thirty (30) days have
elapsed from the date of submission (whichever occurs first), the
commission shall adopt a work program. Activities carried out during
the calendar year must conform to or not substantially depart from
the work program. The work program may be modified during the
applicable calendar year in the same manner as the adoption of the
original work program, except that the executive and the director
have only ten (10) days in which to review and comment on the
proposed work program modification, and the commission may then
immediately adopt a work program modification.
(c) The administrator shall provide information that will allow the
director of the department of metropolitan development to coordinate
the activities of the department of metropolitan development with the
activities of the commission and its staff. In order to achieve
consistency in administrative practices and policies between the
consolidated city and the staff of the commission, the administrator
shall seek the advice and guidance of the director regarding such
matters as budgeting and fiscal control, personnel administration, and
purchasing.
(d) The commission shall establish and maintain offices and
facilities as may be necessary for the performance of its duties, the
activities of its staff, and the preservation of its records, documents,
and accounts. The location of the offices must be approved by the
executive of the consolidated city.
(e) The commission shall prepare and submit annually to the
fiscal officer of the consolidated city its estimate of the expenditures
required for its operations and fiscal responsibilities for the ensuing
fiscal year. The budget of the commission and its staff constitutes a
part of the consolidated city budget and shall be determined in
accordance with IC 36-3-6, and the county comprises the taxing
district for the commission. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-5 Powers and duties of commission
Sec. 5. (a) The commission may do the following:
(1) Acquire by purchase, gift, grant, bequest, devise, or lease
any real or personal property needed for carrying out any of the
purposes of this commission. Title to or interest in any real
property acquired or held by the commission must be in the
name of the consolidated city for the use and benefit of the
commission.
(2) Hold, use, sell, lease, rent, or otherwise dispose of any
property acquired for use in the carrying out of any of the
purposes of the commission at public or private sale and on
terms and conditions as the commission considers best,
notwithstanding any other law.
(3) Preserve and restore areas and structures of historic or
architectural significance.
(4) Conduct research and prepare a countywide comprehensive
survey and inventory, and review and evaluate areas, structures,
and sites of historic importance in the county for use by
planning agencies and governmental officials.
(5) Identify by declaratory resolution areas, structures, and sites
in the county having historic or architectural significance, and
prepare historic preservation plans for them. The commission
may prepare proposed historic district zoning classifications,
including proposals for controlling the use and development of
any historic area or areas, including standards and restrictions
regarding permitted uses, and development, performance, and
maintenance standards for public and private structures and
sites, and prepare criteria and architectural standards of
historical significance.
(6) Submit proposed historic preservation plans to the
metropolitan development commission for consideration for
adoption as a segment of the comprehensive plan of the county.
(7) After adoption of a historic preservation plan, assist in the
plan's administration and implementation, including the
issuance of permits and licenses, together with other
governmental agencies, and hear and determine applications for
certificates of appropriateness as provided in this chapter.
(8) Manage and operate historic structures and areas for any
purpose consistent with the applicable historic preservation
plan, authorize necessary agents and employees to convey or
lease any properties for any purpose or use to further the plan,
and do all necessary acts and things incidental to operations,
management, and leasing, including charging reasonable
admission fees to any of these properties.
(9) Assist other governmental agencies regarding historic
preservation, including the development of a state preservation
plan as the plan relates to the county, and work with other
governmental agencies in the development and carrying out of
plans to preserve, restore, and rehabilitate any historic area,
including the elimination of blight and deterioration, the
demolition and removal of unsafe, unhealthful structures, and
the repair and appropriate alteration of structures.
(10) Acquire any properties, structures, or sites for any purpose
of the commission by conveyance from the redevelopment
commission or from any other person or governmental agency,
upon such terms and conditions, and with or without
compensation, as may be agreed upon.
(11) Establish and maintain a register of historic properties in
the county.
(12) Make any recommendation and reports the commission
considers appropriate to the executive of the consolidated city,
metropolitan development commission, or other governmental
agency concerning historic preservation in the county.
(13) Prepare, publish, present, or distribute, with or without
charge, any information, reports, graphic or audiovisual
presentations, documents, or other materials relative to historic
preservation.
(14) Conduct, attend, or participate in any conferences,
presentations, seminars, or programs regarding historic
preservation.
(15) Encourage and promote historic preservation, particularly
preservation by private means, provide technical assistance to
local preservation or historical associations, individuals, or
groups, in accordance with the historic preservation plan, and
recognize excellence in historic preservation efforts by
awarding citations.
(16) Establish citizens advisory councils or special committees
regarding historic preservation.
(17) Prescribe the duties and qualifications of its administrator
and other staff in accordance with section 4 of this chapter.
(18) Contract with architects, engineers, attorneys, urban
planners, or any other consultants in connection with any
purpose of the commission, such as the conducting of a survey
of historic properties, preparation of proposed plans,
ordinances, reports, surveys, drawings, maps of historic areas,
or any other project provided in this chapter.
(19) Appoint a hearing officer (who may be a commission
member, a member of the staff, or any other person) to hear and
determine, on behalf of the commission, applications for
certificates of appropriateness.
(20) Prepare and submit an annual budget in the manner
prescribed by section 4 of this chapter.
(21) Participate, in conjunction with the consolidated city, in a
retirement system for commission employees.
(22) Accept or contract with the consolidated city or with other
persons for the furnishing of professional staff or any other
services, office facilities, equipment, and supplies to the extent
and for compensation as may be agreed upon, with or without
compensation, and to receive and expend any funds, grants, or
gifts for carrying out any function of the commission under this
chapter.
(23) Enter into and carry out contracts with federal or state
agencies, subject to the approval of the city executive, regarding
grants of financial or other assistance to the county, city, or
commission, accept and expend grant money or other
assistance, and enter into and carry out contracts with other
persons or governmental agencies for any purpose of the
commission.
(24) Exercise the powers of a board of zoning appeals in a
historic area or historic zoning district, if authorized by a zoning
ordinance adopted under IC 36-7-4.
(25) Conduct public hearings required to be held by the
metropolitan development commission under the 600 series of
IC 36-7-4 relative to territory included in a historic area or
historic zoning district, if designated by the metropolitan
development commission.
(b) The commission shall provide technical services and advice
about historic preservation to the consolidated city when necessary
or useful in connection with the planning, development, or
redevelopment of the county.
(c) This subsection applies to the sale or disposal of real property
by the commission. If the property is sold by acceptance of bids, a
bid submitted by a trust (as defined in IC 30-4-1-1(a)) must identify
each:
(1) beneficiary of the trust; and
(2) settlor empowered to revoke or modify the trust. As added by Acts 1982, P.L.77, SEC.6. Amended by
P.L.336-1989(ss), SEC.49; P.L.321-1995, SEC.6.
IC 36-7-11.1-6 Proposed historic preservation plans; recommendations; approval
proceedings; official markers
Sec. 6. (a) The commission shall have its staff prepare proposed
historic preservation plans for all appropriate areas of the county.
Upon the commission's declaratory resolution of the historic or
architectural significance of any area, structure, or site designated in
it, the proposed historic preservation plan shall be presented to the
metropolitan development commission for public hearing and
adoption as a part of the comprehensive plan of the county.
(b) The proposed historic preservation plan must officially
designate and delineate historic areas and identify any individual
structures or sites in it of particular historic or architectural
significance, which structures and sites must be listed on the county
register of historic places.
(c) With the designation of a historic structure, the plan may
additionally expressly identify and designate the interior, or any
interior architectural or structural feature of it, having exceptional
historic or architectural significance.
(d) The historic preservation plan may include any of the material
listed in IC 36-7-4-503 as it relates to historic preservation. Any plan
designating one (1) or more historic areas, and any historic structures
and sites located in it, must include a historic and architectural or
design analysis supporting the significance of the historic area,
general or specific criteria for preservation, restoration,
rehabilitation, or development, including architectural and design
standards, and a statement of preservation objectives.
(e) In preparing a proposed historic preservation plan, the staff of
the commission shall inform, consult, and cooperate with the staff of
the department of metropolitan development. In carrying out its
planning and redevelopment responsibilities in an area for which a
historic preservation plan is being prepared or is in effect, the staff
of the department of metropolitan development shall inform, consult,
and cooperate with the staff of the commission. To the extent
possible, commission staff and department staff shall carry out a
joint planning effort relative to proposed historic areas with the
resulting information and conclusions relating to historic
preservation being placed in the proposed historic preservation plan.
(f) Concurrently or subsequently, the commission may prepare
and recommend to the metropolitan development commission, for its
initiation, approval, and recommendation to the legislative body for
adoption, a historic district zoning ordinance or ordinances to
implement the historic preservation plan.
(g) Each historic area or historic zoning district must be of such
territorial extent and configuration as will best serve the purposes of
this chapter, there being no maximum or minimum size limitations
thereon whether applied to single or multiple historic properties or
sites, and may include any adjacent area necessarily a part thereof
because of its effect upon and relationship to the historic values and
character of the area.
(h) The proposed historic preservation plan, if approved and
adopted by the metropolitan development commission, constitutes
part of the comprehensive plan of the county.
(i) The proceeding for approval of this plan, including notice and
hearing requirements, is governed by the same rules and
requirements applicable to petitions to the metropolitan development
commission for amendment of zoning ordinances and for creation of
new district classifications, and by all statutory requirements relative
to the metropolitan development commission; however, individual
notice of the hearing shall be given each owner of property in any
proposed historic area, according to the metropolitan development
commission's rules and requirements or, alternatively, the owner's
consent to the proposed historical area designation may be obtained
and filed with the metropolitan development commission.
(j) Amendments to any historic preservation plan, or any segment
of it, shall be made in the same manner as the original plan.
(k) The commission shall receive and consider any pertinent
information or exhibits such as historical data, architectural plans,
drawings and photographs, regarding any proposed or designated
historic area, structure, or site, and any request for historic
designation or for the exclusion of any property or structure from any
proposed or designated historic area.
(l) The commission may adopt any operating guidelines for the
evaluation and designation of historic areas, structures, and sites, so
long as they are in conformity with the objectives of this chapter.
(m) Upon the adoption of the historic preservation plan, the
commission may at any time identify by appropriate markers any
historic areas, structures, and sites designated by the plan, or any
historic area properties in the process of restoration under the plan.
These markers may be erected on public right-of-ways or, with the
consent of the owner, on any subject historic property. These official
informational or identification markers, whether permanent or
temporary, constitute an exception to any codes and ordinances
establishing sign regulations, standards, and permit requirements
applicable to the area. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-7 Categories of work exempted by historic preservation plan;
premature issuance of permits for work
Sec. 7. (a) The historic preservation plan may provide that certain
categories of work accomplished in the historic area are exempt from
the requirement imposed by section 9 of this chapter that a certificate
of appropriateness be issued. Categories of work that may be
exempted by a historic preservation plan include the construction,
reconstruction, alteration, or demolition of a structure or feature.
Various historic preservation plans may exempt different categories
of work.
(b) After the commission has adopted a declaratory resolution
relative to a historic area and presented the historic preservation plan
to the metropolitan development commission for adoption or
rejection as a segment of the comprehensive plan of the county, no
permits may be issued by the department of metropolitan
development for the construction, reconstruction, or alteration of any
exterior architectural structure or feature in the area or the demolition
of any structure or feature in the area until the metropolitan
development commission has taken official action on the proposed
plan or within ninety (90) days after the date of adoption of the
declaratory resolution by the commission, whichever occurs first. If
such a permit has been issued before the adoption of a declaratory
resolution by the commission, the agency issuing the permit may
order that the work allowed by the permit, or a part of the work, be
suspended until the metropolitan development commission has
adopted or rejected the historic preservation plan. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-8 Permits for work; application; certificate of appropriateness
Sec. 8. (a) After adoption of the historic preservation plan for any
historic area, permits may be issued by the department of
metropolitan development for the construction of any structure in the
area or the reconstruction, alteration, or demolition of any structure
in the area only if the application for the permit is accompanied by
a certificate of appropriateness issued under section 10 of this
chapter.
(b) Notwithstanding subsection (a), if the historic preservation
plan for the historic area specifically exempts certain categories of
work involving the construction, reconstruction, alteration, or
demolition of structures in that area from the requirement that a
certificate of appropriateness be issued, then a permit for the work
may be obtained from the department of metropolitan development
without the issuance of a certificate of appropriateness.
(c) After the adoption of the historic preservation plan for any
area, all governmental agencies shall be guided by and give due
consideration to the plan in any official acts affecting the area.
(d) On application by any governmental agency or interested party
in accordance with section 9 of this chapter, the commission shall
make a determination of the appropriateness of any proposed
governmental action affecting a historic area. Any official action in
conflict with the plan or determined by the commission to be
inappropriate is presumed to be not in the public interest and is
subject to the enforcement provisions of section 12 of this chapter.
(e) The commission's determination of appropriateness is a
prerequisite to any governmental order or action to alter or demolish
any designated historic site or any structure in a historic area. No
rezoning or variance applicable to a historic area, or any part of it,
may be approved by the metropolitan development commission or
granted by a board of zoning appeals, except on the commission's
prior issuance of a certificate of appropriateness. As added by Acts 1982, P.L.77, SEC.6. IC 36-7-11.1-9 Necessity of certificate of appropriateness; filing application;
issuance procedure
Sec. 9. (a) A person may not construct any exterior architectural
structure or feature in any historic area, or reconstruct, alter, or
demolish any such exterior or designated interior structure or feature
in the area, until the person has filed with the secretary of the
commission an application for a certificate of appropriateness in such
form and with such plans, specifications, and other material as the
commission may from time to time prescribe and a certificate of
appropriateness has been issued as provided in this section.
However, this chapter does not:
(1) prevent the ordinary maintenance or repair of any such
exterior or designated interior architectural structure or feature
that does not involve a change in design, color or outward
appearance of it;
(2) prevent any structural change certified by the department of
metropolitan development as immediately required for the
public safety because of a hazardous condition; or
(3) require a certificate of appropriateness for work that is
exempted by a historic preservation plan under section 7 of this
chapter.
(b) The commission shall hold a public hearing on any application
for certificate of appropriateness. At least ten (10) days before the
date set for the hearing, notice shall be published in accordance with
IC 5-3-1, and notice shall be given additionally to the affected parties
in accordance with the commission's rules of procedure.
(c) Upon hearing the application for a certificate of
appropriateness, the commission shall determine whether the
proposal will be appropriate to the preservation of the area and to the
furtherance and development of historic preservation.
(d) In determining appropriateness of any proposed construction,
reconstruction, or alteration, the commission shall consider, in
addition to any other pertinent factors, the visual compatibility,
general design, arrangement, color, texture, and materials in relation
to the architectural or other design standards prescribed by the plan
or any applicable zoning regulation, the design and character of the
historic area, and the architectural factors of other structures in it. In
determining appropriateness of any proposed demolition, the
commission shall consider, in addition to any other pertinent factors,
the character and significance of the subject structure in relation to
the historic area and any other structures or sites in it, including its
relative contribution to the historic and architectural values and
significance of the area.
(e) However, if the commission finds under subsection (d) any
application to be inappropriate, but that its denial would result in
substantial hardship or deprive the owner of all reasonable use and
benefit of the subject property, or that its effect upon the historic area
would be insubstantial, the commission shall issue a certificate of
authorization, which constitutes a certificate of appropriateness for
purposes of this chapter.
(f) Issuance of a certificate of appropriateness is subject to review
by the metropolitan development commission as to its
appropriateness in relation to the comprehensive plan. This review
must be in accordance with the same procedures and limitations
applicable to appeals of decisions of boards of zoning appeals, as
provided in IC 36-7-4, and must be initiated only upon notice of
appeal by the division of planning and zoning certifying that this
determination interferes with the comprehensive plan. All
proceedings and work on the subject premises under the certificate
of appropriateness are automatically stayed upon notice of the
appeal. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-10 Certificate of appropriateness; determination of commission
Sec. 10. (a) If the commission determines that the proposed
construction, reconstruction, alteration, or demolition will be
appropriate, the secretary of the commission shall forthwith issue to
the applicant a certificate of appropriateness.
(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 an attested copy of the reasons and
recommendations, if any, of the commission.
(c) Every determination of the commission upon an application
for certificate of appropriateness is subject to 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 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, 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. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-11 Hearing officer; powers and duties
Sec. 11. (a) A hearing officer designated by the commission may
conduct the public hearing provided for in this chapter on
applications for a certificate of appropriateness. The commission
may limit by rule or resolution the applications that a hearing officer
may hear and determine.
(b) The hearing officer shall hold a public hearing under the same
notice and procedural requirements as are applicable to a hearing
before the commission. After the hearing on an application for a
certificate of appropriateness, the hearing officer shall make a
determination.
(c) The hearing officer may not issue a certificate of
authorization.
(d) The hearing officer shall set forth the reasons for the
determination and may impose conditions in accordance with section
10 of this chapter.
(e) The commission shall provide reasonable opportunity by rules
for the applicant, any commission member, the administrator, or any
interested person to file exceptions to the determination of the
hearing officer. If an exception is properly filed, the commission
shall hold a de novo hearing and make a determination. If such an
exception is not filed, the determination of the hearing officer
constitutes the final decision of the commission. As added by Acts 1982, P.L.77, SEC.6.
IC 36-7-11.1-12 Enforcement of chapter, ordinance, and covenants; notice to
correct failures or violations
Sec. 12. (a) Whenever the commission finds that the owner of
property in any historic area has neglected to keep the property and
premises in a clean, sanitary, and tidy condition or has failed to
maintain any structure in a good state of repair and in a safe
condition, the commission may give the owner written notice to
correct the failures or violations within thirty (30) days after receipt
of notice, and if the owner fails to comply, then the commission may
bring appropriate enforcement actions as provided by subsection (b).
(b) The commission, or any enforcement official of the
consolidated city designated by the commission, may enforce this
chapter, any ordinance adopted under it, and any covenants or
conditions required or imposed by the commission by civil action in
the circuit or superior court. Any legal, equitable, or special remedy
may be invoked, including mandatory or prohibitory injunction or a
civil fine. These enforcement actions (except those seeking a civil
fine) may also be brought by any interested person or affected owner.
(c) Ordinances adopted under this chapter may provide for
penalties for violations, subject to IC 36-1-3-8.
(d) No costs may be taxed against the commission or any of its
members in any action.
(e) In actions brought under subsection (b), there may not be
changes of venue from the county. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.16-1995,
SEC.14. IC 36-7-11.1-13 Nonconforming uses
Sec. 13. (a) Except as provided in section 13.1 of this chapter, any
building, structure, or land use in existence at the time of the
adoption of the historic preservation plan that is not in conformity to
or within the zoning classification or restrictions or requirements or
architectural standards of this plan, shall be considered to be a
nonconforming use and may continue, but only so long as the owner
or owners continuously maintain this use.
(b) Except as provided in section 13.1 of this chapter, in addition
to the requirements pertaining to certificates of appropriateness, the
ownership of a nonconforming use is subject to the additional
restriction that a nonconforming use may not be reconstructed or
structurally altered to an extent exceeding in aggregate cost fifty
percent (50%) of the market value thereof unless the structure is
changed to a conforming use. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.113-1998,
SEC.2.
IC 36-7-11.1-13.1 Agricultural nonconforming use
Sec. 13.1. (a) The definitions used in this section apply only to
this section.
(b) As used in this section, "agricultural use" refers to land that is
used for:
(1) the production of livestock or livestock products,
commercial aquaculture, equine or equine products, poultry or
poultry products, horticultural or nursery stock, fruit,
vegetables, forage, grains, timber, trees, bees and apiary
products, tobacco, or other agricultural crops, in the case of
land that was not subject to a comprehensive plan or zoning
ordinance before the most recent plan or zoning ordinance,
including any amendments, was adopted; or
(2) agricultural purposes as defined in or consistent with a
comprehensive plan or zoning ordinance that:
(A) the land was subject to; and
(B) was repealed before the adoption of the most recent
comprehensive plan or zoning ordinance, including any
amendments.
(c) As used in this section, "agricultural nonconforming use"
means the agricultural use of the land is not permitted under the most
recent comprehensive plan or zoning ordinance, including any
amendments, for the area where the land is located.
(d) An agricultural use of land that constitutes an agricultural
nonconforming use may be changed to another agricultural use of
land without losing agricultural nonconforming use status.
(e) A county or municipality may not, through the county or
municipality's zoning authority, do any of the following:
(1) Terminate an agricultural nonconforming use if the
agricultural nonconforming use is maintained for at least any
three (3) year period in a five (5) year period.
(2) Restrict an agricultural nonconforming use.
(3) Require any of the following for the agricultural
nonconforming use of the land:
(A) A variance for the land.
(B) A special exception for the land.
(C) A special use for the land.
(D) A contingent use for the land.
(E) A conditional use for the land.
(F) A permit for work under section 8 of this chapter.
(G) A certificate of appropriateness.
(f) Notwithstanding subsection (e), this section does not prohibit
a county, a municipality, or the state from requiring an agricultural
nonconforming use to be maintained and operated in compliance
with all:
(1) state environmental and state health laws and rules; and
(2) requirements to which conforming agricultural use land is
subject under the county's comprehensive plan or zoning
ordinance. As added by P.L.113-1998, SEC.3. Amended by P.L.106-1999,
SEC.3.
IC 36-7-11.1-14 Effect of chapter on existing laws
Sec. 14. This chapter does not supersede IC 36-7-11.2 or
IC 36-7-11.3 and is intended to supplement the following:
(1) IC 36-7-4.
(2) IC 36-7-11.2.
(3) IC 36-7-11.3. As added by Acts 1982, P.L.77, SEC.6. Amended by P.L.1-1995,
SEC.82.
