March 11, 2011
ENGROSSED
HOUSE BILL No. 1311
_____
DIGEST OF HB 1311
(Updated March 9, 2011 3:24 pm - DI 87)
Citations Affected: IC 14-28; IC 36-7.
Synopsis: Numerous changes to planning and zoning law. Eliminates
review of zoning decisions by certiorari, and establishes a judicial
review procedure. Provides procedures for vacation of a plat, including
any recorded covenants. Allows a plan commission to adopt a rule to
limit further consideration for up to one year after its disapproval of a
plat or vacation request. Allows a plan commission (or plat committee
acting in its behalf) to: (1) grant waivers from the subdivision control
ordinance; and (2) allow or require a commitment to be made as a
condition of granting a waiver. Makes changes regarding: (1)
qualifications of citizen members of plan commissions and boards of
zoning appeals; (2) appointment of alternate members to all plan
commissions (current law allows only an area plan commission to
appoint alternate members); (3) disqualification of plan commission
and board of zoning appeals members due to financial interest or bias;
(4) publication of the zoning ordinance; and (5) commitments and
conditions. Makes other changes to the planning and zoning law.
Repeals superseded statutes concerning vacation of plats,
commitments, and writ of certiorari.
Effective: July 1, 2011.
Truitt
, GiaQuinta
(SENATE SPONSORS _ WYSS, LAWSON C)
January 13, 2011, read first time and referred to Committee on Local Government.
January 31, 2011, amended, reported _ Do Pass.
February 8, 2011, read second time, amended, ordered engrossed.
February 9, 2011, engrossed.
February 10, 2011, read third time, passed. Yeas 88, nays 4.
SENATE ACTION
February 17, 2011, read first time and referred to Committee on Local Government.
March 10, 2011, amended, reported favorably _ Do Pass.
March 11, 2011
First Regular Session 117th General Assembly (2011)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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ENGROSSED
HOUSE BILL No. 1311
A BILL FOR AN ACT to amend the Indiana Code concerning local
government.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 14-28-4-18; (11)EH1311.1.1. -->
SECTION 1. IC 14-28-4-18 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 18. (a) A flood plain
zoning ordinance must designate:
(1) the county auditor;
(2) the county surveyor; or
(3) the municipal clerk or clerk-treasurer;
as applicable, as the zoning administrator who issues improvement
location permits within the jurisdiction of the commission and in
conformance with the flood plain ordinance.
(b) A
final decision of the zoning administrator may be
judicially
reviewed
by certiorari procedure. A petition for certiorari must specify
the grounds upon which the petition alleges the illegality of the zoning
administrator's action. The petition must be filed in the circuit court of
the county in which the land is located within thirty (30) days after the
date of the decision. A change of venue from the county in which the
property is located may not be granted in any cause arising under this
chapter. in the same manner and subject to the same limitations as
a final decision of a board of zoning appeals under IC 36-7-4.
SOURCE: IC 36-7-3-1; (11)EH1311.1.2. -->
SECTION 2. IC 36-7-3-1 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1. (a) Section 2 of this chapter
applies only to areas subject to the jurisdiction of no plan commission
under this article.
(b) Sections 3 through 9 of this chapter apply only to:
(1) areas subject to the jurisdiction of an advisory plan
commission under this article; and
(2) areas subject to the jurisdiction of no plan commission under
this article.
(c) Sections 10, 11, 14, and 16 of this chapter apply to all areas of
the state. except that section 11 of this chapter applies only to areas
subject to the jurisdiction of a plan commission under this article.
(d) Sections 12, 13, and 15 of this chapter apply to all areas of the
state, except in a county having a consolidated city.
SOURCE: IC 36-7-3-10; (11)EH1311.1.3. -->
SECTION 3. IC 36-7-3-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 10. (a) The owners of
land in a plat may vacate all or part of that plat under:
(1) this section; or
(2) IC 36-7-4-711.
(b) In a case in which all the owners of land in a plat are in
agreement regarding a proposed vacation, the owners may file a
written instrument to vacate all or part of that plat. All the owners
of land in the plat must declare the plat or part of the plat to be vacated
in a the written instrument. and that The instrument must be executed,
acknowledged, and recorded in the same manner as a deed to land.
(b) (c) Before offering the instrument for recording under this
section, an owner must file a copy of the instrument in the county
auditor's office and must submit the instrument vacating all or part of
the plat for the approval of the plan commission that has jurisdiction
over the platted area under IC 36-7-4 or the plat committee acting on
behalf of the plan commission. If no plan commission has jurisdiction
over the platted area under IC 36-7-4, the instrument must be submitted
for the approval of:
(1) the county executive, in the case of land located in an
unincorporated area; or
(2) the municipal works board, in the case of land located inside
the corporate boundaries of a municipality.
The instrument may be approved under this section without notice
or a hearing. The provisions of IC 36-7-4 concerning notice and
hearing do not apply to the approval of an instrument under this
section.
(c) (d) The county recorder may record the instrument only if a
certificate showing the approval of the vacation by the plan
commission, county executive, or municipal works board is attached to
it. If the instrument is not executed and approved as required by this
section, it is void.
(d) (e) The owners of land in a plat that is located outside the
corporate boundaries of any municipality may vacate all of the plat
without the approval required by subsections (b) (c) and (c) (d) if no
lots have been sold and no roads constructed in the plat, and all of the
owners of land in the plat declare the plat to be vacated in a written
instrument. The instrument must be executed, acknowledged, and
recorded in the same manner as a deed to land.
(e) (f) An instrument recorded under this section terminates the
effect of the plat or part of the plat declared to be vacated, and it also
terminates all public rights in the public ways and public places
described in the plat or part of the plat. However, a public way that has
been improved, or that is part of an improved plat, may be vacated only
in accordance with section 12 of this chapter or with IC 36-7-4-712,
whichever is applicable.
SOURCE: IC 36-7-3-13; (11)EH1311.1.4. -->
SECTION 4. IC 36-7-3-13 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 13. A remonstrance or
objection permitted by section 11 or 12 of this chapter may be filed or
raised by any person aggrieved by the proposed vacation, but only on
one (1) or more of the following grounds:
(1) The vacation would hinder the growth or orderly development
of the unit or neighborhood in which it is located or to which it is
contiguous.
(2) The vacation would make access to the lands of the aggrieved
person by means of public way difficult or inconvenient.
(3) The vacation would hinder the public's access to a church,
school, or other public building or place.
(4) The vacation would hinder the use of a public way by the
neighborhood in which it is located or to which it is contiguous.
SOURCE: IC 36-7-4-203; (11)EH1311.1.5. -->
SECTION 5. IC 36-7-4-203 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 203. (a) ADVISORY.
After a metropolitan plan commission is established, it shall exercise
exclusively the planning and zoning functions of the county and of the
second class city, and the separate planning and zoning functions of the
county plan commission and the city plan commission cease.
(b) AREA. After the planning department is established and the
participating legislative bodies have adopted a zoning ordinance, the
planning department shall exercise exclusively the planning and zoning
functions of the county and of the participating municipalities, except
as provided in section 918 of the area planning law. 901(i) of this
chapter. Where other statutes confer planning and zoning authority on
a participating municipality or a county, their plan commissions shall
continue to exercise that authority until such time as the planning
department is established and the participating legislative bodies adopt
a zoning ordinance.
SOURCE: IC 36-7-4-204; (11)EH1311.1.6. -->
SECTION 6. IC 36-7-4-204 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 204. AREA. After the
planning department is established, other municipalities within the
county may adopt ordinances adopting the area planning law and
provide for the appointment of their representatives to the area plan
commission. In such a case, the membership of the commission shall
be increased according to the formula provided in sections 207, 208,
209, and 211 of the area planning law, of this chapter and the
authority of a municipal plan commission and municipal board of
zoning appeals ceases, except as provided in section 918 of the area
planning law, 901(i) of this chapter, as of the time specified in that
ordinance. The composition of any such municipal board of zoning
appeals, or of any such board later organized, under the advisory
planning law, must conform with that law, except that those members
of such a board to be appointed from the municipal plan commission
shall instead be appointed from the area plan commission.
SOURCE: IC 36-7-4-208; (11)EH1311.1.7. -->
SECTION 7. IC 36-7-4-208 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 208. (a) ADVISORY.
The county plan commission consists of nine (9) members, as follows:
(1) One (1) member appointed by the county executive from its
membership.
(2) One (1) member appointed by the county fiscal body from its
membership.
(3) The county surveyor or the county surveyor's designee.
(4) The county agricultural extension educator. However, if the
county does not have a county agricultural extension educator, the
county extension board shall select a resident of the county who
is a property owner with agricultural interest to serve on the
commission under this subdivision for a period not to exceed one
(1) year.
(5) Five (5) members appointed in accordance with one (1) of the
following:
(A) Four (4) citizen members, of whom no more than two (2)
may be of the same political party. Each of the four (4)
members must be:
(i) a resident of an unincorporated area of the county; or
(ii) a resident of the county who is also an owner of real
property located in whole or in part in an unincorporated
area of the county;
appointed by the county executive. However, at least two (2)
of the citizen members must be residents of the unincorporated
area of the county. Also one (1) township trustee, who must be
a resident of an unincorporated area of the county appointed
by the county executive upon the recommendation of the
township trustees whose townships are within the jurisdiction
of the county plan commission.
(B) Five (5) citizen members, of whom not more than three (3)
may be of the same political party. Each of the five (5)
members must be:
(i) a resident of an unincorporated area of the county; or
(ii) a resident of the county who is also an owner of real
property located in whole or in part in an unincorporated
area of the county;
appointed by the county executive. However at least two (2)
three (3) members must be residents of the unincorporated
area of the county.
If a county executive changes the plan commission from having
members described in clause (B) to having members described in
clause (A), the county executive shall appoint a township trustee
to replace the first citizen member whose term expires and who
belongs to the same political party as the township trustee. Each
member appointed to the commission is entitled to receive
compensation for mileage at the same rate and the same
compensation for services as a member of a county executive, a
member of a county fiscal body, a county surveyor, or an
appointee of a county surveyor receives for serving on the
commission, as set forth in section 222.5 of this chapter.
(b) ADVISORY. The metropolitan plan commission consists of nine
(9) members, as follows:
(1) One (1) member appointed by the county legislative body
from its membership.
(2) One (1) member appointed by the second class city legislative
body from its membership.
(3) Three (3) citizen members who:
(A) reside in an unincorporated area of the county; or
(B) reside in the county and also own real property located in
whole or in part in an unincorporated area of the county;
of whom no more than two (2) may be of the same political party,
appointed by the county legislative body. One (1) of these
members must be actively engaged in farming.
(4) Four (4) citizen members, of whom no more than two (2) may
be of the same political party, appointed by the second class city
executive. One (1) of these members must be from the
metropolitan school authority or community school corporation
and a resident of that school district, and the other three (3)
members must be residents of the second class city.
(c) AREA. When there are six (6) county representatives, they are
as follows:
(1) One (1) member appointed by the county executive from its
membership.
(2) One (1) member appointed by the county fiscal body from its
membership.
(3) The county superintendent of schools, or if that office does not
exist, a representative appointed by the school corporation
superintendents within the jurisdiction of the area plan
commission.
(4) One (1) of the following appointed by the county executive:
(A) The county agricultural extension educator.
(B) The county surveyor or the county surveyor's designee.
(5) One (1) citizen member who is:
(A) a resident of the unincorporated area of the county; or
(B) a resident of the county who is also an owner of real
property located in whole or in part in the unincorporated area
of the county;
appointed by the county executive.
(6) One (1) citizen member who is:
(A) a resident of the unincorporated area of the county; or
(B) a resident of the county who is also an owner of real
property located in whole or in part in the unincorporated area
of the county;
appointed by the county fiscal body.
(d) AREA. When there are five (5) county representatives, they are
the representatives listed or appointed under subsection (c)(3), (c)(4),
(c)(5), and (c)(6) and:
(1) the county surveyor or the county surveyor's designee if the
county executive appoints the county agricultural extension
educator under subsection (c)(4); or
(2) the county agricultural extension educator if the county
executive appoints the county surveyor under subsection (c)(4).
(e) AREA. The appointing authority may appoint an alternate
member to participate on a commission established under section 204
of this chapter in a hearing or decision if the regular member it has
appointed is unavailable. An alternate member shall have all of the
powers and duties of a regular member while participating on the
commission.
SOURCE: IC 36-7-4-209; (11)EH1311.1.8. -->
SECTION 8. IC 36-7-4-209 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 209. (a) AREA. When
the number of representatives for a municipality is two (2), one (1) is
a member of the municipal legislative body appointed by the legislative
body and the other is a citizen member appointed by the municipal
executive.
(b) AREA. When the number of representatives for a municipality
is three (3), one (1) is a member of the legislative body appointed by
the legislative body and two (2) are citizen members appointed by the
executive.
(c) AREA. When the number of representatives for a municipality
is four (4), one (1) is a member of the works board or the board of
sanitary commissioners, appointed by the executive, one (1) is a
member of the legislative body appointed by the legislative body, and
two (2) are citizen members appointed by the executive.
(d) AREA. When the number of representatives for a municipality
is five (5) or more, one (1) is a member of the works board or the board
of sanitary commissioners, appointed by the executive, one (1) is a
member of the legislative body appointed by the legislative body, and
the remainder are citizen members appointed by the executive.
(e) AREA. The appointing authority may appoint an alternate
member to participate on the commission established under section 204
of this chapter in a hearing or decision if the regular member it has
appointed is unavailable. An alternate member shall have all of the
powers and duties of a regular member while participating on the
commission.
SOURCE: IC 36-7-4-214; (11)EH1311.1.9. -->
SECTION 9. IC 36-7-4-214 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 214. (a) ADVISORY.
When a municipal plan commission exercises jurisdiction outside the
incorporated area of the municipality as provided for in section 205 of
the advisory planning law, the executive of the county in which the
unincorporated area is located shall appoint two (2) additional citizen
members to the municipal plan commission. The citizen members
must:
(1) reside in be residents of:
(A) the unincorporated area; or
(B) the county, and must also be owners of real property
located in whole or in part within the unincorporated area;
and
(2) not be of the same political party.
However, at least one (1) of the members must be a resident of the
incorporated area.
(b) ADVISORY. Initially, one (1) member under subsection (a)
shall be appointed for a term of one (1) year and the other for a term of
four (4) years. Thereafter, each appointment is for a term of four (4)
years. The additional citizen members are entitled to participate and
vote in all deliberations of the municipal plan commission.
(c) ADVISORY. If the unincorporated area referred to in subsection
(a) lies in two (2) counties, the executive of each of those counties shall
appoint one (1) of the additional citizen members. The executive of the
county having the larger proportion of the unincorporated area shall
appoint its member first, and the executive of the other county shall
then appoint its member, who must not be of the same political party.
SOURCE: IC 36-7-4-216; (11)EH1311.1.10. -->
SECTION 10. IC 36-7-4-216 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 216.
(a) Each citizen
member shall be appointed because of the member's knowledge and
experience in community affairs, the member's awareness of the social,
economic, agricultural, and industrial problems of the area, and the
member's interest in the development and integration of the area.
(b) A citizen member may not hold:
other elective or appointive
(1) an elected office (as defined in IC 3-5-2-17); or
(2) any other appointed office in municipal, county, or state
government;
except
for membership on the board of zoning appeals as required
by section 902 of this chapter and, in the case of an area plan
commission, membership on the
school board, the park board, or the
board of directors for public utilities or board of trustees for utilities
created under IC 8-1-11.1. body from which the member must be
appointed under this series. a citizen member must be a resident of
the jurisdictional area of the plan commission.
(c) Subject to subsection (d), a citizen member must meet one (1)
of the following requirements:
(1) The member must be a resident of the jurisdictional area
of the plan commission. The member may also be required by
statute to reside within an unincorporated area of the
jurisdictional area of the plan commission.
(2) The member must be a resident of the county and also an
owner of real property located in whole or in part in the
jurisdictional area of the plan commission. The member may
also be required by statute to own real property within an
unincorporated area of the jurisdictional area of the plan
commission.
(d) At least a majority of the total number of citizen members
appointed to a plan commission must be residents of the
jurisdictional area of the plan commission. The commission shall
determine whether a citizen member meets all applicable residency
requirements for appointment in accordance with uniform rules
prescribed by the commission.
SOURCE: IC 36-7-4-220; (11)EH1311.1.11. -->
SECTION 11. IC 36-7-4-220 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 220. (a) If a vacancy
occurs among the plan commission members who are appointed, then
the appointing authority shall appoint a member for the unexpired term
of the vacating member. The appointing authority may also appoint
an alternate member to participate with the commission in a
hearing or decision if the regular member appointed by the
appointing authority has a disqualification under section 223(c) of
this chapter. An alternate member has all the powers and duties of
a regular member while participating in the hearing or decision.
(b) If a vacancy occurs in the office of the county surveyor while the
county surveyor is serving on the plan commission, then the county
engineer shall be a member of participate with the plan commission
during the time the office of the county surveyor is vacant. The county
engineer has all the powers and duties of a regular member while
participating under this subsection.
(c) An appointed member who misses three (3) consecutive regular
meetings of the metropolitan development plan commission shall may
be treated as if the member had resigned, unless at the discretion of
the appointing authority. reaffirms the member's appointment.
SOURCE: IC 36-7-4-223; (11)EH1311.1.12. -->
SECTION 12. IC 36-7-4-223 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 223. (a)
As used in
This section
"zoning matter" does not
include apply to the preparation
or adoption of a comprehensive plan
under the 500 series of this
chapter.
(b) A member of a plan commission or a legislative body
is
disqualified and may not participate as a member of the plan
commission or legislative body in a hearing or
decision
recommendation of that commission or body concerning a
zoning
matter legislative act as described in section 1016 of this chapter in
which the member has a direct or indirect financial interest. The
commission or body shall enter in its records the fact that its member
has such a disqualification.
(c) A member of a plan commission is disqualified and may not
participate in a hearing of that commission concerning a zoning
decision as described in section 1016 of this chapter if:
(1) the member is biased or prejudiced or otherwise unable to
be impartial; or
(2) the member has a direct or indirect financial interest in
the outcome of the zoning decision.
(d) The plan commission shall enter in the plan commission's
records:
(1) the fact that a regular member has a disqualification
under subsection (c); and
(2) the name of the alternate member, if any, who participates
in the hearing in place of the regular member.
(c) (e) A member of a plan commission or a legislative body may
not directly or personally represent another person in a hearing before
that commission or body concerning a zoning matter. decision or a
legislative act.
(d) (f) A member of a plan commission may not receive any mileage
or compensation under section 222.5 of this chapter for attendance at
a meeting if the member is disqualified under subsection (b) during any
part of this section from participating in the entire meeting.
SOURCE: IC 36-7-4-402; (11)EH1311.1.13. -->
SECTION 13. IC 36-7-4-402 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 402. (a) ADVISORY.
Each advisory plan commission shall prescribe the qualifications of,
appoint, remove, and fix the compensation of the employees of the
commission, which compensation must conform to salaries and
compensations fixed before that time by the fiscal body of the county
or municipality, as the case may be. The commission shall delegate
authority to its employees to perform ministerial acts in all cases except
where final action of the commission
is necessary. or a board of
zoning appeals is required by law.
(b) AREA. Each area plan commission shall prescribe the
qualifications of, and with the consent of the executive director, fix the
compensation of the employees of the planning department, which
compensation must conform to salaries and compensations fixed before
that time by the county fiscal body. The commission shall delegate
authority to its employees to perform ministerial acts in all cases except
where final action of the commission or
the a board of zoning appeals
is required by
the area planning law.
(c) METRO. The metropolitan development commission shall
delegate authority to employees of the department of metropolitan
development to perform all ministerial acts in all cases except where
final action of the commission or a board of zoning appeals is required
by the metropolitan development law.
(d) The plan commission may designate delegate to a hearing
examiner or a committee of the commission the authority to conduct
any public hearing required to be held by the commission or make any
decision required to be made by the commission, or both. However,
only a plat committee appointed under section 701(e) of this
chapter may be delegated the authority to make decisions under
the 700 series of this chapter. Such a hearing must be held upon the
same notice and under the same rules as a hearing before the entire
commission, and the examiner or committee shall report findings of
fact and recommendations for decision to the commission The
commission shall by rule provide reasonable opportunity for interested
persons to file exceptions to the findings and recommendations, and if
any exception is filed in accordance with those rules, the commission
shall hold the prescribed hearing. If no exception is filed, the
commission shall or make the decision on behalf of the commission.
A decision made under the authority of this subsection may not be
a basis for judicial review, but it may be appealed to the plan
commission. An interested person who wishes to appeal a decision
made under the authority of this subsection must file the appeal
not later than five (5) days after the date the decision is made, and
the plan commission shall then hold the prescribed hearing and
render its decision. without further hearing.
(e) METRO. The metropolitan development commission may
designate a historic preservation commission created under
IC 36-7-11.1-3 to conduct the public hearing required to be held by the
metropolitan development commission under the 600 series of this
chapter relative to the territory included in a historic area or historic
zoning district created under IC 36-7-11.1-6. The hearing must be held
upon the same notice and under the same rules as a hearing before the
metropolitan development commission. The historic preservation
commission shall report to the metropolitan development commission
the historic preservation commission's findings of fact and
recommendations for decision. The metropolitan development
commission shall by rule provide reasonable opportunity for interested
persons to file exceptions to the findings and recommendations. If an
exception is filed in accordance with the rules, the metropolitan
development commission shall hold the prescribed hearing. If an
exception is not filed, the metropolitan development commission shall
render a decision without further hearing. However, this subsection
does not eliminate the need for a historic preservation commission to
issue a certificate of appropriateness under IC 36-7-11.1-8(e) before the
approval of a rezoning by the metropolitan development commission.
SOURCE: IC 36-7-4-403.5; (11)EH1311.1.14. -->
SECTION 14. IC 36-7-4-403.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 403.5. (a)
METRO. If
authorized by a zoning ordinance, the plan commission may designate
a hearing examiner or committee of the commission to conduct a
combined hearing procedure relative to developments that require more
than one (1) hearing under this chapter. In conducting the combined
hearing procedure under this section, the hearing examiner or
committee of the commission may exercise the following:
(1) Powers of the hearing examiner
or committee under section
402(d)
of this chapter in relation to the 600 series of this chapter.
(2) Powers of the plat committee under the 700 series of this
chapter.
(3) Powers of a board of zoning appeals under the 900 series of
this chapter.
(4) Powers of the plan commission staff or a hearing examiner
or committee of the plan commission under the 1400 series of
this chapter.
(b) Decisions of the hearing examiner or committee of the plan
commission under the combined hearing procedure may be excepted
to or appealed as follows:
(1) Decisions under the authority of section 402(d)
of this
chapter in relation to powers granted under the 600 series of this
chapter shall be
excepted to in the same manner as exceptions
may be filed to appealed to the plan commission in the same
manner as decisions of the hearing examiner or committee under
section 402(d)
of this chapter may be appealed.
(2) Decisions under the authority of the 700 series of this chapter
shall be appealed to the plan commission in the same manner as
decisions of the plat committee may be appealed.
(3) Decisions under the authority of the 900 series of this chapter
shall be appealed to the plan commission, within five (5) days
after the decision is rendered, and the plan commission shall
consider the petition in the same manner as the petition would be
considered by a board of zoning appeals.
(c) The plan commission shall make rules governing the hearing of
cases under the combined hearing procedure. The rules may not require
a petitioner or an applicant to use the combined hearing procedure
authorized under this section.
(d) The plan commission may adopt rules setting specific
procedures to facilitate informal settlement of matters. The rules
may grant procedural rights to persons in addition to those
conferred by this chapter, so long as the rights conferred upon
other persons are not substantially prejudiced. This subsection
does not require any person to settle a matter under the plan
commission's informal procedures.
SOURCE: IC 36-7-4-410; (11)EH1311.1.15. -->
SECTION 15. IC 36-7-4-410 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 410. (a) ADVISORY.
The legislative body of any municipality located in a county having an
advisory plan commission may, by ordinance, designate that county
plan commission as the municipal plan commission. Such an
ordinance may also provide that the county board of zoning
appeals has jurisdiction within the corporate boundaries of the
municipality. A county plan commission so designated has for that
municipality all the powers and duties granted, under the advisory
planning law, to a municipal plan commission. Any municipality
designating a county plan commission as its municipal plan
commission may contract annually to pay the county a proportionate
part of the expenses that is properly chargeable to the planning service
rendered that municipality. The county shall appropriate these
payments to the county plan commission in addition to any sums
budgeted for planning purposes.
(b) ADVISORY. Whenever a municipality designates a county plan
commission as its municipal plan commission under subsection (a),
residents of that municipality are eligible to be appointed citizen
members of the commission under section 208(a)(5) of this chapter.
Whenever a county board of zoning appeals has jurisdiction within
the corporate boundaries of a municipality, residents of that
municipality are eligible to be appointed citizen members of the
board of zoning appeals under section 902 of this chapter.
SOURCE: IC 36-7-4-610; (11)EH1311.1.16. -->
SECTION 16. IC 36-7-4-610 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 610. (a) After adoption
of a zoning ordinance under section 606 of this chapter, the plan
commission shall publish a notice of adoption in accordance with
IC 5-3-1. The notice of adoption (which the plan commission shall
have prepared) must:
(1) summarize the subject matter of the ordinance;
(2) give the date of adoption;
(3) specify the places or areas that would be directly affected by
the ordinance (this subdivision does not require the identification
of any real property by metes and bounds);
(4) specify the penalty or forfeiture prescribed for a violation of
the ordinance; and
(5) give two (2) locations open to the public where the entire text
of the ordinance is available for inspection.
(b) After adoption of a zoning ordinance under section 606 or 607
of this chapter, the plan commission shall print the text of the
ordinance in book or pamphlet form (or arrange for the inclusion of the
zoning ordinance in the code of ordinances printed by the unit under
IC 36-1-5), and no other printing or publication of any zoning
ordinance is required. Printing of the text of a zoning ordinance in
compliance with this subsection constitutes presumptive evidence:
(1) of the text of the ordinance that is contained in the code of
ordinances, book, or pamphlet (and supplement, if any);
(2) of the date of adoption of the ordinance, and of any
amendment to the ordinance that is contained in the code of
ordinances, book, or pamphlet (and supplement, if any); and
(3) that the ordinance, along with any amendment to the
ordinance that is contained in the code of ordinances, book, or
pamphlet (and supplement, if any), has been properly signed,
attested, and recorded.
(c) Zone maps incorporated by reference into the zoning ordinance
are not required to be printed in the code of ordinances, book, or
pamphlet printed under this section, but the plan commission shall
keep them available at its office for public inspection.
(d) Unless a zoning ordinance provides for a later effective date, the
ordinance takes effect when it is adopted under section 606, 607, or
608 of this chapter, subject to subsection (e).
(e) When a provision prescribing a penalty or forfeiture for a
violation is printed under this section, it may not take effect until
fourteen (14) days after the later of the following:
(1) The final day on which notice of its adoption is published
under subsection (a).
(2) The day on which it is filed in the clerk's office under
subsection (f).
(f) A If the zoning ordinance is not required to be included in the
code of ordinances printed by a unit under IC 36-1-5: However, if the
zoning ordinance is not included in that code, then:
(1) the book or pamphlet (and supplement, if any) that
comprises the zoning ordinance shall be incorporated by
reference into the code of ordinances;
(2) two (2) copies of the book or pamphlet (and supplement, if
any) as printed under this section shall be filed in the office of the
clerk of each participating legislative body, and these copies shall
be kept on file in that office for public inspection as required by
IC 36-1-5-4; and
(g) If the zoning ordinance is not included in the code of ordinances,
(3) the clerk shall keep additional copies of the book or pamphlet
(and supplement, if any) in the clerk's office for the purpose of
sale or distribution. However,
(g) If a unit includes the zoning ordinance is included in the unit's
code of ordinances printed under IC 36-1-5, the plan commission
shall also make copies of the zoning ordinance shall also be made
available to the public in accordance with IC 5-14-3.
(h) This chapter does not prohibit a unit from adopting:
(1) a unified development ordinance that combines the unit's
zoning and subdivision control ordinances into a single book,
pamphlet, or code title, article, or chapter; or
(2) form based codes or ordinances that employ combinations
of maps, plats, charts, diagrams, tables, text, and images.
SOURCE: IC 36-7-4-702; (11)EH1311.1.17. -->
SECTION 17. IC 36-7-4-702 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 702. (a) In determining
whether to grant primary approval of a plat, the plan commission
(or
plat committee acting on the commission's behalf) shall determine
if the plat or subdivision qualifies for primary approval under the
standards prescribed by the subdivision control ordinance.
(b) The subdivision control ordinance must specify the standards
by
which the commission determines for determining whether a plat
qualifies for primary approval. The ordinance must include standards
for:
(1) minimum width, depth, and area of lots in the subdivision;
(2) public way widths, grades, curves, and the coordination of
subdivision public ways with current and planned public ways;
and
(3) the extension of water, sewer, and other municipal services.
The ordinance may also include standards for the allocation of areas to
be used as public ways, parks, schools, public and semipublic
buildings, homes, businesses, and utilities, and any other standards
related to the purposes of this chapter.
(c) The standards fixed in the subdivision control ordinance under
subsection (b) may
not be
lower than the minimum waived at the
discretion of the plan commission (or plat committee acting on the
commission's behalf); however, to be approved, the plat must still
meet all applicable standards prescribed in the zoning ordinance
for
a similar use. (other than standards modified by variance in
accordance with the 900 series of this chapter). As a condition of
granting a waiver under this subsection, the commission or
committee may allow or require a commitment to be made under
section 1015 of this chapter.
(d) As a condition of primary approval of a plat, the commission or
committee may specify:
(1) the manner in which public ways shall be laid out, graded, and
improved;
(2) a provision for water, sewage, and other utility services;
(3) a provision for lot size, number, and location;
(4) a provision for drainage design; and
(5) a provision for other services as specified in the subdivision
control ordinance.
(e) The subdivision control ordinance may not regulate
condominiums regulated by IC 32-25.
SOURCE: IC 36-7-4-707; (11)EH1311.1.18. -->
SECTION 18. IC 36-7-4-707 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 707. (a) If, after the
hearing, the plan commission or plat committee determines that the
application and plat comply with the standards in the subdivision
control ordinance, it the commission or committee shall make written
findings and a decision granting primary approval to the plat. This
decision, which must also specify any condition imposed or waiver
granted under section 702 of this chapter, must be signed by an
official designated in the subdivision control ordinance.
(b) If, after the hearing, the plan commission or plat committee
disapproves the plat, it the commission or committee shall make
written findings that set forth its reasons and a decision denying
primary approval and shall provide the applicant with a copy. This
decision must be signed by the official designated in the subdivision
control ordinance.
(c) Primary approval or disapproval of a plat by the plat committee
may be appealed only under section 708 of this chapter. However, it
may not be taken directly to court for review under section 1016 of this
chapter until administrative remedies are exhausted.
(d) (c) This section applies to any subdivision of land, whether or
not it is exempted from the notice and hearing requirements of this
series under section 701(d) of this chapter.
SOURCE: IC 36-7-4-708; (11)EH1311.1.19. -->
SECTION 19. IC 36-7-4-708 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 708. (a) An applicant
or other interested party may appeal to the plan commission the
primary approval or disapproval of a plat, or the imposition of a
condition on primary approval by the plat committee,
in accordance
with section 402(d) of this chapter. A notice of appeal must be filed
with the commission within ten (10) days after the action of the plat
committee. However, if the plat committee grants primary approval for
the subdivision of land without public notice and hearing under section
701(d) of this chapter, an interested party may appeal the approval to
the plan commission by filing a notice of appeal with the plan
commission not more than ten (10) five (5) days after a copy of the plat
committee's action is mailed to the interested party. Notice shall be
given and a hearing held by the commission in the same manner as in
the case of the plat committee.
(b) The commission has the same power as the plat committee to
approve, disapprove, or impose conditions on the approval of plats.
(c) The primary approval by the commission of a plat must be
certified on behalf of the commission by an official designated in the
subdivision control ordinance.
(d) The primary approval or disapproval of a plat by the plan
commission or the imposition of a condition on primary approval is a
final decision of the plan commission that may be reviewed as provided
by section 1016 of this chapter.
SOURCE: IC 36-7-4-709; (11)EH1311.1.20. -->
SECTION 20. IC 36-7-4-709 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 709. (a) Secondary
approval under section 710 of this chapter may be granted to a plat for
a subdivision in which the improvements and installments have not
been completed as required by the subdivision control ordinance, if:
(1) the applicant provides a bond, or other proof of financial
responsibility as prescribed by the legislative body in the
subdivision control ordinance, that:
(A) is an amount determined by the plan commission or plat
committee to be sufficient to complete the improvements and
installations in compliance with the ordinance; and
(B) provides surety satisfactory to the plan commission or plat
committee; or
(2) with respect to the installation or extension of water, sewer, or
other utility service:
(A) the applicant shows by written evidence that it has entered
into a contract with the political subdivision or utility
providing the service; and
(B) the plan commission
or plat committee determines based
on written evidence that the contract provides satisfactory
assurance that the service will be installed or extended in
compliance with the subdivision control ordinance.
(b) Any money received from a bond or otherwise shall be used only
for making the improvements and installments for which the bond or
other proof of financial responsibility was provided. This money may
be used for these purposes without appropriation. The improvement or
installation must conform to the standards provided for such
improvements or installations by the municipality in which it is located,
as well as the subdivision control ordinance.
(c) The plan commission shall, by rule, prescribe the procedure for
determining whether all improvements and installations have been
constructed and completed as required by the subdivision control
ordinance. The rule must designate the person or persons responsible
for making the determination.
SOURCE: IC 36-7-4-710; (11)EH1311.1.21. -->
SECTION 21. IC 36-7-4-710 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 710. (a) The plan
commission may grant secondary approval of a plat under this section
or may delegate to the plat committee or staff the authority to grant
such secondary approvals.
(b) Secondary approval may be granted, after expiration of the time
provided for appeal under section 708 of this chapter.
(c) No notice or hearing is required, and the provisions of this series
concerning notice and hearing do not apply to secondary approvals.
(d) A plat of a subdivision may not be filed with the auditor, and the
recorder may not record it, unless it has been granted secondary
approval and signed and certified by the official designated in the
subdivision control ordinance governing the area. The filing and
recording of the plat is without legal effect unless approved by the
commission, or committee, or staff.
SOURCE: IC 36-7-4-711; (11)EH1311.1.22. -->
SECTION 22. IC 36-7-4-711 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 711.
ADVISORY.AREA. (a) The plan commission (or plat committee
acting on its behalf), proceeding in accordance with
IC 36-7-3,
IC 36-7-3-10 or with this section, has exclusive control over the
vacation of plats or parts of plats.
(b) In a case in which not all the owners of land in a plat are in
agreement regarding a proposed vacation, this section provides an
alternate procedure under which one (1) or more owners of land
in the plat may file with the plan commission a petition to vacate
all the plat or only that part of the plat that pertains to land owned
by the petitioner or petitioners. A petition under this section must:
(1) state the reasons for and the circumstances prompting the
request;
(2) specifically describe the property in the plat proposed to
be vacated; and
(3) give the name and address of every other owner of land in
the plat.
(c) Subject to section 714 of this chapter, a petition under this
section may also include a request to vacate any recorded
covenants filed as a part of the plat.
(d) Not more than thirty (30) days after receipt of a petition
under this section, the plan commission staff shall announce the
date for the hearing before the plan commission (or plat committee
acting on the plan commission's behalf). The plan commission shall
adopt rules prescribing procedures for setting hearing dates and
for providing other notice as may be required in accordance with
this chapter. The petitioner shall pay all expenses of providing the
notice required by this subsection.
(e) The plan commission shall adopt rules prescribing
procedures for the conduct of the hearing, which must include a
provision giving every other owner of land in the plat an
opportunity to comment on the petition.
(f) After hearing the petition, the plan commission or plat
committee shall approve or disapprove the request. The
commission or committee may approve the vacation of all or part
of a plat only upon a determination that:
(1) conditions in the platted area have changed so as to defeat
the original purpose of the plat;
(2) it is in the public interest to vacate all or part of the plat;
and
(3) the value of that part of the land in the plat not owned by
the petitioner will not be diminished by the vacation.
(g) The commission or committee may impose reasonable
conditions as part of any approval. The commission or committee
shall furnish a copy of the commission's or committee's decision to
the county recorder for recording.
(h) An applicant or other interested party may appeal the
approval or disapproval of a vacation by the plat committee in the
manner prescribed by section 402(d) of this chapter.
SOURCE: IC 36-7-4-712; (11)EH1311.1.23. -->
SECTION 23. IC 36-7-4-712 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 712. (a) METRO. The
plat committee has exclusive control over the vacation of:
(1) plats or parts of plats; and
(2) public ways, easements, or public places, or parts of any of
them, whether or not they are included in an approved plat;
in the county. The plat committee may adopt rules governing the
procedure for these vacations. The vacation of public ways, easements,
or public places, or parts of any of them may be made only upon a
finding by the plat committee that the vacation is in the public interest.
The plat committee may accomplish the vacation of plats or parts of
plats by proceeding in accordance with IC 36-7-3-10 or IC 36-7-3-11.
Vacation or replatting may include the vacation or amendment of any
recorded covenant running in favor of any governmental agency, or
restriction, that was contained in the original plat. section 711 of this
chapter.
(b) METRO. An applicant or other interested party may appeal the
approval or disapproval of a vacation in the manner prescribed by
section 708 402(d) of this chapter.
SOURCE: IC 36-7-4-714; (11)EH1311.1.24. -->
SECTION 24. IC 36-7-4-714 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 714. The vacation of all or part
of a plat may include the vacation of any recorded covenants filed
with the plat, but only upon a determination that:
(1) the platted area is within an area needing redevelopment
and the covenant vacation would promote a recovery of
property values in the area needing redevelopment by
allowing or encouraging normal development and occupancy
of the platted area;
(2) the covenant vacation is needed to secure for the public
adequate light, air, convenience of access, or safety from fire,
flood, or other danger; or
(3) the covenant vacation is needed to lessen or avoid
congestion in the public ways.
SOURCE: IC 36-7-4-715; (11)EH1311.1.25. -->
SECTION 25. IC 36-7-4-715 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]:
Sec. 715. (a) The following are final
decisions of the plan commission that may be reviewed as provided
by section 1016 of this chapter:
(1) Primary approval or disapproval of a plat.
(2) Imposition of a condition on primary approval of a plat.
(3) Approval or disapproval of the vacation of all or part of a
plat.
(4) Approval or disapproval of the vacation of any recorded
covenants filed with the plat.
(5) Imposition of a condition on approval of the vacation of all
or part of a plat (which may include the vacation of any
recorded covenants filed with the plat).
(b) The plan commission may adopt a rule to limit further
consideration for up to one (1) year after its disapproval, of a plat
or vacation request that is disapproved under section 707, 708, 711,
712, or 714 of this chapter.
SOURCE: IC 36-7-4-903; (11)EH1311.1.26. -->
SECTION 26. IC 36-7-4-903 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 903. ADVISORY. (a)
When a municipal plan commission exercises jurisdiction outside the
incorporated area of the municipality as provided for in section 205 or
1208 of the advisory planning law, either: this chapter, one (1) of the
following must occur:
(1) An additional division of the board of zoning appeals shall be
established under section 901(b) of this chapter that will have
territorial jurisdiction only in the unincorporated area. and The
division must consist only of:
(A) residents of the unincorporated area; or
(B) individuals who reside in the county and also own real
property within the unincorporated area.
However, at least a majority of the members appointed to the
division must be residents of the unincorporated area.
(2) The municipal plan commission shall designate, as its
appointment to the municipal board of zoning appeals under
section 902(a)(3) of this chapter one (1) of the two (2) additional
citizen members who were appointed under section 214 214(a),
1210(a), or 1210.5(c)(3) of this chapter to the plan commission
to represent the unincorporated area. The citizen member must
reside in the unincorporated area. The citizen shall be appointed
for a term of four (4) two (2) years. The citizen is entitled to
participate and vote in all deliberations of the municipal board of
zoning appeals.
(b) Notwithstanding section 902(g) of this chapter, if the zoning
ordinance provides for an additional division of the board of zoning
appeals under subsection (a)(1), the ordinance may also provide for the
appointment of one (1) or more members of that division by elected
officials of the county or township.
SOURCE: IC 36-7-4-905; (11)EH1311.1.27. -->
SECTION 27. IC 36-7-4-905 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 905.
(a) None of the
members of a board of zoning appeals may hold:
other elective or
appointive
(1) an elected office (as defined in IC 3-5-2-17); or
(2) any other appointed office, except as permitted by section
902 of this chapter, in municipal, county, or state government.
a member must be a resident of the jurisdictional area of the board.
(b) A member of the board of zoning appeals must meet one (1)
of the following requirements:
(1) The member must be a resident of the jurisdictional area
of the board.
(2) The member must be a resident of the county and also an
owner of real property located in whole or in part in the
jurisdictional area of the board.
However, at least a majority of the total number of citizen
members appointed to the board of zoning appeals must be
residents of the jurisdictional area of the board of zoning appeals.
The board shall determine whether a member meets all applicable
residency requirements for appointment in accordance with
uniform rules prescribed by the board.
SOURCE: IC 36-7-4-907; (11)EH1311.1.28. -->
SECTION 28. IC 36-7-4-907 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 907. (a) If a vacancy
occurs among the members of the board of zoning appeals, the
appointing authority shall appoint a member for the unexpired term of
the vacating member. In addition, the appointing authority may appoint
an alternate member to participate with the board in any hearing or
decision if the regular member it has appointed has a disqualification
under section 909 of this chapter or is otherwise unavailable to
participate in the hearing or decision. An alternate member shall have
all of the powers and duties of a regular member while participating in
the hearing or decision.
(b) METRO. A member of the metropolitan board of zoning appeals
who misses three (3) consecutive regular meetings of the board shall
may be treated as if he the member had resigned, at the discretion of
the appointing authority.
(c) METRO. Members serving in any division of the metropolitan
board of zoning appeals shall may also serve as alternate members for
the other divisions of the metropolitan board of zoning appeals.
Whenever regular and alternate members serving in a particular
division are unavailable, the chairman or vice chairman chairperson
or vice chairperson of the affected division may select members from
other divisions in order to assemble up to five (5) members to
participate in any hearing or decision.
SOURCE: IC 36-7-4-909; (11)EH1311.1.29. -->
SECTION 29. IC 36-7-4-909 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 909. (a) A member of
a board of zoning appeals is disqualified and may not participate in a
hearing or decision of that board concerning a zoning matter in which
he if the member:
(1) is biased or prejudiced or otherwise unable to be
impartial; or
(2) has a direct or indirect financial interest in the outcome of the
hearing or the decision.
(b) The board shall enter in its the board's records:
(1) the fact that a regular member has such a disqualification; and
(2) the name of the alternate member, if any, who participates in
the hearing or decision in place of the regular member.
SOURCE: IC 36-7-4-918.5; (11)EH1311.1.30. -->
SECTION 30. IC 36-7-4-918.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 918.5. (a) A board of
zoning appeals shall approve or deny variances from the development
standards (such as height, bulk, or area) of the zoning ordinance. The
board may impose reasonable conditions as a part of the board's
approval. A variance may be approved under this section only upon a
determination in writing that:
(1) the approval will not be injurious to the public health, safety,
morals, and general welfare of the community;
(2) the use and value of the area adjacent to the property included
in the variance will not be affected in a substantially adverse
manner; and
(3) the strict application of the terms of the zoning ordinance will
result in practical difficulties in the use of the property. However,
the zoning ordinance may establish a stricter standard than the
"practical difficulties" standard prescribed by this subdivision.
(b) Before approval of a proposal involving a structure regulated
under IC 8-21-10 may become effective, the board of zoning appeals
must have received:
(1) a copy of:
(A) the permit for the structure issued by the Indiana
department of transportation; or
(B) the Determination of No Hazard to Air Navigation issued
by the Federal Aviation Administration; and
(2) evidence that notice was delivered to a public use airport as
required in IC 8-21-10-3 not less than sixty (60) days before the
proposal is considered.
(c) Only the plan commission (or plat committee acting on the
commission's behalf) may grant a waiver from standards that are
fixed in the subdivision control ordinance, as provided in section
702(c) of this chapter.
SOURCE: IC 36-7-4-923; (11)EH1311.1.31. -->
SECTION 31. IC 36-7-4-923 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 923. (a) This section
allows the establishment of an alternate procedure
by the plan
commission under which there can be a more expedient disposition of
certain matters
that otherwise would be heard by a board of zoning
appeals. When authorized by
ordinance or by rules of the plan
commission, a hearing officer has the power of a board of zoning
appeals to approve or deny, through the alternate procedure allowed by
this section:
(1) a variance from the development standards of the zoning
ordinance in accordance with section 918.5 of this chapter; or
(2) a special exception, special use, contingent use, or conditional
use from the terms of the zoning ordinance in accordance with
section 918.2 of this chapter; or
(3) a variance of use from the terms of the zoning ordinance in
accordance with section 918.4 of this chapter. However, the
authority of a hearing officer under this subdivision may be
exercised only if:
(A) the area planning law is not applicable; and
(B) the variance of use would allow all of the following:
(i) The expansion of a use currently existing on the tract.
(ii) A use that is consistent with the comprehensive plan.
(b) All requirements for variances, exceptions, and uses imposed by
the 900 series of this chapter apply to the alternate procedure, except
to the extent that a provision of section 924 of this chapter imposes a
different requirement.
(c) The alternate procedure does not apply in any excluded city as
described in IC 36-3-1-7. Sections 919(f) and 922 of this chapter do not
apply to the alternate procedure.
(d) The hearing officer (who may be a board member, a staff
member, or any other person) shall be appointed by the plan
commission. More than one (1) hearing officer may be appointed. A
hearing officer may be removed from his the officer's responsibilities
at any time by the plan commission.
(e) METRO. The plan commission may adopt other rules or
recommend ordinances for the alternate procedure not inconsistent
with the 900 series of the metropolitan development law. this chapter.
These rules or ordinances may specify the period during which the
staff may indicate whether the staff objects to the proposed variance,
exception, or use. These rules or ordinances may also provide for
public notice and due notice to interested parties in accordance with
section 920(b), 920(c), and 920(d) of this chapter, but the rules or
ordinances may, because of the nature of the petitions heard under the
alternate procedure, provide for a less inclusive definition of
"interested person" and provide for a quicker and less burdensome
method of giving notice to interested persons than rules applicable to
petitions not filed under the alternate procedure.
(f) METRO. For purposes of subsection (d), the director of the
department of metropolitan development shall nominate, and the plan
commission shall appoint, all hearing officers. Such a hearing officer
may be removed from his the officer's responsibilities at any time by
either the director or the plan commission.
(f) (g) METRO. The plan commission may, if requested by a
historic preservation commission created under IC 36-7-11.1-3,
appoint:
(1) a member of the historic preservation commission;
(2) a member of the historic preservation staff; or
(3) a person who is an employee of the department of
metropolitan development;
as a hearing officer to act in a historic area or historic zoning district
created under IC 36-7-11.1-6. The hearing officer may be removed
from the hearing officer's responsibilities at any time by either the
historic preservation commission or the plan commission.
SOURCE: IC 36-7-4-924; (11)EH1311.1.32. -->
SECTION 32. IC 36-7-4-924 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 924. (a) In establishing
the alternate procedure under section 923 of this chapter, the plan
commission may adopt rules or recommend ordinances:
(1) limiting the kinds of variance, special exception, special use,
contingent use, or conditional use petitions or applications that
may be filed under the alternate procedure;
(2) permitting the hearing officer, in appropriate circumstances,
to transfer a petition or an application filed under the alternate
procedure to the board of zoning appeals;
(3) requiring the creation of minutes and records of the
proceedings before the hearing officer and the filing of the
minutes and records as public records; and
(4) regulating conflicts of interest and communication with the
hearing officer, so as to require the same level of conduct as is
required by the 900 series of this chapter.
(b) The staff (as defined by the zoning ordinance), if any, may file
a written objection to a petition or an application for a variance,
exception, or use if:
(1) it would be injurious to the public health, safety, morals, and
general welfare of the community; or
(2) the use or value of the area adjacent to the property included
would be affected in a substantially adverse manner.
(c) If a written objection is filed under subsection (b), the petition
or application shall:
(1) be considered withdrawn; or
(2) be transferred to the board of zoning appeals if requested by
the petitioner or applicant.
(d) The staff (as defined by the zoning ordinance), if any, may
indicate that it does not object to the approval of the variance,
exception, or use if specified conditions are attached. If the petitioner
or applicant does not accept these conditions, the petition or
application shall:
(1) be considered withdrawn; or
(2) be transferred to the board of zoning appeals if requested by
the petitioner or applicant.
(e) The hearing officer may impose conditions and may permit or
require the owner of a parcel of property to make a written commitment
concerning the use or development of that parcel, as provided in
section 921 1015 of this chapter. If the petitioner or applicant for the
variance, exception, or use does not accept these conditions or make
the commitment, the petition or application shall:
(1) be considered withdrawn; or
(2) be transferred to the board of zoning appeals if requested by
the petitioner or applicant.
(f) The hearing officer may not modify or terminate any
commitment, whether made under this section or section 921 1015 of
this chapter. Commitments made under this section may be modified
or terminated only by the board of zoning appeals.
(g) A decision of a hearing officer under the alternate procedure
may not be a basis for judicial review, but it may be appealed to the
board of zoning appeals. An interested person who wishes to appeal a
decision of a hearing officer under the alternate procedure must file the
appeal with:
(1) the board of zoning appeals if the board of zoning appeals
consists of only one (1) division; or
(2) a division of the board of zoning appeals if the board of zoning
appeals consists of more than one (1) division;
within fourteen (14) five (5) days after the decision is made.
SOURCE: IC 36-7-4-1003; (11)EH1311.1.33. -->
SECTION 33. IC 36-7-4-1003 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1003. (a) Each decision
of the legislative body under section 918.6 of this chapter
or the board
of zoning appeals is subject to
judicial review
by certiorari. Each
person aggrieved by a decision of the board of zoning appeals or the
legislative body may file with the circuit or superior court of the county
in which the premises affected are located, a verified petition setting
forth that the decision is illegal in whole or in part and specifying the
grounds of the illegality. No change of venue from the county in which
the premises affected are located may be had in any cause arising under
this section. in the same manner as that provided for the appeal of
a final decision of the board of zoning appeals under section
1016(a) of this chapter.
(b) ADVISORY. The person shall file the petition with the court
within thirty (30) days after the date of that decision of the board of
zoning appeals.
(c) AREA. The person shall file the petition with the court within
thirty (30) days after the date of that decision of the board of zoning
appeals.
(d) (b) METRO. The person shall file the A petition for judicial
review must be filed with the court after the expiration of the period
within which an official designated by the metropolitan development
commission may file an appeal under section 922 of this chapter but
within thirty (30) days after the date of that decision of the board of
zoning appeals. not later than the period provided for timely filing
under section 1605 of this chapter. However, if the official files an
appeal, then only the decision of the metropolitan development
commission sitting as a board of zoning appeals is subject to judicial
review. by certiorari, in accordance with this section. The official or
department of metropolitan development may not seek judicial review
by certiorari of a decision of a board of zoning appeals or the
commission sitting as a board of zoning appeals.
SOURCE: IC 36-7-4-1013; (11)EH1311.1.34. -->
SECTION 34. IC 36-7-4-1013 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1013. (a)
ADVISORY.
When the legislative body provides penalties for failure to comply with
any ordinance
adopted under this chapter, the municipal attorney or
an attorney representing the county, as the case may be, shall, on
receipt of information of the violation of any ordinance, make an
investigation of the alleged violation. If acts elicited by the
investigation are sufficient to establish a reasonable belief that a
violation has occurred on the part of the party investigated, the
municipal attorney or an attorney representing the county may file a
complaint against the person and prosecute the alleged violation
under
IC 36-1-6.
(b)
AREA.METRO. The plan commission or a board of zoning
appeals may request the prosecuting attorney of the county
(or of the
city under the metropolitan development law) to take appropriate action
in any case involving the violation of
this chapter or of any ordinance
or regulation adopted under
it. The prosecuting attorney shall act
promptly when requested. this chapter.
(c)
AREA. The plan commission may appoint one (1) or more
attorneys to advise the planning
department staff and to assist in the
enforcement of
the area planning law, and any ordinances and
regulations adopted under it. The this chapter. Subject to the 400
series of this chapter, an area plan commission may employ one (1)
attorney on a full-time basis so that the attorney can become fully
informed on the specialized law of planning, zoning, and subdivision
control.
(d) The services of an attorney, attorneys appointed by the plan
commission under subsection (c) shall be made available without
extra compensation to the prosecuting attorney in all cases involving
the planning department. ordinances or regulations adopted under
this chapter. The attorneys may be deputized to act for and under the
direction of the prosecuting attorney.
(e) In civil actions for the enforcement of the area planning law or
ordinances or regulations adopted under it, this chapter, an attorney
appointed by the plan commission may bring an action in the name of
the plan commission.
SOURCE: IC 36-7-4-1014; (11)EH1311.1.35. -->
SECTION 35. IC 36-7-4-1014 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1014. (a) The plan
commission,
board of zoning appeals, or any enforcement official
designated in the zoning ordinance may bring an action
in the circuit
or superior court of the county under IC 36-1-6 to
invoke any legal,
equitable, or special remedy for the enforcement of this chapter or
enforce any ordinance adopted or action taken under this chapter.
(b) The plan commission,
board of zoning appeals, or any
enforcement official designated in the zoning ordinance may also bring
an action
in the circuit or superior court of the county to enforce:
(1) conditions imposed
by the commission or board of zoning
appeals under this chapter;
or
(2) covenants made in connection with a subdivision plat, a
development plan, or a PUD district ordinance (as defined in
section 1503 of this chapter).
or
(3) commitments made in accordance with this chapter.
(c) ADVISORY. In addition, in each county having a metropolitan
plan commission, if the county or second class city adopts a zoning
ordinance under this chapter, then that unit may also invoke any
remedy under this section. However, the county may do so only outside
the corporate boundaries of the city, and the city may do so only within
its corporate boundaries.
(d)
METRO. The metropolitan development commission may also
bring an action in the circuit or superior court of the county to enforce:
(1) conditions imposed under this chapter;
(2) covenants made in connection with a subdivision plat, a
development plan, or a PUD district ordinance (as defined in
section 1503 of this chapter); or
(3) commitments made in accordance with this chapter.
The metropolitan development plan commission, board of zoning
appeals, or designated enforcement official may invoke any legal,
equitable, or special remedy in such an action described in subsection
(a) or (b).
(e) An action for the levy of a fine or penalty for enforcement of a
zoning ordinance may be brought in any court located within the
jurisdiction of the plan commission or board of zoning appeals.
(f) If the plan commission, board of zoning appeals, or designated
enforcement official is successful in the an action brought under this
section, the respondent shall bear the costs of the action. A change of
venue from the county may not be granted in such an action.
SOURCE: IC 36-7-4-1015; (11)EH1311.1.36. -->
SECTION 36. IC 36-7-4-1015 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1015. (a)
ADVISORY.AREA. The board of zoning appeals or any enforcement
official designated in the zoning ordinance may bring an action for
injunction in the circuit or superior court of the county to restrain a
person from violating this chapter or an ordinance adopted under this
chapter.
(a) As a condition to the:
(1) adoption of a rezoning proposal;
(2) primary approval of a proposed subdivision plat or
development plan;
(3) approval of a vacation of all or part of the plat; or
(4) approval of an application for a:
(A) special exception;
(B) special use;
(C) contingent use;
(D) conditional use; or
(E) variance;
the owner of a parcel of real property may be required or allowed
to make a commitment to the plan commission or board of zoning
appeals, as applicable, concerning the use or development of that
parcel.
(b) ADVISORY.AREA. The board of zoning appeals may also
bring an action in the circuit or superior court of the county for a
mandatory injunction, directing a person to remove a structure erected
in violation of this chapter or of an ordinance adopted under this
chapter.
(b) Commitments are subject to the following provisions:
(1) A commitment must be in writing.
(2) Unless the written commitment is modified or terminated
in accordance with this subsection, a written commitment is
binding on the owner of the parcel.
(3) A commitment shall be recorded in the office of the county
recorder. After a commitment is recorded, it is binding on a
subsequent owner or any other person who acquires an
interest in the parcel. However, a commitment is binding on
the owner who makes the commitment even if the
commitment is unrecorded. An unrecorded commitment is
binding on a subsequent owner or other person acquiring an
interest in the parcel only if that subsequent owner or other
person has actual notice of the commitment.
(4) A commitment may contain terms providing for its own
expiration. A commitment may also contain terms providing
that the commitment automatically terminates:
(A) if the zoning district or classification applicable to the
parcel is changed;
(B) if the land use to which the commitment relates is
changed; or
(C) otherwise in accordance with the rules of the plan
commission or board of zoning appeals to which the
commitment is made.
(5) Except for a commitment that expires or automatically
terminates under subdivision (4), a commitment may be
modified or terminated only by a decision of the plan
commission or board of zoning appeals to which the
commitment was made. The decision must be made at a public
hearing after notice of the hearing has been provided under
the rules of the plan commission or board of zoning appeals,
as the case may be.
(6) During the time a rezoning proposal is being considered by
the legislative body under the 600 or 1500 series of this
chapter, the owner may make a new commitment to the plan
commission or modify the terms of a commitment that was
made when the proposal was being considered by the plan
commission.
(7) No further action of the plan commission is required for a
new commitment made under subdivision (6) to be effective.
(8) If a commitment is modified under subdivision (6):
(A) no further action is required by the plan commission
for the commitment to be effective if the effect of the
modification is to make the commitment more stringent; or
(B) the modified commitment must be ratified by the plan
commission if the effect of the modification is to make the
commitment less stringent.
(9) Requiring or allowing a commitment to be made does not
obligate the plan commission, board of zoning appeals, or
legislative body, as applicable, to adopt, approve, or favorably
recommend the proposal or application to which the
commitment relates.
(c) ADVISORY.AREA. If the board of zoning appeals is successful
in its action, the respondent shall bear the costs of the action. A change
of venue from the county may not be granted in such an action.
(c) The plan commission or board of zoning appeals may adopt
rules:
(1) governing the creation, form, recording, effectiveness,
modification, and termination of commitments; and
(2) designating which specially affected persons and classes of
specially affected persons are entitled to enforce
commitments.
(d) An action to enforce a commitment made in accordance with
this chapter may be brought in the circuit or superior court of the
county by:
(1) the plan commission or board of zoning appeals to which
the commitment was made;
(1) (2) any person who was entitled to enforce a commitment
under the rules of the plan commission or board of zoning appeals
in force at the time the commitment was made; or
(2) (3) any other specially affected person who was designated in
the commitment.
(e) A person bringing an action to enforce a commitment made
under this chapter may request mandatory or prohibitory injunctive
relief through the granting of a temporary restraining order, preliminary
injunction, or permanent injunction. If an action to enforce a
commitment is successful, the respondent shall bear the costs of the
action. A change of venue from the county may not be granted in
such an action.
(f) In an action to enforce a commitment, it is not a defense that:
(1) no consideration was given for the commitment;
(2) that the commitment does not benefit any designated parcel of
property;
(3) that the document setting forth the commitment lacks a seal;
(4) that there is no privity of estate;
(5) that there is not privity of contract; or
(6) that there is no proof of damages.
(g) The following types of conditions, as authorized by this
chapter, are not considered commitments and are not subject to
subsection (b):
(1) A condition imposed upon primary approval of a plat that
must be met before secondary approval of the plat may be
granted under the 700 series of this chapter.
(2) A condition imposed upon the approval of an exception, a
use, a variance, or a development plan that must be met
before an improvement location permit may be issued under
the 800 series of this chapter.
(3) A condition imposed upon an approval relative to any
other development requirement that must be met before any
other secondary approval may be granted or building permit
may be issued under this chapter.
(4) A condition that was imposed before July 1, 2011, on an
approval relative to any development requirement. However,
this subdivision applies only if a copy of the condition has
been filed and permanently maintained as a public record in
the office of the plan commission or board of zoning appeals
that imposed the condition.
(h) Covenants, easements, equitable servitudes, and other land
use restrictions created in accordance with law are not considered
commitments and are not subject to subsection (b).
SOURCE: IC 36-7-4-1016; (11)EH1311.1.37. -->
SECTION 37. IC 36-7-4-1016 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1016.
(a) Final
decisions of the board of zoning appeals under:
(1) the 900 series of this chapter (administrative appeals,
exceptions, uses, and variances); or
(2) section 1015 of this chapter (appeals of commitment
modifications or terminations);
are considered zoning decisions for purposes of this chapter and
are subject to judicial review in accordance with the 1600 series of
this chapter.
(b) The following decisions of the plan commission
may be
reviewed by certiorari procedure are considered zoning decisions for
purposes of this chapter and are subject to judicial review in the
same manner as that provided for the appeal of a
final decision of the
board of zoning appeals
under subsection (a):
(1) A final decision under the 700 series of this chapter
(subdivision control).
(2) A final decision under
IC 36-7-3-11(h) section 1015 of this
chapter (appeal of a vacation decision). commitment
modification or termination).
(3) A final decision under the 1400 series of this chapter
(development plans).
(4) A final decision under the 1500 series of this chapter (planned
unit development), when authority to make a final decision is
delegated to the plan commission by the legislative body under
section 1511 of this chapter.
(c) Final decisions of preservation commissions under
IC 36-7-11, IC 36-7-11.1, IC 36-7-11.2, or IC 36-7-11.3 (certificates
of appropriateness) are considered zoning decisions for purposes
of this chapter and are subject to judicial review in the same
manner as that provided for the appeal of a final decision of the
board of zoning appeals under subsection (a).
(d) Final decisions of zoning administrators under IC 14-28-4-18
(improvement location permits within flood plain areas) are
considered zoning decisions for purposes of this chapter and are
subject to judicial review in the same manner as that provided for
the appeal of a final decision of the board of zoning appeals under
subsection (a).
(e) The following actions are legislative acts and are not
considered zoning decisions for purposes of this chapter:
(1) Adopting or approving a comprehensive plan under the
500 series of this chapter.
(2) Certifying with or without a recommendation a proposal
under the 600 series of this chapter.
(3) Adopting, rejecting, or amending a zoning ordinance
under the 600 series of this chapter.
(4) Adopting, rejecting, or amending an impact fee ordinance
under the 1300 series of this chapter.
(5) Designating a zoning district where a development plan is
required under the 1400 series of this chapter.
(6) Adopting, rejecting, or amending a PUD district ordinance
under the 1500 series of this chapter.
(7) Adopting, rejecting, or amending a flood plain zoning
ordinance under IC 14-28-4.
SOURCE: IC 36-7-4-1020; (11)EH1311.1.38. -->
SECTION 38. IC 36-7-4-1020 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1020. (a) All
ordinances adopted under this chapter are presumed to have been
validly adopted.
(b) A court plan commission or a board of zoning appeals shall take
judicial official notice of all ordinances adopted under this chapter.
SOURCE: IC 36-7-4-1102; (11)EH1311.1.39. -->
SECTION 39. IC 36-7-4-1102 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1102. ADVISORY.
The advisory planning law This chapter is supplemental to and does
not abrogate the powers extended to agencies, bureaus, departments,
commissions, divisions, or officials of state government by other
statutes and these powers remain in effect. Powers of supervision and
regulation by these entities of state government over political
subdivisions or persons also are not abrogated and continue in effect.
SOURCE: IC 36-7-4-1109; (11)EH1311.1.40. -->
SECTION 40. IC 36-7-4-1109, AS ADDED BY P.L.49-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2011]: Sec. 1109. (a) As used in this section, "local
governmental agency" includes any agency, officer, board, or
commission of a local unit of government that may issue:
(1) a permit; or
(2) an approval of a land use or an approval for the construction
of a development, a building, or another structure.
(b) As used in this section, "permit" means any of the following:
(1) An improvement location permit.
(2) A building permit.
(3) A certificate of occupancy.
(4) Approval of a site-specific development plan.
(5) Approval of a primary or secondary plat.
(6) Approval of a
contingent use, conditional use, special
exception or special use.
(7) Approval of a planned unit development.
(c)
Subject to section 1110 of this chapter, if a person files a
complete application as required by the effective ordinances or rules of
a local governmental agency for a permit with the appropriate local
governmental agency, the granting of the permit, and the granting of
any secondary, additional, or related permits or approvals required
from the same local governmental agency with respect to the general
subject matter of the application for the first permit, are governed for
at least three (3) years after the person applies for the permit by the
statutes, ordinances, rules, development standards, and regulations in
effect and applicable to the property when the application is filed, even
if before the issuance of the permit or while the permit approval
process is pending, or before the issuance of any secondary, additional,
or related permits or approvals or while the secondary, additional, or
related permit or approval process is pending, the statutes, ordinances,
rules, development standards, or regulations governing the granting of
the permit or approval are changed by the general assembly or the
applicable local legislative body or regulatory body. However, this
subsection does not apply if the development or other activity to which
the permit relates is not completed within seven (7) ten (10) years after
the development or activity is commenced.
(d) Subsection (e) applies if:
(1) either:
(A) a local governmental agency issues to a person a permit or
grants a person approval for the construction of a
development, a building, or another structure; or
(B) a permit or approval is not required from the local
governmental agency for the construction of the development,
building, or structure;
(2) before beginning the construction of the development,
building, or structure, the person must obtain a permit or approval
for the construction of the development, building, or structure
from a state governmental agency; and
(3) the person has applied for the permit or requested the approval
for the construction of the development, building, or structure
from the state governmental agency within ninety (90) days of
issuance of the permit by the local governmental agency.
(e) Subject to subsection (f) and section 1110 of this chapter, if the
conditions of subsection (d) are satisfied:
(1) a permit or approval issued or granted to a person by the local
governmental agency for the construction of the development,
building, or structure; or
(2) the person's right to construct the development, building, or
structure without a permit or approval from the local
governmental agency;
is governed for at least three (3) years after the person applies for the
permit by the statutes, ordinances, rules, development standards,
regulations, and approvals in effect and applicable to the property when
the person applies for the permit or requests approval from the state
governmental agency for the construction of the development, building,
or structure, even if before the commencement of the construction or
while the permit application or approval request is pending with the
state governmental agency the statutes governing the granting of the
permit or approval from the local governmental agency are changed by
the general assembly or the ordinances, rules, development standards,
or regulations of the local governmental agency are changed by the
applicable local legislative body or regulatory body. However, this
subsection does not apply if the development or other activity to which
the permit or approval request relates is not completed within seven (7)
ten (10) years after the development or activity is commenced.
(f) Subsection (d) does not apply to property when it is
demonstrated by the local or state governmental agency that the
construction of the development, building, or structure would cause
imminent peril to life or property.
(g) This section does not apply to building codes under IC 22-13.
SOURCE: IC 36-7-4-1110; (11)EH1311.1.41. -->
SECTION 41. IC 36-7-4-1110, IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1110. (a) As used in this section,
"permit or right" refers to:
(1) the granting of a permit, and the granting of any
secondary, additional, or related permits or approvals, in
response to an application filed:
(A) before July 1, 2011; and
(B) as described in section 1109(c) of this chapter;
(2) a permit issued or approval granted:
(A) before July 1, 2011; and
(B) as described in section 1109(e)(1) of this chapter; and
(3) the right to construct a development, building, or
structure:
(A) that inures before July 1, 2011; and
(B) is described in section 1109(e)(2) of this chapter.
(b) Before July 1, 2014, the changes made to IC 14-28-4-18 and
IC 36-7 by the enrolled act enacted during the 2011 regular session
of the general assembly do not apply to a permit or right.
(c) After June 30, 2014, and notwithstanding section 1109 of this
chapter, the changes made to IC 14-28-4-18 and IC 36-7 by the
enrolled act enacted during the 2011 regular session of the general
assembly apply to a permit or right.
(d) This section expires December 31, 2014.
SOURCE: IC 36-7-4-1111; (11)EH1311.1.42. -->
SECTION 42. IC 36-7-4-1111 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]:
Sec. 1111. In computing any period of
time under this chapter, the day of the act, event, or default from
which the designated period of time begins to run is not included.
The last day of the computed period is to be included unless it is:
(1) a Saturday;
(2) a Sunday;
(3) a legal holiday under an Indiana statute; or
(4) a day that the office in which the act is to be done is closed
during regular business hours.
A period runs until the end of the next day after a day described in
subdivisions (1) through (4). If the period allowed is less than seven
(7) days, intermediate Saturdays, Sundays, legal holidays, and days
on which the office in which the act is to be done is closed during
regular business hours are excluded from the calculation.
SOURCE: IC 36-7-4-1335; (11)EH1311.1.43. -->
SECTION 43. IC 36-7-4-1335 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1335. (a) As used in
this section, "improvement" means an improvement under section
1313(2) of this chapter or a site improvement, land, or real property
interest as follows:
(1) That is to be used for at least one (1) of the infrastructure
purposes specified in section 1309 of this chapter.
(2) That is included in or intended to be used relative to an
infrastructure type for which the unit has imposed an impact fee
in the impact zone.
(3) That is not a type of improvement that is uniformly required
by law or rule for the type of development on which the impact
fee has been imposed.
(4) That is or will be:
(A) public property; or
(B) furnished or constructed under requirements of the unit
and is or will be available for use by other development in the
area.
(5) That is beneficial to existing development and future
development in the impact zone and is not beneficial to only one
(1) development.
(6) That either:
(A) allows the removal of a component of infrastructure
planned for the impact zone;
(B) is a useful addition to the zone improvement plan; or
(C) is reasonably likely to be included in a future zone
improvement plan for the impact zone.
(7) That is:
(A) constructed, furnished, or guaranteed by a bond or letter
of credit under a request by an authorized official of the:
(i) applicable infrastructure agency; or
(ii) unit that imposed the impact fee; or
(B) required to be constructed or furnished under a written
commitment that:
(i) is requested by an authorized official of the applicable
infrastructure agency or the unit that imposed the impact
fee;
(ii) concerns the use or developing of the development
against which the impact fee is imposed; and
(iii) is made under section 613, 614, or 921 1015 of this
chapter.
(b) A fee payer is entitled to a credit against an impact fee if the
owner or developer of the development constructs or provides:
(1) infrastructure that is an infrastructure type for which the unit
imposed an impact fee in the impact zone; or
(2) an improvement.
(c) A fee payer is entitled to a credit under this section for
infrastructure or an improvement that:
(1) is constructed or furnished relative to a development after
January 1, 1989; and
(2) meets the requirements of this section.
(d) The amount of a credit allowed under this section shall be
determined at the date the impact fee is assessed. However, if an
assessment is not requested, the amount of the credit shall be
determined at the time the structural building permit is issued. The
amount of the credit shall be:
(1) determined by the:
(A) person constructing or providing the infrastructure or
improvement; and
(B) applicable infrastructure agency; and
(2) equal to the sum of the following:
(A) The cost of constructing or providing the infrastructure or
improvement.
(B) The fair market value of land, real property interests, and
site improvements provided.
(e) The amount of a credit may be increased or decreased after the
date the impact fee is assessed if, between the date the impact fee is
assessed and the date the structural building permit is issued, there is
a substantial and material change in the cost or value of the
infrastructure or improvement that is constructed or furnished from the
cost or value determined under subsection (d). However, at the time the
amount of a credit is determined under subsection (d), the person
providing the infrastructure or improvement and the applicable
infrastructure agency may agree that the amount of the credit may not
be changed. The person providing the infrastructure or improvement
may waive the person's right to a credit under this section.
SOURCE: IC 36-7-4-1401.5; (11)EH1311.1.44. -->
SECTION 44. IC 36-7-4-1401.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1401.5. (a) A
legislative body may, in a zoning ordinance, designate zoning districts
in which a development plan is required. If a zoning district is
designated under this section, the plan commission must approve or
disapprove a development plan under this series for real property
within the zoning district.
(b) The plan commission has exclusive authority to approve or
disapprove a development plan for real property located within the plan
commission's jurisdiction.
(c) Designation by the legislative body of a zoning district where a
development plan is required is a legislative act, and is not subject to
review by certiorari under section 1016 of this chapter.
SOURCE: IC 36-7-4-1405; (11)EH1311.1.45. -->
SECTION 45. IC 36-7-4-1405 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1405. (a) The plan
commission shall review a development plan to determine if the
development plan:
(1) is consistent with the comprehensive plan; and
(2) satisfies the development requirements specified in the zoning
ordinance under sections 1402 and 1403 of this chapter.
(b) The plan commission may do the following:
(1) Impose conditions on the approval of a development plan if
the conditions are reasonably necessary to satisfy the development
requirements specified in the zoning ordinance for approval of the
development plan.
(2) Provide that approval of a development plan is conditioned on
the furnishing to the plan commission of a bond or written
assurance that:
(A) guarantees the timely completion of a proposed public
improvement in the proposed development; and
(B) is satisfactory to the plan commission.
(3) Permit or require the owner of real property to make a written
commitment under section 613 1015 of this chapter.
SOURCE: IC 36-7-4-1512; (11)EH1311.1.46. -->
SECTION 46. IC 36-7-4-1512 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1512. (a) When
adopting or amending a PUD district ordinance, the legislative body of
a unit may do the following:
(1) Impose reasonable conditions on a proposed planned unit
development.
(2) Condition issuance of an improvement location permit on the
furnishing of a bond or a satisfactorily written assurance
guaranteeing the timely completion of a proposed public
improvement in a planned unit development or serving a planned
unit development.
(3) Allow or require an owner of real property to make a written
commitment in the manner authorized under section 614 or 615
1015 of this chapter.
(b) When recommending adoption of a PUD district ordinance to
the legislative body, granting an approval under section 1511 of this
chapter, or making a modification under section 1511(b) of this
chapter, the bodies or persons authorized under section 1511(c) of this
chapter may:
(1) impose the conditions described in subsection (a)(1) and
(a)(2); and
(2) allow or require a written commitment as authorized under
section 614 or 615 1015 of this chapter.
SOURCE: IC 36-7-4-1600; (11)EH1311.1.47. -->
SECTION 47. IC 36-7-4-1600 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1600. This series (sections 1600
through 1699 of this chapter) may be cited as follows: 1600
SERIES.JUDICIAL REVIEW.
SOURCE: IC 36-7-4-1601; (11)EH1311.1.48. -->
SECTION 48. IC 36-7-4-1601 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1601. (a) This series establishes
the exclusive means for judicial review of zoning decisions as
described in section 1003 or 1016 of this chapter, made by a board
of zoning appeals, legislative body, plan commission, preservation
commission, or zoning administrator (referred to as the "board"
in this series).
(b) A legislative act is not subject to judicial review under this
series.
SOURCE: IC 36-7-4-1602; (11)EH1311.1.49. -->
SECTION 49. IC 36-7-4-1602 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]:
Sec. 1602. (a) Judicial review of a
zoning decision is initiated by filing a petition for review in the
appropriate court.
(b) Only a person who qualifies under:
(1) section 1603 of this chapter concerning standing;
(2) section 1604 of this chapter concerning exhaustion of
administrative remedies;
(3) section 1605 of this chapter concerning the time for filing
a petition for review; and
(4) section 1613 of this chapter concerning the time for filing
the board record for review;
is entitled to judicial review of a final zoning decision.
(c) A person is entitled to judicial review of a nonfinal zoning
decision only if the person establishes both of the following:
(1) Immediate and irreparable harm.
(2) No adequate remedy exists at law. The failure of a person
to comply with the procedural requirements of this chapter
may not be the basis for a finding of an inadequate remedy at
law.
SOURCE: IC 36-7-4-1603; (11)EH1311.1.50. -->
SECTION 50. IC 36-7-4-1603 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1603. (a) The following have
standing to obtain judicial review of a zoning decision:
(1) A person to whom the zoning decision is specifically
directed.
(2) A person aggrieved by the zoning decision who
participated in the board hearing that led to the decision,
either:
(A) by appearing at the hearing in person, by agent, or by
attorney and presenting relevant evidence; or
(B) by filing with the board a written statement setting
forth any facts or opinions relating to the decision.
(3) A person otherwise aggrieved or adversely affected by the
zoning decision.
(b) A person has standing under subsection (a)(3) only if:
(1) the zoning decision has prejudiced or is likely to prejudice
the interests of the person;
(2) the person was eligible for an initial notice of a hearing
under this chapter, was not notified of the hearing in
substantial compliance with this chapter, and did not have
actual notice of the hearing before the last date in the hearing
that the person could object or otherwise intervene to contest
the zoning decision;
(3) the person's asserted interests are among those that the
board was required to consider when it made the challenged
zoning decision; and
(4) a judgment in favor of the person would substantially
eliminate or redress the prejudice to the person caused or
likely to be caused by the zoning decision.
SOURCE: IC 36-7-4-1604; (11)EH1311.1.51. -->
SECTION 51. IC 36-7-4-1604 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]:
Sec. 1604. (a) A person may file a
petition for judicial review under this chapter only after exhausting
all administrative remedies available within the board whose
zoning decision is being challenged.
(b) A person who fails to timely object to a zoning decision or
timely petition for review of a zoning decision within the period
prescribed by this chapter waives the person's right to judicial
review under this chapter.
SOURCE: IC 36-7-4-1605; (11)EH1311.1.52. -->
SECTION 52. IC 36-7-4-1605 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1605. A petition for review is
timely only if the petition for review is filed not later than thirty
(30) days after the date of the zoning decision that is the subject of
the petition for judicial review.
SOURCE: IC 36-7-4-1606; (11)EH1311.1.53. -->
SECTION 53. IC 36-7-4-1606 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1606. (a) Venue is in the judicial
district where the land affected by the zoning decision is located.
(b) If more than one (1) person may be aggrieved by the zoning
decision, only one (1) proceeding for review may be had, and the
court in which a petition for review is first properly filed has
jurisdiction.
(c) The rules of procedure governing civil actions in the courts
govern pleadings and requests under this chapter for a change of
judge or change of venue to another judicial district described in
subsection (a).
(d) Each person who:
(1) was a petitioner or applicant at the hearing before the
board; or
(2) is aggrieved by the zoning decision and entered a written
appearance as an adverse party to the petitioner or applicant
before the board hearing that led to the zoning decision, as
described in section 920(h) of this chapter;
is a party to the petition for review.
(e) Any other person who participated, in the manner described
in section 1603(a)(2) of this chapter, in the board hearing that led
to the zoning decision may, not later than five (5) days after the
decision is made, file with the board a written request that the
person receive notice of any petition for review that may be filed.
The written request must include the person's full name and
correct mailing address and a reference to the board's docket
number relative to the zoning decision.
(f) Any person who has standing under section 1603(a)(2) or
1603(a)(3) of this chapter has an unconditional right to intervene
in a proceeding for review. A motion to intervene in a proceeding
for review shall be filed in the manner provided by the rules of
procedure governing civil actions in courts.
SOURCE: IC 36-7-4-1607; (11)EH1311.1.54. -->
SECTION 54. IC 36-7-4-1607 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1607. (a) A petition for review
must be filed with the clerk of the court.
(b) A petition for review must be verified and set forth the
following:
(1) The name and mailing address of the petitioner.
(2) The name and mailing address of the board whose zoning
decision is at issue.
(3) Identification of the decision at issue, together with a copy,
summary, or brief description of the decision.
(4) Identification of persons who participated in any hearing,
as described in section 1603(a)(2) of this chapter, that led to
the decision.
(5) Specific facts to demonstrate that the petitioner is entitled
to obtain judicial review under section 1602 of this chapter.
(6) Specific facts to demonstrate that the petitioner has been
prejudiced by one (1) or more of the grounds described in
section 1614 of this chapter.
(7) A request for relief, specifying the type and extent of relief
requested.
SOURCE: IC 36-7-4-1608; (11)EH1311.1.55. -->
SECTION 55. IC 36-7-4-1608 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]:
Sec. 1608. (a) A petitioner for judicial
review shall serve a copy of the petition upon the board making the
zoning decision in the manner provided by the rules of procedure
governing civil actions in the courts. Service on the board must be
made to the secretary, president, or chairperson of the board.
(b) The petitioner shall use means provided by the rules of
procedure governing civil actions in the courts to give notice of the
petition for review:
(1) to all parties to the petition for review, as described in
section 1606(d) of this chapter; and
(2) to persons who, in the manner described in section 1606(e)
of this chapter, filed with the board making the zoning
decision written requests that they receive notice of any
petition for review, according to the public records of the
board. However, if the public records of the board show that
the board received written requests for notice from more than
three (3) persons, the petitioner shall give notice only to the
first three (3) persons who requested notice according to those
records. Notice to any additional persons who requested
notice is not required.
(c) This section does not require the petitioner to name as
parties to the petition for review the persons who must be given
notice under subsection (b)(2).
SOURCE: IC 36-7-4-1609; (11)EH1311.1.56. -->
SECTION 56. IC 36-7-4-1609 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1609. (a) A person seeking
judicial review may seek, by filing a verified petition, an order of
the court staying the zoning decision pending review by the court.
The court may enter an order staying the zoning decision pending
a final determination if:
(1) the court finds that the petition for review and the petition
for a stay order show a reasonable probability that the zoning
decision appealed from is invalid or illegal; and
(2) a bond is filed that is conditioned upon the due prosecution
of the proceeding for review and that the petitioner will pay
all court costs and abide by the zoning decision if it is not set
aside. The bond must be in the amount and with the surety
approved by the court. However, the amount of the bond must
be at least five hundred dollars ($500).
(b) If a petition for review concerns a revocation or suspension
of a previously approved variance, exception, or use, any stay
ordered under subsection (a) is effective during the period of the
review and any appeal from the review and until the review is
finally determined, unless otherwise ordered by the court granting
the stay. If the stay is granted as provided in this section and the
zoning decision is approved on final determination, the revocation
or suspension of the variance, exception, or use immediately
becomes effective.
SOURCE: IC 36-7-4-1610; (11)EH1311.1.57. -->
SECTION 57. IC 36-7-4-1610 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1610. A person may obtain
judicial review of an issue that was not raised before the board,
only to the extent that:
(1) the issue concerns whether a person who was required to
be notified by this chapter or other law of a board hearing
was notified in substantial compliance with this chapter or
other law; or
(2) the interests of justice would be served by judicial
resolution of an issue arising from a change in controlling law
occurring after the zoning decision.
SOURCE: IC 36-7-4-1611; (11)EH1311.1.58. -->
SECTION 58. IC 36-7-4-1611 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]:
Sec. 1611. Judicial review of disputed
issues of fact must be confined to the board record for the zoning
decision supplemented by additional evidence taken under section
1612 of this chapter. The court may not try the cause de novo or
substitute its judgment for that of the board.
SOURCE: IC 36-7-4-1612; (11)EH1311.1.59. -->
SECTION 59. IC 36-7-4-1612 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1612. (a) The court may receive
evidence, in addition to that contained in the board record for
judicial review, only if the evidence relates to the validity of the
zoning decision at the time the decision was made and is needed to
decide disputed issues regarding one (1) or both of the following:
(1) Improper constitution as a decisionmaking body or
grounds for disqualification of those making the zoning
decision.
(2) Unlawfulness of procedure or of decisionmaking process.
This subsection applies only if the additional evidence could not, by
due diligence, have been discovered and raised in the board
proceeding giving rise to a proceeding for judicial review.
(b) The court may remand a matter to the board before final
disposition of a petition for review with directions that the board
conduct further factfinding or that the board prepare an adequate
record, if:
(1) the board failed to prepare or preserve an adequate
record;
(2) the board improperly excluded or omitted evidence from
the record; or
(3) a relevant law changed after the zoning decision and the
court determines that the new provision of law may control
the outcome.
SOURCE: IC 36-7-4-1613; (11)EH1311.1.60. -->
SECTION 60. IC 36-7-4-1613 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]:
Sec. 1613. (a) Within thirty (30) days
after the filing of the petition, or within further time allowed by the
court, the petitioner shall transmit to the court the original or a
certified copy of the board record for judicial review of the zoning
decision, consisting of:
(1) any board documents expressing the decision;
(2) other documents identified by the board as having been
considered by the board before its decision and used as a basis
for its decision; and
(3) any other material described in this chapter or other law
as the board record for the type of zoning decision at issue,
subject to this section.
(b) An extension of time in which to file the record shall be
granted by the court for good cause shown. Inability to obtain the
record from the responsible board within the time permitted by
this section is good cause. Failure to file the record within the time
permitted by this subsection, including any extension period
ordered by the court, is cause for dismissal of the petition for
review by the court, on its own motion, or on petition of any party
of record to the proceeding.
(c) Upon a written request by the petitioner, the board making
the zoning decision being reviewed shall prepare the board record
for the petitioner. If part of the record has been preserved without
a transcript, the board shall, if practicable, prepare a transcript
for inclusion in the record transmitted to the court, except for
parts that the parties to the judicial review proceeding stipulate to
omit in accordance with subsection (e).
(d) Notwithstanding IC 5-14-3-8, the board shall charge the
petitioner with the reasonable cost of preparing any necessary
copies and transcripts for transmittal to the court, unless a person
files with the court, under oath and in writing, the statement
described by IC 33-37-3-2.
(e) By stipulation of all parties to the review proceedings, the
record may be shortened, summarized, or organized.
(f) The court may tax the cost of preparing transcripts and
copies for the record:
(1) against a party to the judicial review proceeding who
unreasonably refuses to stipulate to shorten, summarize, or
organize the record; or
(2) in accordance with the rules governing civil actions in the
courts or other law.
(g) Additions to the record concerning evidence received under
section 1612 of this chapter must be made as ordered by the court.
The court may require or permit subsequent corrections or
additions to the record.
SOURCE: IC 36-7-4-1614; (11)EH1311.1.61. -->
SECTION 61. IC 36-7-4-1614 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1614. (a) The burden of
demonstrating the invalidity of a zoning decision is on the party to
the judicial review proceeding asserting invalidity.
(b) The validity of a zoning decision shall be determined in
accordance with the standards of review provided in this section,
as applied to the decision at the time it was made.
(c) The court shall make findings of fact on each material issue
on which the court's decision is based.
(d) The court shall grant relief under section 1615 of this
chapter only if the court determines that a person seeking judicial
relief has been prejudiced by a zoning decision that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
(2) contrary to constitutional right, power, privilege, or
immunity;
(3) in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.
SOURCE: IC 36-7-4-1615; (11)EH1311.1.62. -->
SECTION 62. IC 36-7-4-1615 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1615. If the court finds that a
person has been prejudiced under section 1614 of this chapter, the
court may set aside a zoning decision and:
(1) remand the case to the board for further proceedings; or
(2) compel a decision that has been unreasonably delayed or
unlawfully withheld.
SOURCE: IC 36-7-4-1616; (11)EH1311.1.63. -->
SECTION 63. IC 36-7-4-1616 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 1616. The court's decision on a
petition for review of a zoning decision is appealable in accordance
with the rules governing civil appeals from the courts.
SOURCE: IC 36-7-11-4; (11)EH1311.1.64. -->
SECTION 64. IC 36-7-11-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 4. (a) A unit may
establish, by ordinance, a historic preservation commission with an
official name designated in the ordinance. The commission must have
not less than three (3) nor more than nine (9) voting members, as
designated by the ordinance. The voting members shall be appointed
by the executive of the unit, subject to the approval of the legislative
body. Voting members shall each serve for a term of three (3) years.
However, the terms of the original voting members may be for one (1)
year, two (2) years, or three (3) years in order for the terms to be
staggered, as provided by the ordinance. A vacancy shall be filled for
the duration of the term. In the case of a commission with jurisdiction
in a city having a population of more than one hundred five thousand
(105,000) but less than one hundred twenty thousand (120,000), the
commission must after June 30, 2001, include as a voting member the
superintendent of the largest school corporation in the city.
(b) The ordinance may provide qualifications for members of the
commission, but members must be residents of the unit who are
interested in the preservation and development of historic areas. The
members of the commission should include professionals in the
disciplines of architectural history, planning, and other disciplines
related to historic preservation, to the extent that those professionals
are available in the community. The ordinance may also provide for the
appointment of advisory members that the legislative body considers
appropriate.
(c) The ordinance may:
(1) designate an officer or employee of the unit to act as
administrator;
(2) permit the commission to appoint an administrator who shall
serve without compensation except reasonable expenses incurred
in the performance of the administrator's duties; or
(3) provide that the commission act without the services of an
administrator.
(d) Members of the commission shall serve without compensation
except for reasonable expenses incurred in the performance of their
duties.
(e) The commission shall elect from its membership a chairman and
vice chairman, who shall serve for one (1) year and may be reelected.
(f) The commission shall adopt rules consistent with this chapter for
the transaction of its business. The rules must include the time and
place of regular meetings and a procedure for the calling of special
meetings. All meetings of the commission must be open to the public,
and a public record of the commission's resolutions, proceedings, and
actions must be kept. If the commission has an administrator, the
administrator shall act as the commission's secretary, otherwise, the
commission shall elect a secretary from its membership.
(g) The commission shall hold regular meetings, at least monthly,
except when it has no business pending.
(h) A final decision of the commission is subject to judicial review
under IC 4-21.5-5 IC 36-7-4 as if it was were a final decision of a state
agency. board of zoning appeals.
SOURCE: IC 36-7-11.1-10; (11)EH1311.1.65. -->
SECTION 65. IC 36-7-11.1-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: 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
the applicant an attested copy of the reasons and recommendations, if
any, of the commission.
(c) Every A final determination of the commission upon an
application for certificate of appropriateness is subject to judicial
review by certiorari upon petition to the circuit or superior court of the
county by any aggrieved person, in the same manner and subject to the
same limitations as a final decision of a board of zoning appeals under
IC 36-7-4. However, notwithstanding IC 36-7-4-1609, upon notice of
the filing of the petition for writ of certiorari, judicial review, all
proceedings and work on the subject premises are automatically stayed.
(d) An appeal may be taken to the court of appeals of Indiana from
the final judgment of the court reversing, affirming, or modifying the
determination of the commission in the same manner and upon the
same terms, conditions, and limitations as appeals in other civil actions.
SOURCE: IC 36-7-11.2-64; (11)EH1311.1.66. -->
SECTION 66. IC 36-7-11.2-64 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 64.
(a) A final
determination by the commission is subject to judicial review
An
interested party aggrieved by a determination may file with the circuit
or superior court of Marion County a verified petition for writ of
certiorari stating that the determination is illegal in whole or part. The
petition must be filed not later than sixty (60) days after the date of the
final determination. A change of venue is not permitted in a cause of
action arising under this section. in the same manner and subject to
the same limitations as a final decision of a board of zoning appeals
under IC 36-7-4. However, notwithstanding IC 36-7-4-1609, upon
notice of the filing of the petition for judicial review, all
proceedings and work on the subject premises are automatically
stayed.
(b) Upon the filing of a petition for writ of certiorari the petitioner
shall have a copy of the petition served upon each interested party in
the manner provided in this chapter for service of notice. Upon
adequate showing by the petitioner that a copy of the petition has been
served, the circuit or superior court shall enter an order directing the
commission to show cause not later than thirty (30) days from the entry
of the order why a writ of certiorari should not issue. If the commission
or an interested party appearing in support of the commission's
determination fails to show to the satisfaction of the court that a writ
should not issue, the court may allow a writ directed to the commission.
The writ must prescribe the time in which a return shall be made to the
court. The time:
(1) may not be less than twenty (20) days from the date of the
issuance of the writ; and
(2) may be extended by the court on application and on notice to
all parties.
(c) The return to the writ of certiorari by the commission must
contain copies of all filings, exhibits, and other matters presented to or
considered by the commission in connection with the matter and the
determination from which the appeal is taken, including a verbatim
transcript of the proceedings at each public hearing that was held. The
commission shall prepare the return at the expense of the party that
filed the petition for certiorari. The return to the writ of certiorari must
also show the grounds of the decision that was appealed.
(d) The court may decide and determine the sufficiency of the
statements of illegality contained in the petition without further
pleadings and may make a determination and enter judgment with
reference to the legality of the decision of the commission on the facts
set out in the return to the writ of certiorari. If the court determines that
testimony is necessary for the proper disposition of the matter, the court
may take evidence to supplement the evidence and facts disclosed by
the return to the writ of certiorari. However, a review may not be by a
trial de novo, and the court may not consider evidence that should
properly or could have been presented to the commission. In passing
on the legality of the determination by the commission, the court may:
(1) reverse;
(2) affirm, wholly or in part; or
(3) modify;
the determination of the commission brought up for review. Costs may
not be allowed against the commission.
(e) Upon the filing of a petition under this section, the final
determination of the commission with respect to which the petition is
filed is considered without force and effect pending a final judgment
by the court. If the final determination was made with respect to a
petition for approval of a proposed rezoning or zoning variance, the
approval by the commission is considered nonexistent pending final
judgment.
SOURCE: IC 36-7-11.3-59; (11)EH1311.1.67. -->
SECTION 67. IC 36-7-11.3-59 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 59.
(a) A final
determination by the commission is subject to judicial review
An
interested party aggrieved by a determination may file with the circuit
or superior court of the county a verified petition for writ of certiorari
stating that the determination is illegal in whole or part. The petition
must be filed not later than sixty (60) days after the date of the final
determination. A change of venue is not permitted in a cause of action
arising under this section. in the same manner and subject to the
same limitations as a final decision of a board of zoning appeals
under IC 36-7-4. However, notwithstanding IC 36-7-4-1609, upon
notice of the filing of the petition for judicial review, all
proceedings and work on the subject premises are automatically
stayed.
(b) Upon the filing of a petition for writ of certiorari the petitioner
shall have a copy of the petition served upon each interested party in
the manner provided in this chapter for service of notice. Upon
adequate showing by the petitioner that a copy of the petition has been
served, the circuit or superior court shall enter an order directing the
commission to show cause not later than thirty (30) days from the entry
of the order why a writ of certiorari should not issue. If the commission
or an interested party appearing in support of the commission's
determination fails to show to the satisfaction of the court that a writ
should not issue, the court may allow a writ directed to the commission.
The writ must prescribe the time in which a return shall be made to the
court. The time:
(1) may not be less than twenty (20) days from the date of the
issuance of the writ; and
(2) may be extended by the court on application and on notice to
all parties.
(c) The return to the writ of certiorari by the commission must
contain copies of all filings, exhibits, and other matters presented to or
considered by the commission in connection with the matter and the
determination from which the appeal is taken, including a verbatim
transcript of the proceedings at each public hearing that was held. The
commission shall prepare the return at the expense of the party that
filed the petition for certiorari. The return to the writ of certiorari must
also show the grounds of the decision that was appealed.
(d) The court may decide and determine the sufficiency of the
statements of illegality contained in the petition without further
pleadings and may make a determination and enter judgment with
reference to the legality of the decision of the commission on the facts
set out in the return to the writ of certiorari. If the court determines that
testimony is necessary for the proper disposition of the matter, the court
may take evidence to supplement the evidence and facts disclosed by
the return to the writ of certiorari. However, a review may not be by a
trial de novo, and the court may not consider evidence that should
properly or could have been presented to the commission. In passing
on the legality of the determination by the commission, the court may:
(1) reverse;
(2) affirm, wholly or in part; or
(3) modify;
the determination of the commission brought up for review. Costs may
not be allowed against the commission.
(e) Upon the filing of a petition under this section, the final
determination of the commission with respect to which petition is filed
is considered without force and effect pending a final judgment by the
court. If the final determination was made with respect to a petition for
approval of a proposed rezoning or zoning variance, the approval by
the commission is considered nonexistent pending final judgment.
SOURCE: IC 36-7-3-11; IC 36-7-4-613; IC 36-7-4-614; IC 36-7-4-
615; IC 36-7-4-921; IC 36-7-4-1005; IC 36-7-4-1006; IC 36-7-4-
1007; IC 36-7-4-1008; IC 36-7-4-1009; IC 36-7-4-1010; IC 36-7-4-
1011.
; (11)EH1311.1.68. -->
SECTION 68. THE FOLLOWING ARE REPEALED [EFFECTIVE
JULY 1, 2011]: IC 36-7-3-11; IC 36-7-4-613; IC 36-7-4-614;
IC 36-7-4-615; IC 36-7-4-921; IC 36-7-4-1005; IC 36-7-4-1006;
IC 36-7-4-1007; IC 36-7-4-1008; IC 36-7-4-1009; IC 36-7-4-1010;
IC 36-7-4-1011.