HomeMy WebLinkAboutCorrespondence: Land Use 10-23-12 MEMORANDUM
TO: Land Use Committee
FROM: John Molitor
Counsel to the Plan Commission
DATE: October 23, 2012
RE: Key Statutory Provisions Regarding Subdivision "Waivers"
IC 36-7-4-201
Purpose
Sec. 201. (a) For purposes of IC 36-1-3-6, a unit wanting to exercise planning and zoning powers in
Indiana must do so in the manner provided by this chapter.
(b) The purpose of this chapter is to encourage units to improve the health, safety, convenience, and
welfare of their citizens and to plan for the future development of their communities to the end:
(1) that highway systems be carefully planned;
(2) that new communities grow only with adequate public way, utility, health, educational. and
recreational facilities;
(3) that the needs of agriculture, forestry, industry, and business be recognized in future growth;
(4) that residential areas provide healthful surroundings for family life; and
(5) that the growth of the community is commensurate with and promotive of the efficient and
economical use of public funds.
(c) Furthermore, municipalities and counties may cooperatively establish single and unified planning
and zoning entities to carry out the purpose of this chapter on a countywide basis.
(d) METRO. Expanding urbanization in each county having a consolidated city has created problems
that have made the unification of planning and zoning functions a necessity to insure the health, safety,
morals, economic development, and general welfare of the county. To accomplish this unification, a
single planning and zoning authority is established for the county.
As added by Acts 1981, P.L.309, SEC.23. Amended by Acts 1981, P.L.310, SECI5; P.L.192-1984,
SEC.3; P.L.8?-2005, SEC.7.
IC 36-7-4-701
Subdivision control ordinance
Sec. 701. (a) The legislative body shall, in the zoning ordinance adopted under the 600 series of this
chapter, determine the zoning districts in which subdivision of land may occur.
(b)The plan commission shall then recommend to each participating legislative body an ordinance
containing provisions for subdivision control, which ordinance shall be adopted, amended, or repealed
in the same manner as the zoning ordinance. After the subdivision control ordinance has been adopted
and a certified copy of the ordinance has been filed with the county recorder, the plan commission has
exclusive control over the approval of all plats and replats involving land covered by the subdivision
control ordinance, subject to subsection (c) and subsection (f).
(c)ADVISORY. The municipal plan commission has exclusive control over the approval of plats and
replats involving unincorporated land within its jurisdiction, unless the legislative body of the county
has adopted a subdivision control ordinance covering those lands. In this case, the county plan
commission has exclusive control over the approval.
As added by Acts 1981, P L.309, SEC 23 Amended by Acts 1982, PL.?11, SEC.6; PL.2-1002,
SEC 109; PG 126-2011, SEC.17.
IC 36-7-4-918.5
Board of zoning appeals; variance from development standards
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 [C 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.
As added by P.L.357-1983, SEC.14. Amended by P.L.54-1001, SEC.6; FL.126-1011, SEC.30.
IC 36-7-4-918.6
Board of zoning appeals in certain counties; special exceptions, uses, and variances
Sec. 918.6. (a)This section applies to a county having a population of:
(1) more than four hundred thousand (400,000) but less than seven hundred thousand (700,000);
or
(2) more than two hundred fifty thousand (250,000) but less than two hundred seventy thousand
(270,000).
(b)ADVISORY.AREA. Notwithstanding sections 918.2, 918.4, and 918.5 of this chapter, a zoning
or subdivision control ordinance shall require that the board of zoning appeals submit any of the
following petitions to the legislative body for approval or disapproval:
(1) Special exceptions.
(2) Special uses.
(3) Use variances.
(c) ADVISORY.AREA. The board of zoning appeals shall file a petition under this section with the
clerk of the legislative body with:
(1) a favorable recommendation;
(2) an unfavorable recommendation; or
(3) no recommendation.
authority to make a final decision is delegated to the plan commission by the legislative body under
section 15 l 1 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 arid 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.
As added by Acts 1981, PL.309, SEC.'S .Amended by Acts 1981, PL.310, SEC.57; PL.320-1995,
SEC 71; P1..126-2011, SEC37
IC 36-7-4-1600
1600 Series-Judicial review
Sec. 1600. This series (sections 1600 through 1699 of this chapter) may be cited as follows: 1600
SERIES.JUDICIAL REVIEW.
As added by PL.126-'011, SEC.47
IC 36-7-4-1601
Exclusive means for judicial review, of zoning decisions
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.
As added by PL.126-2011, SEC 48.
IC 36-7-4-1602
Initiation of judicial review; required showing
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:
(I) section 1 603 of this chapter concerning standing;
(2) section 1604 of this chapter concerning exhaustion of administrative remedies;
(30) days after the date of the zoning decision that is the subject of the petition for judicial review.
As added by PL.126-2011, SEC 52
IC 36-7-4-1606
Venue; rules of procedure; parties; motion to intervene
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, tile 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.
As added by P.L.126-2011, SEC.53.
IC 36-7-4-1607
Petition for review; requirements
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.
As added by P.L.126-2011, SEC.54
IC 36-7-4-1611
Review of facts confined to record
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.
As added by ID L.126-2011, SEC 58
IC 36-7-4-1612
Additional evidence; remand for additional factfinding or preparation of adequate record
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.
(I) 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.
As added by P.L.126-2011, SEC.59
IC 36-7-4-1613
Transmission of board record to court; extension of time to file record; cost of copies and
transcripts
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 onginal 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