CHAPTER 19-8
BOARD OF ZONING APPEALS

19-8-1 General Structure and Operation.

(A)    Board Of Zoning Appeals Established: A Board of Zoning Appeals is hereby established. Such Board shall consist of not less than three (3) nor more than seven (7) members, all of whom shall be residents of Prairie Band Potawatomi reservation or members of the Prairie Band Potawatomi Nation, appointed by the Governing Body. The members of the first appointed shall serve respectively for terms of one (1), two (2), and three (3) years, divided as nearly equally as possible among the members. Thereafter members shall be appointed for terms of three (3) years each. Vacancies shall be filled by appointment for the unexpired term. All members of said Board shall serve without compensation. In the absence of Board members otherwise appointed, the Governing Body shall act ex officio as the Board.

(B)    Election Of Officers: The Board shall annually elect one (1) of its members as chairperson and shall appoint a secretary who may be an officer or an employee of the Nation.

(C)    Rules of Procedure: The Board may adopt rules in accordance with the resolution creating the Board.

(D)    Meetings: Meetings of the Board shall be held at the call of the chairperson and at such other times as the Board may determine.

(E)    Records: The Board shall keep minutes of its proceedings, showing evidence presented, findings of fact by the Board, decisions of the Board, and voting upon each question. Records of all official actions of the Board shall be filed in its office and shall be a public record.

(F)    Filing Fee: The Governing Body, in the resolution creating the Board, shall establish a scale of fees to be paid in advance by the party appealing or seeking other decisions of the Board.

19-8-2 Public Hearing and Notice.

The Board of Zoning Appeals shall fix a reasonable time for hearing of an appeal or other matter referred to it. Notice of the time, place, and subject of such hearing shall be published once in the official county newspaper at least twenty (20) days prior to the date fixed for the hearing. A copy of said notice shall be mailed to each party to the appeal and to the Planning Commission.

19-8-3 Powers and Jurisdiction.

The Board of Zoning Appeals shall administer the details of appeals and other matters referred to it regarding the application of the Zoning Regulations. The Board shall have the following specific powers:

(A)    To hear and decide on appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of these Regulations.

(B)    To interpret the provisions of these Regulations in such way as to carry out the intent and purposes of the adopted reservation Land Use Plan, and as shown upon the zoning district map fixing the several districts which are accompanying and made a part of these Regulations, where the street layout actually on the ground varies from the street layout as shown on the zoning district map.

(C)    To authorize, in specific cases, a variance from the specific terms of these Regulations which will not be contrary to the public interest and where, due to special conditions, a literal enforcement of the provisions of these Regulations in an individual cases results in unnecessary hardship, and provided that the spirit of these Regulations shall be observed, public safety and welfare secured, and substantial justice done. Such variance shall not permit any use not permitted by these Regulations in such district.

(D)    To grant exceptions to the provisions of these Regulations in those instances where the Board is specifically authorized to grant such exceptions and only under the terms of these Regulations. In no event shall exceptions to the provisions of these regulations be granted where the use or the exception contemplated is not specifically listed as an exception in these Regulations. Further, under no conditions shall the Board of Zoning Appeals have the power to grant an exception when conditions of this exception, as established in these Regulations by the Governing Body, are not found to be present.

19-8-4 Procedure.

(A)    Appeals to the Board of Zoning Appeals may be taken by any person aggrieved, or by any officer of the Nation, or any governmental agency or body affected by any decision of the official administering the provisions of these Regulations.

(B)    Appeals shall be taken within a reasonable time, as provided by the rules of the Board, by filing a notice of appeal specifying the grounds thereof and payment of the required filing fee.

(C)    Appeals and requests to the Board for variances and exceptions to these Regulations shall be prepared and submitted on forms approved and furnished by the Secretary of the Board.

(D)    After filing the required appeal or request and payment of the required fee, the Board of Zoning Appeals shall advertise and hold a public hearing as provided above.

(E)    Notice of the decision of the Board of Zoning Appeals shall be in writing and transmitted to the appellant. A copy of such decision shall also be transmitted to the Zoning Administrator for filing and action, if action is required.

(F)    Any person, official, or governing agency dissatisfied with any order or determination of said Board may bring an action in the Prairie Band of Potawatomi Tribal Court, to determine the reasonableness of any such order or determination. Such appeal shall be filed within thirty (30) days of the final decision of the Board.

19-8-5 Variances to This Zoning Resolution.

(A)    The applicant must show that his or her property was acquired in good faith and, where by reason of exceptional narrowness, shallowness, or shape of his/her specific piece of property at the time of the effective date of these Regulations, or where by reason of exceptional topographical conditions or other extraordinary or exceptional circumstances, that the strict application to the terms of these Regulations actually prohibit the use of his or her property in the manner similar to that of other property in the zoning district where it is located.

(B)    Variances for yard regulations may not be more than one-half (1/2) the required yard and shall not encroach upon the required setback for adjacent buildings.

(C)    In granting a variance, the Board of Zoning Appeals must satisfy itself, from the evidence heard before it, that:

(1)    The variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district, and is not created by an action or actions of the property owner or the applicant.

(2)    The granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents.

(3)    The strict application of the provisions of these Regulations of which variance is requested will constitute unnecessary hardship upon the property owner represented in the application.

(4)    The variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare.

(5)    Granting the variance desired will not be opposed to the general spirit and intent of these Regulations.

(D)    In exercising the above powers, the Board may reverse or affirm wholly or partly, or may modify the order, requirements, decision, or determination appealed from the Zoning Administrator. The Board may make such order, requirement, decision, or determination as ought to be made, and to that end shall have the same powers as the Zoning Administrator from whom the appeal is taken. If the Board approves the variance, they shall notify the Zoning Administrator of their decision and shall instruct him or her to issue a permit. A time limit may be specified as a condition for granting the appeal.

(E)    Every variance granted or denied by the Board shall be accompanied by a written finding of fact, based on testimony and evidence and specifying the reason for granting or denying the variance, a copy of which shall be filed in the office of the Zoning Administrator to be available for public inspection.

19-8-6 Exceptions to This Zoning Resolution.

(A)    Exceptions to these Regulations, as authorized by the district regulations, shall be made by special use permit after the request has been duly advertised and a public hearing held as required by these Regulations.

(B)    Prior to review of the request of an exception by the Board of Zoning Appeals, the applicant shall:

(1)    File an application on forms provided.

(2)    File with the application a statement certifying that the applicant is the lawful owner of the real estate upon which the excepted use is proposed or that he has the lawful right to receive a conveyance thereof if the application is granted.

(3)    File a form of declaration of restrictions indicating use which is to be made by the legal owner if the application is granted. Said restrictions must show that use of the land will be solely that which was applied for as an excepted use. The restriction must provide that, if such use is abandoned or is proposed to be changed, the subsequent use shall be in conformity with these Regulations in effect as to the land prior to authorization of the exception, unless a new application for an excepted use is made and granted.

(C)    A site plan shall be filed with the application showing:

(1)    Legal dimensions of the tract to be used.

(2)    Location of all proposed improvements including curb-cut access, off-street parking, and other such facilities as the applicant proposes to install.

(3)    Grade elevations.

(4)    Building setbacks from all property lines.

(5)    Front, side, and rear elevations of all improvements to be erected.

(6)    Perspective drawings of the proposed improvements in such detail as will clearly show the finished appearance of the improvements proposed.

(7)    Location and type of planting, screening, or walls.

(8)    Such other items as the Board shall deem reasonably necessary to process the application properly.

(D)    In considering any application for an exception hereunder, the Board of Zoning Appeals shall give consideration to the reservation Land Use Plan and the health, safety, morals, comfort, and general welfare of the public, including, but not limited to, the following factors:

(1)    The stability and integrity of the various zoning districts.

(2)    Conservation of property values.

(3)    Protection against fire and casualties.

(4)    Observation of general police regulations.

(5)    Prevention of traffic congestion.

(6)    Promotion of traffic safety and the orderly parking of motor vehicles.

(7)    Promotion of the safety of individuals and property.

(8)    Provision for adequate light and air.

(9)    Provision for public utilities and schools.

(10)    Invasion by inappropriate uses.

(11)    Value, type, and character of existing or authorized improvements and land uses.

(12)    Encouragement of improvements and land uses in keeping with overall planning.

(13)    Provision for orderly and proper urban renewal, development, and growth.

(E)    Exceptions may be granted by the Board of Zoning Appeals only where special use permits are specifically authorized by the district regulations.

19-8-7 Performance.

(A)    In making any decision varying or modifying any provisions of these Regulations or in granting an exception to the district regulations, the Board of Zoning Appeals shall impose such restrictions, terms, time limitations, landscaping requirements, improvement of off-street parking lots, and other appropriate safeguards as required to protect adjoining property.

(B)    In lieu of actual construction of an approved off-street parking lot or other required improvements, the Board of Zoning Appeals may accept, in the name of the Governing Body, a corporate surety bond, cashier’s check, escrow account, or other like security in an amount to be fixed by the Governing Body and conditioned upon actual completion of such improvements within a specified time, and the Governing Body may enforce such bond by all equitable means. Bonds or other security shall be filed with the Governing Body.