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HomeMy WebLinkAbout7th Street at 2nd Avenue NE Miscellaneous Correspondences('atirine A uncrcial Ndplesville 317/773 -5487 FAX 317/776 -6444 Voi1P Mail: (317) 824 -6321 Morgan i&: bci hLces. Inc. Title Insurance & Closin Ser ices EN) L 4n grn 1. Ncmlapak. hohm a 4606,) A Pon Smarr mir in.u.mn e n,venc v Ms. Susan Hunter City of Carmel One Civic Square Carmel, In. 46032 Dear Ms. Hunter, A &soctatcs, Inc. ice Si Closing Services Indiana 46060 - 2279 317/773 -5487 FAX 317/776 -6444 Agency I have been researching your request for Morgan & Associates, Inc. to locate a right of way grant adjoining the north end of Lots 60 and 61 in C. W. Wiedlers Subdivision in the City of Carmel and have not found any evidence of a grant for right of way purposes. I am sending a copy of the recorded plat for C. W. Wiedlers Subdivision and, as you can see, there is a strip along the north end of the subdivision. I think there would be a good argument that the strip is for access or street purposes. If you add up all of the dimensions for Lots 61 through 71 and thirty feet for the east -west street north of Lot 67, the total is 1257 feet. The metes and bounds legal description of the plat calls the eastern boundary 1267 feet, so the strip is ten feet wide. I believe there is also a gap between the north adjoiner and the north boundary line of C. W. Wiedlers of approximately sixteen feet. A surveyor would need to verify the gap exists. There could possibly be twenty -six feet of useable land, ten feet of which is already a platted right of way. We also found some evidence in an old book of plats that, at one time, there was believed to be a thirty foot street that appears to be an extension of 7th Street along the north boundary of Lots 60 and 61. I hope this information helps and if there is anything else I can assist with, please do not hesitate to let me know. Sincerely, Cathy Whiteley /caw encls. JAMES A. KNAUER JOHN J. PETR JAMES G. LAUCK GARY A. SCHIFFLI• JAY P. KENNEDY BRIAN C. BOSMA WILLIAM G POTTER, LI GREGORY P. CAFOUROS MARCIA ROAN MADALYN S. KINSEY WILLIAM BOCK, III MARY E. BROWNE MARK). COLUCCI ELIZABETH A. HUGHES Of Counscl JOHN E. GARDIS MICHAEL). HEBENSTREIT STEVEN R. SCHAFER Retired • R. M. KROGER WILLIAM J. REGAS August 14, 1998 Craig A. Carpenter Office of the City Attorney City of Carmel One Civic Square Carmel, Indiana 46032 Re: 7th Street Site IDEM No Objection Letter Dear Doug: • Pursuant to our telephone conversation of several months ago, we have conducted several meetings with regulatory officials of the Indiana Department of Environmental Management ( "IDEM ") regarding the receipt of a "no objection" letter for the fill site located on Seventh Street in the City of Carmel. As your office is aware from our August 14, 1997 correspondence (a copy of which is enclosed) the closure regulations for this type of facility are complex and potentially expensive. However, based on a representation that only construction fill is contained at this site, and the commitment that all fill materials will be covered with at least two feet of soil and that seeding of the soil will occur, the IDEM has issued the enclosed "no objection" letter regarding these activities to be performed by the City:, In a nutshell, the vast majority of the site is most likely already covered by two feet of clean soil, but city personnel should investigate the site and be sure that all construction materials are adequately covered." In addition, grass or other appropriate vegetation should be planted at this site to protect against erosion and to meet the requirements of the IDEM letter. If these items are accomplished, the City may produce the no objection letter in the event the IDEM or some other party objects to the existence of the site Or claims the more detailed closure regulations apply. If the site is to be transferred in the future, I would ask that you refer to our August 14, 1997 letter for a proposed deed acknowledgment to be included in the transfer. Instead of the term "No Action" contained in the fifth line of the indented deed . paragraph, the phrase "No Objection" should be inserted. If you have any questions in this regard, please be sure to let me know. 111 MONUMENT CIRCLE, SUITE 900 INDIANAPOLIS, INDIANA 46204 -5175 (317) 692 -9000 FAX (317) 264 -6832 -. Page 2 August 14, 1998 It has been a pleasure to be of assistance to the City of Carmel on this matter, and if you have any questions, or if we can be of assistance in any `other way, I hope you will let me know. BCB /ak Enclosures Very truly yours, ER, GARDIS & REGA IDEM INDIANA DIPARTMENT 0/ ENVIRONWIIMmaiamit FnmkOBa nton Governor John M. Hamilton Commissioner INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT We make Indiana a cleaner, healthier place to live Mr. Gregory P. Cafouros Kroger, Gardis & Regas 111 Monument Circle, Suite 900 Indianapolis, Indiana 46204 -5175 Dear Mr. Cafouros: July 8, 1998 100 North Senate Avenue P.O. Box 6015 Indianapolis. Indiana 96206 -6015 (317) 232 -8603 (800) 45 1 -6027 wwwai.org /idem RE: Closure of Construction Debris Site City of Carmel Hamilton County This correspondence is in response to your letter dated June 5, 1998, regarding the above referenced subject. The city of Carmel is proposing to close an old site, filled with what you have described as basically unregulated materials, by covering the material with at least 2 feet of soil, followed with top soil and then seeding to protect the cover. Based on the information provided in your letter, this office has no objection to this approach. Recycled Paper If you have any additional questions concerning this matter, please contact Mr. Robert Snodgrass at 317/233 -6539. Sincerely, 2tate_ Pocky, Bruce Palin Assistant Commissioner Office of Solid and Hazardous Waste Management rds cc: Hamilton County Health Department Hamilton County Solid Waste Management District An Equal Opportunity Employer Please Rec cIe O JAMES A. KNAUER JOHN J. PETR JAMES G. LAUCK GARY A. SCHIFFLI JAY P. KENNEDY BRIAN C. BOSMA _ WILLIAM C. POTTER, 11 GREGORY P. CAFOUROS MARCIA ROAN MADALYN S. KINSEY WILLIAM BOCK, III MARY E. BROWNE MARK J. COLUCCI ELIZABETH A. HUGHES OF Counsel JOHN E. GARDIS MICHAEL J. HEBENSTREIT STEVEN R. SCHAFER Recited R. M. KROGER WILLIAM J. REGAS i��/0�g•1/iAOCn�3 jER &REGAS ATTORNEYS AT LAW'., FOUNDED 1937 June 5, 1998 Mr. Bruce Palin Solid Waste Management Branch Indiana Department of Environmental Management Indiana Government Center North 100 North Senate Avenue Indianapolis, Indiana 46204 RE: Closure of Construction Debris Site City of Carmel Dear Bruce: As we have discussed in the past, the City of Carmel has operated a fill site at Seventh Street, between Rangeline Road and U.S. 431, for an undetermined period of time, commencing prior to 1975 through approximately 1990. The site was used primarily for general construction debris and dirt, including uncontaminated concrete, asphalt, brick, and block. The site is approximately 150 feet wide and 200 feet in length, and approximately 15 feet deep. We have interviewed those who have historically been involved with the activity at this site and they indicate that no batteries, solvents, drums, old paint cans, liquid waste, or other suspected hazardous materials were included in any fill material delivered to the site, to their knowledge, at any time. We have checked the records at the Hamilton County Health Department and IDEM and have uncovered no records relating to this facility. The City proposes to grade and cover the fill material with at least 2 feet of soil to cover any of the fill material. Top soil and seeding would then be applied to restrict exposure of the material below. i!! \1: `a \TENT CIRCLE. Si iTE •I IN'I'L- AN.ArOLIE, IN^!.AN.A= o_C4.5i -? Mr. Bruce Palin June 5, 1998 Page Two Based on these commitments, we are requesting a letter from you indicating your concurrence in this approach, or at least the lack of any objections to this approach, for an informal closing of the site. I believe IDEM has authority for this approach under 329 IAC 10-44, as an alternative method or means for closure. I appreciate your consideration to this request and I would be glad to answer any further questions you may have. The City would like to commence this activity promptly in order to establish a good cover material this summer. GPC /pad Best regards, KROGERA3ARDISSc REGAS Gregory P. C JAMES A. KNAUER JOHN). PETR JAMES G. LAUCK GARY A. SCHIFFLI JAY P. KENNEDY BRIAN C. BOSNIA WILLIAM C. POTTER, 11 STEVEN R. SCHAFER GREGORY P. CAFOUROS MARCIA ROAN WILLIAM BOCK, III MARY E. BROWNE STEPHANIE L. WEDDLE OfCounse JOHN E. GARDIS MICHAEL/. HEBENSTREIT Retired R. M. KROGER WILLIAM). REGAS I,\TtTORNEYS•AT: L1W .n FOUNDED 1937 August 14, 1997 CONFIDENTIAL PROTECTED BY ATTORNEY - CLIENT AND WORK PRODUCT PRIVILEGES Debra M. Grisham City Attorney City of Carmel One Civic Square Carmel, Indiana 46032 Re: 7th Street Site Dear Deb: Pursuant to your request and my discussions with Susan Hunter, our firm has looked into the requirements for appropriately closing the 7th Street property formerly used by the City of Carmel (the "City") as a site for the disposal of certain debris as discussed further below (hereafter the "Site "). This letter will briefly detail our findings and recommendations based on the expressed desire by the City to put the Site to use, either through conversion to usable city property (such as a park), or through sale to a third party. SITE BACKGROUND Based on my July 8 discussions with Bob Allen with the City Engineer's Office, the Site was utilized from some undetermined period of time prior to 1975 through approximately 1990 to dispose of certain materials by the City. Mr. Allen had personal knowledge of the Site's use throughout most of this period, and indicated he and one other City employee leveled out the piles of materials accumulating at the Site with a bulldozer once or twice a year throughout the vast majority of this period. In addition to uncontaminated dirt, Mr. Allen indicated that the fill placed at this Site was primarily general construction debris including concrete, asphalt, brick, block, and similar construction materials. Although Mr. Allen could not cite any specific instances, he said it was also likely that railroad ties and metal objects such as pipe or conduit had been disposed of at the Site, but he was absolutely certain that no contaminated or potentially contaminated materials such as batteries, solvents, old III MONUMENT CIRCLE, SUITE 900 INDIANAPOLIS, INDIANA 46204 -5175 (317) 692-9000 FAX (317) 264-6832 Page 2 August 14, 1997 drums or paint cans, liquid waste, asbestos materials, or any other suspected hazardous materials had been disposed of at the Site. Mr. Allen, Susan and I walked over the Site on July 5, and broken concrete, brick and other similar debris were visible in some places. The Site was well vegetated and we saw no evidence of casual dumping activities other than those historically conducted at the Site by the City. After obtaining a legal description of the Site from Susan Hunter, we contacted the Indiana Department of Environmental Management ( "IDEM "), the Hamilton County Health Department, and the Indiana State Board of Health, and each of these agencies indicated that there had been no open dumping complaints or citations filed in the past in the general vicinity of the Site. In addition, no records were discovered indicating that the Site had been permitted or registered at any time in the past. Of course, all of these contacts were made without revealing the purpose or source of the inquiry, or the exact location of the Site. APPLICABLE REGULATIONS IDEM's Construction/Demolition Site Rules (329 IAC 10 -2 -37, 10 -9 -3, and 10 -32 through 10 -38) (copies attached) define the different types of waste and the closure and post - closure requirements for the Site. Uncontaminated rocks, bricks, concrete, road demolition waste materials, and dirt constitute unregulated waste and disposal of these materials is not subject to any restrictions as provided for in 329 IAC 12 -3 -1. Consequently, if we can verify that these materials above are present at the Site, no formal closure requirements are required, and the Site may be used or sold without further regulatory involvement. However, the presence of railroad ties and other wood materials or metal objects such as pipe or conduit likely cause the Site to fall into the construction/demolition site category. Construction/demolition waste includes waste resulting from the construction, remodeling, repair or demolition of structures, including virtually anything built by man. These wastes can include scrap lumber, wallboard, roofing, plumbing fixtures, wiring and non - asbestos insulation as provided for in 329 IAC 10- 2-37. If any of these materials are present at the Site, closure of the Site falls under IDEM relations. Generally, a construction/demolition site closure requires a written closure plan certified by a registered professional engineer and a final cover of two feet of material, Page 3 August 14, 1997 sufficient to prevent settlement and exposure of the solid waste in the future. The cover material does not need to be clay if it can be demonstrated that an alternate cover or site design will provide an adequate level of environmental protection. A closure certification must be filed, signed by both the owner and a registered P.E. as required by 329 IAC 10 -37. After closure, the owner must inspect and file a written report twice a year with IDEM, meet certain financial responsibility requirements and undertake other activities for a period of thirty years. Notwithstanding these applicable requirements, we believe there may be a less onerous alternative available for closure of the Site. Considering the nature of the Site and the uncertainty that some of the regulated construction debris (wood and metal materials) is present, we believe this Site could be favorably viewed by IDEM for treatment under 329 IAC 10 -4 -4. This subsection, which applies to "open dumping ", provides the Commissioner of the IDEM the latitude to avoid the more detailed closure requirements, testing and financial responsibility requirements outlined above if "other methods or means for closure as approved by the Commissioner" can be used. We have been involved in the closure of a similar Site in Pendleton, Indiana in which this subsection was utilized to greatly reduce the costs involved for closure. If this subsection can be utilized, the IDEM would issue a "no objection letter" to an informal closing of the Site, which would avoid the costs of a full -blown closure and the thirty (30) year maintenance plan. The appropriate procedure would be for our firm to draft a letter giving a brief history of the Site (similar the one set forth above) and the type and thickness of the cover material the City proposes to use to cover this Site. A clay cap is not necessary, and a soil cover of two or more feet over the debris would probably be approved by the IDEM. A portion of the required cover may already be present over much of the Site, and the City can likely use clean fill from one of its own future or current projects to supplement the cover where necessary. The IDEM could possibly ask for some minimal soil backup to confirm that significant construction/demolition debris is not present and would also require seeding of the Site to restrict exposure of the material below. I would presume much of this work (other than any sampling) could be performed by City workers. We have discussed this approach (of course, without mentioning the location of the Site or of its ownership) with Bruce Palin, IDEM's Acting Assistant Commissioner for Solid and Hazardous Waste, who has indicated that our suggested approach appears Page 4 August 14, 1997 to be feasible. All that remains to be done is to decide what type of cover material will be used (such as clean fill dirt) and at what depth (one to two feet). Once this decision is made (but before any action is taken), we would forward our letter to IDEM making the proposal and hopefully receiving a "no objection letter" back from them in return. At that point, the IDEM may ask for soil boring results to be submitted, but it is our hope that they will not make this request. After a "no objection letter" is received, the City should undertake the proposed covering activity and we should document both of our files in this regard for the future. A follow -up letter to the IDEM upon completion of the work would also be appropriate. ADDITIONAL ACTIONS In addition to the foregoing, in the event the City determines that it will be selling this property to a third party at any time in the future, it may be advisable to include an acknowledgment in any deed of transfer, acknowledging the fill and closure (if closure is required), and releasing the City from any claims of the transferee or successors in interest in form similar to the following: The surface of the Real Estate transferred herein has been brought to its current level by the placement on the Real Estate of fill which to the best knowledge of the Transferor is clean, non- hazardous and unregulated. [Optional: Closure of the Real Estate was performed pursuant to a "No Action" letter issued by the Indiana Department of Environmental Management dated .] Transferor makes no warranty regarding the suitability of the Real Estate for any particular use, and Transferee has undertaken it own investigation and made its own determination regarding the suitability of the Real Estate for the Transferee's purpose, and releases Transferor from any obligation or liability related to the matters set forth herein. This representation, statement and covenant shall run with the Real Estate and shall be binding upon the Transferee and its successors -in- interest and all future owners of the Real Estate. In addition, any contract for sale of this property should contain appropriate releases of the City from any liability or obligation related in any way to the condition of the Site. While this approach no doubt presents an overabundance of caution, my concern here is that any Purchaser be notified of the previous use of the Site, and that they do Page 5 August 14, 1997 their own structural testing if they are going to place a house or other structure on the Site. If constructed appropriately, the above release should run with the land and release the City from any future liability to the Transferee and future title holders to this piece of property. With respect to use of the Site as a park, so long as the obvious surface hazards (concrete, bricks, etc.) are addressed there appears to be no obligation to do anything additional to the Site other than to take those closure steps outlined above. I look forward to hearing from you regarding your thoughts on this matter and on any other matter in which we can be of service to you and to the City of Carmel. Personal regards, KROGER, GARDIS & REGAS Brian C. Bosma BCB /db cc: Susan Hunter Enclosures