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HomeMy WebLinkAboutRemonstrance by Yedlick 'Ii\;/' . "'-;1 " COMMENTS IN OPPOSITION TO SPECIAL USE APPLICATION FOR MUELLER SOUTH SAND AND GRAVEL OPERATIONS Submitted by Thomas Yedlick '1 ~oU ~L- ~~!t~ (~ D~ :) l5\) ....." I,! BASIS OF BOARD REVIEW Carmel Zonine Ordinance - Chapter 21.1 "Special uses shall generally be considered favorably by the Board, except in cases where the Board finds the proposed Special Use obviously inappropriate as a result of special and unique conditions determined as a result of the review procedure established herein." (Emphasis added) . A Board hearing an application for a special use permit is obligated to apply the criteria established in the ordinance. Town ofMerrillville. . A special use grants permission to engage in a use that the legislative authority has sanctioned under certain conditions. A special use cannot be granted for a use that is neither permitted by law nor by zoning regulations. 83 American Jurisprudence 2d . The Board does not have the discretion to deviate from the criteria in the ordinance. · The Comprehensive Plan does not authorize mineral extraction or mining in any zoning district. The Comprehensive Plan may guide City Council in the development of future zoning, but the BZA is not authorized to approve a zoning change based upon the Comprehensive Plan. "'t. If' BASIS OF BOARD REVIEW -Cont'd · The Board may not approve the expansion of a nonconforming use in connection with a Special Use. · An application for special use shall be a complete application, and in 'technical compliance with all applicable ordinances, laws and regulations. Zoning Code Chapter21.02.03 . "The ordinary rules of statutory construction are to be applied in construing municipal ordinances. Words not defined in the ordinance must be taken in their plain, ordinary and usual sense." Pleasureland Museum, Inc. v. Dailey. . For zoning purposes, "sand and gravel operations" is a broader "word" than mineral extraction. Day v. Ryan. .., PERMITTED SPECIAL USES 8-1 Residential District - Mineral extraction, borrow pit, top soil removal and their storage. "Mineral extraction, borrow pit, top soil removal - Any process used in obtaining, from the earth, naturally occurring substances." M-l ManufacturinJ! District - Mineral extraction operations includin2 sand. !!ravel. soil. a22re2ate and all related processin2 operations. Chapter 3.0 Definitions NOTE: · "The ordinary rules of statutory construction are to be applied in construing municipal ordinances. Words not defined in the ordinance must be taken in their plain, ordinary and usual sense." Pleasureland Museum, Inc. v. Dailey. Thus viewed, the phrase "sand and gravel operations (extraction and processing)" establishes a single use within the context of this application. · Operations, including "sand and gravel operations" and "processing operations" are uses specifically unique to the M-l District. In the 8-1 District, the words "sand and gravel operations" are specifically excluded. · Uses not specifically enumerated are excluded. Columbus Board o/Zoning Appeals v Big Blue. ..' NONCONFORMING USES Carmel Zoning Ordinance 3.7 - Definitions Nonconforming Use - A use of a building, land or premises which does not conform to all of the applicable provisions of this ordinance. CONCLUSION: Because both Carmel Sand and 96th Street Operations do not conform to any existing or prior Ordinance and have not been approved as special uses, they are both deemed to be ''Nonconforming Uses" pursuant to Carmel's Zoning Ordinance. Carmel ZoRine Ordinance 28.01.06 Existing (nonconforming) uses eligible for special use approval shall not be considered legal nonconforming uses nor require special use approval for continuance but shall require special use approval for any alteration. enlareement or extension. :-.:, DEFINITIONS I USE - The term "use" as employed in the context of zoning, is a word of art denoting the purpose for which a parcel of land is intended, or for the purpose for which it is occupied or maintained. Zoning in general and ''uses'' in particular focus on how a parcel of land was utilized. Protective Ins. Co. v. Coca-Cola Bottling, 467 NE2d 754, Harbour Town Associates, v. City of Nobles vi lie, 540 NE2d 1283. "When viewing the land use concept from a historical perspective or by hindsight, actual utilization would seem to be the appropriate criterion." Metro. Dev. Com'n of Marion County v. Hair Interpretation Uses of Carmel Sand and 96th Street properties can be used only for their original intended use (actual utilization). The intended use of the processing plant at Carmel Sand is its actual use of processing sand and gravel extracted from the Carmel Sand quarry. "Processing" contemplates the extraction of sand and gravel from the ground and then processing the sand and gravel into a finished state. However use of the Processing plant is restricted to processing of sand and gravel from the quarry site where the sand and gravel is extracted ("actual utilization"). Processing of sand and gravel from property other than the Carmel Sand Quarry constitutes the processing of "offsite" material and is impermissible change of use under the concept of original intended use. SUMMARY OF INTENDED USES IDENTIFIED IN THE SPECIAL USE APPLICATION USES TO BE CONDUCTED: · Mueller South will be used as a sand and gravel operation. . Processing and stockpiling operations will occur at the existing North Indianapolis and the Carmel Sand Plants. . Trucks transporting aggregate will use the existing Martin Marietta North Indianapolis Plant properties for access from East 96th Street and Gray Road. NOTE: Processing required for Mueller South will be conducted off site. DOCUMENTATION OF EXPANSION OF USES IN THE SPECIAL USE . From Appeal of 2002 Denial I "Martin Marietta plans to expand its current minine: operations onto a tract of land that it leases from E.& H. Muller Development, L.L.C." . From Special Use Application Describe the proposed use of the property: The Mueller Property South will be used as a sand and e:ravel operation. Response to Number 8, page 2 of the Application: "There is an existing site which can accommodate the needs of the . community if it is expanded." There will be no aggregate processing on the subject property (Mueller South) since processine: will occur at the existine: North Indianapolis Plant and the Carmel Sand Plant. "', DOCUMENTATION OF EXPANSION OF USES IN THE SPECIAL USE - CONT'D . From "Summary of Martin Marietta's Application for Special Use approval to Mine Sand and Gravel" [ I "Approval of this Special Use for Extraction is Good Planning .. . especially when the issue is expansion of an existin2 site to accommodate the needs of the community." "Continued development of the existin2 area ... makes sense from a planning standpoint, rather than the disruption of locating a new site." "In addition, the proposed operation is adjacent to several existing... mines. That proximity will allow the proposed extraction operation to share facilities that alreadv exist." "The 1>roposed special use will utilize the existin2 processin2 facilities at Carmel Sand." . From "Response to Requests for Information in Connection with the Application" Page 3 1.11 "... the proposed operation will essentially be an extension of existin2 operations..." ,.,., t. APPLICATION OF SPECIAL USE PROVISIONS > Special Uses Defined 8-1 Residential District..... Mineral extraction, borrow pit, top soil removal and their storage. "Mineral extraction. borrow pit. top soil removal - Any process used in obtaining, from the earth, naturally occurring substances." Chapter 3.0 Definitions M-l Manufacturing District - Mineral extraction operations including sand, gravel, soil, aggregate and all related processinJ! operations. > In an S-1 District, the Special Use is restricted to extraction only. Processing is not a permitted use. ~ The M -1 District does permit processing as a Special Use. However utilization of M -1 District Special Use criteria would . require a rezone to M -1. ~ Nonconforming uses cannot be modified or expanded as Special Uses. ~ Carmel Sand and 96th Street operations are a nonconforming uses. APPLICATION FOR BOARD OF ZONING APPEALS ACTION SPECIAL USE APPROVAL REQUEST FINDINGS OF FACT - SPECIAL USE Item 6. The Board has reviewed the requirements of Ordinance Z-160. Section 21.3 as they relate to this.Suecial Use and fmds the followin2:: . This Docket should be denied because it exceeds the SPECIAL USE definition of Mineral Extraction in an S-1 District by including processing which is not a permitted use in an S-1 District. . This Docket should be denied because it exceeds the SPECIAL USE definition of Mineral Extraction in an S-1 District by expanding nonconforming uses. . This Docket should be denied because the Board can not approve the expansion of a nonconforming use without a proper Variance of Use request and related public hearing. . This Docket should be denied because it meets the requirement of a Special Use in an M-l District but not in an S-1 District. By granting this Application, the Board would be approving the equivalent of a rezone of this property. . This Docket should be denied because without the inclusion of the nonconforming use, extraction of mineral resources cannot be completed as contemplated. . The Board finds that the proposed Special Use is obviously inappropriate as a result of the special and unique conditions determined as a result of the review procedure established by the Ordinance.