HomeMy WebLinkAboutRemonstrators' First AND Second motions to table application
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STATE OF INDIANA CARMEUCLAY ADVISORY BOARD ~~..
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ZONING APPEALS ~ ~ 'V'> \
COUNTY OF HAMILTON DOCKET NO. 04040024 ~~., RECFIVED ~J
REMONSTRATORS' FIRST REQUEST TO TABLE ~& hAY D~~S2004 Jt}
APPLICATION FOR SPECIAL USE \/' A>ZOY
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COME NOW William D. McEvoy, Larry J. Kane, Greg Polinka, Rex
Weiper, Holland C. Detke, Phil Kincaid, and Kingswood Homeowners
Association, Inc. (collectively, the "Remonstrators"), by counsel, and request that
the Carmel/Clay Advisory Board of Zoning Appeals (the "BZA") table indefinitely
the captioned Application for Special Use (the "Application") filed by Martin
Marietta Materials, Inc. (the "Petitioner") on December 13, 2002, rescheduling the
hearing thereon at a later time, and in support thereof state the following:
1. The Remonstrators entered their appearance as such and filed notice
of remonstrance by United States mail on May 12, 2004.
2. The Remonstrators have recently been advised of the filing of
additional materials by the Petitioner, Martin Marietta Materials, Inc.,
and are in the process of obtaining copies thereof and reviewing such
materials for comment.
3. The Remonstrators have retained the services of various expert
witnesses, each of whom needs sufficient time to review the new
materials and prepare appropriate expert comments thereto.
4. There is currently pending before the Land Use and Annexation
Committee of the Common Council of the City of Carmel (the
"Council") an ordinance (the "Mining Ordinance") that would serve to
regulate the aggregate mining industry within the city limits of the City
of Carmel; however, that Mining Ordinance will not be finally adopted
until after the May 24, 2004 meeting of the BZA and might not be
adopted prior to the next scheduled meeting of the BZA at which the
Application may be heard.
5. It is vital that the BZA not approve any special use for aggregate
mining within the city limits of the City of Carmel until after the Mining
Ordinance has been finally adopted by the Council and all challenges
thereto have been resolved because otherwise the behavior of the
Petitioner will be essentially unregulated, to the potential damage and
prejudice of the Remonstrators and all persons similarly situated.
6. There have been several reports and letters issued by the Department
of Community Services of the City of Carmel (the "DOCS") and its
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experts concerning the current operations being conducted by the
Petitioner at its existing mining sites, including such issues as noise
from mining and processing, vibration and noise from open-air and
underground blasting, potential violations of federal and state laws
regulating storm water drainage and the discharge of groundwater into
surface water impoundments and the White River, potential dewatering
of some of the water wells owned and operated by the City of Carmel,
and excessive particulate emissions into the air. Most of these issues
remain unresolved and it would be unreasonable to approve an
expansion of such operation at a site nearer existing homeowners and
involving many of the above issues without regulations in place to
control the behavior of the Petitioner.
7. Many representations of the Petitioner with respect to its future
behavior at the site of the applied-for Special Use and the design of the
mining plan and reclamation plan appear to be inconsistent or
inappropriate, and should be resolved to the satisfaction of the DOCS
before being presented to the BZA for final consideration.
8. Because the Remonstrators have retained various expert witnesses,
the Remonstrators cannot say at this time that their conclusions and
opinions will be the same as those of the DOCS; therefore, the
Remonstrators request that the BZA table the hearing on the
Application until both the Remonstrators and the DOCS have had an
adequate opportunity to review and comment on the details of the
Application and all of the various additional submittals made and to be
made by the Petitioner in response to the many questions raised by
the DOCS.
9. When the DOCS has completed its inquiry into the proposed activities
of the Petitioner at the site of the proposed Special Use, the Petitioner
has completed its final responses to such inquiry, and sufficient time
has expired to allow the Remonstrators to complete their review of
such responses, the matter will be ripe for determination by the BZA.
10. As evidenced by the correspondence by and between the Petitioner
and the DOCS, and the delay in bringing this matter before the BZA
without the other four applications that were filed simultaneously with
the Application, the Petitioner has demonstrated an unwillingness to
prepare and submit information deemed necessary by the DOCS for a
full and fair hearing, thus indicating alack of urgency on the part of the
Petitioner; therefore, there is no reason to believe that the Petitioner
will be prejudiced by the delay resulting from this request for tabling.
In the event the BZA does not, on its own motion, table the Application
indefinitely, the Remonstrators respectfully request a hearing before the BZA
to determine whether or not an indefinite tabling of this Application is or is not
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appropriate and when the resetting of the Application for hearing might be
most appropriate,
Respectfully submitted,
THRASHER BUSCHMANN GRIFFITH & VOELKEL, P.C.,
Attorneys "~jRem?!tr:;rs
By: If~ C- <\ / ~
Phili . Thrasher, attorney no. 1075-49-
Thrasher Buschmann Griffith & Voelkel, P.C.
151 N. Delaware Street, Suite 1900
Indianapolis, IN 46204-2505
Telephone: (317) 686-4773
Distribution:
Zeff A. Weiss, Esq.
Ice Miller
One American Square
P. O. Box 82001
Indianapolis, IN 46282-2100
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THRASHER LIST OF DOCUMENTS
1. Mueller Property South, Sand and Gravel Operation, Erosion & Sediment
Control Report, Prepared by Skelly & Loy, Inc., Engineers - Consultants,
June 2004
2. City of Carmel/Clay Twp., Application for Board of Zoning Appeals
Action Use Variance, Applicant: Martin Marietta Materials Inc., Rec'd by
DOCS 4-4-02
3. mining & Reclamation Plan, Sand and Gravel Extraction by Martin
Marietta Materials, Inc., Mueller Property, 106 and Hazel Dell, Rec'd by
DOCS 4-4-02
4. Carmel Clay Board of Zoning Appeals, Docket No. UV-23-02
5. Commitment for Use of Real Estate Incident to Special Use and Variance
6. City of Carmel/Clay Twp., Application for Board of Zoning Appeals
Action, Special Use Approval Request
7. Letter of Grant dated 29 May 2002 to Robert Furling, VP, Martin Marietta
from Lawrence M. Lillig, Jf.
8. Special Use Application By: American Aggregates Corp., Carmel Board
of Zoning Appeals, August 28, 1989
9. Improvement Location Permits
Ryan Homes Inc. Permit No. 221-87 3-12-87
724-87 8-28-87
325-87 4-24-87
87-88 2-19-88
472-87 6-12-87
312-88 4-25-89
1055-87 12-22-87
126-89 3-14-89
952-87 11-11-87
Ralph Akard Const. Inc. 129-91 3-18-91
Dennis Collins 284-89 4-21-89
Whitaker Construction Corp. 680-89 8-17 -89
Marshall Kitwell Builders Inc. 943-88 10-28-88
Douglas Lynch 42-90 1-24-90
Robert Shaffer 508-75 6-9-95
Swank & Sons 362-90 5-4-90
Dennis Collins Inc. 482.89 6-21-89
RD Taylor Const. 158.89 3-23-89
James D. Close Inc. 3-88 12-30-87
Gary Sumner 805-88 9-14-88
Douglas Lynch 230-88 4-4-88
Jim Caito Builders 232-88 3-31-88
Ridgewood Residential 293-92 5-1-92
Ryan Homes 729-86 10-13-86
A & J Builders 900-90 11-26-90
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Shamrock Builders
Charles Tavel Building Inc.
Shamrock Builders
Sawyer Building Corp.
R.D. Bussell Inc.
A & J Builders
Mavolin Construction
Shamrock
Charles Tavel Bldg.
Burkett Builders
Phil Randall
Husky Builders Inc.
Paul Lipps
Steve Hoss Builders
Shamrock Builders
Paul E. Shea
710-91
62-91
709-91
165-90
912-89
119-90
305-
808-90
878-90
83-90
72-88
112-88
231-88
579-88
708-88
1035-87
10-29-91
2-12-91
10-27-91
3-7-90
11-1-89
2-20-90
4-17-90
10-10-90
11-9-90
2-7 -90
7-17-88
3-1-88
4-4-88
7-5-88
8-8-88
12-14-87
10. Fax Transmission 7-27-04
Freedom of Information Requests
11. Correspondence from Haney to Laura Conway
7-20-04 (two), 7-21-04
12. Correspondence from Haney to Thrasher 6-30-04 (five)
13. Fax to Mike Hollibaugh from Thrasher dated 6-29-04
14. Two Records Requests from Thrasher dated 6-28-04
15. West's Annotated Indiana Code 5-14-3-1 Public Policy; construction;
burden of proof for nondisclosure
16. Inspection History, City of Carmel, Case 2002.0299, dated 7-2-04
(complaints)
17. Settlement and Release Agreement 5-17-02
18. Hazel Dell Parkway, American Aggregates Corp. Agreement 11-5-97
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(Note says this copy may be incomplete, compare to other copy)
20. Agreement for Vacatin of Right-of-Way to Dedicate Additional Right-of-
Way and to Construct Road Improvements
21. Resolution No. CC-09-17-01-02
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STATE OF INDIANA
COUNTY OF HAMILTON
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CARMEUCLA Y ADVISORY BOARD
OF ZONING APPEALS, ,f..\ ii ':~i>,..
DOCKET NO. 04040024-SU\-\ .: - .- "-"
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DOCS
In re Application for Special Use Approval for
Sand and Gravel Operation on 96.921 acres
(Mueller South)
REQUEST TO TABLE HEARING
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COME NOW William D. McEvoy, Larry J. Kane, Greg Policka, Rex Weiper, Holland C.
Detke, Phil Kincaid, and Kingswood Homeowners Association, Inc. (collectively, the
"Remonstrators"), by counsel, and file with the Carmel/Clay Advisory Board of Zoning
Appeals (the "BZA") their first request that the hearing on the captioned matter be
tabled, and in support thereof the Remonstrators state the following:
1. The case involves the proposed surface sand and gravel mining of over 95 acres
of heavily-wooded property within the City of Carmel.
2. The proposed mining will involve the dewatering of an important aquifer used by
the City of Carmel to produce water for domestic use of its citizens, including the
Remonstrators.
3. The proposed mining is but a precursor for more substantial mining, including the
blasting of a wall of limestone 215 high, approximately 2000 feet wide (east to west),
and approximately 1500 feet long (north to south), within one-quarter mile of dozens of
expensive homes, within a few hundred feet of several wells owned and operated by the
City of Carmel, within a few hundred feet of Carmelot Park, and within one mile of
hundreds of expensive homes, including those of the Remonstrators. In addition to its
surface mining application, the Petitioner also has on file with this BZA an underground
mining application for this same property.
4. The proposed mining will substantially increase the noise, migratory dirt, and
migratory dust levels in the neighborhood, including the homes of the Remonstrators.
5. The Petitioner proposes to remove more than 68,000,000 cubic feet of sand and
gravel from the property.
6. The Petitioner proposes to substantially relocate Blue Woods Creek, a legal drain
and major tributary of the White River in Hamilton County.
7. The Petitioner proposes to remove the earthen barriers to the further dewatering
of the said aquifer, which will cause an increase in flow of groundwater from the north
and west across the subject property into the huge quarry pit owned by the Petitioner
south of the subject property.
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8. The Remonstrators have been advised that as a result of the full development of
Mueller South the groundwater flowing into the Petitioner's large quarry pit south of the
subject property will be increased by approximately 50 percent, and that such water will
be pumped to holding and sediment ponds located off-site, so that such former
groundwater will eventually find its way into the White River.
9. . The Remonstrators have been advised by the water consultant hired by the City
of Carmel that the capacity of the City water utilities' wells near Carmelot Park will be
. reduced by 15 percent after full development of Mueller South, even though the expert
declares that any diminution of such capacity is to be avoided.
10. Although there is a Wellhead Committee sponsored by the City of Carmel, there
is as yet no Wellhead Protection Ordinance upon which the citizens of Carmel and
Kingswood may rely for protection from dewatering and contamination by the Petitioner.
This Application should not be heard until there is such an ordinance in place.
11.The Petitioner proposes to use regular earth-moving equipment during long shifts of
work to remove the overburden and the sand and gravel beneath.
12. The Petitioner states that it will reclaim the sand and gravel depression in grass
atop a shelf of consolidated limestone rock; however, the Petitioner actually proposes to
immediately ask this BZA for permission to continue its open pit blasting, withdrawing
approximately 645,000,000 cubic feet of limestone (not including any underground
mining), and consuming the entire site within approximately 25 to 50 years, thereby
deferring reclamation and changing it into a large lake sometime between the years
2030 and 2055.
13. The claims of the Petitioner regarding reclamation and a lake are incorrect.
There is not enough groundwater available to maintain a lake of this size due to
evaporation, which is likely to be five to ten times greater than the amount of
groundwater available to feed such lake. Therefore, the reclamation will basically be a
hole with a floor covering about one square mile, with some seepage and puddles on
the floor. This will be a dangerous and ugly eyesore on the landscape of Carmel.
14. No consideration has been given to the risk of subsidence, which is the creation
of sink holes and other mass settling on the surface caused by voids underneath.
Subsidence is often caused by the interplay between persistent blasting, water flow, and
weaknesses in the rock and overburden. There is already a significant example of
subsidence on the border between Kingswood and Wood Creek subdivisions. The
Petitioner examined the depression, the hole was filled in with truck loads of material,
everyone signed a non-disclosure agreement, and the Petitioner refuses to provide a
copy of its own report on the matter to the affected homeowners. More information is
needed, and the DOCS should require a professional report that state that subsidence
is not a risk in this area notwithstanding the proposed dewatering and current and
potential blasting
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15. The Petitioner states that it will process the raw material into marketable sand
and gravel at its Carmel Sand and Gravel Plant, located approximately one-half mile
north of the subject property. Remonstrators believe that such use is illegal and several
of them have intervened in an appeal filed by Thomas Yedlick, docketed as No.
04070020 A before this BZA, that challenges the right of the Petitioner to use the
Carmel Sand and Gravel Plant for such use.
16. Because the Petitioner has no other sand and gravel processing plant in this
area, if the Carmel Sand and Gravel Plant cannot be used to process the raw material,
then it will need to be processed elsewhere, thereby significantly increasing the stone
truck traffic in the immediate area, perhaps on roads that were not designed to
withstand such volume of heavy loads.
17. The Remonstrators believe that the requests of the Petitioner are quite broad in
scope, create unnecessary and inappropriate risks for the Remonstrators and the City
of Carmel, and require detailed analysis to determine the extent to which such requests
should be approved, if at all.
18. The Remonstrators have retained various experts in mining and groundwater
analysis to assist them in preparing their detailed analyses and suggestions for
amending the application for special use so that it will more appropriately suit the
situation at the subject property.
19. The information needed by such experts has, to a large degree, been within the
control and possession of the Petitioner and has only recently been made available to
the experts retained by the Remonstrators.
20. The experts retained by the Remonstrators need additional time to fully analyze
the data now available and to prepare written comments and oral testimony for the
hearing of this case. The only comments received to date by the Remonstrators are
preliminary.
21. The case before this BZA on the question of whether or not the Carmel Sand and
Gravel Plant is an illegal nonconforming use, being the appeal brought by Thomas
Yedlick, has been docketed but will not be heard until after August 11, 2004, the date
set for the hearing of this matter.
22. The Carmel Common Council has before it proposed Ordinance No. 0-1686-04,
which is an ordinance that deals with many of the issues that otherwise will need to be
addressed individually by this BZA as proposed commitments.
23. The proposed Ordinance is far more comprehensive than any set of
commitments that might be adopted as a part of this case, including a detailed
permitting procedure and enforcement by the City of Carmel. Having an ordinance in
place prior to consideration of the Petitioner's request would greatly clarify the nature of
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their request , would place such request in the context of the provisions and restrictions
of the ordinance, and would make the BZA's decision much clearer.
24. The Remonstrators are deeply concerned that if this matter is decided prior to the
adoption of a comprehensive mining ordinance, the Petitioner might allege or assert that
the BZA's decision in this case has granted the Petitioner the status of a legal
nonconforming use, rendering the terms of an ordinance ineffective as to the Petitioner
and the subject property. On the other hand, if the hearing of this matter is tabled until
after the adoption of an ordinance, the subject property could not be a legal
nonconforming use.
25. The Remonstrators are deeply concerned that even if an ordinance is held to
apply to the subject property in full, the fact that such ordinance might be adopted after
this BZA's decision in this case might be used by the Petitioner in a later claim for
damages payable by the City of Carmel for inverse condemnation. On the other hand, if
the hearing of this matter is tabled until after the adoption of an ordinance, there would
be no "vested rights" to be condemned.
26. The Remonstrators are willing to appear before this BZA at each regular meeting
thereof to either set a date for the evidentiary hearing or explain to this BZA why a
further tabling of this matter is appropriate. Petitioner will of course also have the
opportunity to appear.
27. The Application is a complicated request, implicating the several issues
described above. The Remonstrators are hopeful that they and the Petitioner may
come to some written understanding regarding this Application; however, at this time no
such agreement has been reached between the parties.
28. This Request to Table Hearing is not interposed for the purpose of delay but
rather for the purpose of allowing a full and fair disclosure of all aspects involved in this
complicated matter so that the BZA may make a knowledgeable and sound decision
based on all available facts, not just opinion and conjecture.
WHEREFORE, the Remonstrators respectfully request that this matter be tabled until
the later of the regular meeting of this BZA in September 2004 or the conclusion of both
of the following matters: (a) adoption by the Carmel Common Council of an ordinance
specifically regulating the conduct of mining activities in detail within the city limits of
Carmel; (b) adoption by the Carmel Common Council of a wellhead protection
ordinance designed to protect the water systems of Carmel and its citizens; and (c)
rendering of a final decision by the BZA in the matter involving whether or not the
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operation of the Carmel Sand and Gravel Plant is an illegal nonconforming use and the
expiration of all rights of appeal.
Respectfully submitted,
by:
Thrasher Buschmann Griffith & Voelkel, P.C.
151 N. Delaware St., Suite 1900
Indianapolis, IN 46236-2505
Tel: 686-4773 Fax: 686-4777
Copies to:
Zeft A. Weiss, Esq.
Ice Miller
One American Square
P. O. Box 82001
Indianapolis, IN 46282-2100
John Molitor
Molitor Grisham, P.A.
11711 N. Meridian St., Suite 200
Indianapolis, IN 46032
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