HomeMy WebLinkAboutDept Report 12-13-04 and Commitments
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City of Carmel
CARMEL BOARD OF ZONING APPEALS
-MEMORANDUM-
Date: December 8, 2004
To: BZA Members
From: Angelina Conn
Planning Administrator
Department of Community Services
Re: Department Report & Commitments for Martin Marietta (# 04040024 SU)
BZA Members,
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Attached are" items:
1.) The Departmen~ Report for Docket No. 04040024 SU, Martin Marietta Materials -
Mueller Property South.
2.) The redline copy of proposed Martin Marietta Commitments with amendments as of
the last BZA meeting on November 22, 2004.
3.) The clean copy ,of proposed Martin Marietta Commitments with amendments as of
the last BZA meeting on November 22, 2004.
4.) Findings of Fact .. Ballot Sheet
5.) Petitioner's Findings of Fact and Conclusions of Law
Feel free to c'a11 Jon Dobosiewicz or me with any questions or concerns.
BZAMEMO-2004-1208
Page 1
ONE CMC SQUARE
CARMEL, INDIANA 46032
317/571-2417
CARMEL/CLAY BOARD OF ZONING APPEAL~." .L
DEPARTMENT REPORT ~.()'\
December 13, 2004 A "
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lh. Martin Marietta Materials - Mueller Property South cY
Petitioner seeks special use approval to establish sand and gravel extraction operation on 96.921:c
acres. The site is zoned S-l/Residence - Low Density.
Docket No. 04040024 SU Chapter 5.02.02 special use in the S-l zone
The site is located at the southwest comer of the intersection of East 106th Street and Hazel Dell
Parkway. Filed by John Tiberi of Martin Marietta Materials, Inc.
General Information:
The petitioner is seeking special
use approval to operate a surface
sand and gravel extraction
operation on property which is
zoned S-l/Residence-Low
Density. This is a very complex
land use request as evidenced by
the level of review and input
from the public. Please see the
attached commitments prepared
for Martin Marietta Materials.
The Department has forwarded
the Board several binders of
information on this request
including the following:
1. Application for BZA
Action; Special Use Approval Request, City of Carmel, December 13,2002
2. Response to Requests for Information in Connection with Application for Special Use
Approval, City of Carmel, March 5, 2004
3. Construction Plan for Operation to Comply with 327 IAC 15-5-6.5, Hamilton County Soil and
Water, Apri12004
4. Erosion and Sediment Control Report, Shelly and Loy Consultants, June 2004
5. BZA Informational Booklet Hearing date June 28, 2004, ICE MILLER, June 18,2004
6. Response to Comments Provided During April 24, 2004 T AC Meeting in Connection with
Application for Special Use Approval, City of Carmel, July 2004
7. a. Effects of Proposed Mine Expansion on Public Water Supply Wells, Wittman Hydro,
July 27,2004
b. Executive Summary: Assessment of the Effects on Public Water Supply Wells,
Wittman Hydro, August 10, 2004
8. Spill Prevention, Control and Countermeasure Plan, Hamilton and Marion Counties, Aug. 2004
9. Written Remonstrance, KINGSWOOD Homeowners Association, August 11,2004
10. Sumlnary of Application for Special Use Approval to mine Sand and Gravel, City of Carmel,
August 10, 2004
11. Application for BZA Appeals Action: Special Use Approval Request, Power Point
Presentation, August 11, 2004
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CARMEL/CLAY BOARD OF ZONING APPEALS
DEPARTMENT REPORT
December 13, 2004
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lh. Martin Marietta Materials - Mueller Property South
Petitioner seeks special use approval to establish sand and gravel extraction operation on 96.921::1:
acres. The site is zoned S-I/Residence - Low Density.
Docket No. 04040024 SU Chapter 5.02.02 special use in the S-1 zone
The site is located at the southwest comer of the intersection of East 106th Street and Hazel Dell
Parkway. Filed by John Tiberi of Martin Marietta Materials, Inc.
General Information:
The petitioner is seeking special
use approval to operate a surface
sand and gravel extraction
operation on property which is
zoned S-I/Residence- Low
Density. This is a very complex
land use request as evidenced by
the level of review and input
from the public. Please see the
attached commitments prepared
for Martin Marietta Materials.
The Department has. forwarded
the Board several binders of
information on this request
including the following:
1. Application for BZA
Action, Special Use Approval Request, City of Carmel, December 13, 2002
2. Response to Requests for Information in Connection with Application for Special Use
Approval, City of Carmel, March 5, 2004
3. Construction Plan for Operation to Comply with 327 IAC 15-5-6.5, Hamilton County Soil and
Water, April2004
4. Erosion and Sediment Control Report, Shelly and Loy Consultants, June 2004
5. BZA Informational Booklet Hearing date June 28,2004, ICE MILLER, June 18,2004
6. Response to Comments Provided During April 24, 2004 TAC Meeting in Connection with
Application for Special Use Approval, City of Carmel, July 2004
7. a. Effects of Proposed Mine Expansion on Public Water Supply Wells, Wittman Hydro,
July 27,2004
b. Executive Summary: Assessment of the Effects on Public Water Supply Wells,
Wittman Hydro, August 10,2004
8. Spill Prevention, Control and Countermeasure Plan, Hamilton and Marion Counties, Aug. 2004
9. Written Remonstrance, KINGS WOOD Homeowners Association, August 11,2004
10. Summary of Application for Special Use Approval to mine Sand and Gravel, City of Carmel,
August 10, 2004
11. Application for BZA Appeals Action: Special Use Approval Request, Power Point
Presentation, August 11, 2004
_~. 12. Sound Level Assessment: Mueller Property South Sand and Gravel Special Use Application,
Prepared by: Smelly and Loy, Inc., September 2004
13. Executive Summary of Application for BZA Appeals' Action: Mueller Property SouthSand
and Gravel, Prepared by: Martin Marietta, September 2004
14. Remonstrators' Presentation Opposing Martin Marietta Materials, Inc., September 27,2004
a. YARGER ENGINEERING, Letter/SEPTEMBER 27,2004
b. REMONSTRATOR'S OBJECTIONS TO AFFIDAVIT OF MICHAEL C. LADY
AND ATTACHED NEIGHBORHOOD ANALYSIS
c. REMONSTRATOR'S OBJECTIONS TO AFFIDAVIT OF JOHN J. TIBERI
d. REMONSTRATORS' OBJECTIONS TO AFFIDAVIT OF DAVID BUSS
15. Comments in opposition to Special Use Application For Mueller south Sand and Gravel
Operations, Submitted by: Thomas Yedlick
16. Various Martin Marietta Submittals: August 11,2004
a. Affidavit of David Buss
b. Mfidavit of Michael C. Lady
c. Mfidavit of John J. Tiberi
d. OBJECTIONS BY MARTIN MARIETTA MATERIALS, INC.
17. DNR - Blue Woods Creek, Hamilton County, Basin 14, August 11, 2004
18. NEIGHBORHOOD ANALYSIS: Kingswood Subdivision, Submitted by: INTEGRA
REALTY RESOUCES - INDIANAPOLIS, August 11,2004
In addition, among other correspondence, we provided the following:
1. Request to table Public Hearing from Thomas C. Yedlick
2. Request to Table Hearing form Philip Thrasher, attorney for remonstrators
Analysis:
Section 21.03 of the Zoning Ordinance outlines the Basis of Board Review of a Special Use as follows:
The Board, in reviewing the Special Use or Special Exception application, shall give consideration to the
particular needs and circumstances of each application and shall examine the following items as they relate to
the proposed Special Use or Special Exception:
1. Topography;
2. Zoning on site;
3. Surrounding zoning and land Use;
4. Streets, curbs and gutters and sidewalks;
5. Access to public streets;
6. Driveway and curb cut locations in relation to other sites;
7. General vehicular and pedestrian traffic;
8. Parking location and arrangement;
9. Number of parking spaces needed for the particular Special Use;
10. Internal site circulation;
11. Building height, bulk and setback;
12. Front, side and rear yards;
13. Site coverage by building(s), parking area(s) and other structures;
14. Trash and material storage;
15. Alleys, service areas and loading bays;
16. Special and general easements for public or private Use;
17. Landscaping and tree masses;
18. Necessary screening and buffering;
19. Necessary fencing;
20. Necessary exterior lighting;
21. On-site and off-site, surface and subsurface storm and water drainage;
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22. On-site and off-site utilities;
23. Dedication of streets and rights-of-way;
24. Proposed signage (subject to regulations established by the Sign Ordinance); and
25. Protective restrictions and/or covenants.
26. Need for lifeguards and other supervisory personnel, in respect to a private recreational
development or facility.
21.04 Basis of Board Approval or Reiection.
21.04.01 Special Use Decisions. The Board, in approving or rejecting a Special Use application, shall
base its decision upon the following factors as they relate to the above listed items (Section 21.03)
concerning the proposed Special Use:
1. The particular physical suitability of the premises in question for the proposed Special Use.
2. The economic factors related to the proposed Special Use, such as cost/benefit to the community and
its anticipated effect on sUrrounding property values.
3. The sociaVneighborhood factors related to the proposed Special Use, such as compatibility with
existing uses and those permitted under current zoning in the vicinity of the premises under
consideration and how the proposed Special Use will affect neighborhood integrity.
4. The adequacy and availability of water, sewage and storm drainage facilities and police and fire
protection.
5. The effects of the proposed Spepial Use on vehicular and pedestrian traffic in and around the
premises upon which the Special Use is proposed.
Recommendation:
The Department recommends consideration ofthe Docket No. 04040024 SU, subject to the following
condition:
1.) That the petitioner reimburse the City for all associated reviews (see attachment).
The applicant has been provided a copy of the invoice amounts for their review by the City.
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PROPOSED COMMITMENTS .-\S }..MENDED BY DOCS.
The following document cORtains the eommitmeRts that DOCS is reeommeading to the Board.
In addition, following this docl:lmeRt, are recommendations/suggestions for considefation from
John Molitor.
.\ttaehed l:lnder a separate cover are the Commitments proposed by the applieant.
As the Board will be able to see from the two doeumeRts DOCS is not in agreemeRt '.vith the
proposed eommitmeRts.
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MARTIN MARlETT A MATERIALS. INC.
MUELLER PROPERTY SOUTH
SAND AND GRAVEL SPECIAL USE APPLICATION
Docket No. 04040024-SU
STATEMENT OF COMMITMENTS
COMMITMENTS CONCERNING THE USE OR DEVELOPMENT OF REAL ESTATE
MADE IN CONNECTION WITH PETITION FOR SPECIAL USE PERMIT
Martin Marietta Materials, Inc. ("Martin Marietta"), makes the following COMMITMENTS
concerning the use and development of that parcel of real estate located near the intersection of
the southwest corner of 106th Street and Hazel Dell Parkway, in the City of Carmel, Hamilton
County, Indiana, which is more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the "Real Estate").
Statement of COMMITMENTS:
1. General Operational Commitments
(a) Martin Marietta will develop a sand and gravel operation on the Real Estate to
commence in 2004 and continue for approximately 3 to 5 years, depending on
market conditions. Provided, however, that this permit shall expire seven years
from the commencement of sand and gravel extraction. Martin Marietta shall
notify the Director (==-:Director!!:) of the Department of Community Services
("DOCS") of the City of Carmel (the "City") within seven days of such
commencement.
(b) The hours of operation regarding the extraction of sand and gravel will be 7:00
A.M. to 7:00 P.M., Monday through Friday, and from 8:00 A.M. to 2:00 P.M. on
Saturdays. No operations are permitted on Sunday and holidays.
( c) Extraction operations may be conducted outside these hours only (i) to supply
materials for inclusion in a public (state, federal or municipally directly funded)
project; (ii) to respond to an emergency; or (iii) to meet exceptional demands
caused by special projects requiring work outside normal hours. Operations
outside the above stated hours to meet the demands of a special project shall not
exceed fifteen (15) days in any calendar year. Except in the case of emergencies,
DOCS shall be advised of all operations outside of the stated hours at least 48
hours in advance of the work.
(d) Overburden removal shall be completed during the hours of 6:00 A.M. to 8:00
P.M between the months of November through March (except as necessary to
construct visual and noise barriers) and only on days other than Saturday, Sunday,
or holidays. Martin Marietta shall conduct all operations, including overburden
removal, in a manner so as to reasonably minimize noise, dust, and light impact
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on surrounding properties.
(e) Martin Marietta shall limit hours of operation at the Carmel Sand Plant located at
11010 Hazel Dell Pkwy to 7:00 AM. to 7:00 P.M., Monday through Friday, and
from 8:00 .\.M. to 2:00 P.M. on Saturdays. No operations are permitted on
Sunday.
(f) Processing operations may be conducted outside these hours only (i) to supply
materials for inclusion in a public project; (ii) to respond to an emergency; or (iii)
to meet exceptional demands caused by special projects requiring '.vode outside
normal hours. Operations outside the above stated hours to meet the demands of
a special project shall not exceed fifteen (15) days in any calendar year. Except in
the case of emergencies, DOCS shall be advised of all operations outside of the
stated hours at least 18 hours in advance of the work.
~ fgt-No blasting shall occur on the Real Estate unless otherwise approved by the
City or the Carmel/Clay Board of Zoning Appeals ("BZA") under a future
petition.
ill fh1-No processing of sand and gravel, other than loading of raw material, shall
occur on the Real Estate unless otherwise approved by the City or BZA under a
future petition.
W fitNo sales of any material shall occur on the Real Estate. This shall not prevent
the removal of topsoil overburden to be sold at Martin Marietta's 96th Street plant
or its Carmel Sand Plant located at 11010 Hazel Dell Pkwy.
2. Host Fcc
(a) Martin Marietta or its assigns or successors shall pay to the City a host fee
regarding the sand and gravel operation to offset additional expenses to the City
including, but not limited to:
(1) Expenses, including past expense, borne in the course of reviewing and
commenting upon Martin Marietta's applications.
(2) Expenses borne to design and construct repairs and improvements to City
streets impacted by the operation, including: Hazel Dell Parbvay; 96tfl Street;
Gray Road; 106tfl Street; River Road, 116tfl Street, 126tfl Street, and 131 st
Street.
(3) Expenses, including past expense, borne in the course of defending the City
from legal action brought by Martin Marietta, related to petitions for mineral
extraction and related acti','ities.
(1) Expenses, including past expense, for monitoring the potential impacts of
Martin Marietta's past and future operations on the City's "vater supply.
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(5) Expenses, as determined by the Director, for study or monitoring of off site
impacts, such as noise, dust, or truck traffic, as per Section no. 1 (Studies and
Monitoring) in these Commitments.
(b) The host fee shall be paid to the City in quarterly installments of $; 50,000. The
first payment shall be due beginning 'Nith the nearest fiscal quarter that falls one
hundred eighty (180) days after commencement of removal of overburden from
the Real Estate. Fiscal quarters shall be periods ending March 31; June 30;
September 30 and December 31 of each year.
(c) Failure to pay the host fee 'vVithin 15 days of the fiscal quarter will result in a
penalty not to exceed 1.5% compounded for each 30 day period of nonpayment.
(d) Failure to pay the host fee and penalties due for a period of more than 90 days
shall result in the immediate termination of mining at the site, and reclamation
shall commence at the direction of the Director of Community Services after
notice. Martin Marietta agrees that the termination of mining due to the failure to
pay fees and penalties, by virtue of these Commitments, does not constitute a
legal defense.
(e) Together with each payment, Martin Marietta shall provide the City a report of
the number of days extraction operations and/or processing operations 'Nere
conducted outside of appro','ed hours.
(f) The host fee payments shall terminate at the conclusion of the operation, V/hich
shall mean, for purposes of this agreement, the completion and appro','al by the
Director of the reclamation plan as per Docket No. 01010021 SUo The approval
of the reclamation plan may extend no more than one year beyond the final
plantings to ensure cover and growth, unless Martin Marietta is directed to
perform additional '.vodc, at v/hich time the one year period '.Yould commence for
another period. Martin Marietta is required to continue to pay the host fee until
final approval by the Director.
2... ~Reports and Permits
(a) Prior to commencement of any work on the Real Estate, and thereafter continuillll
durin!:! the oeriod of its oerformance of all work. Martin Marietta shall provide
copies of approvals and permits from every governmental agency having
jurisdiction over the Real Estate and/or activities of Martin Marietta with respect
to the Real Estate, including all submittals to such governmental agencies, and
shall include all specifications and restrictions contained in such submittals and
approvals.
(b) Following approval of Docket No. 04040024 SU, Martin Marietta shall submit an
annual report on or before March I of each year showing the progress that has
been made in the development and mining of the Real Estate until final site
reclamation. DOCS shall make the report available for inspection and copying by
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all interested parties.
(c) Martin Marietta will seek necessary permits to demolish the buildings located on
the Real Estate within six (6) months of the approval of its request for a Special
Use Permit for the Real Estate.
(d) The relocation of Blue Woods Creek will be in accordance with the Blue Woods
Creek permit approvals and shall include the lining of Blue Woods Creek as set
forth in the permit approvals. Martin Marietta will provide as-built plans to
appropriate parties (includim! DOCS) following the relocation construction.
Martin Marietta will also provide monitoring reports to appropriate parties
(includim! DOCS) following construction of the relocation. A copy of the
maintenance agreement will be provided to the City of Carmel Urban Forester,
Building Commissioner and Department of Engineering.
(e) The maps, submittals, and undertakings in the MGTechnical Advisorv
Committee of DOCS ("T AC") responses shall be deemed the application
documents and shall bind Martin Marietta. Attached hereto as Exhibit B is a
master list of the maps and submittals governing the application and this approval.
In the event of a conflict between maps or submittals, the most recent submittal
shall be deemed to supersede all prior maps or submittals and to be binding on
Martin Marietta.
(f) Martin Marietta shall use the existing entrancesentrance on 96th Street and 106th
Street (Carmel Concrete entrance) for haul trucks and other heavy equipment
accessing the Real Estate (except as it may be necessary to access the Real Estate
from 106th Street for berm construction). No new entrances are proposed in the
Special Use application or allowed by the Special Use approval. Access via the
former River Road access point shall be limited to construction of the berm,
maintenance, and other ordinary vehicles not including haul trucks. Provided,
however, the Director is authorized to allow an additional entrance on 106th
Street if Martin Marietta proposes to use it for purposes of crossing 106th Street
to access the Mueller North property directly and haul material to the Carmel
Sand Plant across such Mueller North Property. Martin Marietta is entitled to
reserve afla drivewav access corridor for such purposes across the right-of-way it
is otherwise dedicating to the City. The Director is authorized to apply such
conditions to any approval of a 106th ShStreet drivewav access as he deems
reasonable.
(g) The berm specified along 106th Street shall be substantially complete within one
hundred eighty (180) days of the commencement of the removal of overburden
from the Real Estate. Completion shall include, but not be limited to, landscaping
installation and seeding. The Director is authorized to allow landscaping and
seeding to be deferred up to six (6) months to allow planting to be done at an
appropriate time seasonally.
l.. 4:--Studies and Monitoring
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If the Director determines that study or monitoring of off-site impacts, such as noise,
dust, or truck traffic by way of example is necessary, he or she shall notify Martin Marietta of the
particular matter needing study. Martin Marietta shall then present the Director with a proposal
to address the matter raised by the Director, at Martin Marietta's expense, within forty-five (45)
days. If the Director agrees with the proposal, Martin Marietta shall cause the study or
monitoring to be performed at its expense in the time frame set forth in the proposal. If the
Director does not agree with Martin Marietta's proposal, he or she shall modify it or present
Martin Marietta with his or her own proposal, and Martin Marietta shall pay the cost of such
studies.
~ ~Water Monitoring
Martin Marietta will cooperate with the City Utilities Department in the development of a
water quality monitoring program acceptable to the Utilities Department. Martin Marietta's
proposal in that regard is contained in the document titled "Groundwater and Surface Water
Monitoring Plan for the Mueller Property South Sand and Gravel Operation Carmel, Indiana,"
dated June 2004, and previously submitted to the Utilities Department. Martin Marietta agrees to
pay for the monitoring and other activities proposed in the report to be Ekmeoerformed by
itMartin Marietta. Martin Marietta recognizes that the City wants to conduct additional
monitoring at its own expense and agrees to cooperate with the City to permit such additional
monitoring. Martin Marietta also agrees to build two weirs at its expense on Blue Woods Creek
and to install flow meters at points to be designated by the Utilities Department. Further, Martin
Marietta shall grant the City access to the monitoring points, flow meters, and related areas at all
reasonable times, subject to compliance with MSHA regulations. The City shall also have access
to monitoring locations on an as needed basis for emergency purposes.
.i. ~Site Access Improvements
(a) Martin Marietta shall construct, at its expense, acceleration and deceleration lanes
and a passing blister or dedicated left turn lane and unimpeded thru lanes at all
entrances on roads used for transport of raw materials from the Real Estate along
Gray Road and/or 106th Street. These improvements 'Nill be subject to the review
and approval of the Carmel Engineering Department. cause all truck traffic
haulilll! sand and !.!ravel to and from the Real Estate for nrocessin!.! at the Carmel
Sand Plant to utilize the existin!.! curb cut alon!.! West 96th Street (at the Doint of
access to its existin!.! Indy North Ouarry) for ournoses of transDortin!.! sand and
!.!ravel from the Real Estate to the Carmel Sand Plant. No such truck traffic
haulin!.! sand and !.!rayel shall access the Real Estate throu!.!h 106th Street or Gray
Road.
(b) Martin Marietta will construct, at its expense, a dedicated northbound left turn
lane along Hazel Dell Parkway at the entrance to the Carmel Sand Plant. This
improvement will be subject to the review and approval of the Carmel
Engineering Department. This improvement shall be reviewed and amended to
accommodate differing traffic patterns if the processing equipment at the Carmel
Sand Plant is moved to an alternate location prior to commencement of mining on
the Real Estate. DOCS is authorized to waive this commitment for up to one
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hundred eighty (180) days if Martin Marietta shows that such a WaIver IS
necessary because of any delays in movement of the plant site.
(c) Martin Marietta shall commence all roadway improvements specified herein
expeditiously once plans are approved and pursue completion of such work
diligently.
(d) Martin Marietta shall furnish a bond in form acceptable to the Director to assure
that any damage done to that portion of Gray Road, 106th Street, or Hazel Dell
Parkway by trucks or equipment hauling material from the Real Estate is repaired
to meet City roadway standards.
(e) Martin Marietta will request approval from the Carmel City Council to vacate the
existing right-of-way associated with River Road, as located on the Mueller
Property South, once relocation of Blue Woods Creek is completed.
Q.. +:--Compliance with Thoroughfare Plan
Martin Marietta will dedicate or cause to be dedicated a forty-five-foot half right of-way
for East 106th Street (Secondary Arterial) pursuant to the Carmel Thoroughfare plan, following
approval of its request for a Special Use Permit for the Real Estate. Martin Marietta shall be
entitled to reserve a corridordrivewav access in the right-of-way for accessing the Mueller North
Property as referenced in paragraph 2(t).
1.. &-Street Cleaning
Martin Marietta shall work diligently to minimize spillage of materials on the streets and
shall be responsible for keeping the streets and street intersections used to haul material from the
Real Estate eleanclear of all sand. llravel and stone. There shall be an initial ninety (90) day trial
period commencing with its regular use of the streets for this project during which Martin
Marietta is authorized to clean the streets used for hauling materials from the Real Estate on its
schedule. If the results are satisfactory to the Director, he shall be entitled to authorize Martin
Marietta to continue to clean the streets on its schedule. The Director is authorized at any time,
however, to direct Martin Marietta to clean the streets daily and to clean any unusually large
spills of materials from the Real Estate immediately upon notice.
.8.. 9-:-Buffers and Screening
(a) A buffer area of approximately 330 feet in width will be maintained along the
southern right-of-way of 106th Street. The relocated Blue Woods Creek will be
located in such buffer area. Martin Marietta shall construct a berm approximately
nineteen feet (19') in height adjacent to the southern right -of -way line in this area
as shown on the submittals. The berm shall be landscaped as provided in the
submittals and a six foot (6') high chain-link fence shall be built along such right-
of-way as shown on the submittals.
(b) A seeded berm along the western boundary of Hazel Dell Parkway approximately
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fifteen (15) feet in height will be constructed and a six-foot (62-:) chain-link fence
will be installed as shown on the submittals.
(c) All landscaping will be completed consistent with the Conceptual Landscaping
Plan Map, a copy of which is on file in the Office of DOCS.
2.. -Uh-Environmental
(a) Sand and Gravel operations shall be conducted in conformance with the Federal
Clean Air Act and applicable statutes and regulations implemented by the Indiana
Department of Environmental Management.
(b) Martin Marietta shall maintain an approved Spill Prevention, Control, and
Countermeasures (SPCC) Plan for this facility, a copy of which is on file with the
Carmel Fire Department, and in the Office of DOCS.
(c) Martin Marietta will maintain an approved Storm water Management and Erosion
and Sediment Control Report for this facility, a copy of which is on file in the
Office of DOCS.
(d) Martin Marietta agrees to use the best available technology allowed by MSHA
and other applicable regulatory authorities for its back-up alarms. Initially,
Martin Marietta proposes to install strobe safety lights on all of its equipment
operating on the Real Estate to the extent permitted by laws and regulations,
instead of back-up alarms, for operations after sundown and before sunrise.
These strobes shall be installed within sixty days of the grant of this permit unless
the Director requests that Martin Marietta defer the installation of such strobes to
give the Director additional time to determine whether there is a better available
technology. Thereafter, the Director shall be entitled once every two (2) years to
advise Martin Marietta of the availability of newer, preferable technology and to
require that it be utilized if commercially available. Provided, however, that all
such safety measures shall conform to then existing laws, regulations and safety
standards with regard to back up protection. Martin Marietta further agrees
voluntarily to apply this condition to its equipment at the Carmel Sand Plant.
10. +-h--Reclamation
(a) The BZA recognizes that there is a pending application by Martin Marietta that
could affect the reclamation of the Real Estate. The BZA considers it important,
however, that the Real Estate have a viable use if the other pending application
relating to the Real Estate is not approved. Therefore, attached hereto are
examples of potential uses on reclamation and Martin Marietta agrees, upon
request of the landowner, to reclaim the property in such a manner as to be
suitable for one type of the attached uses. The BZA further recognizes, however,
that the property is currently zoned S-1 and that the zoning classification(s) and
uses in effect at the time of reclamation will have a substantial impact on how it
might then be used. The uses described herein are thus not endorsed by the BZA
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or authorized by this Special Use permit, but are intended to describe potential
uses of the property, subject to appropriate zoning and land use review in the
future.
(b) Unless an alternative reclamation plan is approved, Martin Marietta shall reclaim
the Real Estate as an open space with (i) slopes no steeper than 3 to 1 and (ii)
domestic grass coverage of not less than 80% per square yard on all side slopes.
A minimum of six (6) inches of topsoil will be replaced in the areas to be
seeded/planted. A concurrent reclamation plan will be employed to the extent
possible.
(c) All reclamation shall comply generally with the reclamation guidelines adopted
by the Indiana Mineral Aggregates Association and will be completed consistent
with the Conceptual Reclamation Plan Map, a copy of which is on file in the
Office of DOCS.
(d) Martin Marietta will provide a reclamation bond payable to the City in an
appropriate and reasonable amount that, in the Director's discretion, is sufficient
to assure reclamation as described in the application for Special Use. This bond
will be kept in full force until Martin Marietta completes the reclamation of the
Real Estate, and shall be subject to amendment from time to time as deemed
necessary by the City to assure completion of the reclamation.
11. -hh--Binding Effect
These commitments shall apply to the present owner of the Real Estate, Martin Marietta,
and all transferees, assignees, successors, personal representatives, creditors in possession,
trustees, and all other entities and indiyiduals who may receive all or part of the title to the Real
Estate. The ovmer of the Real Estate and Martin Marietta shall be jointly and severally liable for
each of the commitments set forth herein.
These Commitments are bindinl! on Martin Marietta as the current lessee and E. & H.
Mueller Develooment. LLC ("Mueller") as the current owner of the Real Estate. each subsequent
lessee and owner thereot: and each nerson acquirinQ an interest therein. until the exoiration date
as determined oursuant to the above oaraQraoh. unless modified or terminated by the BZA or its
successor oursuant to this narallraoh. Exceot as orovided in the above oaraQraoh. these
Commitments may be modified or terminated only unon (a) oetition by Martin Marietta or its
successor. and (b) aonroval bv the BZA after notice and hearinl! oursuant to the BZA's Rules of
Procedure. Until they exnire or are modified or terminated oursuant to this oaraQraoh. these
Commitments shall be enforceable bv the City of Carmel or the BZA bv iniunctive relief. denial
of building oermits or aoorovals in resoect of the Real Estate. or other aoorooriate administrative
or iudicial remedy. orovided that any such relief: denial. or other remedy is related to the Real
Estate and to some effects or harm from a breach or violation of these Commitments bv Martin
Marietta or Mueller. In any nroceedings to modify or terminate these Commitments. notice of
hearinl! shall be given to the owners of orooertv as required bv the Carmel ZoninQ Ordinance and
the BZA's Rules of Procedure.
9
INDY I426]92v~
INDY 1426]92\'10
,.
-,
12. ~General.
(a) This approval is specific to the Martin Marietta proposal for the mining of sand
and gravel on the Mueller South parcel only, and in no way implies that the BZA
has reviewed, condoned, or approved any aspect of any other application for
mining, either limestone surface mining or limestone underground mining, by
Martin Marietta at that location.
(b) The denial of a future application to mine on the Real Estate shall not be deemed
a taking based on any theory that the Real Estate has become unusable for any
purpose other than mining by virtue of the grant of this Special Use permit.
Martin Marietta retains the right to challenge the denial of any future application
on any other ground or theory, including a taking theory not based on the grant of
the permit herein, whether based on state or federal laws or constitutions, board
rules, local ordinances, or otherwise.
(c) Martin Marietta shall provide access to City employees and their representatives,
including consultants, at all reasonable times for purposes of monitoring
compliance with these COMMITMENTS and any other responsibilities derived
therefrom.
These COMMITMENTS shall be binding on Martin Marietta and other pcrsons acquiring
an interest in the Real Estate. These COMMITMENTS may be modified or terminated by a
decision of the Carmel/Clay l.dvisory Board of Zoning l.ppeals made at a public hearing after
proper notice is given.
COMMITMENTS contained in this instrument shall be effective upon the adoption of
l..pproval Docket No. 01010021 SU by the Carmel/Clay L^.d':isory Board of Zoning :\ppeals and
shall continue in effect for as long as the above described parcel of Real Estate remains the
subject of the Special Use Permit issued in said L^.pproval Docket No. 01010021 SU or until such
other time as may be specified herein.
These COMMITMENTS may be enforced jointly or severally by the Carmel/Clay
l.dvisory Board of Zoning l.ppealsBZA and/or the City of Carmel Department of Community
Services.
The undersigned hereby authorizes the City of Carmel Department of Community
Services to record this Statement of Commitments in the Office of the Recorder of Hamilton
County, Indiana, upon final approval of Docket No. 040400024 SUo
10
INDY 1426192v*-U
INDY 1426192vl0
IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument
this day of November December. 2004.
MARTIN MARIETTA MATERIALS, INC.
By:
John J. Tiberi, Vice President/General Manager
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared John J.
Tiberi, the Vice President/General Manager of Martin Marietta Materials, Inc., who
acknowledged the execution of the foregoing instrument and who, having been duly sworn,
stated that any representations therein contained are true.
WITNESS my hand and Notarial Seal this
day ofNo'.'embcrDecember, 2004.
Signature
Printed
NOTARY PUBLIC
My Commission Expires:
County of Residence:
11
INDY ]426]92v*11
]1-JDY 1426]92\'10
.'
.
E. & H. MUELLER DEVELOPMENT,
LLC, an Indiana limited liability company
By:
Signature
Its:
Printed Name and Title
STATE OF INDIANA )
) SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared
, the Managing Member, authorized agent of E. & H. Mueller
Development, LLC, an Indiana limited liability company, who acknowledged the execution of
the foregoing instrument and who, having been duly sworn, stated that any representations
therein contained are true.
WITNESS my hand and Notarial Seal this.
day of November December, 2004.
Signature
Printed
NOTARY PUBLIC
My Commission Expires:
County of Residence:
This instrument was prepared by and after recordation shall be returned to Zeff A. Weiss, Ice
Miller, One American Square, Box 82001, Indianapolis, Indiana, 46282-0200, Telephone (317)
236-2319.
12
INDY I426I92v~
INDY 1426192vl0
EXHIBIT A
REAL EST ATE DESCRIPTION
Part of the North Half of Section 9, Township 17 North, Range 4 East of the Second Principal
Meridian in Clay Township, Hamilton County, Indiana, described as follows:
Commencing at the Northwest corner of Section 9, Township 17 North, Range 4 East of the
Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence South 89 degrees
55 minutes 56 seconds East (assumed bearing) on the North line of said Section 9, a distance of
1,336.18 feet to the Northwest corner of the East Half of the Northwest Quarter of said Section 9,
said corner being the PLACE OF BEGINNING of the within described real estate; thence South 00
degrees 11 minutes 12 seconds West on the West line of said East Half 1,716.00 feet; thence
South 89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a
distance of 1,336.01 feet to the West line of the East Half of said Section 9; thence South 00
degrees 11 minutes 33 seconds West on the West line of said East Half 156.75 feet; thence South
89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a distance
of 919.68 feet to the Westerly line of real estate conveyed to the City of Carmel, Indiana, by a
documented titled "Certification of Clerk" recorded in the Office of the Recorder of Hamilton County,
Indiana, as Instrument Number 9709754848 (the following eight courses being on the Westerly line
of said real estate); 1.) thence North 08 degrees 36 minutes 31 seconds East 885.22 feet; 2.)
thence North 02 degrees 53 minutes 53 seconds East 201.00 feet; 3.) thence North 08 degrees
36 minutes 31 seconds East 660.61 feet; 4.) thence North 29 degrees 48 minutes 29 seconds West
55.59 feet; 5.) thence North 80 degrees 51 minutes 37 seconds West 303.34 feet; 6.) thence North
89 degrees 03 minutes 10 seconds West 148.00 feet; 7.) thence North 60 degrees 14 minutes 56
seconds West 57.55 feet; 8.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet to
the North line of said Section 9, said point being 3,302.24 feet South 89 degrees 55 minutes 56
seconds East of the Southwest corner of said Section 9; thence North 89 degrees 55 minutes 56
seconds West on said North line 1,966.06 feet to the place of beginning, containing 96.921 acres,
more or less.
INDY 1426192v*3.
INDY 1426192vlO
Include list
INDY 1426192v*1J.
INDY 1126192'110
EXHIBIT B
MASTER LIST OF MAPS AND SUBMITTALS
.
Area MaD
Zonilll.! MaD
Mine Plan MaD
Reclamation Plan MaD
Landscaoilll.! Plan MaD
Cross Section Man
Groundwater Elevation Man
Ooeration Time Line
Pronertv Value Study
Erosion and Sediment Control Renort
Sound Level Assessment
Groundwater and Surface Water
Monitorinl.! Plan
Soill Prevention. Control and
Countermeasure Plan (SPCC)
.
.
.
.
.
.
.
.
.
.
.
.
1--
(Dated March 5. 2004)
(Dated March 5. 2004)
(Dated Amil 26. 2004)
(Dated Amil 26. 2004)
(Dated Mav 25.2004)
(Dated March 5. 2004)
(Dated Februarv 10.2003)
(Dated March 17.2004)
(Dated Januarv 30. 2003)
(Dated June 2004)
(Dated Seotember 2004)
(Dated June 2004)
(Dated Amil 1. 2003)
CommeRts/Reeommendations from John 1VIolitor:
Bclow, I have drafted ::mbstitutes for two paragraphs in MM's draft (replacing paragraphs 1 O(b)
and (c) in their draft) which the Board may want to impose on Mueller and MM, regarding
"takings" and Mueller's property rights.
1. Ramifications of .\poroval for Mueller. Mueller acknowledges and commits that a
property owner is not entitled under Indiana law to the highest and best use of the
owner's land. Mueller further acknm;'.'1edges and commits that if the BZ/~ approves this
special use application but subsequently declines to approve any or all other uses
contemplated by MM, neither the BZ/... nor the City shall thereby be deemed to have
prevented all reasonable use of the Mueller Property or to have denied the owner all
economically beneficial or producti'le use of its land.
2. Commitment of Martin Marietta Regarding Mueller. MM acknowledges and commits
that if the BZ.\ approves only the special use requested in this application, such appro'lal
'vYill allow the ovmer of the Mueller Property an economically beneficial and productive
use of its land, and such approval '.vill vest no right in MM or Mueller to any further
approvals of other uses contemplated by MM; nor '.vill such approval create a precedent
or any presumption that any other contemplated uses of the Mueller Property are
reasonable uses or are not injurious to the public health, safety, morals, or general welfare
of the community. MM further commits that if, notwithstanding the provisions of the
above paragraph, Mueller or its successors bring any claim or action against the BZA or
the City which alleges that the BZ.^~'s decisions or the City's zoning restrictions have
resulted in a taking or other deprivation of Mueller's property rights, MM shall
indemnify, defend, and save harmless the BZA and the City from and against all
judgments, liabilities, fines, penalties, or expenses arising out of such claim or action.
Finally, I v;'Ould recommend substituting the following paragraphs for paragraph 9 (Bl}~DING
EFFECT) and the last three paragraphs ofMM's draft. My main point here is to make sure that
any Commitments they make regarding property rights continue on for 99 years.
3. Effecti','e and Expiration Dates. These Commitments shall be effective from and after the
approval of the application by the BZ.\. These Commitments shall expire on December
31, 2103; however, any Commitments respecting reclamation shall expire earlier in the
event that MM completes its sand and gravel extraction operations on the Mueller
Property and reclaims said property in accordance with these Commitments.
1. Binding Effect. These Commitments are binding on MM as the CUlTent lessee and
Mueller as the current ovmer of the Mueller Property, each subsequent lessee and owner
thereof, and each person acquiring an interest therein, until the expiration date as
determined pursuant to the above paragraph, unless modified or terminated by the BZA
or its successor pursuant to this paragraph. Except as provided in the above paragraph,
these Commitments may be modified or terminated only upon (a) petition by MM or its
successor, and (b) approval by the BZA after notice and hearing pursuant to the BZA's
Rules of Procedure. Until they expire pursuant to the above paragraph or are modified or
INDY 1426192v~
INDY 1426192'/10
terminated pursuant to this paragraph, these Commitments shall be enforceable by the
City of Carmel or the BZ,'\ by injunctive relief, denial of building permits or approval, or
other appropriate administrative or judicial remedy, provided that any such relief, denial,
or other remedy is related to the Mueller Property and to some effects or harm from a
breach or violation of these Commitments by MM or Mueller. In any proceedings to
modify or terminate these Commitments, notice of hearing shall be given to the O\\'ners
of property a~ required by the Carmel Zoning Ordinance and the BZ,'\'s Rules of
Procedure.
PROPOSED COMMITMENTS ,A..S PROVIDED BY THE ,A..PPLICA...NT.
INDY I426I92v*-ll
INDY 1426192','10
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MARTIN MARIETTA MATERIALS. INC.
MmELLERPROPERTYSOUTH
SAND AND GRAVEL SPECIAL USE APPLICATION
Docket No. 04040024-SU
STATEMENT OF COMMITMENTS
COMMITMENTS CONCERNING THE USE OR DEVELOPMENT OF REAL ESTATE
MADE IN CONNECTION WITH PETITION FOR SPECIAL USE PERMIT
. Martin Marietta Materials, Inc. ("Martin Marietta"), makes the following COMMITMENTS
concerning the use and development of that parcel of real estate located near the intersection of
the southwest comer of 106th Street and Hazel Dell Parkway, in the City of Carmel, Hamilton
County, Indiana, which is more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the "Real Estate").
Statement of COMMITMENTS:
1. General Operational Commitments
(a) Martin Marietta will develop a sand and gravel operation on the Real Estate to
commence in 2004 and. continue for approximately 3 to 5 years, depending on
market conditions. Provided, however, that this permit shall expire seven years
from the commencement of sand and gravel extraction. Martin Marietta shall
notify the Director ("Director") of the Department of Community Services
("DOCS") of the City of Carmel (the "City") within seven days of such
commencement.
(b) The hours of operation regarding the extraction of sand and gravel will be 7:00
A.M. to 7:00 P.M., Monday through Friday, and from 8:00 A.M. to 2:00 P.M. on
Saturdays. No operations are permitted on Sunday and holidays.
(c) Extraction operations may be conducted outside these hours only (i) to supply
materials for inclusion in a public (state, federal or municipally directly funded)
project; (ii) to respond to an emergency; or (iii) to meet exceptional demands
caused by special projects requiring work outside normal hours. Operations
outside the above stated hours to meet the demands of a special project shall not
exceed fifteen (15) days in any calendar year. Except in the case of emergencies,
DOCS shall be advised of all operations outside of the stated hours at least 48
hours in advance of the work.
(d) Overburden removal shall be completed during the hours of 6:00 A.M. to 8:00
P.M between the months of November through March (except as necessary to
construct visual and noise barriers) and only on days other than Saturday, Sunday,
or holidays. Martin Marietta shall conduct all operations, including overburden
removal, in a manner so as to reasonably minimize noise, dust, and light impact
on surrounding properties.
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INDY 1426192v13
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~)
(e) No blasting shall occur on the Real Estate unless otherwise approved by the City
or the Carmel/Clay Board of Zoning Appeals ("BZA") under a future petition.
(f) No processing of sand and gravel, other than loading of raw material, shall occur
on the Real Estate unless otherwise approved by the City or BZA under a future
petition.
(g) No sales of any material shall occur on the Real Estate. This shall not prevent the
removal of topsoil overburden to be sold at Martin Marietta's 96th Street plant or
its Carmel Sand Plant located at 11010 Hazel Dell Pkwy.
2. Reports and Permits
(a) Prior to commencement of any work on the Real Estate, and thereafter continuing
during the period of its performance of all work, Martin Marietta shall provide
copies of approvals and permits from every governmental agency having
jurisdiction over the Real Estate and/or activities of Martin Marietta with respect
to the Real Estate, including all submittals to such governmental agencies, and
shall include all specifications and restrictions contained in such submittals and
approvals.
(b) Following approval of Docket No. 04040024 SU, Martin Marietta shall submit an
annual report on or before March 1 of each year showing the progress that has
been made in the development and mining of the Real Estate until final site
reclamation. DOCS shall make the report available for inspection and copying by
all interested parties.
(c) Martin Marietta will seek necessary permits to demolish the buildings located on
the Real Estate within six. (6) months of the approval of its request for a Special
Use Permit for the Real Estate.
(d) The relocation of Blue Woods Creek will be in accordance with the Blue Woods
Creek permit approvals and shall include the lining of Blue Woods Creek as set
forth. in the permit approvals. Martin Marietta will provide as-built plans to
appropriate parties (including DOCS) following the relocation construction.
Martin Marietta will also provide monitoring reports to appropriate parties
(including DOCS) following construction of the relocation. A copy of the
maintenance agreement will be provided to the City of Carmel Urban Forester,
Building Commissioner and Department of Engineering.
(e) The maps, submittals, and undertakings in the Technical Advisory Committee of
DOCS (liT AC") responses shall be deemed the application documents and shall
bind Martin Marietta. Attached hereto as Exhibit B is a master list of the maps
and submittals governing the application and this approval. In the event of a
conflict between maps or submittals, the most recent submittal shall be deemed to
supersede all prior maps or submittals and to be binding on Martin Marietta.
2
INDY 1426192v13
"
(f) Martin Marietta shall use the existing entrance on 96th Street for haul trucks and
other heavy equipment accessing the Real Estate (except as it may be necessary to
access the Real Estate from 106th Street for berm construction). No new
entrances are proposed in the Special Use application or allowed by the Special
Use approval. Access via the former River Road access point shall be limited to
construction of the berm, maintenance, and other ordinary vehicles not including
haul trucks. Provided, however, the Director is authorized to allow an additional
entrance on 106th Street if Martin Marietta proposes to use it for purposes of
crossing 106th Street to access the Mueller North property directly and haul
material to the Carmel Sand Plant across such Mueller North Property. Martin
Marietta is entitled to reserve a driveway access for such purposes across the
right-of-way it is otherwise dedicating to the City. The Director is authorized to
apply such conditions to any approval of a 106th Street driveway access as he
deems reasonable.
(g) The berm specified along 106th Street shall be substantially complete within one
hundred eighty (180) days of the commencement of the removal.of overburden
from the Real Estate. Completion shall include, but not be limited to, landscaping
installation and seeding. The Director is authorized to allow landscaping and
seeding to be deferred up to six (6) months to allow planting to be done at an
appropriate time seasonally.
3. Studies and Monitoring
If the Director determines that study or monitoring of off-site impacts, such as noise,
dust, or truck traffic by way of example is necessary, he or she shall notify Martin Marietta of the
particular matter needing study. Martin Marietta shall then present the Director with a proposal
to address the matter raised by the Director, at Martin Marietta's expense, within forty-five (45)
days. If the Director agrees with the proposal, Martin Marietta shall cause the study or
monitoring to be performed at its expense in the time frame set forth in the proposal. If the
Director does not agree with Martin Marietta's proposal, he or she shall modify it or present
Martin Marietta with his or her own proposal, and Martin Marietta shall pay the cost of such
studies.
4. Water Monitoring
Martin Marietta will cooperate with the City Utilities Department in the development of a
water quality monitoring program acceptable to the Utilities Department. Martin Marietta's
proposal in that regard is contained in the document titled "Groundwater and Surface Water
Monitoring Plan for the Mueller Property South Sand and Gravel. Operation Carmel, Indiana,"
dated June 2004, and previously submitted to the Utilities Department. Martin Marietta agrees to
pay for the monitoring and other activities proposed in the report to be performed by Martin
Marietta. Martin Marietta recognizes that the City wants to conduct additional monitoring at its
own expense and agrees to cooperate with the City to permit such additional monitoring. Martin
Marietta also agrees to build two weirs at its expense on Blue Woods Creek and to install flow
meters at points to be designated by the Utilities Department. Further, Martin Marietta shall
grant the City access to the monitoring points, flow meters, and related areas at all reasonable
3
INDY 1426192v13
times, subject to compliance with MSHA regulations. The City shall also have access to
monitoring locations on an as needed basis for emergency purposes.
5. Site Access Improvements
(a) Martin Marietta shall cause all truck traffic hauling sand and gravel to and from
the Real Estate for processing at the Carmel Sand Plant to utilize the existing curb
cut along West 96th Street (at the point of access to its existing Indy North
Quarry) for purposes of transporting sand and gravel from the Real Estate to the
Carmel Sand Plant. No such truck traffic hauling sand and gravel shall access the
Real Estate through 106th Street or Gray Road.
(b) Martin Marietta will construct, at its expense, a dedicated northbound left turn
lane along Hazel Dell Parkway at the entrance to the Carmel Sand Plant. This
improvement will be subject to the review and approval of the Carmel
Engineering Department. This improvement shall be reviewed and amended to
accommodate differing traffic patterns if the processing equipment at the Carmel
Sand Plant is moved to an alternate location prior to commencement of mining on
the Real Estate. DOCS is authorized to waive this commitment for up to one
hundred eighty (180) days if Martin Marietta shows that such a waiver is
necessary because of any delays in movement of the plant site.
(c) Martin Marietta shan commence all roadway improvements specified herein
expeditiously once plans are approved and pursue completion of such work
diligently.
(d) Martin Marietta shall furnish a bond in form acceptable to the Director to assure
that any damage done to that portion of Hazel Dell Parkway by trucks or
equipment hauling material from the Real Estate is.repaired to meet City roadway
standards.
(e) Martin Marietta will request approval from the Carmel City Council to vacate the
existing right-of-way associated with River Road, as located on the Mueller
Property South, once relocation of Blue Woods Creek is completed.
6. Compliance with Thoroughfare Plan
Martin Marietta will dedicate or cause to be dedicated a forty-five-foot half right of-way
for East 106th Street (Secondary Arterial) pursuant to the Carmel Thoroughfare plan, following
approval of its request for a Special Use Permit for the Real Estate. Martin Marietta shall be
entitled to reserve driveway access in the right-of-way for accessing the Mueller North Property
as referenced in paragraph 2(t).
7. Street Cleaning
Martin Marietta shall work diligently to minimize spillage of materials on the streets and
shall be responsible for keeping the streets and street intersections used to haul material from the
Real Estate clear of all sand, gravel and stone. There shall be an initial ninety (90) day trial
4
INDY 1426192v13
'1
period commencing with its regular use of the streets for this project during which Martin
Marietta is authorized to clean the streets used for hauling materials from the Real Estate on its
schedule. If the results are satisfactory to the Director, he shall be entitled to authorize Martin
Marietta to continue to clean the streets. on its schedule. The Director is authorized at any time,
however, to direct Martin Marietta to clean the streets daily and to clean any unusually large
spills of materials from the Real Estate immediately upon notice.
8. Buffers and Screening
(a) A buffer area of approximately 330 feet in width will be maintained along the
southern right-of-way of 106th Street. The relocated Blue Woods Creek will be
located in such buffer area. Martin Marietta shall construct a berm approximately
nineteen feet (19') in height adjacent to the southern right -of -way line in this area
as shown on the submittals. The berm shall be landscaped as provided in the
submittals and a six foot (6') high chain-link fence shall be built along such right-
of-way as shown on the submittals.
(b) A seeded berm along the western boundary of Hazel Dell Parkway approximately
fifteen (15) feet in height will be constructed and a six-foot (6') chain-link fence
will be installed as shown on the submittals.
(c) All landscaping will be completed consistent with the Conceptual Landscaping
Plan Map, a copy of which is on file in the Office of DOCS.
9. Environmental
(a) Sand and Gravel operations shall be conducted in conformance with the Federal
Clean Air Act and applicable statutes and regulations implemented by the Indiana
Department of Environmental Management.
(b) Martin Marietta shall maintain an approved Spill Prevention, Control, and
Countermeasures (SPCC) Plan for this facility, a copy of which is on file with the
Carmel Fire Department, and in the Office of DOCS.
(c) Martin Marietta will maintain an approved Stormwater Management and Erosion
and Sediment Control Report for this facility, a copy of which is on file in the
Office of DOCS.
(d) Martin Marietta agrees to use the best available technology allowed by MSHA
and other applicable regulatory authorities for its back-up alarms. Initially,
Martin Marietta proposes to install strobe safety lights on all of its equipment
operating on the Real Estate to the extent permitted by laws and regulations,
instead of back-up alarms, for operations after sundown and before sunrise.
Thesestrobes shall be installed within sixty days of the grant of this permit unless
the Director requests that Martin Marietta defer the installation of such strobes to
give the Director additional time to determine whether there is a better available
technology. Thereafter, the Director shall be entitled once every two (2) years to
advise Martin Marietta of the availability of newer, preferable technology and to
5
INDY 1426192v13
II i
.'
require that it be utilized if commercially available. Provided, however, that all
such safety measures shall conform to then existing laws, regulations and safety
standards with regard to back up protection. Martin Marietta further agrees
voluntarily to apply this condition to its equipment at the Carmel Sand Plant.
10. Reclamation
(a) The BZA recognizes that there is a pending application by Martin Marietta that
could affect the reclamation of the Real Estate. The BZA considers it important,
however, that the Real Estate have a viable use if the other pending application
relating to the Real Estate is not approved. Therefore, attached hereto are
examples of potential uses on reclamation and Martin Marietta agrees, upon
request of the landowner, to reclaim the property in such a manner as to be
suitable for one type of the attached uses. The BZA further recognizes, however,
that the property is currently zoned S-1 and that the zoning classification(s) and
uses in effect at the time of reclamation will have a substantial impact on how it
might then be used. The uses described herein are thus not endorsed by the BZA
or authorized by this Special Use permit, but are intended to describe potential
uses of the property, subject to appropriate zoning and land use review in the
future.
(b) Unless an alternative reclamation plan is approved, Martin Marietta shall reclaim
the Real Estate as an open space with (i) slopes no steeper than 3 to 1 and (ii)
domestic grass coverage of not less than 80% per square yard on all side slopes.
A minimum of six (6) inches of topsoil will be replaced in the areas to be
seeded/planted. A concurrent reclamation plan will be employed to the extent
possible.
(c) All reclamation shall comply generally with the reclamation guidelines adopted
by the Indiana Mineral Aggregates Association and will be completed consistent
with the Conceptual Reclamation Plan Map" a copy of which is on file in the
Office of DOCS.
(d) Martin Marietta will provide ,a reclamation bond payable to the City in an
appropriate and reasonable amount that, in the Director's discretion, is sufficient
to assure reclamation as described in the application for Special Use. This bond
will be kept in full force until Martin Marietta completes the reclamation of the
Real Estate, and shall be subject to amendment from time to time as deemed
necessary by the City to assure completion of the reclamation.
11. Binding Effect
These Commitments are binding on Martin Marietta as the current lessee and E. & H.
Mueller Development, LLC ("Mueller") as the current owner of the Real Estate, each subsequent
lessee and owner thereof, and each person acquiring an interest therein, until the expiration date
as determined pursuant to the above paragraph, unless modified or terminated by the BZA or its
successor pursuant to this paragraph. Except as provided in the above paragraph, these
6
INDY 1426192v13
Commitments may be modified or terminated only upon (a) petition by Martin Marietta or its
successor, and (b) approval by the BZA after notice and hearing pursuant to the BZA's Rules of
Procedure. Until they expire or are modified or terminated pursuant to this paragraph, these
Commitments shall be enforceable by the City of Carmel or the BZA by injunctive relief, denial
of building permits or approvals in respect of the Real Estate, or other appropriate administrative
or judicial remedy, provided that any such relief, denial, or other remedy is related to the Real
Estate and to some effects or harm from a breach or violation of these Commitments by Martin
Marietta or Mueller. In any proceedings to modify or terminate these Commitments, notice of
hearing shall be given to the owners of property as required by the Carmel Zoning Ordinance and
the BZA's Rules of Procedure.
12. General.
(a) This approval is specific to the Martin Marietta proposal for the mining of sand
and gravel on the Mueller South parcel only, and in no way implies that the BZA
has reviewed, condoned, or approved any aspect of any other application for
mining, either .limestone surface mining or limestone underground mining, by
Martin Marietta at that location.
(b) The denial of a future application to mine on the Real Estate shall not be deemed
a taking based on any theory that the Real Estate has become unusable for any
purpose other than mining by virtue of the grant of this Special Use permit.
Martin Marietta retains the right to challenge the denial of any future application
on any other ground or theory, including a taking theory not based on the grant of
the permit herein, whether based on state or federal laws or constitutions, board
rules, local ordinances, or otherwise.
(c) Martin Marietta shall provide access to City employees and their representatives,
including consultants, at all reasonable times for purposes of monitoring
compliance with these COMMITMENTS and any other responsibilities derived
therefrom.
These COMMITMENTS may be enforced jointly or severally by the BZA and/or the
City of Carmel.
The undersigned hereby authorizes the City of Carmel Department of Community
Services to record this Statement of Commitments in the Office of the Recorder of Hamilton
County, Indiana, upon final approval of Docket No. 040400024 SUo
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INDY 1426192vl3
1
IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument
this day of December, 2004.
MARTIN MARIETTA MATERIALS, INC.
By:
John J. Tiberi, Vice President/General Manager
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared John J.
Tiberi, the Vice President/General Manager of Martin Marietta Materials, Inc., who
acknowledged the execution of the foregoing instrument and who, having been duly sworn,
stated that any representations therein contained are true.
WITNESS my hand and Notarial Seal this
day of December, 2004.
Signature
Printed
NOTARY PUBLIC
My Commission Expires:
County of Residence:
8
INDY 1426192v13
E. & H. MUELLER DEVELOPMENT,
LLC, an Indiana limited liability company
By:
Signature
Its:
Printed Name and Title
STATE OF INDIANA )
) SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally appeared
, the Managing Member, authorized agent of E. & H. Mueller
Development, LLC, an Indiana limited liability company, who acknowledged the execution of
the foregoing instrument and who, having been duly sworn, stated that any representations
therein contained are true.
WITNESS my hand' and Notarial Seal this
day of December, 2004.
Signature
Printed
NOTARY PUBLIC
My Commission Expires:
County of Residence:
This instrument was prepared by and after recordation shall be returned to Zeff A. Weiss, Ice
Miller, One American Square, Box 82001, Indianapolis, Indiana, 46282-0200, Telephone (317)
236-2319.
9
INDY 1426192v13
EXHIBIT A
REAL ESTATE DESCRIPTION
Part of the North Half of Section 9, Township 17 North. Range 4 East of the Second Principal
Meridian in Clay Township, Hamilton County, Indiana, described as follows:
Commencing at the Northwest corner of Section 9, Township 17 North, Range 4 East of the
Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence South 89 degrees
55 minutes 56 seconds East (assumed bearing) on the North line of said Section 9, a distance of
1,336.18 feet to the Northwest corner of the East Half of the Northwest Quarter of said Section 9,
said comer being the PLACE OF BEGINNING of the within described real estate; thence South 00
degrees 11 minutes 12 seconds West on the West line of said East Half 1,716.00 feet; thence
South 89 degrees 55 minutes 56 seconds East parallel witl:l the North line of said Section 9, a
distance of 1,336.01 feet to the West line of the East Half of said Section 9; thence South 00
degrees 11 minutes 33 seconds West on the West line of said East Half 156.75 feet; thence South
89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a distance
of 919.68 feet to the Westerly line of real estate conveyed to the City of Carmel, Indiana, by a
documented titled "Certification of Clerk" recorded in the Office of the Recorder of Hamilton County,
Indiana. as Instrument Number 9709754848 (the following eight courses being on the Westerly line
of said real estate); 1.) thence North 08. degrees 36 minutes 31 seconds East 885.22 feet; 2.)
thence North 02 degrees 53 minutes 53 seconds East 201.00 feet; 3.) thence North 08 degrees
36 minutes 31 seconds East 660.61 feet; 4.) thence North 29 degrees 48 minutes 29 seconds West
55.59 feet; 5.) thence North 80 degrees 51 minutes 37 seconds West 303.34 feet; 6.) thence North
89 degrees 03 minutes 10 seconds West 148.00 feet; 7.) thence North 60 degrees 14 minutes 56
seconds West 57.55 feet; 8.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet to
the North line of said Section 9, said point being 3,302.24 feet South 89 degrees 55 minutes 56
seconds East of the Southwest corner of said Section 9; thence North 89 degrees 55 minutes 56
seconds West on said North line 1,966.06 feet to the place of beginning, containing 96.921 acres,
more or less.
INDY 1426192v13
EXHIBIT B
MASTER LIST OF MAPS AND SUBMITTALS
. Area Map (Dated March 5, 2004)
. Zoning Map (Dated March 5, 2004)
. Mine Plan Map (Dated April 26, 2004)
. Reclamation Plan Map (Dated April 26, 2004)
. Landscaping Plan Map (Dated May 25, 2004)
. Cross Section Map (Dated March 5, 2004)
. Groundwater Elevation Map (Dated February 10,2003)
. Operation Time Line (Dated March 17,2004)
. Property Value Study (Dated January 30, 2003)
. Erosion and Sediment Control Report (Dated June 2004)
. Sound Level Assessment (Dated September 2004)
. Groundwater and Surface Water
Monitoring Plan (Dated June 2004)
. Spill Prevention, Control and
Countermeasure Plan (SPCC) (Dated April 1, 2003)
INDY 1426192v13
CARMEL/CLAY BOARD OF ZONING APPEALS - CARMEL. INDIANA
PETITIONER - MARTIN MARIETTA MATERIALS. INC.
MUELLER PROPERTY SOUTH
SAND AND GRAVEL SPECIAL USE APPLICATION
Docket No. 04040024-SU
BALLOT
The undersigned, having considered (i) the Application for Special Use Permit filed
herein by Martin Marietta Materials, Inc. ("Applicant"), (ii) the submittals, testimony and
evidence in support thereof, (Hi) the submittals and testimony of remonstrators, (iv) as well as
statements of (a) the staff of the City of Carmel Department of Community Services, (b) the staff
of the City of Carmel Utilities Department, (c) other interested parties, as well as (d) counsel to
Applicant and remonstrators, and otherwise being duly advised in the premises, now finds and
states as follows:
o 1. That Applicant has established the criteria required for the issuance of a special
use permit under Chapter 21 of the Carmel/Clay Zoning Ordinance, and I hereby vote to adopt
the Findings of Fact attached hereto as Exhibit A, subject to the Statement of Commitments
attached hereto as Exhibit B:
o 2. That Applicant has established the criteria required for the issuance of a special
use permit under Chapter 21 of the .Carmel/Clay Zoning Ordinance, and I hereby vote to adopt
the Findings of Fact attached hereto as Exhibit A, subject to (i) the Statement of Commitments
attached hereto as Exhibit B and (ii)
; or
o 3. That Applicant has not established the criteria required for the issuance of a
special use permit under Chapter 21 of the Carmel/Clay Zoning Ordinance, the application
should be denied, and I hereby vote to deny the issuance of the requested special use permit.
Dated this 13th day of December, 2004.
Board Member
INDY 1469177vl
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CARMEL/CLAY ADVISORY BOARD OF ZONING APPEALS
Docket No: 04040024 SU
MARTIN MARIETTA'S PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Martin Marietta's Application
1. Martin Marietta Materials, Inc. ("Martin Marietta") has filed an application with
the Carmel-Clay Board of Zoning Appeals (BZA) for approval to mine sand and gravel on
property that it leases from the E. and H. Mueller Development, LLC ("Mueller Development").
The entirety of the tract for which a special use permit is sought is south of 106th St. and is
outlined and more particularly described on Exhibit "A" hereto. For convenience, the tract will
be referred to as "Mueller South" or the "Mueller South Property."
2. The Mueller South property is bounded on two sides by property owned by
Martin Marietta and currently used for mining. The property is bounded on the east by a major
thoroughfare, Hazel Dell Parkway, on the north by East 106th St. and, across that, by property
also owned by Mueller Development. No property currently used for residential purposes is
adjacent to the Mueller South Property.
3. The Kingswood residence nearest to the Mueller South Property is approximately
1700 feet from the closest point of mining proposed by Martin Marietta.
4. Martin Marietta's application was found to be complete by the Department of
Community Services and thereafter was the subject of multiple Technical Advisory Committee
("T AC") reviews.
5. As a result of comments during the TAC process, Martin Marietta made various
changes to its application.
INDY 1445716v2
6. In addition toTAC review, the City's mining consultants, Spectra Environmental
Group, Inc. ("Spectra") reviewed Martin Marietta's application. Representatives of Spectra also
testified before the Board with respect to Martin Marietta's application.
7. The City Utilities Department and its hydrology consultant, Wittman Hydrologic
Planning Associates, did a detailed hydrologic study of the potential impact of Martin Marietta's
mining operations on the City's nearest wells. John Duffy and Jack Whitman appeared before
the Board and testified that the proposed special use was not likely to adversely affect the City's
water supply. Mr. Duffy expressly testified that the Utilities Dept. can co-exist with the propose
special use.
8. Martin Marietta submitted all of the materials and information required by
Section 21.03 of the Carmel Clay Zoning Ordinance.
9. Martm Marietta's application is for sand and gravel extraction using mechanical
means. No blasting on the Mueller South property is proposed in the application or allowed as a
result of this decision.
10. Martin Marietta's application does not seek approval for processing on Mueller
South and none is permitted by this decision.
Leeal Framework in Which the Board's Decision Must Be Made:
11. The Mueller South property is zoned S-I. Under Section 5.2 of the CarmeVClay
Zoning Ordinance, mining is a "Special Use" in the S-1 district.
12. According to Section 21.04 of the Zoning Ordinance:
"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 the special
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INDY 1445716v2
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and unique conditions determined as a result of the review procedure established herein."
(Emphasis added.)
13. A Special Use is a use permitted upon a showing that the conditions specified in
the ordinance for the issuance of a permit have been met. Town of Merrillville Bd. Of Zoning
Appeals v. Public Storage. Inc., 568 N.E.2d 1092, 1095, (Ct. App. Ind. 1991), trans. Denied.
14. A board hearing an application for a special use permit is obligated to apply the
criteria established in the ordinance. Town of Merrillville. The Board does not have discretion
to apply different criteria from those set forth in the ordinance.
15. The Board's decision in this matter must be based on evidence taken at a quasi-
judicial hearing. Network Towers. LLC v. Board of Zoning Appeals of LaPorte County, 770
N.E.2d 837 (Ct. App. Ind. 2002). Speculation, unsupported opinions, generalized expressions of
fear or concern, and irrelevant matters are not evidence on which this Board can rely. Much of
the testimony offered to the Board by Remonstrators expressed concerns not about this
application, but about future developments involving blasting. Other testimony involved
speculation about what could happen in the future, much of which was irrelevant to this
application. This Board is not permitted to decide a special use permit application on the basis of
such concerns or speculation.
ComDliance with the Ordinance's 8Decial Use Requirements:
16. Section 21.04 of the Zoning ordinance sets forth the criteria to be applied by this
Board in granting or denying a special use permit. They are discussed below:
"The particular, physical suitability of the premises in question for the special use."
a. This standard is met. The Mueller South Property has a valuable sand and gravel
deposit located on it and is contiguous to a large, long established quarry. It will thus be able to
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INDY 1445716v2
II I'
I
share facilities with the existing quarry, including access roads, parking, equipment maintenance,
and offices, among other things. This will result in an efficient use of land and disturb the least
property, while still enabling recovery of the minerals on the property.
b. The Remonstrators' argument that the premises may also be suitable for other uses
does not address this criterion. Martin Marietta need not negate other possible uses, but must
merely show that the premises at issue are suitable for the special use requested.
c. Further, the Remonstrators' argument that the prermses are suitable for
residential uses is not consistent with their statements to the Board.
Remonstrators themselves oppose sand and gravel mining at a distance of more than 1700 feet
from the nearest home. It is inconsistent to suggest that residential use immediately adjacent to
the existing quarry is a better use of the Mueller South property.
The economic factors related to the proposed special use. such as
costJbenefit to the community and its anticipated effect on surroundine property values:
a. This standard is met. Mining the sand and gravel deposit on the Mueller South
Property provides a needed material with the least impact on the community. Martin Marietta
submitted a study of property values in the Kingswood neighborhood, which showed that they
have not been adversely affected by the existing mine. The City's consultant, Spectra, described
the study by Integra Realty Resources as "very comprehensive" and "agree[d] with the
conclusion that Mining at Martin Marietta has not negatively impacted property values."
The Remonstrators presented no evidence that approval of this application would
adversely affect property values.
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INDY 1445716v2
II I
The SociallNeiehborhood Factors Related to the Proposed Special Use Such
as Compatibility With the Existine Uses and Those Permitted Under Current Zonine
in the Vicinity of the Premises Under Consideration and
How the Proposed Special Use Will Affect Neiehborhood Inteeritv:
a. This standard is met. The Zoning Ordinance adopted by the Carmel City Council
expressly allows sand and gravel extraction as a special use on S-1 property. The City Council
has zoned the Mueller South property S-I, thus finding it to be compatible with the uses allowed
in that district. The City Council has further directed that "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 the special and unique conditions determined as a
result of the review procedure established herein."
b. Remonstrators offered no evidence that the property is "obviously inappropriate
as a result of special and unique conditions."
c. The evidence before the Board is that Mueller South is contiguous to an existing,
large quarry. It is obviously compatible with such use.
The adeauacv and availability of water. sewa2e.
and storm draina2e facilities and police and fire protection:
a. This standard is met. The proposed operation does not impose any additional
burdens on water, sewage or storm drainage facilities, nor does it implicate any additional police
and fire protection. The plan has been reviewed by all appropriate departments of the Carmel
city government in the T AC process, by the City's mining consultant, Spectra, and by the City
Utilities Department and its consultant. No one identified any inadequacy in the items specified
by this criterion.
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INDY 1445716v2
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Commitments:
19. DOCS has tendered commitments to the Board for its consideration if the Board
finds the standards in Section 21.04 are met.
20. The commitments mitigate any adverse impacts from the proposed special use
and assure it will be operated in compliance with local, state, and federal laws.
Conclusion
The Board finds that the criteria set forth in Section 21.04 for the issuance of the special
use permit requested by Martin Marietta are met and accordingly directs the issuance of the
permit, as limited by the commitments.
Leo Dierckman
James R. Hawkins
Earlene Plavchak
Madeleine Torres
Charles Weinkauf
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INDY 1445716v2
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