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HomeMy WebLinkAboutFindings of Facts & Ballot Sheets - adopted .;:/ o o ~..> CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARlETT A MATERIALS. INC. MmELLERPROPERTYSOUTH 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, (iii) 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 Band (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. INDY 1462123v2 ;; u o EXHIBIT A 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 ii (J o 6. In addition to TAC 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. Martin 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. Lee:al Framework in Which the Board's Decision Must Be Made: 11. The Mueller South property is zoned S-1. Under Section 5.2 of the Carmel/Clay Zoning Ordinance, mining is a "Special Use" in the 5-1 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 - 2 - INDY I445716v2 Q o ;;' 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 Apveals 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. Compliance with the Ordinance's Special 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 - 3- INDY 1445716v2 u o .... 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 premises 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 costlbenetit 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. -4- INDY 1445716v2 o o The SociallNeil!hborhood Factors Related to the Proposed Special Use Such as Compatibility With the Existinl! Uses and Those Permitted Under Current Zoninl! in the Vicinity of the Premises Under Consideration and How the Proposed Special Use Will Affect Neil!hborhood Intel!rity: 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-l property. The City Council has zoned the Mueller South property S-l, 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 adequacy and availability of water. sewal!e. and storm drainal!e 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. - 5 - INDY 1445716v2 u u The effects of the proposed Special Use on vehicular and pedestrian traffic in and around the premises upon which the Special Use is proposed: a. The special use application proposes to use the existing access points to the quarry. No additional entrances are proposed or allowed by this permit. The comments filed by the Remonstrators' traffic consultant show that the level of anticipated truck traffic associated with the special use is not sufficient to trigger a Transportation Impact Study under the City's rules and the Remonstrator's did not offer any additional evidence that there would be an unacceptable adverse impact on traffic if the special use is granted. Dump trucks, concrete trucks, other heavy trucks, and normal sized vehicles already use the roads applicant proposes to use and there is no evidence that they are inadequate for the proposed special use. Further, Martin Marietta has agreed to certain commitments for road improvements to mitigate any adverse effects. b. Pedestrian traffic will not be allowed on the property. The property will be barricaded by berms and fencing as described in the application package. 17. None of the findings offered by the Remonstrators address the criteria set forth above that this Board must use to decide this matter. Instead, the Remonstrators findings were addressed to legal matters involving the interpretation of the ordinance. 18. Although Remonstrators proposed that this Board find that the "Special Use is obviously inappropriate as a result of the special and unique conditions determined as a result of the review" by this Board, they offered no description of what those special and unique conditions are and the Board is unaware of any. -6- INDY 1445716v2 o o ;; 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 kd~ ,fames R. Hawkins --:-. feh"o~ Ear ne Plavchak ~~~~ ~(deleine Torres Charles Weinkauf - 7 - INDY 1445716v2 \.\ .. o o .; EXHIBIT A 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 1445716v2 , ,.' o o EXHIBIT B .. 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 EST A TE 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 it:t 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. - 1 - INDY 1426192v13 o o .: (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 andJor 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 ("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. - 2 - INDY 1426192v13 o o (0 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 I426I92v13 '. o o 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 atthe Carmel Sand Plant to utilize the existing curb cut along East 96th Street (at the point of access to its existing North Indy 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 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 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(f). 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 . .. o o 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. 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 - 5 - INDY I426I92v13 o (.;) 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 5-1 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. Thisbond 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 o o 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 - 7 - INDY 1426192v13 -,.j. w o 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 I426192v13 . " . o o 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 1426192vI3 " b o o 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 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 1426192v13 \ . . o o 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 ~ MARTIN MARIETTA ~ 04040024 SU MUELLER PROPERTY SOUTH INDEX 1. Application for BZA Action Special Use Approval Request City of Carinel 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 . April 2004 4. Erosion and Sediment Control Report Shelly and Loy Consultants June 2004 S. BZA Infotmational 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 ~uly 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 August 2004 9. Written Remonstrance KINGSWOOD Homeowners Association August 11, 2004 10. Summary of Application for Special Use Approval to mine Sand and Gravel City of Carmel August 10, 2004 Martin Index z-pb o (;) CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARlETT A MATERIALS. INC. MmELLERPROPERTYSOUTH 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, (iii) 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 :Jp licant and remonstrators, and otherwise being duly advised in the premises, now finds and sta es as follows: 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; D 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 Band (ii) ; or D 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. '-&w~~ INDY 1462123v2 / i- o (;) CARMEL/CLAY BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARIETTA MATERIALS. INC. MmELLERPROPERTYSOUTH 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, (iii) 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: K 1. That Applicant has established the criteria required for the issuance of a special ( ~~ermit 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 Band (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. . ~~ t6>IJ Dierc ~,J ~ INDY 1462123v2 -7 ! o o CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARlETT A MATERIALS. INC. MmELLERPROPERTYSOUTH 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, (iii) 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: ~ 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 Band (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. : /-~ ce~ V-'''->~''-'---' Y'. " // INDY 1462123v2 o o CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARIETTA MATERIALS. INC. MmELLERPROPERTYSOUTH 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, (iii) 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: N 1. That Applicant has established the criteria required for the issuance of a special ~ 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 Band (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. ~~~ I INDY 1462123v2 u u CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARIETTA MATERIALS. INC. MmELLERPROPERTYSOUTH 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, (iii) 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 Band (ii) ; or X 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. ~~~~ ~5~~o..')~ 7-r:>\.:J l ~ ~ 0 ~ "5-N'E. ~~~Cl~~\~(;, "";2.t)~\~G ~ ~O ~ ~~~->S ~ \,~L\C. ~ ~~~~~'- ~'R~\<:':'u~~~ ~D ~~\~~ ~~f-\c: INDY 1462123v2 ~ ~'n ~R ~~\~ ~"F ~\\:),,~~ ~-;. ,.. CITY OF CARMEL Department of Community Seroices One Clvlc Square Carmel, IN 46032 (317) 571-2417 Fax: (317) 571-2426 Fax To: Z-e.f~ W-eI'SS Fax: sQZ - Lf788 From: AV\01 (? C """'''IV""' . -' ~''- UV \ I \0 Pages: Phone: Date: Re: ~Qll~. S~~ CCI o Urgent 0 For Review D P.Jease Comment 0 Please Reply a Please Recycle t>ceQ.wJ ~ ko-d-s +(CJ\rV\ 1) Dc keA- t'J [) ~ . 6LJ070020 A c 040 Lf 002'-1 SUo CARMEL BOARD'OF ZONING'APPEALS CARMEL, INDIANA Docket No: '0'-1 0, OO"l...C:>> A Peti tioner: -roM "'(e::~u (!.K. APPEAL TO CARMEL BOARD OF ZONING APPEALS' 2. 1. 3. 4. s. 6. DATED this 2. S- day of Q:~#c-- ,~. . ;/-OtJ1 ~~~d BCAM MEMBER '-' - DEX:ISION . IT, IS ~RE the decision 'of the cannel Board of Zoning Appeals that Appeal ,DOcket ,No. 0'107002..0 A is (not) granted, subject to any conditions stated ~, the minutes of this Board, which are inco:rp::lrated herein by reference and made 'C!.':Part hereof. Adopted this day of " " '.. ' :z,;oo~ CARMEL BOARD'OF ZONING'APPEALS CARMEI" INDIANA Docket No: '0'-1 0-' C>O'2-e::. A Peti tioner: /OM "'(~u C!..K. APPEAL TO CARMEL BOARD OF ZONING APPEALS . 1. 2. 3. 4. 5. 6. DATED this &7' day of OC~, bz..~ ,~~~ ~;{~ ~ARD MEMBER . DEX:ISION . IT. IS ~RE tne decision 'of the Canrel Board of zoning Appeals that Appeal .DOcket .No. 0"1 o700z.o A is (not) granted, subject to any conditions stated ?-n. the minutes of this Board, which are incoJ:p:)rated herein by reference and ma.ie '.~':Part hereof. Adopted this day of ," " , . . , f'- , CARMEL BOARD'OF ZONING'APPEALS CARMEL, INDIANA Docket No: . O"i 0; OO'Z..C:l A Pet! tioner: 10M "'(~u ~K. APPEAL TO CARMEL BOARD OF ZONING APPEALS' 1. 2. 3. 4. 5. 6. DATED this -,}-t;;'th day of Oc~'o~ [)er ~ , ''3W~ k-,. /' ??/: Z~~ . ~tt'/-e:,'-~r...r,',...". ~... ,_~p~"~ ~ MEMBER v' .,-~" DEX::ISION . IT, IS ~ the decision 'of the camel Board of Zoning Appeals that Appeal ,DOcket No. 0,",07002..0 A is (not) granted, subject to any conditi.a1s stab-~ ~, the minutes of this Board, which are inCOIpJrated herein by reference and made '.~':Part hereof. Adopted this day of " ,. . .- , - z-ooCof / CARMEL BOARD.OF ZONING'APPEALS CARMEL, INDIANA Docket No: 'OLof 0; 0'0'2..0 A Peti tioner: 10M "'(e;:~u ~K APPEAL TO CARMEL BOARD OF ZONING APPEALS . 1. 't\~ ~6-'\l\1'z..R ~ ~ \-~ NC,\o:)-<:f>~~\l'<\.\C6 \="~OCE?~S~\~<O e\i= o~. <;;:tt~ t1\~~,~,- \.~ es:..-. ~ ~~ L"'h.~ 2. 3. 4. 5. 6. DATED this day of , 198 . ~~\J~'4Jf BOA MEMBER . DEX:ISION . IT. IS ~RE the decision 'of the Canrel Board of Zoning Appeals that Appeal .D6cket.No. O"10700l.C:> A is (not) granted, subject to any cxmditions stabsd in the minutes of this Board, which are incorporated herein by reference and made '~.:Part hereof. h10pted this day of .' ,. . .- , 1 - z-oo.., CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARIETTA MATERIALS. INC. MrnELLERPROPERTYSOUTH SAND AND GRAVEL SPECIAL USE APPLICATION Docket No. 04040024-SU BALLOT The undersigned, having considered (i) the Application for Special Use Pennit filed herein by Martin Marietta Materials, Inc. ("Applicant"), (ii) the submittals, testimony and evidence in support thereof, (iii) 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 aild states as follows: o 1. That Applicant has established the criteria required for the issuance of a special use pennit under Chapter 21 of the CanneVClay 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 pennit under Chapter 21 of the CanneVClay 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 X 3. That Applicant has not. established the criteria required for the issuance of a special use permit under Chapter 21 of the CanneVClay Zoning Ordinance, the application should be denied, and I hereby vote to deny the issuance of the requested special use pennit. Dated this 13th day of December, 2004. ~~~~ ~5~OO~ M~ l":'~ O~-5.~ ~~~~~n.\~{;. ""'U~~G:t ~ ~O d.::lO. ~~~-s;s ~ ~O~\<. ~ ~~~~~L. \)\a."\C~'-~~ ~b ~~\~ ~~f-\C: INDY 1462123v2 ~ ~'n' ~R ~~\~ ~F ~\\::)\\:J~ CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARIETTA MATERIALS. INC. MmELLERPROPERTYSOUTH 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, (iii) 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 Jp licant and remonstrators, and otherwise being duly advised in the premises, now finds aild sta es as follows: 1. That Applicant has established the criteria required for the issuance of a special use permit under Chapter 21 of the CarmeVClay 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 CarmeVClay 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 CarmeVClay 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. ~~~ INDY 1462123v2 CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARIETTA MA TERIALS.INC. MmELLERPROPERTYSOUTH 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, (iii) 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 arid states as follows: X 1. That Applicant has established the criteria required for the issuance of a special (~~ermit 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. . ~~ h$ l)lerc '/4!4;/ ~ INDY 1462123v2 CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARIETTA MATERIALS. INC. MrnELLERPROPERTYSOUTH 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, (iii) 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: ~ 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. :/,/' ,,- ~/7 ~,.:::"" ..-' l-' ,../ .," w:;"./ ~ '-,/>-: ./'(.._....... '--... .,~ /'. INDY 1462123v2 CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETITIONER - MARTIN MARIETTA MATERIALS. INC. MmELLERPROPERTYSOUTH SAND ANDGRA VEL 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, (iii) 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 aild states as follows: N 1. That Applicant has established the criteria required for the issuance of a special J;e permit under Chapter 21 of the CarmeVClay 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 CarmeVClay 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. ~~~ I INDY 1462123v2 ., CITY OF CARMEL Department Of Community Setvices One CMc Square Carmel, IN 4SCX32 (317) 571-2417 Fax: (317) 571.2426 Fax To: -z.-e -\~ ~<)S Fax: r(; 91- - L/l B~ From: A'n?J1e ~ '1-\ \ L- - 'Y - L 001.\ Pages: Phone: Date: Re: OL\0L1002.4 ~U -~.O. F.cc: o Urgent 0 For Review CI Please Comment CI Please Reply a Please Recycle CARMEUCLA Y 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, (iii) 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 aild 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 Cannel/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. INDY 1462123v2 .. EXHmIT A CARMEL/CLA Y 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 Cannel-Clay Board of Zoning Appeals (BZA) for approval to inine 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 pennit 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 (liT 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 to TAC 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. Martin 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. Lee:al Framework in Which the Board's Decision Must Be Made: 11. The Mueller South property is zoned S-1. 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 - 2- INDY 1445716v2 and unique conditions determined as 0 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.lnd. 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. Compliance with the Ordinance's Special 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 - 30_ INDY 1445716v2 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 3!e suitable for the special use requested. c. Further, the Remonstrators' argument that the premises 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 cost/benefit to the community and its anticipated effect on surroundinl! 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. -4- INDY 1445716v2 The SociallNeiehborhood Factors Related to the Proposed Special Use Such as Compatibilitv With the Existine Uses and Those Permitted Under Current Zonine in the Vicinitv 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 availabilitv of water. sewaee. 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 TAC 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. - 5 - INDY 1445716v2 The effects of the proposed Special Use on vehicular and pedestrian traffic in and around the premises upon which the Special Use is proposed: a. The special use application proposes to use the existing access points to the quarry. No additional entrances are proposed or allowed by this permit. The comments filed by the Remonstrators' traffic consultant show that the level of anticipated truck traffic associated with the special use is not sufficient t~ trigger a Transportation hnpact Study under the City's rules and the Remonstrator's did not offer any additional evidence that there would be an unacceptable adverse impact on traffic if the special use is granted. Dump trucks, concrete trucks, other heavy trucks, and normal sized vehicles already use the roads applicant proposes to use and there is no evidence that they are inadequate for the proposed special use. Further, Martin Marietta has agreed to certain commitments for road improvements to mitigate any adverse effects. b. Pedestrian traffic will not be allowed on the property. The property will be barricaded by berms and fencing as described in the application package. 17. None of the findings offered by the Remonstrators address the criteria set forth above that this Board must use to decide this matter. Instead, the Remonstrators findings were addressed to legal matters involving the interpretation of the ordinance. 18. Although Remonstrators. proposed that this Board find that the "Special Use is obviously inappropriate as a result of the special and unique conditions determined as a result of the review" by this Board, they offered no description of what those special and unique conditions are and the Board is unaware of any. -6- INDY 1445716v2 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 ~~ I'ames R. Hawkins ~ ~kbo~ Ear e Plavchak . .' ,/'''.--.--;;> i_--;/ C~ I -" ...,---'--' ,,/"" ../':c:.=-.,.... .. -- .' -,' V\'2:;5~'-;::::::::--- Madeleine Torres ...... i Charles Weinkauf - 7 - INDY 1445716v2 EXHIBIT A 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 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 16.60 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 1445716v2 , \- ,/ EXHIBIT B 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 EST A TE 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 (Hi) 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 it:J. 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. - 1 - INDY 1426192v13 (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 ~ntrance 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 atthe Carmel Sand Plant to utilize the existing curb cut along East 96th Street (at the point of access to its existing North Indy Quarry) for purposes of transpor1;ing 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 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 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(f). . 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 \ I 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. 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 - 5 - INDY 1426192v13 require that it be utilized if commercially available. Provided, however, that all such safety measures shall conform to then existing laws, regulatioris 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 tha,t 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 COM:MITI.1ENTS 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 -7- INDY 1426192v13 IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument this day of December, 2004. MARTIN MARIETTA MATERIALS, INe. 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 PUBUC 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 comer of Section 9, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence South B9 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 comer 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 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 B9 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 970975484B (the following eight courses being on the Westerly line of said real estate); 1.) thence North 08 degrees 36 minutes 31 seconds East B85.22 feet; 2.) thence North 02 degrees 53 minutes 53 seconds East 201.00 feet; 3.) thence North OB 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 BO degrees 51 minutes 37 seconds West 303.34 feet; 6.) thence North B9 degrees 03 minutes 10 seconds West 148.00 feet; 7.) thence North 60 degrees 14 minutes 56 seconds West 57.55 feet; B.) 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 Fax .< ..:-....',...:'J CITY OF CARMEL Department of Community Services One CMc Square Carmel, IN 4ED32 (317) 571-2417 Fax: (317) 571-2426 To: ,I?I:I~./L- \ Fax: 0 g, .., '-/777 Phone: Re: Fram'~ ~n7 Pages. ~~~. ~ Date: /-11 - !) ..:; CCI o Urgent D For Review . D P.lease Comment 0 Please Reply o Please Rscy\:le ... '71~~ ~J~ CARMEL/CLA Y 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"), (H) 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 (H) ~~~ ~5~f'R.OO~ ~'" l..::aGo. O~ ~~ ~~~tl~n.\~G., "'"U~~G ~ ~O ~ ~~~s'S ~ ~c~\...\<. ~ ~*-~~~L- ~'ii.\\\(;':u'-~~ ~b ~~\~ ~~~\C INDY 1462123v2 ~ ~'n ~\-< ~~\~ e1== ~\~\~e:. CARMEL/CLA Y 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, (iii) 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 jp licant and remonstrators, and otherwise being duly advised in the premises, now finds and sta es as follows: 1. That Applicant has established the criteria required for the issuance of a special use permit under Chapter 21 of the CarmeVClay 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 CarmeVClay 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 CanneVClay 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. ~~~ INDY 1462123v2 CARMEL/CLA Y BOARD OF ZONING APPEALS - CARMEL. INDIANA PETI-I'-ffiNER---MAR-HN-MARIE1JT-A---MATE-RIA-L-S~C. ~LLERPROPERTYSOUTH 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, (iii) the submittals and testimony of remonstrators, (iv) as well as statements of (a) the staff of the City of Carmel Depamnent 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 aild states as follows: K 1. That Applicant has established the criteria required for the issuance of a special ( ~~ermit 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 Band (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 Cannel/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. . ~~ t~ 7)ier? "/4t4;./ ~ INDY 1462123v2 ........ .CARMEL/CLA Y BOARD OFZONINGAPPEALS~CARMEL.INDIANA PETt-Tf ~ERI1\tS;INe. 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, (iii) 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: ~ 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 Cannel/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. :/ .,. //, ~'/' \,... "'/ " ,~_ "../' ,...-(...,/,' .' \ 6/?' / ./.... (".... _"..,,' v~~ .' ,. / INDY 1462123v2 '_ I CARMEL/CLA Y 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 Pennit filed herein by Martin Marietta Materials, Inc. ("Applicant"), (ii) the submittals, testimony and evidence in support thereof, (iii) 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: N 1. That Applicant has established the criteria required for the issuance of a special ~ pennit 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 pennit 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 pennit 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 pennit. Dated this 13th day of December, 2004. ~L~ I INDY 1462123v2 EXHIBIT A CARMEUCLA Y ADVISORY BOARD OF ZONING APPEALS Docket No: 04040024 SU MARTIN MARIETTA'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Martin Marietta's ADDlication 1. Martin Marietta Materials, Inc. ("Martin Marietta") has filed an application with the Cannel-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 to TAC review, the City's mining consultants, Spectra Environmental .... ... ,~".,_,,~,,_,,"_._~___.__._..." n" ,,__~_'"_"__'~"_"""'''''_'_''~ ... ...... .__.~._..__...-..." --....--_.........-......"..-...--_.......--.. ,~,,_..._.,..-._--."_....__..--,._...---.._~. Group, Inc. ("Spectra") reviewed Martin Marietta's application. Representatives of Spectra also ~estifte~rethe13oard witlrrespect-ro-MmtrrMartetta's-applicatton:------------------------ 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. Martin 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-1. 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 -2- INDY 1445716v2 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 Menillville 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. Compliance with the Ordinance's Special 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 - 3.- INDY 1445716v2 share facilities with the existing quarry, including access roads, parking, equipment maintenance, . ,-",~",,"-"'-"''''''''--'~''' .. .........--......... . ,._..._._.._._....----.-.----_.__.............._..._..-..~-----.._....__..--. --,- and offices, among other things. This w~ll result in an efficient use of land and disturb the least propeIly, while still enabling recovery of the n1inerals on the propeny. 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 premises 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 costlbenefit to the community and its anticipated effect on surroundin2 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. -4- INDY 1445716v2 The SociallNeiehborhood Factors Related to the Proposed Special Use Such as Compatibility With the Existine Uses and Those Permitted Under Current Zonine in the Vicinitv 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 th;lt Mueller South is contiguous to an existing, large quarry. It is obviously compatible with such use. The adeQuacv and availabilitv of water. sewaee. 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 TAC 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.t - 5 - INDY 1445716v2 '. " The effects of the proposed Special Use on vehicular and pedestrian traffic in and around the premises upon which the Special Use is proposed: a. The special use application proposes to use the existing access points to the quarry. No additional entrances are proposed or allowed by this permit. The comments filed by the Remonstrators' traffic consultant show that the level of anticipated truck traffic associated with the special use is not sufficient tc! trigger a Transportation Impact Study under the City's rules and the Remonstrator's did not offer any additional evidence that there would be an unacceptable adverse impact on traffic if the special use is granted. Dump trucks, concrete trucks, other heavy trucks, and normal sized vehicles already use the roads applicant proposes to use and there is no evidence that they are inadequate for the proposed special use. Further, Martin Marietta has agreed to certain commitments for road improvements to mitigate any adverse effects. b. Pedestrian traffic will not be allowed on the property. The property will be barricaded by berms and fencing as described in the application package. 17. None of the findings offered by the Remonstrators address the criteria set forth above that this Board must use to decide this matter. Instead, the Remonstrators findings were addressed to legal matters involving the interpretation of the ordinance. 18. Although Remonstrators. proposed that this Board find that the "Special Use is obviously inappropriate as a result of the special and unique conditions determined as a result of the review" by this Board, they offered no description of what those special and unique conditions are and the Board is unaware of any. -6- INDY 1445716v2 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 Dierckrnan ~u:- t'ames R. Hawkins ----..:..... fier~~ Ear ne Plavchak / j./ ~ t-'::>L;'/~ ",Y " Madeleine Torres ti'~' ,~",,'"""-"-:7 h ':1"'''",.';:;::;- :,~~~,"'"-' Charles Weinkauf -7- INDY 1445716v2 EXHIBIT A 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 1445716v2 EXIDBIT B MARTIN MARIETTA MATERIALS. INC. _____ J,\flJELLER 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 i~ 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. - 1 - INDY 1426192v13 i' (e) No blasting shall occur on the Real Estate unless otherwise approved by the City ... .___o.uhe_CarmellClay_Board_ofZoningApp_ealsJ~~BZA~lIlRdeLaluluLe__pe.titiQIl.__.....___...___...__...____... (f) No processing of sand arid gravel, other than loading of raw material, shall occur on the Re-al-Eslale unless oUlerwise-approved-bythe-eit~zr\-undera-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 ~ntrance on 96th Street for haul trucks and _~lher hea_Y)'_eg!liP-me!lLll~~~'!~Q~J.h~_J~~~~ Eslate (~xcep_~s !!lI!~J!~_l1~ces!l!fy_tQ...______ __ 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--vicrthe--furmerRiverRoad access point shalt-be-timited-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 .. ..._.lnonitorlngJocations.QILan.as...neede.d.basis.ior.emergency..pur:p.Q_ses~......_._.....__....__..__.__..._.__._._ ............_........._........ 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 Cannel Sand Plant to utilize the existing curb cut along East 96th Street (at the point of access to its existing North Indy Quarry) for purposes of transporting sand and gravel from the Real Estate to the Cannel 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 Cannel Engineering Department. This improvement shall be reviewed and amended to accommodate differing traffic patterns if the processing equipment at the Cannel 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 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 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 Cannel 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(f). . 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 period commencing with its regular use of the streets for this project during which Martin .Marietta.is .authorizedto.cle.anthe..streets....usedJoLhaulingmateriaIs..Jrom.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 Manetta 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. 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 -5- INDY 1426192v13 , _f require that it be utilized if commercially available. Provided, however, that all . ... .... _._s_u.ch_s.afety_me_asures_.shallcQuform.tQ.JbeD_existingJ.aw.s--.JegulatiQ.Ds._and._safet;y 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. Thisbond 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 ____~\:l~~~_~~9L~JL(Ql!l..ImLQy~~y-.the Jt~AJlf1;~r].otice ~clh~~~!KQ!l1'S!!an!JQ-.t~1!ZA~J~!lt~~_QL___ 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 penn..its or approvals in respect of the Real Eslale, U1 ulher appLUp1iale aUIuillist1ali ve 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 andlor 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 -7 - INDY 1426192v13 IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument __ _Jbis ~ o(It~ernJ'-~J;'-,_2.o0i,__..________..._________...._........___________..____________________...__.______._______._.__________ MARTIN MARffiTTA 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 EXillBIT 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 comer 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 comer 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 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 comer 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 EXHmIT 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