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HomeMy WebLinkAboutIntervenors' Brief " , '. " STATE OF INDIANA CARMEL ADVISORY BOARD OF ZONING APPEALS Docket No. 04060001 A CITY OF CARMEL /:;~l 11. ,-~ ~,. \\!it.!..- ....!-.:'.J /) ~ , \./ ~i!}" ~''Y'y' ~ "Y/\ III AECfYVED ~\ ~'-'l dlll/ ,1?,fl/l t.~ t",',],? j,.i:;>. .-\ D " \0:\ Des I: I \ /\ h. ,-,''f 0( ^ ,,(,')}/ ,/~~ /.....;/ '''~~' / "1-.... ,~/( \// '....... I f l1--r-r -U::J\ \ ,./ '-'-I'''-'!L~I_.J"~..:~:;./' Department of Community Services of the City of Carmel/Clay Township v. Martin Marietta Materials, Inc., flk/a American Aggregates Corporation, a/k/a Carmel Sand and Gravel INTERVENORS' BRIEF FOR THE JUNE 28, 2004 HEARING This brief ,is submitted by counsel on behalf of Kingswood Homeowners Association, Inc., William D. McEvoy, Larry J. Kane, and Greg Policka . (collectively, the "Intervenors"); who have filed their Motion to Intervene in the captioned matter as interested and affected citizens and property owners. Defining the Issue. The Carmel Department of Community Services ("DOCS") has requested that the Carmel/Clay Advisory Board of Zoning Appeals ("BZA") hear the issue of whether or not the current use' of the Carmel Sand Plant owned by Martin Marietta Materials, Inc. ("MM"), 'located north of 106th St.--and west of Hazel Dell Rd., within.theucity-limitsnn af Carmel, Indiana, conforms to the current Carmel City Code, adopted as Ordinance No. Z-289 by the Common Council of the City of Carmel, as amended ("Zoning Ordinance"). '.This issue was raised by Thomas Yedlick, a citizen of Carmel who is directly affected by the use of the Carmel Sand Plant, in his letter to the DOCS dated December 16, 2003. In his letter, Mr. Yedlick alleges that the ,Carmer Sand Plant was once a legally established nonconforming use as ,to the processing of sand and gravel extracted from the MM land upon . , which the' processing plant is located, but (a) that it is not a legally . , ,estaollsned nonconforming use with respect to the processing of sand and gravel material extracted from sites other than the one upon which the . processing plant is located and (b) that is has now lost its legal nonconforming use status-weo.asJo-1he. processing. of sand and gravel , mined on its own site due to the termination of mining activities on the site for over one year. . . .~ The Intervenors believe that the proper procedure under Indiana statutes is for the DOCS to investigate such allegations and either (a) issue a citation of zoning use violation, or (b) elect to not issue such citation (i) because the use conforms to the Zoning Ordinance or (ii) because the use is a legally established nonconforming use. However, the DOCS has apparently made no decision and referred the question of nonconforming use to the BZA pursuant to an interpretation of Section 28.06 of the Zoning. Ordinance. Counsel for the BZA has agreed with the DOCS and has agreed to create special rules of procedure for the BZA to follow in making its determination. Section 28.06 of the Zoning Ordinance, the interpretation of which is really' at issue, reads as follows: 28.06 Existence of a Nonconforming Use. In circumstances where there is a question whether or not a nonconforming use exists, it shall be considered a question of fact and shall be decided by the [BZA] following public notite and a public hearing in accordance with the Rules of Procedure of the [BZA]. In other words, if the DOCS threatens to issue a citation against a property .owner for (i) illegal (nonc.onforming) use, or. (ii) maintainiflg an illegal development standard, but the defendanUrespondenUproperty owner . ' claims that the use either does not exist, . or that if it does exist the use is legal, then the BZA, according to Section 28.06, -is-be the body that decides whethero-rnonheu~x~' nonOO-UOCS-:--section28.06 does not authorize the BZA to make a final determination With respect -to whether a use is a "legal nonconforming use," but simply whether or not the use is nonconforming to the current zoning ordinances ajJpli(,;CllJl~ to t11~ site in question. Therefore; the I ntervenors-believe that--ifthere-is-an-issue-before-theBZA~ . . .. that issue is narrowly defined as Whether or not a nonconforming use exists, nothing more. Subject~Matter Jurisdiction. .In addition to narrowing the scope of the' substantive portion of the BZA hearing; the Intervenors believe that the'" BZA lacks the subject matter jurisdiction to hear even the question of -nonconforming use unless and until the DOCS has made its decision .and a . . disappOinted party or Citizen h~~ til~d-aQ~peatio.::1be-BLA-:Df.::such:::I;l~:~::=::~===--==-'=~~:::- decision. In support of this opinion, the Intervenors Would show"the' following: , . . \: 1. Under Indiana law,' boards of zoning appeals are' not granted unlimited jurisdiction. Boards of zoning appeals are not 'delegated all authority otherwise not assigned to other tribunals. Rather, boards of zoning appeals are delegated only the following limited authority: a. . The. authority to hear appeals from determinations by an administrative official, administrative board or other body (except a plan comrnission in relation to the enforcement of the zoning ordinance), or: appeals from determinations regarding improvement location permits or occupancy permits, under Indiana Code Section 36-7-4-918.1; b. The authority to grant applications for special exceptions, special uses,. contingent uses, and . conditional uses, under Indiana Code '.. Section 36-7-4-918.2; c. The authority to approve petitions for variance of use, under Indiana Code Section 36-7-4-918.4; and d. The authority to approve petitions for variance of . development standards, under Indiana Code Section 36-7-4-918.5. 2. Based on the above sections of the Indiana Code, the Common Council for the City of Carmel does not have the power to delegate to the . BZA the authority to declare uses as conforming or nonconforming except . when the issue is imbedded within the appeal of a determination of an . ,administrative official, in this case, a DOCS decision. Because the issue of nonconforming use is not relevant to a petition for special use, special exception, conditional use, contingent use, variance of use, or variance of development standards, the only relevant Indiana Code section is 36-7-4- 918.1, quoted above. 3: Under the BZA's own rules, the BZA has rulesuforhearinga(:}peals, ~ Sections. 30.01 and 30.02 of the Zoning Ordinance, and for hearing petitions for variances, Sections 30.04, 30.05. and 30.08. There are no rules for hearing determinations of nonconforming use separate from other proceedings. In fact, the DOCS has requested thaCeounsel to the-SZA create special rules for the BZA to hear such matters.' This is further indication.-that,--apart'-ffoffi---tt-te-ambiguous.t".eference-todetermining...a certain' fact found in Section 28.06,. quoted above, neither the Common Council for the City of Carmel nor the BZA really expects to hear such . matters as separate questions of fact. 4. This matter was referred to the-BZA based on a mere letter from 'a . citizen alleging a zoning violation. The Intervenors do 'not believe that the DOCS refers all allegations of zoning violations to the BZA for initial' . . " determination of nonconforming use and that it should not do so in this case, either. '5. The DOCS has not issued a citation to MM for violation of the Zoning Ordinance, so there is no decision of the DOCS from which MM or the Intervenors may appeal. In fact, Intervenors are not aware of any formal investigation into the facts necessary to determine whether or not the use is nonconforming and whether or not it is legally established, 'leaving the BZA in the position of trying to make a decision based on uncorroborated testimony and supposition. This the BZA should not do. 6. Therefore, the question of whether or not a nonconforming use exists should be determined in the first instance by the DOCS, and if a nonconforming use exists, then the DOCS should issue a citation to MM to, cease such use. If MM believes there is justification for their continued nonconforming use, then MM would have the right to appeal the DOCS decision to the BZA within 30 days. Likewise, if the DOCS determines that the nonconforming use is legal, then interested neighbors such as the Intervenors would have 30 days within which to file an appeal to the BZA, . all pursuant to Section 30.01 of the Zoning Ordinance. I he BZA will then review the determination by the DOCS to see if it was correct. 7. If the BZA hears this case, it is possible that the DOCS might be deemed to have waived its potential right to appeal an adverse decision by the BZA by bringing this matter tathe BZA prior to making its own decision. , ",If so, then a decision by the BZA regarding the use by MM might not be appealable by the DOCS or any party, such as the Intervenors, who might agree with the DOCS on the substantive issues. Therefore, (a) the Intervenors hereby OBJECT to the hearing on the merits by the BZA of this matter based on lack of subject matter jurisdiction, and (b) the Intervenors DO NOr WAIVE their right to appeal, on the basis of 13ck of subject rTl8ttAr. jurisdiction, any decision that the Intervenors believe to be adverse to them. ' . Subs.tantive Issues. In the event that the BZAdecides to hear this matter, then without waiving any rights of appeal, the Intervenors submit the following analysis for the BZA's review: A. Determination of Nonconforming Use. The first inquiry must ,be to determine if the use presently being made of the Carmel Sand Plant is a conformi'ng or nonconforming use under the Zoning Ordinance. The Intervenors believe that the present use is nonconforming and request that the, BZA hold as such. The Intervenors believe that the processing of sand and gravel is an industrial use because it is defined as such in the Zoning Ordinance. , . " For instance, at Section 3.07 of the Zoning Ordinance, are found the following Definitions: "Borrow Pit" is defined as follows: An area of land from which earth is removed for use on another site and a permanent or temporary irregular terrain is created; "Manufacturing, Heavy" is defined as follows: The manufacture or compounding process of raw materials. These activities or processes would necessitate the storage of large volumes of highly flammable, toxic materials or explosive materials needed for the manufacturing process. These activities may include disposal of radioactive materials, fertilizer manufacturing, leather curing and tanning, lime, cement, asphalt, and gypsum refining and manufacturing, petroleum' refining and manufacturing, reclaiming processes involving materials and/or chemicals that are considered ":dangerous,tothe health, safety and welfare'of the general public as determined by the State of Indiana, Board of Health, or the City of Carmel, slaughtering, stock yards, wood preservatives refining and manufacturing, and the' manufacture of flammable liquids or gases. "Manufacturing, Light" is defined as follows: The manufacture, predominantly from previously prepared materials, of finished products or parts, including processing, fabrication, assembly, treatment and packaging of such products, and incidental storage, sales, and distribution of such products, but excluding basic industrial processing and custom manufacturing~ This may include a lithographing establishment. "Mineral Extraction" is defined as Any process used in obtaining, from the earth, naturally occurring substances. In Appendix A of the Zoning Ordinance is a comprehensive Schedule of , Uses for all zoning districts in the City of Carmel and Clay Township. The land, upon which the Carmel Sand Plant is Jocated is presently zoned'S- 1/Residence District. Under the S-1 classification, there are a variety of uses permitted, including single family dwelling, model home, public," . service facility, general agriculture, public park, and "collocated antenna. Neither any type of manufacturing nor mineral extraction is inclUded as a. ' permitted use in S-1. v The Intervenors submit that the use being made of the Carmel Sand Plant, being the processing of raw aggregate materials into particular grades of sand and gravel, is a manufacturing process, more particularly defined as "Manufacturing, Heavy," and as further defined in the Special Uses that are permitted following BZA approval under the M-1/Manufacturing District. As such, this manufacturing use is not a permitted use in the S-1/Residence District, and therefore such use of the Carmel Sand Plant is nonconforming. Being a nonconforming use, the BZA should determine it to be such and refer the matter to the DOCS for enforcement of the Zoning Ordinance, particularly Section 2.01 thereof. B. Determination of Illegality of the Nonconformity. Assuming that the BZA elects to make a determination as to the illegality of the Carmel Sand Plant importation and processing of off-site material, and without waiving any rights to appeal, the Intervenors submit the following analysis for the BZA's review: Once the use of the Carmel Sand Plant is determined to not conform to the S-1/Residence District requirements, the BZA (provided it has subject matter jurisdiction) must then determine if there is some ground upon which such nonconforming use should not be prohibited (provided the Section 28.06 gives the BZA such authority). Carmel Zoning Ordinance. The first source of authority regarding legal establishment of nonconforming uses will always be found in the applicable Zoning Ordinance. In this case, the Zoning Ordinance defines those types of nonconforming uses that may, in certain instances, nevertheless be permitted. In Section 3.07, Definitions, the following terms are defined: USE, CONFORMING. A Use of a Building, land or premises which does conform to all of the applicable provisions of this ordinance. . USE, NONCONFORMING ILLEGAL. A Use of a Building, land or premises existing at the time of the passage of this ordinance which does not conform to all of the applic:=lhlp. provisions of this ordinance. nor those of any ordinance superseded by this ordinance. . USE, NONCONFORMING LEGAL. A Use of a Building, land or premises existing at the time of the passage of this ordinance which does not conform to all of the applicable provisions of this ordinance. but did conform to applicable provisions of any ordinance. superseded by this ordinance. In Chapter 28, Nonconforming Uses & Exemptions, the Common Council for the City of Carmel has defined those uses that may be allowed to continue notwithstanding their nonconformity to current zoning. Relevant subsections of Section 28.01 of the Zoning Ordinance are set forth below: 28.01 Legal Nonconforming Use Specifications. A legal nonconforming use may be continued, although such use does not conform to all the provisions of [the Zoning Ordinance], as hereinafter provided: 28.01.01 A legal nonconforming use may be extended throughout a building provided no structural alterations are made therein, except those required by law. Existing residences in the various Business and Industrial Districts may be structurally altered and expanded. 28.01.02 A legal nonconforming use may be changed to another legal nonconforming use of the same restrictions, provided no structural alterations are made in the building. Whenever a legal nonconforming use has been changed to a conforming use, it shall not thereafter be changed to a legal or an illegal nonconforming use. 28.01.03 No building shall be erected upon any premises devoted to a legal nonconforming use, except in conformance with the applicable provisions of this Ordinance. 28.01.05 In the event that a legal nonconforming use of any building or premises is discontinued for a period of one (1) year, the use of said building or premises shall thereafter conform to the applicable provisions of this [Zoning] Ordinance. 28.01.06 Existing uses eligible for special use approval shall not be considered legal nonconforming uses nor require special use approval for continuance but shall require special use approval for any alteration, enlargement or extension. 28.01.07 These provisions shall apply in the same manner to any use which may become a legal nonconforming use due to a later amendment to this [Zoning]-Ordinance.-- 28.02 Illegal Nonconforming Use Specifications. An illegal nonconforming use shall not be validated by the adoption of this Ordinance. . . 28.05 Intermittent Use. The casual, intermittent,. temporary or illegal use of land, buildings or premises shall not be sufficient to establish the existence of a nonconforming use and the existence of a nonconforming use on part of a lot or tract shall not be construed to establish a nonconforming use on the entire lot or tract. Facts to be Proved by MM. It appears, therefore, that for MM to continue using the Carmel Sand Plant as a manufacturing facility for the processing of sand and gravel delivered to the Plant from land other than the land to which it is attached, the following facts must be proved: 1. The effective date for the applicability of the Zoning Ordinance to the operation of the Carmel Sand Plant (the "Effective Date"). 2. . The zoning ordinance that applied to the Carmel Sand Plant immediately prior to the Effective Date (the "Old Zoning Ordinance"). 3. The zoning ordinance that applied to the Carmel Sand Plant immediately following the Effective Date (the "Effective Date Zoning Ordinance"). . 4. . Sand and gravel were being delivered to the Carmel Sand Plant from off-site on and prior to the Effective Date. 5. The quantity of such sand and gravel deliveries at and prior to the Effective Date, taken in the context of the capacity of the Plant, was been more than casual, intermittent, temporary or illegal. 6..lmmediately prior to the Effective Date, processing of sand and ,-gravel from off sitc mincsconformed to the applicable provisions of allY ordinance superseded by the Zoning Ordinance. 7. Since the Effective Date, the importation of sand and gravel to the Carmel Sand Plant has not been "discontinued" for a period of one year or longer. This element should be . proved by more than mere casual, intermittent, temporary or illegal infportafionor sana--amfgfavel~--6asea-on- the fact that the same cannot be used to establish the use at all. 8. . The processing of sand and gravel at the Carmel Sand Plant does not constitute a nuisance. A BZA should not authorize the use of property as a nuisance and pre-existing nuisances may not be "grand fathered" through a zoning ordinance. On the contrary, the Plan Commission has the authority to enjoin nuisances. Indiana Code Section 36-7-4-1012. 9. No changes in the importation or processing of sand and gravel, including enlargement of storage areas, changes in the nature of the aggregate (e.g., importation of stone for crushing instead of sand and gravel for processing), or significant changes in the nature of the business have occurred since the Effective Date. 10. No change has been made to the building or other above-grade improvements since the Effective Date. 11. No building has been added to the premises of the Carmel Sand- Plant since the Effective Date without being in conformity with the applicable provisions of the Zoning Ordinance. Zoning ordinances are to be strictly construed against the party attempting to show that its use of property is a legal use. Further, once the nonconforming use has been established, the burden of proof is on the property owner to demonstrate by a preponderance of the evidence that the use is entitled to be treated as a legal nonconforming use. Therefore, -unless MM can prove by a preponderance of the evidence each of the above elements, it will not have sustained its burden of proof and the _ Carmel Sand Plant must be held to be an illegal nonconforming use. Effective Date of Ordinance. The first fact to be determined, or decided, is the date upon which the use of the Carmel Sand Plant became nonconforming. The Intervenors believe that the Effective Date is approximately June 30, 1983, for the following reasons. (a) Preemption by Indiana Law. Since before 1980 Indiana has had a statute that prohibited municipalities, counties, or plan commissions from adopting ordinances "that would prevent, outside of urban areas, the complete use and alienation of any mineral resources or forests by the owner or alienee--ofthem.-" -Indiana Code -Sectionu36-7-4-1'103(c). - This. statute has been construed to prevent local government from controlling mining operations if they are outside of an "urban area." Uhl v. Liter's Quarry of Indiana, Inc., App. 1 Dist.1979, 384 N.E.2d 1099, 179 Ind.App. 178. . The definition of "urban area," however, includes all land within the city limits and "any other lands or lots used for residential purposes where there are at least eight (8) residences within any quarter mile square area, and other land or lots that have been or are planned for residential areas contiguous to the municipality." The quarter mile square area has been held to be a square having 1,320 feet on each side and adjacent to the quarry site in question. Clark County Bd. Of County Commissioners v. King, App.1974, 310 N.E.2d 560,160 Ind.App. 152. There appears to be no further restriction on the definition of "urban area" and there appears to be no date fixed for measuring the number of residences within the quarter square mile area other than the date of adjudication by the fact-finder. Therefore, all homes located in Wood Creek, Kingswood, and other subdivisions within 1,320 lineal feet of the property line of the MM land upon which the Carmel Sand Plant is situated would be includable in the "eight (8) residences" for purposes of determining whether or not part of the Carmel Sand Plant site was located in an "urban area." A literal reading of the definition of "USE, LEGAL NONCONFORMING," indicates that the time when the nonconforming use must have been operative is the date of adoption of the zoning ordinance that first caused the nonconformity, whether or not there was a prior ordinance that was , superseded. The fact that there may have been an Indiana statute that did "not authorize an ordinance or .action of a plan commiSSion" may have prevented the Common Council for the City of Carmel from adopting an 'ordinance that had the effect of int~rfering with MM's mining operation . outside an "urban area," but it had no ~ffect on the zoning ordinance to the extent MM's land 'is located within ani urban area. Thus, the inquiry also needs to be as to when the Cannel Sa~d Plant became "urbanarea." (b) Loss of Preemption Protectio~. The Intervenors would argue that the effective date for determini,ng the applicability of the Zoning Ordinance to the Carmel Sand Plant '{'ould be the later of the adoption of the ordinance that created the nonconformity or the date when one quarter mile square of land adjacent to the Ca~mel Sand Plant site first had eight or more residences located within it. i. I , A review of the building perrnil recorP5 of the DOCS indicates that tho subdivision known as Wood Creek wa~ platted and homes were being built tberein in 198'2, with the eighth homel being completed by approximately June 30, 1983. Wood Creek adjoins the land owned by MM and used by , the Carmel Sand Plant, so virtually all of Wood Creek is included in the .Iand used to test whether or not the ICarmel Sand Plant is in an "urban area." Aerial photographs obtained from the Hamilton County Surveyor substantiate this fact by showing far rt,ore than eight (8) homes in Wood Creek as of 1984. ! Extent of Nonconformity. Per Section 3.07 of the Zoning Ordinance, the Effective Date would be "the time of the passage of [the Zoning Ordinance]" if such passage created a nonconformity by virtue of superseding a prior ordinance or if there was no ordinance to be superseded. The predecessor zoning ordinance, Ordinance Z-160, was adopted effective January 21, 1980, and remained unamended, so far as this inquiry is concerned, as of June 3P, 1983. The terms of Ordinance Z- 160 are similar to those of the current loning Ordinance, Z-289, in that the Carmel Sand Plant area was zoned IS-1 Residence District and mineral processing was prohibited. The definitions of "Borrow Pit," "Mineral Extraction," "Legal Nonconforming Usk," and "Illegal Nonconforming Use" in Ordinance Z-160 are the same as iniOrdinance Z-289. i Conclusion. Based on the abbve facts and law, the Intervenors submit that as of the adoption of th~ Old Zoning Ordinance, Z-160, the Carmel Sand Plant was in nonconforrl,ity, except that such nonconformity did not become actionable until the Ca1rmel Sand Plant site became "urban area." The Carmel Sand Plant becamb "urban area" on or about June 30, I 1983 and thereafter the Zoning Ordinance applied to it. Because the Carmel Sand Plant does not confo+ to the uses permitted in the S- 1/Residence District now, and did not conform to the S-1 Residence I District on June 30, 1983, the Carmel Sand Plant is an illegal nonconforming use. Whether or not thle Carmel Sand Plant could return to operation to serve additional sand arid gravel mining on its original site, and whether such mining would be a permitted use, depends on the time during which the mining has been discontinued. Recommendations. Because of \the questions raised concerning the subject matter jurisdiction of the BZA, tne Intervenors offer three choices of recommended actions for the BZA: I 1. If the BZA believes that it has j1urisdiction to decide whether or not the use by of the Carmel Sand Plant for processing of off-site material is or . is not an illegal nonconforming use, then the Intervenors request that the BZA direct the DOCS to issue a cease land desist order to MM with respect to the importation of sand and gravel to the Carmel Sand Plant. I . I . . . 2. Should the BZA determine that it does not have the authority to decide whether or not the nonconfortnity is illegal, then the Intervenors request that the BZA direct the DOCS to investigate the matter and make a .written determination as to whether or ~ot the nonconforming use is legal. I I 3. Should the BZA determine that it does not have the authority to determine whether or not the use! of the Carmel . Sand Plant is a nonconforming use, then the Intervenbrs request that the BZA direct the DOCS to make such determination, th~n determine if the use is legal, and I . then issue its written determination so that MM or the Intervenors will have a right of appeal to the BZA. I 4. In any event, the Intervenors r~quest that the BZA direct the DOCS to investigate the length of time that Ithe mining operation at the Carmel Sand Plant has been discontinued and then to determine if such mining is or is not a legal nonconforming use as lof the date of such determination. The Intervenors wish to express their appreciation to the members of the BZA for this opportunity to set forth th~ above opinions and suggestions for your review. I ! I I Respectfully submitted, i I I THRASHER BUSCHMANN GRIFFITH & VOELKEL, P.C. attorneys for the Intervenors : by: 1l~'C~ hilip C. hrasher, attorney no. 11 075-49 I Thrasher Buschmann Griffith & Voelkel, P.C. 151 N. Dclav.<are 81., Suite 1900 i Indianapolis, IN 46204-2505 I Tel: (317) 686-4773 Fax: (317) 686-4777 I I CERTIFICATE OF SERVICE I certify that a copy of the foregoing hJs been served on all parties listed below by first-class United States mail, postage prelpaid, on this if fA day Of~ M (!./ , , 2004: Zeft A. Weiss, Esq. Ice Miller, LLP One American Square P.O. Box 82002 Indianapolis, IN 46282-0002 THRASHER BUSCHMANN GRIFFITH & VOELK ,P C. by: N4 (if;, 1/, /1/f CEVlA f'.1 i HAt.AILTON COUNTY, INDIANA SECTtON~ TOWNSHIP ----1L-NQRTH, RANGE~EAST '....'2~:;:"... VvV 9d {4-d6 Ie J?7 MrV;1 /{j (\ . /11r un o. ~OTOUH""~_ QtP'f11 CE'M HAMILTON COUNTY I INDIANA NORTH, RANGE-.9~EAST SECTION~ TOWNSHIP ~ """.:;'2=~;:E:"'" N t 1'111 rH h /1/1 r ;d/ff~ /101