Loading...
HomeMy WebLinkAboutPre-Hearing Conference Agenda ~. f ~ --1""-- 'j ""} .~ AGENDA Pre-Hearing Conference DOCS Conference Room Cannel City Hall Tuesday, June 22, 2004 9:00 A.M. Following are the topics that the Department wishes to discuss with interested parties before the hearing on Docket No. [insert number here]: 1. Scheduling. The Department of Community Services has scheduled a public hearing for Monday, June 28, 2004, at 7:00 P.M., for the Cannel Board of Zoning Appeals to decide, pursuant to Section 28.06 of the Cannel Zoning Ordinance, whether or not some of the uses currently maintained by Martin Marietta Materials, Inc., on its properties in southeast Clay Township are nonconforming uses within the meaning of the Zoning Ordinance. Although this hearing is included on the regular monthly agenda for the BZA, the Department does not anticipate that the Board will be able to conclude the hearing or take a vote on June 28. It is likely that the BZA will desire to grant the various interested parties additional time to present evidence and written or oral arguments on the question. Therefore, the Department desires to schedule a special meeting (or meetings) of the BZA to accommodate a continuation of the hearing, on a weeknight (or nights) in the month of August 2004. Interested parties should indicate their availability for such a special meeting (or meetings). 2. Discovery. Pursuant to Trial Rule 28(F), and as discussed by the Court in Hickory Hills v. Coffman, 699 N.E.2d 1214 (Ind.Ct.App.1998), the interested parties may desire to use the discovery provisions of the Indiana Rules of Trial Procedure. Interested parties should be prepared to discuss the scope of discovery to which they may be willing to agree, and the time frames within which discovery may occur. 3. Arguments, Briefs, and Written Findings. The interested parties may wish to avail themselves of the opportunity to make opening arguments to the BZA, before presenting evidence, and to submit or make closing arguments at the conclusion of the hearing. Interested parties should be prepared to agree on the length of time that may be needed for such arguments, including times for rebuttal. In addition, if interested parties desire to submit written briefs to the Board for its consideration before it makes a decision, they should be prepared to agree on deadlines for the submission of briefs to the Department. Finally, interested parties should be prepared to submit proposed findings of fact to the Board for its consideration before it takes a vote. I .;;. J, ," 4. Examination of Witnesses. Under the Zoning Ordinance, the nonconforming use issue is "considered a question of fact [to] be decided by the Board...." It maybe appropriate that all witnesses who intend to testify as to factual matters should be sworn in and subject to cross-examination at the hearing. The BZA's existing rules of procedure do not address this subject. Thus, the interested parties should be prepared to agree on procedures whereby the Board can receive and consider factual evidence. 5. Staff Observation. The Kingswood Homeowners Association, Martin Marietta, Hughey Inc., the City of Carmel, and the BZA entered into a Settlement and Release Agreement on May 17, 2002 (the "Effective Date"), which contained several provisions that may be pertinent to the question before the Board on June 28. In particular, both the Kingswood Homeowners Association and the City agreed to recognize that the uses established as of the Effective Date on the Martin Marietta Property constituted "legal, nonconforming uses", while Martin Marietta agreed generally not to "add uses not existing on the Martin Property as of the Effective Date without appropriate governmental approvals. . .". In view of these and other provisions in the Agreement, the BZA may desire to limit or exclude any evidence that relates primarily to the land uses as they existed before May 17, 2002. The Department would encourage the interested parties to see whether they can agree to stipulate as to the uses that were existing as of that date. " ... PERTINENT DEFINITIONS (FROM CHAPTER 3) USE. The employment or occupation of a Building, Structure or land for a person's service, benefit or enjoyment. USE, ACCESSORY. A Use subordinate to the main Use, located on the same Lot or in the same Building as the main Use, and incidental to the main Use. 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 applicable 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. TEXT OF CHAPTER 28 Nonconformin2 Uses and Exemotions 28.01 Legal Nonconforming Use Specifications. A legal nonconforming use may be continued, although such use does not conform to all the provisions of this 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. 28.01.04 Nothing herein contained shall require any change in the plans, construction or designated use of a building for which a building permit or Improvement Location Permit has been heretofore issued, and the construction of which has commenced and has been diligently pursued within one (1) year of the date of issuance of such permit, and which entire building shall be completed according to such plans within three (3) years from the date of passage 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 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. j I i', ' .. .. 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 Ordinance. 28.02 Illegal Nonconforming Use Specifications. An illegal nonconforming use shall not be validated by the adoption of this Ordinance. 28.03 Nonconforming Use in a FP, FW or FF District. A legal or illegal nonconforming use located in a FP, FW or FF District shall not be expanded or enlarged without a permit for construction from the Indiana Natural Resources Commission plus adherence to the appropriate restrictions herein. 28.04 Nonconformance Exemptions. A building nonconforming only as to height, lot area or yard requirements may be altered or extended, provided that an extension meets all of the height, yard and other applicable provisions of this Ordinance. 28.05 Intermittent Use. The casual, intermittent, temporary or illegal use ofland, 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. 28.06 Existence of a Nonconforming Use. In circumstances where there is question whether or not a nonconforming use exists, it shall be considered a question of fact and shall be decided by the Board following public notice and a public hearing in accordance with the Rules of Procedure of the Board. 28.07 Exemptions. The following structures and uses shall be exempt from the provisions of this Ordinance: 28.07.01 Wires, cables, conduits, vaults, laterals, pipes, mains, valves or other similar equipment for the distribution to consumers of telephone or other communications, electricity, gas or water and the collection of sanitary sewage or surface water operated and/or maintained by a government entity or a public utility, including customary meter pedestals, telephone pedestals, distnbution transformers and temporary utility facilities required during construction, whether any such facility is located underground or above ground, but only when such franchised utility facilities are located in a street right-of-way or in an easement less than twenty-five (25) feet in width. The provisions of this Ordinance shall be complied with on all private property and in easements twenty-five (25) feet in width and over. 28.07.02 Railroad tracks, rights-of-way signals, bridges and similar facilities and equipment located on a railroad right-of-way, and maintenance and repair work on such facilities and equipment. 28.07.03 Farms, as defined herein, are permitted in all districts. Dwellings and major (over 400 square feet) accessory buildings are subject to obtaining Improvement Location Permits for construction. 28.07.04 Nothing in this Ordinance shall prevent the restoration of a building or structure destroyed less than forty percent (40%) of its market value at the time of such destruction (exclusive of the value of the lot) by explosion, fire, flood, earthquake, windstorm, act of God, riot or act of a public enemy, subsequent to the passage of this Ordinance; or shall prevent the continuance of the use, except an illegal nonconforming use, of such building, structure or part thereof, as such use existed at the time of such impairment of such building, structure or part thereof. All such restoration and construction shall be subject to the obtaining of an Improvement Location Permit, with the fees waived for the restoration of a building or structure destroyed less than forty percent (40%) and restored according to its state of existence prior to destruction. All restorations resulting in a divergence from original plans or restoring a building or structure destroyed forty percent (40%) or more shall be subject to obtaining an Improvement Location Permit and payment offees. 28.07.05 All City of Carmel and Clay Township governmental facilities and buildings are exempt from the zoning requirements and procedures listed herein.