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HomeMy WebLinkAboutCorrespondence City of Carmel June 24, 2004 COPy Mr. Thomas Yedlick 5053 St. Charles Place Carmel, IN 46033 Re: Your Letter of December 16,2003 Dear Mr. Yedlick: After the pre-hearing conference held on Tuesday, June 22, 2004, I reviewed the arguments submitted by Mr. Weiss and Mr. Thrasher (in their respective documents submitted to this department on June 18, 2004), in consultation with legal counsel. As a result of this review, I have reconsidered my earlier determination that the issue raised in your letter should be presented to the Board of Zoning Appeals for resolution under Section 28.06 of the Carmel Clay Zoning Ordinance, and I have withdrawn the petition that I previously filed with the Board which called for a public hearing on this matter to be held on June 28, 2004. Moreover, I have now made the following determinations under the Zoning Ordinance: 1. The Board of Zoning Appeals lacks jurisdiction to hear the question of nonconforming use unless and until this department makes a decision or determination regarding such question and an appeal of such decision or determination is filed with the Board; 2. The land uses that were established on Martin Marietta's properties on or about May 17,2002, constituted legal, nonconforming uses; 3. Those uses do not appear to have been substantially modified, expanded, or added to since May 2002; and 4. Therefore, those uses remain legal, nonconforming uses under the Carmel Clay Zoning Ordinance which may not be substantially modified, expanded, or added to without a change of zoning classification or Board approval of a special use or variance. Should you wish to appeal any or all of the above determinations to the Board, please contact the department and we will provide you with the appropriate forms and hearing schedules. If you have any questions, or wish to discuss this matter further, please do not hesitate to contact me at 571-2422. Very truly yours, ~ Iv V j,/. Michael Hollibaugh Copy: Zeff Weiss Philip Thrasher fi\L- Brian Tuohy John Molitor Douglas C. Haney ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571-2417 _ RANAC CCRP. C;. - \~ F~~~.Fi~-:-~~~'1"...=-<,._,..._.uA':Lg 18 ,'04 9:13 U ", '.,. U ~.Ol ., ..~- .. If" mOMAS C. YBDLICK 5053 St. Charles Place Carmel, IN 46033 317.844-0141 x2S3 August 18, 2004 VIA FAX 571-2426 Michael Hollibaugh Jon Dobosiewicz ~ ~~ltD ~tC; I\~ -;'ri'.A ~ ).\l 1.'\' ' ~~ ,:lJC~ Cc~ VIA E-MAIL Phil Thrasher ZeffWeiss John Molitor Re: Docket No. 04070020 A Request for Continuance Gentlemen: I received Mr. Weiss's request for continuance on behalf or his client. I'm confused because this is a hearing berore the Board ot Zoning Appeals, not the Supreme Court. For the record, I'm stating my objection to granting status as either '4Jnterested :Party" or "Intervenor". This is a Hearing before the BZA and the BU's rules of procedure apply, not Indiana Trial Rules. This would appear to be an attempt by remonstrators to frustrate the process by interfering with a petitioners rights under the BZA's own rules. Should such status be recognized, it would set a precedent where all fUture petitioners would be subject to having their petitions wrestled away from them by remonstrators. However in response to concerns presented by Mr. Weist, I offer the following: 1. On June 14, 2004, the Director issued a Determination letter with respect to certain activities of Martin Marietta in connection with its operation of a Sand and Gravel Processing Plant (the .'Plant"); 2. Subsequent thereto, the Appellant filed an appeal of the Direc:tor"s Determination pursuant to Chapter 30.01 of the Carmel/Clay Zoning Ordinance; 3. The Appellant's appeal was filed within 30 days olthe Director's Determination in accordanee witb the Board's Rules; 4. The Appellant has made the required Public Notices, Notices to adjoining homeowners and has meet all requirements. and is entitled to be heard in accordance with the BZA's R.ules. A continuance would not serve the best interests of residents ofKingswood and other remonstrators. s. The Appellant has mcet with Michael Hollibaugh and Ion Dobosiewicz of the DOCS, Jolm Molitor, as Counsel to the BZA, Phil Tlttasher, as counsel to the Intervenors, and with Zeff Weiss, counsel to Martin Marietta Materials. Ino. on August 3, 2004 to review matterS related to ~..1 RANAC CORP. Fa~.:317-~-:-:2269 ...oo... Rug 18 '04 9:13 U (.) P. 0"2 ~1 ,.. ." ..;-r ~ i Ii -..:. _ III the subject matter of this Appeal and the Special Use. Neither Counsel for the Interested Party nor Counsel for Intervenors raised any concern at that date. 6. Counsel for the Interested Party requests a continuance for the interested parties to discuss the exact issues to be presented and the appropriate process and procedure therefore; including the allocation of time between parties. The Appellant Dotes that these matters arc clearly set forth in the Appeal, or are within the scope of the Board's Rules, and are not a matter for the Intervenors or Interested Party to determine. 7. The subject of the Appeal is a matter that has been known by the Interested Party and Intervenors since the December 16, 2003 letter of inquiry from the Appellant, and since July 15, 2004, the date the Appeal was filed with DOCS. 8. The Appellant believes the subject matter of the Appeal is of vital importance, as the subject matter of the Appeal is also involved in five Special Use applications on file with the DOCS. The outcome of the appeal will have a direct impact on the operations requested in the Mueller South Special Use. Should the Prooessing Plant be detennined to be an megal nonconfonning use, the Mueller South Special Use will not be able to operate as contemplated in the Mueller Special Use Application. 9. The Appellant believes the request by the Interested Party for a continuance is solely for delay to allow the Mueller South Special Use to be heard without the benefit of a resolution of the subject Matta of the Appeal. Per phone conversation with Mr. Dobosiewicz this morning, he indicated that the Department is considering requesting the continuance. For reasons stated above. I believe such an action would be a disservice to the petitioner and may even be in conflict with BZA rules as the Department is a party to this action. Prior to taking action on a continuance, 1 request a pre-hearing conference to sort out these issues. ;;;~ Thomas Yedliek Jun-1B-2004 10:49am Fram-WCP 555 29 th Fir 'ii T-S69 P.002/007 F-345 1. ICEt:jILLER LEBAL a BUSINESS ADvISORS June 18, 2004 WIUTIlIL'S DllU!C'r NUMIll!lt: (311) 236.2319 DIlUICT FAX: (317) $112'"17111 lNTBllNsr: Zc1tWeisJ@ictmillct.com VIA FACSIMILE: (317) 511-2426 Mr. Michael Holh"baugh Department of Community Services City of Cannel One Civic Square Carmel, IN 46032 RE: Letter from Thomas C. Yedlick Dear Mike: This is in response to Mr. Yedlick's letter to you of December 16. 2003. in which he asserts that certain activities carried on by MartmMarietta Materials, Inc. ("Martin Mariena") on its Cannel Sand and Gravel site do not comply with the Cannel/Clay Zoning Ordinance. I Your letter of June 11,2004, asks Mart:ift Marietta to address questions "regarding the processing of outside materials aIld whether that iimportation constitutes an unlawful expansion of use." The short answer is that there is an ~d.iana Court of Appeals case on point that is contrary to :Mr. Yedlick's "source" of materials aIlfllysis. It rejects a change in source as a change in or expansion of a nonconforming use. Tn light of this case and the other matters set forth herein, we do not believe there is anything for! the Board of Appeals to address. Thus, we respectfUlly.ask that Mr. Yedlick's inquiry be dismissed. We are also compelled to comment onl why Martin Marietta must C1.1IJ:8D.tly import material ttoIll its Noblesville site. The original p'an, of course, was for Martin Marietta to mine Mueller North and relocate its plant to the east side of Hazel Dell Parkway. It thought it had Kingswood's support in that endeavor. As you; know, however, that support evaporated and Martin Mari,~tta's application was turned down. IHad it been approved, Martin Marietta's plant would have been moved, it would be mining the Mueller North property, and this issue would never have arisen. Indeed, Martin Marietta would probably be within five years or so of being through witb mining, sand and gravel on the Mtieller North property and would be moving the dredge and implementing some plan to make the tesulting lake an amenity for all concerned. Likewise, if local circumstances had not interfered with the consideration of Martin Marietta's other applications, including its subsequent application for a special use permit on Mueller North, the plant would have been moved and Mr. Yedlick's issue would never have arisen. Instead, Martin Marietta now must bring. this material in from NobIesville, at a cost of several dollars per to~ solely so that it can preserve an area east of Hazel Dell Parlcway for the One American Squan: I Bax 82001 f Indianapolis. IN 46282-0002 I P 317.236~21DO I F317-236-2219 I W\'tw,ieemillcr.cam Indianapolis , Chicaga I Washington. D.C. Jun-lB-Z004 10:4Qam From-WCP 555 ZQ th Fir T-869 P.003/00r F-345 i ' June 18.2004 Page 2 of6 . , relocation 0 f its plant site, as the Kingswood neighborhood has requested. I think you know the effort Martin Marietta has made to preserve that plant site, but it could end up all being for nothing if the YedlicklK.ingswood position were to prevail. In that event, Martin Marietta would have little choice but to mine the plant site east dfHazeI Dell Parkway. John Tiberi has said on many occasions that he does not want to do tha~ and his decision to bring material in at great cost to Martin Marietta shows his desire to presem, the plant relocation option despite actions by Kingswood neighbors that make mining that arba its only realistic option. We hope that aU involved with this, especially the Kingswood community, understand the implications of Mr. Yedlick's position. : lithe Kingswood neighbors now move to 'keep Martin Marietta .from bringing in material to continue its aggregate business on this site, that will make it clear that Kingswood places little I value on preserving the plant site east of Hazel Dell and its real intention all along bas been to put this company out of business. Iftbe neighbodmod no longer values that optio~ there is little reason for Martin Marietta to do so, especially I as it costs several million dollars for Martin Marietta to implement it. Martin Marietta will ~ntinue to do all in its power to preserve the option of relocating the plant, but at some point ~ will simply be no other reasonable option. That will be an unfortunate result. ! I Mr. YedJi~'s Claim I . According to Mr. Yedlick's letter, the Garmel/CJay Zoning Ordinance allows Martin Marietta to process sand and gravel taken from i~ site under what Mr. Yedlick descn'bes as the "alienation ofmineral resources:" Specifically, when Carmel Sand is complbting tne alienation of mineral resources from its property. i.e. from the Cannel Sand locatidn, then clearly this is alienation of mineral reso~es. However when existing plant faciliti~ are converted to processing sand and gravel from other locations, it fails the source test. Thus, processing sand and gravel from other locations cannot be considered alienation ofmin~ resources. I I Mr. Yedlick further states, "it is clear that ~hen the processing of sand and gravel follows the extractiOll of these mineral resources, the p~cessing can be considered as an intragal (sic) part of the 'complete use of alienation of any minetaJ, resources.1t! i Thus, to paraphrase Mr. Yedlick, Martin Marietta is entitled to process sand and gravel extracted from the Carmel site, but cannot bring rrlaterials in from any other location and process them there. Mr. Yedlick is correct that processing is an integrall'2I't of the business of extracting and selling sand nnd gravel at the Carmel Sand and Oravelloc:ation. He is incorrect. however, that processing is limited to material obtained on site. We also note that Mr. Yedlick's premise that Carmel Sand and Gravel is a non- conforming use is incorrect. Section 28.1.6 of the Cannel Clay Zoning Ordinance expressly Jun-18-2004 10:49am From-WCP 555 29 th FIr T-869 P.004/007 F-345 ;;, , . . June 18, 2004 Page 3 of6 i provides that "existing uses eligible for special Use approval shall not be considered legal non- confonning uses nor require special use approv~ for continuance. . . ." Martin Marietta's uses are thus correctly analyzed as existing, permitted uses, and not as non-conforming uses. That alone is rE:3S011 to dismiss Mr. YedIick's cbmplaint, premised as it is on an incorrect understanding of the ordinance. F\.a:t:1er, even if Mr. Yedlick were correc~ and this matter presented a nonconforming use question, he would still be wrong as to his conclUsion. Mr. Yedlick's premise, albeit an incorrect one, is that processing and extraction are separate uses. If that were so, Section 28.1.2 says that I Martin Marietta could change to another legal nonconIonning use of the same restriction. Extraction and Sale of Sand and Gravel Inel~des Processine I The Cannel zoning ordinance does not i contain a definition of mineral extraction, or mining and quarrying. However. Section 20B.2 contains the following special use: "Mineral extraction operations including sand, grave~1 soil, aggregate and all related processing operations." We also note that the mining re_on ordinance previously adopted by the City of Carmel e:qn'CSsly defined mining to include processing, as does the new ordinance currently under considetation. These proposed and p~ent ordinances recognize that the use of the property is for mining pU1poses and that processing is simply one of the activities that make up the use. It ifi not a separately defined use itself. I Indeed, the Cannel Zoning Orc1inflJ'lCe does not contain a listing for processing as a separate "pose" in any district. We thus agree with Mr. Yedlick's cO::lclusion that processing is a part of the use conducted on the site. I , The Source oftbe Material is Irrelevant i Mr. Yedlick's letter is grounded on the asJumptiOtl that a lawful use of land can somehow become unlawful because the materials processc!d and sold on it are not sourced from the land itself; but r.Uher come from. elsewhere. Mr.! Yedlick cites no Indiana authority for this proposition and Indiana law is, in fact, to the con1;rlU'y. In Day v. Ryan. 560 N.B.2d 77 (Ind. App., 1990), the landowners were engaged in farming acth1ties. Among other things, they dealt in livestock. and at some point began bringing in livestock that were not raised on their prope~. Later, the activities expanded yet again to the point that the landowners were effectively operating a stockyard business. Some neighbors then complained, arguing that both the operation of tht stockyard business and the sale of animals that had not beea.raised on site, were unlawful. As Mr. Yedlick does here. they complained that the sale of livestock raised elsewhere changed the underlying use to something other than its permitted agricultural use. The Coun of Appeals' explicitly rejected that contention, holding that the "trading of livestock raised elsewhere. . . . did not work a tranSformation of the basic agricultural nature of the Ryans' use of the property." Likewis~ in another case, Cooper v. Calandro. 581 N.E.2d 443 (Indo App., 1991), an owner of a septic tank company wanted to put waste from his business on his farm.. rather than having to pa=, to dispose of it. He argued that the spreading of this waste as fertilizer was an Jun-18-2004 10:50am Fram-WCP 555 29 th Fir T-869 P.OOS/O07 F-345 '" June 18,2004 Page 4 of6 agricultural use, but his neighbors argued that it wasn't because the waste came from off site. Once again, the Court of Appeals held that the source of the material was irrelevant, and that the use was agricultural. I In this case, the use of Martin Marietta's C8II1lel Sand and Gravel property is for the extraction, processing and sale of sand and. gra~el. Eacb of those is a component of the use known as mining and is, therefore, a part of the ~e. There is no requirement that each and every component I)f a use be carried on in order for other components of the use to be allowed. Indeed. were this a ute where blasting had been done to txtract materials, one can envision the neighbors being thrilled that extraction (blasting) was no l~ger being done. The elimina.tion of one aspect of a use does not change the use. : I I Martin Marietta Has ACQDired Statutory and Contract Rll!hts that Entitle It to Continue Its Uses . I Mr. Yedlick's letter fails to take into alount the considerable rights Martin Marietta acquired by virtue of its statUS as a lawful use utider Ie 36-7-4..1103. the agreement entered into between the City and Martin Marietta in cohnection with Hazel Dell Parkway, and the subsequent Kingswood agreement. I I You will recall that, prior to 2000. the Carmel Sand and Gravel operation was located entirely outside of Cannel's municipal boundaries. During some or all of that time it was outside an Ulban area. It was subsequently annded into the City of Carmel The predecessor to I IC-36-7-4-lI03 was IC 18-7-5-61. which prolu"bited a local government from interfering ''by law, rule or regulation. . .outside of urban areas,1 [with] the complete use and alienation of any mineral resources. . . . by the owner or alienee ~ereo.f." The Indiana Court of Appeals made it . plain in UbI v. Liter's Cuany of IndiAnA Inc., 384 N.E.2d 1099 (Ind. App. 1979), that when a quarry is out;ide an urban area it has the right to ~e in any activity furthering the "complete use and alienation of any mineral resources" onl its property. There is no requirement that its uses be broken down into principal or accessory, as nothing related to the complete use and alienation oftbe mineral resources can be prohibi~d. no matter how characterized. I . The f.act that local governments have subsequently been authorized by statute to regulate quarries in flood plains does not affect this result.1 Hamilton County did not enact any regulation applicable to the qumy. flood plain or otherwise, that would have divested it of any rights prior to the annexEtti.on of the Carmel Sand and Gravell property by the City of C3ImeJ. Hence, when Carmel took that property into its jurisdiction it iwas with all of the rights that had accrued to Martin Mari~ prior to annexation under I.d. 36-7-4-1103. Those rights, by definition. included everything relating to "complete use an~ alienation" of mineral resources, including the processing of material. As Day v. Rvan makes cl~ar, the source of that material is irrelevant. Martin Marietta was careful to protect itsl rights in its various agreements with the City and with the Kingswood neighborhood. For exmuple. in the 1997 Hazel Dell agreement, the City "acknowledge[ d] that [Martin Marietta] will ~ntin\le to conduct mining operations on all of I its remaining real estate in Clay Township. . . ." Further, the City undertOok a broad obligation Jun-18-Z004 10:50am Fram-WCP 555 ze th Fir T-sse P.OOS/OOT F-S4S ~ ~ .. June 18,2004 Page S of6 not to "initiate any proceeding or take any actidn, or participate in any proceeding or action to limit, prohibit or restrict [Martin Mariena's] mi~il1g operations or the operatiorJs of the related industries on [Martin Marietta's] real estate what$oever. including, but not limited to nuisance or trespass," The term proceeding was defined I to include "civil, criminal, 9iIm;Tl1strative or investigative," proceeilings and "formal or infOl'Ililal" matters. Importantly, these undenakings by the City We:'e coVenantS that expressly ran with the land and a breach of them may thus have far- reaching consequences. .: . I The Hazel Dell agreement also acknowledges the City's desire to annex certain real estate then owned by American Aggregates. The I City expressly agreed, however, that such "annexation shall not divest American ofits mining rights. . . ." In the subsequent May 2002 agreemLt between Martin Marietta, the City and Kingswood, among others, the City expressly "r~ognize[d] that the uses now established on the Martin property. . . constitUte legal non-confom!ung uses.1I There is no question that all of the activities in which Martin Marietta is CUtIel1tlyl engaged on this property, including sand and gravel extrac:tion, processing, stock piling, sale, and all related operations. were being conducted on the p~erty at the time. It is also Wi I rth noting that Kingswood made the same representatic/n. In lilhl of the above referenced mml code provision llIId the various agreements betWeen Mmtin Marietta, the City and KingsWood, the only question that can be raised is whether the importation of material to the site is ~omehow a change in use. The decision in Day v. Rvan makes it plain that processing and sale of materials is not made a different use or activity simply because the material comes from a diffetFt location. This is consistent with the general rule that a change in the way a particular non-qamorming use is carried out does not alter its statuS unless the change is so fundamental as to alter the underlying nature of the use. CONCLU~ON I I . . Martin Marietta acquired broad rights lhile it was operating in a mra.l area before annexation. Those broad rights mclude all opentlons relating to the complete use and alienation ofits mineral resources, including processing ofUtose resources. Martin Marietta was careful to preserve those rights in its various agreements ~th the City of Carmel and to make some of them run with the conveyance of its property to the City. Indiana case law makes it clear that its rights are no11ost because it imports some materilu to its site for processing. I We trust that the foregoing responds adeqhately to Mr. Yedlick's letter. Lastl~" as we have conveyed many tim~s to YOlls as well as to representatives of the Kingswood Neighborhood Association, Martin *arletta remains committed to working towards a mutually acceptable resolution of all pending iSsues. That resolution would, by its very nature, acknowledge the concems of the Kingswood Jlfeighborbcod, as well as legitimate rights and interests of lv.Iartin Marietta. Our attempts tol meet with representatives of the Kingswood Homeowners Association have been rebuffed Ion several occasions. Nonetheless, we will Jun-18-2004 10:50am From-WCP 555 29 th Fir T-869 P.OQ7/0D7 F-345 ... .'. '1 June 18, 2004 Page 6 of6 continue to work with you and members of yoJ staff in order to pursue This goal of finding a reasonable resolution to the issues that confront Js. We look forward to continuing to work with you toward:J this goal. Please do not hesitate to contact me if you desire further information I . . V, truly yours. ICE I ZA W/sd cc: John Tiberi (via e-mail) Yvonne Bailey (via e-mail) Wayne Phears (via e-mail) INDY 1384487v2 \'" ~ --" i" r .... .. .. THOMAS C. YEDLICK 5053 St. Charles Place Carmel, Indiana 46033 I Office 317 -844-0141 x253 June 17,2004 To: Board of Zoning Appeals CC: Michael Hollibaugh, Director Department of Community Services Re: Docket No. 04060001. A Public Bearin!! on an ADDeal of a determination b the Dire tor that there is a uestion whether nonconforminl~ uses exist on certain DroDerties owned biV Martin Marietta The PlUpose of this memorandum is to provi~e comments to the Board of Zoning Appeals pursuant to Notice of Public Hearin~ on June 28, 2004. The basis for the Hearing is a determination by the Director that there is a question ''whether or not nonconforming uses exist on certain properti~" owned or controlled by Martin Marietta. These comments supplement my letter dated ~ecember 16, 2003 (copy attached) to Mr. Hollibaugh, which is incorporated herein by reference. More specifically, the issue is whether the prlcessing of third party sand and gravel by Martin Marietta at their Hazel Dell Road prodessing plant constitutes a "new business", whether it constitutes an impermissible modi,cation of their existing nonconforming use, and therefore whether it is an impermissible use in this zoning district. . I Summary Kingswood neighbors seek the Board's detJrnation that Martin Marietta is in violation of the Zoning Regulations by establishing nmi,.eral processing as a new and separate use not permitted in this zoning district. As such it seeks a resolution of this Board of Zoning Appeals ordering Martin Marietta to cease and desist the processing of any sand and gravel at the Hazel Dell plant if it is not obtaJ.ed from the Hazel Dell quarry. I Further, pursuant to Carmel/Clay Zoning Ordinance (Chapter 28.1.5), the Board is permitted to require Martin Marietta to confok to the applicable provisions of the Zoning Ordinance. Chapter 28.1.5 reads, "In the event that a legal nonconforming use of any building or premises is discontinued for alperiod of one (1) year, the use of said "- .. " building or premises shall thereafter conform to the applicable provisions of this Ordinance." i.e. Special Use Permit. I I The importation of third party sand and gravel has been occurring for more than one year. Further the importation of sand and gravel hJ been to the exclusion of their legal use of extracting sand and gravel. Indeed, no signifibant extraction has occurred from the Hazel Dell quarry for more than one year. As such, their legal nonconforming use is deemed I "discontinued for a period of one year". ShoU!ld Martin Marietta wish to resume the I extraction of sand and gravel reserves at the qarmel Sand quarry, pursuant to the Ordinance, they should be required to obtain the necessary Special Use Permit required by 8-1 Zoning District. I Backeround Sand and gravel operations have been conduc~d on Martin Marietta property (referred to herein as "Carmel Sand") north of 106th Street! for over 25 years. Although this property is classified as S-1 Residential, these sand andl gravel operations have been exempt from Carmel's zoning regulation as a legal nonconforming use. A legal nonconforming use is one which exisJd and was lawful when the restrictions became effective, and which continued to exist since that time. Metropolitan Development Com 'n of Marion County v. Sch~oeder, 727 N.E.2d 742 (Ind. Ct. App. 2000). DeMine sand and eravel operations Forpwposes of this discussion, sand and gravel operations (also known as "alienation of mineral resources") are defined as the proce~s of removing sand and gravel as raw I material from the ground and then processing the raw material by washing, crushing, sorting, and stockpiling as finished product fori sale. "The quarrying and processing of sand and gravel for sale is one distinct business" (Massachusetts Broken Stone Co. v Town of Weston). As such, processing operations are an extension of the extraction process, not independent of it. The Hazel Dell Road proces~ing plant acts as a factory for the raw sand and gravel from the Hazel Dell quarry, anti as part of a nonconforming use, is subject to the same restrictions as the quarry it~elf. Third party sand and gravel is defined as ral sand and gravel obtained from other quarries for processing at the Carmel Sand pro~essing plant. I I Diminishine asset concept I There is a fundamental principle of zoning that, while it is deemed necessary to permit the continuance of sand and gravel nonconfomring uses that existed when the zoning ordinance became effective, the aggregate exte1it of such uses is to be reduced (eliminated) as the supporting mineral reserves lare exhausted. 56 ALR4th 788. .. Since the processing plant is only an extension of extraction of the minerals themselves, once the minerals are exhausted, the use ofth~ plant is also exhausted. "When a site no longer yields minerals, the use is consummatea." Fredal v Forster, 156 NW2d 606. State Code tends to define nonconforming uses in strict terms. In view of fact that ultimate purpose of zoning regulations is to cdnfine certain classes of uses and structures to certain areas, nonconforming uses are not g~nerally favored since they detract from attainment of that purpose and, thus, policy o~ zoning ordinances is to secure the gradual, or eventual elimination of noncon~orming uses and to restrict or diminish rather than increase such uses. Jacobs v. Mishawaka Bd of Zoning Appeals, 395 NE2d, 834.. ! Generally, nonconforming uses may not be materially altered, modified or expanded beyond their use at the time they became subj~ct to zoning restrictions. The operative phrases above are "modified" and "expanded" j A change in the core source of raw material from extraction to sourcing from an ohtside third party is a material change ("modification") in the character of a sand andl gravel operation. Further, the processing of sand and gravel from other quarries is an "expansion" beyond that permitted by their &'. . I nonconJ.ormmg use. I Carmel Sand exoands and becomes a new bt.siness Sometime after the year 2000, Carmel Sand's mmeral reserves became exhausted. , Because of the investment they had in the Carmel Sand processing plant, it was in their economic interest to extend the life of this prodessing plant by obtaining raw sand and gravel from other quarries fur processing at thJ1 Hazel Dell plant. This was done by trucking in raw sand and grayel from a quarry in Noblesville and from a gravel quarry south of 96th Street. These raw Imaterials have been, and continue to this date, to be processed into finished product at th~ Carmel Sand processing plant. This a clear violation of Carmel Sand's noncont-orming use status for these reasons: 1. The "use" which is protected as legal nonconforming is the process of extracting and finishing sand and gravel from the :E;Iazel Dell Road quarry. Finishing is only an extension of the extraction process, Dbt a separately established use. 2. The processing of third party sand and ~avel independent from quarrying is clearly a different use. This changes the !character of the processing operations from mineral extraction to commercial Rrocessing. I The test of whether processing of sand and graJel by Carmel Sand is permitted is based on meeting the source test. Specifically, wheJ, Carmel Sand is completing the processing of the raw mineral resources from its own property, i.e. from the Carmel Sand quarry, then clearly this is part of sand and grav~l operations. However when the existing plant is converted to processing sand and gravel; from other quarries, it fails the source v, jO test. Thus processing of sand and gravel fromlother locations cannot be considered as part of sand and gravel operations. I Processine of Third-pam sand and eravel is a new use and is not protected as a nonconformine use. I If Carmel Sand's commercial processing of thfd-party sand and gravel does not qualify as a sand and gravel nonconforming use, then 1't is a change in character to a use not permitted in this zoning district. In Maxey v. Board o/Zoning Appeals (480 NE2d 589), the Court determined that a change in the character of a nonconforming us~, although a similar use, to a use of higher intensity was not permitted. In this case, a bus] barn used by schools was sold off to Maxey who intended to convert its use to a commercial vehicle maintenance facility. I The Court upheld the BZA's decision that the new proposed use of the school's bus I barn, although similar to the schools' use when broadly characterized as a vehicle maintenance garage, is neither a permitted ~se under the ordinance nor a continuation of a nonconforming use. The court found "an important distinction is evident when the character of the use is examined". The Court found that the cha~acter of use as a school bus barn was I substantially different than a commercial vehicle maintenance facility. The Court I identified excessive noise in close proximity to a residential neighborhood as one of the key factors giving to a change in charact~r of use. The situation here is identical. The character Juse by Martin Marietta previously was for processing of extracted sand and gravel froT the on-site quarry. Although processing third party sand and gravel is similar to processing extracted sand and gravel, it is a change in character of use because the materia1~ are no longer being obtained from the on-site quarry. The increase in vehicular traffiq resulting from trucking in the material to this residential zoned district rather than obtaining it on-site creates a significant increase in noise injurious to the adj oining residential niighborhood In Massachusetts Broken Stone Co. v Town offeston (195 NE2d 522), the Court ruled in a manner similar to Maxey. The record shows that Massachusetts Broken Stone had I established a nonconforming use for the manufacture of concrete. For the most part, the stone used in this process has come from the p~itioner's on-site quarry, but on occasions, to meet demand, fully crushed stone (i.e. finistied product) was brought in from outside sources. However Massachusetts had never brdught raw stone to its premises to be subjected to further processing. I The Court found that the quarrying and crushing of stone for sale is one distinct business, not separate businesses (i.e. uses). The Court further found that the quarrying company does not have a nonconforming use to bring onto the premises stone from outside quarry sources to be further processed. .. .. . .. , A nonconformine use is limited to the areJ in use as of the date of the restrictive ordinance. I Courts have stated that the rationale of the di~inishing asset concept is that the very nature of a sand and gravel operation is based upon the continuing use of the land, and that this use is what is endorsed by the .noncohforming use concept. The diminishing asset doctrine will normally not countenance ~e extension of a use beyond the boundaries of the tract on which the use was initiated when the applicable zoning law took effect. Stephan & Sons. me. v Anchora$e Zoning Boarg, 56 ALR4th 761. Nor is it possible to extend the protection of J permitted nonconforming use established on one parcel of land to physically separate ptu-cels, even if adjoining. At issue with the Hazel Dell processing plant is that the processing plant has been extended not simply to an adjoining parcel, but to an entirely separate quarry in another jurisdiction. Respectively submitted, ~~ Tom Yedlick Copy: JamesBrmnard Douglas C. Haney Philip Thrasher Bill McEvoy u u ~Iey, Connie S Subject: Butler, Angelina V Thursday, June 10, 2004 11 :29 AM Tingley, Connie S Morrissey, Phyllis G; pattyn, Dawn E; Babbitt, Pamela A; Hollibaugh, Mike P; Keeling, Adrienne M; Kendall, Jeff A; Brewer,l Scott I; Hancock, Ramona B; Dobosiewicz, Jon C; Pohlman, Jesse M; Brennan, Kevin S Docket No. Assignment: (A) A Decision Concerning the Existence of a Nonconforming Use (# 04060001 A) From: Sent: To: Cc: Connie, Please print and update the file. I have issued the necessary Docket Number for (A) A Decision Concerning the Existence of a Nonconforming Use. It will be the following: Docket No. 04060001 A Total Fee: $0.00 (exempt) $0.00 A Decision Concerning the Existence of a Nonconforming Use The applicant seeks a decision concerning the existence ofnonc6nforming uses on certain properties owned and/or controlled by Martin Marietta Materials, Inc. I Docket No. 04060001 A Chapter 28.06 nonconforming uses The sites are located north of 96th Street and west of Hazel d[ell Parkway and/or north of l06th Street and west of Hazel Dell Parkway. I The site is zoned S-1/Residence - Low Intensity. Filed bv Michael Hollibaugh, Director of the Carmel Department of Community Services. Petitioner, please note the following: I 1. This Item will not be on an agenda of the Technical Advisory Committee. 2. Mailed and Published Public Notice needs to occur no ldter than Thursday, June 3, 2004. Published notice is required within the Indianapolis Star. I 3. The Proof of Notice will need to be received by this De~artment no later than noon, Friday, June 25. Failure to submit Proof of Notice by this time will result in the tabling of thb petition. 4. The Filing Fee and Nine (9) Informational Packets mu~t be delivered to BZA Secretary Connie Tingley no later than Noon, Friday, June 18. Failure to submit Informationkl Packets by this time will result in the automatic tabling of the petition to the Monday, July 26,2004, agenda ofth~ BZA. 5. This Item will appear on the June 28, 2004 agenda ofthei Board of Zoning Appeals under Public Hearings. 6. The petitioner will need to provide a fully filled-out Findings-of-Fact sheets for each petition the night of the meeting for the Board's use (Sheet 8). On Ballot sheets, only fill but docket number, petitioner, and date (Sheet 7). Ballot I sheets must be collated. I 7.) PETITIONER: refer to your instruction sheet for more details. I The contact for this petition is Mr. Hollibaugh at 571-2417 (Fax: 571-2426). Once the file is updated please return it to I my office. I Thank you, : Angie 1