HomeMy WebLinkAboutFindings of Fact & Ballots
o
u
t(\Qj \ , 200lP
IN THE CARMEL BOARD OF ZONING APPEALS
IN RE APPLICATION FOR
SPECIAL USE
of
)
)
)
)
)
)
)
Docket No. 05090003 SU
MARTIN MARIETTA MATERIALS, INC.,
Applicant
April 24, 20~
DECISION
Upon application and after a public hearing pursuant to the Advisory Planning
Law of the State of Indiana and the Rules of Procedure of the Board, the Board hereby
denies, by a 4-0 vote, the application for a Special Use filed by the Applicant.
FINDINGS
Pursuant to IC 36-7-4-915, the Board hereby makes the following findings of fact:
1. This docket number involves an application (the "Special Use" proposal) that
was filed by Martin Marietta Materials, Inc. ("Martin Marietta") with the Carmel Board
of Zoning Appeals (the "Board") for approval to mine surface limestone (open pit) on
property that it leases from E. and H. Mueller Development, LLC ("Mueller"). The
entirety of the tract (the "Mueller South" property) to which the Special Use proposal
applied is south of 106th Street and west of Hazel Dell Parkway. The Mueller South
1
u
u
property was annexed by the City of Carmel (the "City") in 2002 but previously lay in an
area of Southeast Clay Township that was outside of the City limits.
2. The Mueller South property is bounded on the south by land owned by Martin
Marietta which has been used for many years by Martin Marietta and its predecessors as
an open pit stone quarry (the "Existing Quarry"). The Special Use proposal would have
allowed Martin Marietta to extend the Existing Quarry operation to the north so as to
create a larger open pit and an expanded mining operation (the "Expanded Quarry"
operation) within the Mueller South property.
3. The Mueller South property is contained within the S-1 Residence District
under Chapter 5 ofthe Carmel/Clay Zoning Ordinance (the "Zoning Ordinance"). Section
5.00.01 Purpose and Intent of the Zoning Ordinance states, "The purpose of this district
is to provide for the development of innovative residential environments in keeping with
the rural character of this district, by providing for a development process that allows a
high degree of flexibility in the design of single-family subdivisions. Further, it is the
purpose of this district to provide for a development process that allows for more efficient
use of the land through the introduction of open space and conservation lands within
subdivisions. It is the intention of this district to protect remaining significant natural
features within this district by placing an emphasis on less intensive urban land uses."
However, pursuant to Appendix A of the Zoning Ordinance, borrow pit/top soil removal
and storage and mineral/sand/gravel extraction operations are listed as "Special Uses"
that may be allowed in the S-1 Residence District.
4. Chapter 21 of the Zoning Ordinance establishes the process according to
which Special Use proposals must be reviewed in Carmel. Section 21.01 General
2
o
u
Information of the Zoning Ordinance states, "Special Use... approval by the Board
shall be necessary prior to the establishment of a Special Use..., so cited by the district
regulations herein, or the issuance of an Improvement Location Permit for said Special
Use. 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."
5. Section 21.03 Basis of Board Review ofthe Zoning Ordinance requires the
Board to "give consideration to the particular needs and circumstances of each
application" and to examine 26 different items as they relate to a proposed Special Use.
The most relevant items that related to the Board's review ofthe Expanded Quarry
operation were items No.3 Surroundin2 zonin2 and land use and No. 18 Necessarv
screenin2 and bufferin2.
6. Pursuant to IC 36-7-4-920(g) and the Board's rules of procedures, the Board
routinely receives reports and recommendations from the Department of Community
Services of the City of Carmel (the "Staff'). The Staff duly submitted a Department
Report (the "Staff Report") to the Board in advance of its April 24 public meeting at
which it took final action on the Expanded Quarry operation.
7. The Staff Report included the following analysis as to items No.3 and No. 18:
"[T]he surrounding zoning is S-I/Residence - Low Density comprising of mostly single
family homes.. ..The petitioner must mitigate the negative effects of blasting. Adequate
buffering from vibrations and air blasts may be impracticable for a hard rock mining
3
Q
w
operation that is located in the vicinity of residential uses." The Board hereby adopts the
Staffs analysis as to these two items and incorporates it into its findings.
8. Section 21.04 Basis of Board Approval or Reiection of the Zoning
Ordinance requires the Board to base its decision upon five factors as they relate to the 26
items from Section 21.03 concerning a Special Use proposal. The most relevant factors
that relate to the Board's decision on the Expanded Quarry operation are factors No.2
and No.3:
o 2. The economic factors related to the proposed Special Use. such as
cost/benefit to the community and its anticipated effect on surroundin~
property values.
o 3. The sociallneie:hborhood factors related to the proposed Special Use.
such as compatibility with existin~ uses and those permitted under
current zonin~ in the vicinity of the premises under consideration and
how the proposed Special Use will affect nei~hborhood inte~ritv.
9. The Staff Report included the following analysis as to factor No.2 above:
"The materials mined from the site will be used within the City as well as within the state
in a positive manner for construction of homes, roads, etc. However, the existence of a
hard rock mining operation that includes blasting may negatively affect nearby residential
property values, or may dampen anticipated increases in residential property values,
unless blasting operations are severely limited or mitigated. The final man-made lake
may, in theory, increase adjacent property values and may be an amenity to the area once
mining operations have ceased in the vicinity. However, ifnot [sic] approved pursuant to
the Special Use process, mining operations may continue on the premises for 20 or more
4
Q
w
years." The Board hereby adopts the Staffs analysis, except for the word "not", as to
factor No.2 and incorporates it into its findings. The Board further finds that the Staff
Report intended to use the word "now" instead of the word "not" in regard to a potential
approval.
10. The Staff Report included the following analysis as to factor No.3 above: "A
mineral extraction use including blasting, as long as it mitigates dust, noise, and blasting
vibrations from the site and keeps these annoyances to acceptable levels, may constitute a
somewhat less intensive use than a factory or industrial use. However, only when the
factors that affect quality of life are mitigated can such a use be perceived as compatible
with typical uses in a residential zoning district." The Board hereby adopts the Staffs
analysis as to factor No.3 and incorporates it into its findings, subject to the Board's
further determination in Finding 18, below.
11. The Special Use proposal, as described in Martin Marietta's application for
approval, expressly and inherently includes the use of explosives to blast rock free from
the limestone strata underlying the Mueller South property.
12. Approval of an Expanded Quarry operation that requires regular and routine
blasting is not consistent with the City's long-term planning as shown in its
Comprehensive Plan and Zoning Ordinance, in that the Plan calls for low intensity
residential development in the vicinity of the Mueller South property, and the area in the
vicinity of the proposed Expanded Quarry is zoned S-l Residence.
13. While the Existing Quarry operation does produce materials that are used in
local developments and infrastructure improvements, the Existing Quarry land use was
established over half a century ago, long before the area in the vicinity ofthe subject
5
Q
u
premises was subject to any zoning ordinance, and thus it was never required to obtain
any local land use approvals. Specifically, neither the Carmel City Council, the Carmel
Plan Commission, nor this Board ever authorized Martin Marietta or any of its
predecessors to begin or to expand its Existing Quarry operation. The Existing Quarry
operation was begun before Southeast Clay Township was even covered by
comprehensive planning and zoning, it was allowed to continue and grow pursuant to a
State Preemption Statute (IC 36-7-4-1103) that prohibited local officials from exercising
any jurisdiction over it, and then later it was allowed to continue in existence as a
Nonconforming Use (Chapter 28 of the Zoning Ordinance) even after it was no longer
sheltered from the Zoning Ordinance by the State Preemption Statute.
14. The Zoning Ordinance has since its inception in the 1960's contained
provisions that would allow mineral extraction to occur in the S-l Residence District if
approved as a Special Use. However, these provisions lay dormant for many years in
respect to Southeast Clay Township because the area was deemed to be outside of the
City's "urban areas" as defined by the State Preemption Statute. As late as July 1982, the
Board conducted a hearing at which Martin Marietta's predecessor maintained that the
Existing Quarry operation was outside of the Board's jurisdiction and therefore exempt
from local review, oversight, and regulation. The outcome of the 1982 hearing was that
the Existing Quarry operation was allowed to continue without any review, oversight, or
regulation by City officials.
15. It was not until the late 1990's that Martin Marietta first conceded, pursuant to
a settlement agreement with neighboring residents and City officials, that the area in the
vicinity ofthe Existing Quarry was no longer outside of Carmel's "urban areas", and that
6
u
w
any expansion of mining operations should thereafter be subject to the Zoning Ordinance.
Pursuant to that settlement agreement, the City for its part recognized that the Existing
Quarry operation was entitled to Legal, Nonconforming Use status either under the
common law or under the Zoning Ordinance.
16. Martin Marietta entered into a lease agreement with Mueller on or about
January 1, 2000, under which it acquired the right to mine the Mueller South property.
However, the 2000 lease anticipated that Martin Marietta would now need to seek
approvals from City officials to expand its mining operations; it required Mueller to assist
Martin Marietta "in obtaining any additional zoning or permits required for a mining
operation" on Mueller's property. There was no implication in the 2000 lease that City
officials would be mandated to issue such "additional zoning or permits"; indeed, the
2000 lease required that Martin Marietta should first obtain Mueller's written approval
"of any proposed land use plan or zoning change, including aesthetic considerations such
as mounding, and a final configuration or mining plan, before submitting such proposal
to the City of Carmel or administrative authorities." Thus, Martin Marietta anticipated in
early 2000 that it would need, at a minimum, a zoning change and/or permits and would
need to address the community's aesthetic concerns and to submit a mining plan to City
officials before it might be allowed to create an Expanded Quarry operation on Mueller's
property. Having never before received any approvals from City officials to expand its
Existing Quarry operation, the Board further finds, in consideration of Finding 15, above,
and the facts discussed within this finding, that Martin Marietta could not reasonably
have held an expectation that it would as a matter of course be allowed to initiate an
Expanded Quarry operation on the Mueller South property.
7
o
Q
17. Since its inception in the 1960's, the Carmel Zoning Ordinance has contained
a provision that "[s]pecial 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 ofthe special and unique conditions determined as a result of the review
procedure established herein." (Section 21.01 of the Zoning Ordinance). In materials
submitted to the Board, Martin Marietta repeatedly reminded the Board that the Zoning
Ordinance lists mineral extraction as a Special Use that may be allowed in the S-1
Residence District. However, the Board hereby declines the invitation extended to it by
Martin Marietta to jump to the conclusion that the Carmel City Council, when it
considered back in the early 1960's (actually it was then the Carmel Town Board) which
land uses should be listed as possible Special Uses within the S-1 Residence District,
must have further intended that blasting would inevitably be an integral part of mineral
extraction use - so that, following Martin Marietta's logic, (a) the City Council by
sanctioning mineral extraction has also sanctioned blasting, (b) the City Council thinks
that blasting is a use "which is in harmony with the other uses permitted in the district",
even a residence (!) district, and (c) the Board is consequently duty-bound to consider
blasting "favorably", even ifit rattles chandeliers in the homes of nearby residents and
causes other adverse impacts such as are found below in conjunction with the Existing
Quarry operation. The Board instead concludes that, since there is virtually no text in the
Zoning Ordinance which even refers to the use of explosives other than in the M-l and
M-2 Manufacturing districts (Chapters 20B and 20C of the Zoning Ordinance), it is more
reasonable for the Board to consider whether the proposed use of explosives in the S-1
Residence district might be outside the scope of the mineral extraction use or,
8
Q
o
alternatively, under some circumstances might be deemed a "special and unique"
condition that could enable the Board to find that the proposed Special Use is "obviously
inappropriate" .
18. The use of explosives in an industrial activity such as surface mining is of the
nature of Heavy Manufacturing, based on the definition ofthat term in the Section 3.07
of the Zoning Ordinance. Indeed, Heavy Manufacturing is the only use defined in the
Zoning Ordinance to include the possible use of explosives. Therefore, the Board's
determination is that the use of explosives for surface mining at the Expanded Quarry as
proposed by Martin Marietta is not properly within the intended scope of the Special Use
described as "Mineral/Sand/Gravel Extraction" which is conditionally permissible in the
S-l Residence District, and Martin Marietta's proposed surface limestone extraction or
mining activity on the Mueller South property which includes blasting by explosives as
an integral or essential element of that activity is not eligible for approval as a Special
Use in the S-l Residence District. Alternatively, if contrary to the Board's determination,
it were deemed that the use of explosives for surface mining is within the intended scope
of a Special Use that is conditionally permissible in the S-l Residence District, such use
of explosives constitutes a special and unique condition that makes the proposed Special
Use obviously inappropriate in the S-l Residence District where it is reasonably
anticipated, for reasons discussed in subsequent findings, that such use of explosives as a
part of the proposed Special Use would be incompatible with the existing residential uses
at surrounding properties and would negatively affect surrounding property values,
including the projected, future appreciation of the values of previously existing
9
u
u
residential developments in the vicinity of the subject premises in an S-l Residence
District.
19. The use of explosives in an industrial activity such as surface mining at the
proposed Expanded Quarry, being ofthe nature of Heavy Manufacturing, is inherently
incompatible with previously existing residential land uses in the S-l Residence District
in the vicinity of the proposed Expanded Quarry.
20. The proposed Expanded Quarry operation is not consistent with the character
and permitted land uses of the S-l Residence District, or with the uses envisioned in the
City's Comprehensive Plan, because it is neither residential nor low intensity
commercial; rather, it is incompatible with residential housing uses, does not conform to
applicable development standards, and is of a high-intensity industrial/manufacturing
nature.
21. The proposed Expanded Quarry operation would, over time, bring its blasting
operations as much as 1,300 feet closer to some nearby residences in previously platted
and developed subdivisions in the S-l Residence District and would thereby eliminate as
much as 42% of the buffer that currently separates such residences and blasting locations
at the Existing Quarry operation (that continues to exist only because of its status as a
Legal, Nonconforming Use under the Zoning Ordinance).
22. The remonstrators against the proposed Expanded Quarry operation included
residents from several previously platted and developed residential subdivisions or
neighborhoods, which neighborhoods include nearly 1,000 existing residences in the
vicinity of the Mueller South property, and many of these remonstrators testified that they
10
Q
u
had invested in their residential properties before Martin Marietta entered into its lease
agreement with Mueller.
23. Numerous residents from the neighborhoods in the vicinity ofthe Existing
Quarry operation already experience adverse impacts from blasting that occur as a regular
and routine part of the Existing Quarry operation, and these impacts include substantial
shaking oftheir homes, frequently described as similar to an earthquake and which
causes rattling and displacement of dishware, pictures on walls, small furniture items, and
other objects, the startling oflittle children, and other similar effects. Some residents
complained of damage to residences as a result of the vibrational impacts from the
Existing Quarry operation. The Board specifically finds that these negative impacts not
only would continue but could reasonably be expected to worsen ifthe proposed
Expanded Quarry operation were to be approved, allowing vibrational impacts to
emanate from the Expanded Quarry as a result of blasts of unabated force and at reduced
distances from some residences in comparison to the impacts that currently emanate from
the Existing Quarry. The Board further specifically finds that these negative impacts that
would occur at residential properties in the S-l Residence District in the vicinity of the
Mueller South property if the Expanded Quarry operation were approved are inconsistent
with the reasonable expectation of the peaceful use and enjoyment of residents and
investors of such residential properties, many of whom invested in their properties before
Martin Marietta entered into its lease agreement with Mueller.
24. Martin Marietta has failed to establish that the adverse impacts already
experienced by residents and investors in residential neighborhoods in the vicinity ofthe
Mueller South property would be substantially reduced, or indeed even maintained at
11
u
u
their existing, undesirable levels, if the proposed Expanded Quarry operation were to be
approved. On the contrary, given the absence of any commitment by Martin Marietta to
reduce the force of blasting proposed for use at the Expanded Quarry operation, it is a
reasonable expectation, for reasons discussed above, that the adverse impacts to be
experienced by residents and investors in neighborhoods near the Mueller South property
would actually worsen as a result of the proposed Expanded Quarry operations.
Therefore, the Board finds specifically that the proposed Special Use would be
incompatible with existing uses in the vicinity ofthe Mueller South property and would
negatively affect the neighborhood integrity ofthe following neighborhoods: Blue Creek
Woods, Carolina Commons, Briar Lane Estates, Kingswood, Sycamore Farms,
Williamson Run, and the Woodlands.
25. It is reasonable to expect that approval ofthe proposed Expanded Quarry
operation would have a negative effect on the fair market values of the residential
properties located in the above referenced neighborhoods, or at a minimum that such
approval would result in a reduction in the projected, future appreciation of the values of
those previously existing residential developments in the vicinity of the Mueller South
property. Moreover, the real estate property taxes collectively paid annually by the
owners of residential properties in the above referenced neighborhoods are approximately
50 to 60 times greater than the amount of taxes paid annually by the owners ofthe
Mueller South property. In view of the possibility that the relative assessed valuation of
these residential properties could be negatively affected by the approval of the proposed
Expanded Quarry operation, the Board specifically finds that Martin Marietta has failed
12
v
u
to establish that a cost/benefit analysis will show a net benefit to the community if the
Expanded Quarry operation is approved.
26. The Board has conducted the rigorous review that the Zoning Ordinance
prescribes for a Special Use proposal, which has involved taking evidence in a public
hearing, reading written materials submitted by the applicant and remonstrators and
consultant reports, and hearing staff recommendations relative to the 26 review items that
are listed in Section 21.03 of the Zoning Ordinance. The Board has further considered
whether Martin Marietta established that the proposed Expanded Quarry operation meets
all five of the Special Use factors established by Section 21.04 ofthe Zoning Ordinance
as requisites for approval. The Board after its review has concluded that Martin Marietta
failed to meet Special Use factors No.2 and No.3 as required by the Zoning Ordinance.
27. The Board has been advised that the use of explosives at the proposed
Expanded Quarry operation would be subject to certain rules of the Indiana Fire
Prevention and Building Safety Commission, which rules are codified at 675 lAC 26, and
that these rules are intended to implement a statewide code of fire safety laws and
uniform regulation throughout the state having the purpose of protecting public health
and safety. The Board hereby determines that land use decisions under IC 36-7-4-918.2
and other pertinent statutes, such as a decision by the Board under Chapter 21 of the
Zoning Ordinance on Martin Marietta's Special Use proposal for the Expanded Quarry,
in which the impacts of blasting on nearby properties are considered, would not constitute
regulation of blasting in a manner or for a purpose comparable to that established by the
referenced state rules, and consequently such land use decisions are not inconsistent with
or preempted by such state rules. Therefore, the Board hereby concludes that it is not
13
o
( j
~
precluded from making a land use decision in respect to the proposed Expanded Quarry
operation which is based on a finding that the use of explosives as a part of a Special Use
proposal, although otherwise lawful, constitutes a special and unique condition that
makes the Special Use proposal obviously inappropriate under the Zoning Ordinance.
Now, therefore, pursuant to the authority vested in it by IC 36-7-4-918.2 and the
Zoning Ordinance, the Board hereby finds and concludes that the Special Use proposal of
Martin Marietta, which would allow for the establishment of an Expanded Quarry
operation involving the use of explosives on the Mueller South property, is (i) not
properly within the intended scope of the Special Use described as "Mineral/Sand/Gravel
Extraction" which is discretionarily permissible in the S-1 Residence District, or,
alternatively, (ii) obviously inappropriate as a result of the special and unique conditions
cited above and as determined by the Board as a result of its review procedure. Docket
No. 05090003 SU is DENIED.
J~1f
Filed in the Office of the Carmel Board of Zoning Appeals this } Jj r day of
May, 2006.
~;;f~
fames R. Hawkins
Chairman
-. .
="'-;
_-:".-r
. "-
~ ,
'':.:..
"'_L?~
~ 'Z- ::
;~ ~
" -- ::
:: -,. ~
- ..- ~
-
"'"--
r-_ '
-~
r::.'f
.-:,..." ;::
~. " ........
...._~
for
Connie Tingley
BZA Secretary
co(,U\..~ tl'b t-t~~ (~,
~S'Z>1Zlv\. ~,5-24-~OI~
14
o
Q
CARMEUCLA Y BOARD OF ZONING APPEALS
Cannel, Indiana
::::::~.: ~~~ Mt^~n7Ak. )0C-
FINDINGS OF FACT - SPECIAL USE (Ballot Sheet)
1.J V~& J# F/tJtJ/L /y,c ~ #vtJ77tJfi/
7lf/f-r O,c;-eJCJl/otJ~ SU Be ]k:ctNW.' TAL-
IfflllCff/T/7 1/-/1-5 )J()~- ~~?7H3US~ ~
2. ~ ~--.el.f} fi.4- ~ /&~~ C/r A-
_ec//H/ tjJ~_~/T
3.
4.
BLA bcttld1J
5.
'f1'Vf ( 0"
~
It- 1V- L
6.
DATED THIS ~ DAY OF
~
A,*,~/~...
/' I'e:_~
/\ " ",' :':.,< -- "-
J'~". /"'-...
" Y - - ~ -- /'\
tJ~ . ~~ t~\:\
r - ,,~t n.'t\ hi
\~c~~~_, / ~~~~~~~-}t} ,~}
\ .\. ~ L~""
,,<:,~t~:\;~y($/'-
""Z!.J!iii I \3
~.
Board Member
Page 7 at 8 - Speclal Use '&:OItC30on
w
w
Docket No. :
CARMEUCLA Y BOARD OF ZONING APPEALS
Cannel, Indiana
~~MtA-lerlcilj) IN:.
N~
~
Petitioner:
FINDINGS OF FACT - SPECIAL USE (Ballot Sheet)
1.
2.
3.~_ <;/;r'w-A \ C2~ IaLrl1 ",J-- k- Q:w<;{~M i-J/
S"'~ I "",,~J,.~, b d ~ . -=1+:~ ,~ rD_ {.),...-J:;b l.c ·
I I
4.
,- ( , b(o(~
...... "- (f?A. . \./
/
(JC--e
5.
6.
DATEDTHIS~DAYOF ~;l \
~4~
- emer
----.
r:;/r.,. \.~, ..',
. . .~ . '.,
/ . ' - """.
. ". ..
, ,
, ~ ,',
.t. -' ~~~ ~ ':'
" . ~ ~~ '
:1 ~ 1.,....\. .
\,'\ # ~1>'f> '..
"\ @~> ",)
\//~" ' ~//
"-,' ; --r,-'/' . '
~"<"~/
.--'-
F'age 7 of 8 - Special Use AOOlica1l0ll
u
u
CARMEUCLAY BOARD OF ZONING APPEALS
Cannel, Indiana
Docket No. :
tv1 ~J5 / Ire,
Petitioner:
FINDINGS OF FACT. SPECIAL USE (Ballot Sheet)
1.
2.
3.
~~~cf~~
4.
5.
6.
DATED THI;? PLt DAY OF
//-\'\J~i i, '" '.
,'-/'- c',
/ "
s~~~ ,'~. ,
1., 'Q J
~~~ @>~~ r
'..\", ~~ ~ //,'~
.....'-. ~/\, /
..../"":-.--:iI. 1 "'
-.........,... : ,/./
~
lf~.
Board Member
i>3ge 7 of 8 - Spec:I3l Use AOOllcatlon
o
u
CARMEUCLA Y BOARD OF ZONING APPEALS
Carmel, Indiana
Docket No. :
~~ M.,;k,ols) I",c,
Petitioner:
FINDINGS OF FACT - SPECIAL USE (Ballot Sheet)
1.
2.
3.
4.
5.
6.
OATEOTHIS-a-OAYOF ~d 1
~;t~
ar;r Member
I
!
///.-------~/'.
I '\
~~ \.
S~ 1.J~~ \- ,
~ ~ :'\.~ ) ,
~'-> ~rs> .:
~~ ~/./.j
--- .-----:-( :' -- '
. I
:
Page 1 of 8 - Spec:lal Use AOOltCaOon