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KINGS WOOD HOMEOWNERS ASSOCIATION
P.O. Box 234
Carmel, Indiana 46082
April 14, 2006
VIA EMAIL AND/OR HAND DELIVERY
Michael Hollibaugh, Director
Department of Community Services
City of Carmel, City Hall '
One Civic Square
Carmel, IN 46032
RE: Martin Marietta Materials Special Use Application
BZA Docket No. 05090003 SU
Proposed Findings of Fact
Dear Mr. Hollibaugh:
Enclosed on behalf of Remonstrators in the above-referenced are proposed
findings of fact for submittal to the CarmeVClay Advisory Board of Zoning Appeals for
consideration in regard to the referenced proceeding.
Please forward these proposed findings to the Board of Zoning Appeals for their
review and use in regard to the upcoming April 24, 2006 meeting of the Board on the
above-referenced subject.
Please call me at 317-590-3517 with any questions.
Enclosures
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In Re: Application of Martin Marietta Materials, Inc.
for Special Use Approval for Mueller Property South
Surface Limestone Operation
Docketed before the Carmel/Clay Advisory Board of Zoning
Appeals as No. 05090003-SU
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The following proposed findings of fact are submitted by Remonstrators for
consideration by the Board in the above-referenced special use proceeding:
1. Martin Marietta Material's (MMM's) proposed Special Use for surface mining of
limestone, as described in its application for approval, expressly and inherently includes
the use of explosives to blast rock free from the limestone strata underlying the Mueller
South property.
2. The use of explosives in an industrial activity such as surface mining is of the
nature of Heavy Manufacturing, based on the definition of that term in the Zoning
Ordinance. Heavy Manufacturing is not permissible as a special use in an S-1 residential
district under the Zoning Ordinance. Thus, such use of explosives for surface mining,
as proposed by MMM at the Mueller South property, is not properly within the intended
scope of the special use described as "Mineral/Sand/Gravel Extraction" which is
conditionally permissible in an S-1 residential district.
3. The use of explosives in an industrial activity such as surface mining, being of the
nature of Heavy Manufacturing, based on the definition of that term in the Zoning
Ordinance. Heavy Manufacturing is inherently incompatible with residential property
uses in an S-1 residential district.
4. MMM's proposed surface limestone extraction or mining activity at the Mueller
South property, which includes blasting by explosives as an essential element of that
activity, may not be approved as a special use in an S-1 residential district.
5. The proposed special use is not consistent with the character and permitted land
use of the S-1 Residence District and Carmel/Clay 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.
6. MMM's proposed special use for surface limestone mining at the Mueller South
property would, over time, bring its blasting operations as much as 1300 feet closer to
some nearby residences in subdivisions in the S-1 residential district and would
eliminate as much as 42% of the existing buffer between MMM's blasting operations at
its existing surface limestone mine immediately south of the Mueller South property,
which is nonconforming use under the Zoning Ordinance.
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In Re: Martin MariettaY:aterials' Application for Special Use U
Docket No. 05090003-SU
7. The remonstrators include residents from the following residential neighborhoods,
among others, surrounding MMM's existing surface limestone mine: Blue Creek Woods,
Briar Lane Estates, Kingswood, Sycamore Farms, Williamson Run, and the Woodlands.
Over 300 residents from these neighborhoods signed petitions opposing MMM's
proposed special use which were an attachment to the original written statement
submitted by remonstrators. These neighborhoods include nearly 1000 residences.
8. Numerous residents from residential neighborhoods surrounding MMM's existing
surface limestone mine experience adverse impacts from the existing blasting operations
at MMM's existing surface limestone mine, which includes among others the substantial
shaking of their 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 of little children, and other similar effects. Some residents
complained of damage to residences as a result of the vibrational impacts from MMM's
blasting operations. These impacts are inconsistent with the reasonable expectation of
the peaceful use and enjoyment of residential properties in the S-1 district in which the
Mueller South property is located.
9. MMM's proposed special use would be expected to exacerbate the adverse
impacts already experienced by residents in neighborhoods surrounding the Mueller
South property, given that the existing buffer between MMM's existing surface limestone
mine and the residential neighborhoods will be substantially reduced over time and given
that no reduction in the vibrational force resulting from MMM's blasting operations is
proposed by MMM.
10. MMM's proposed special use of surface limestone mining, using blasting
explosives, at the Mueller South property is incompatible with existing residential uses in
neighborhoods surrounding the Mueller South property.
11. MMM's proposed special use of surface limestone mining, using blasting
explosives, at the Mueller South property is obviously inappropriate in the S-1 residential
district in which it is located, particularly in recognition of the high degree of
development of the surrounding lands by residential properties and the adverse impacts
already experienced by residents of these properties as a result of blasting activities at
MMM's existing surface limestone mining operation, which is a nonconforming use
under the Zoning Ordinance.
12. It is reasonable to expect that a worsening of impacts of blasting on residential
neighborhoods surrounding the Mueller South property will have a negative effect on the
fair market values of such residential properties.
13. The real estate property taxes paid annually by owners of residential properties in
the neighborhoods surrounding the Mueller South property, including Blue Creek Woods,
Briar Lane Estates, Carolina Commons, Kingswood, Sycamore Farms, Williamson Run,
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In Re: Martin Marietta~aterialS' Application for Special Use U
Docket No. 05090003-SU
W oodcreek, and the Woodlands, are approximately 50 to 60 times greater than are paid
on the Mueller South property.
14. MMM's proposed use of blasting explosives at the Mueller South property under
its proposed special use would be subject to certain regulations of the Indiana Fire
Prevention and Building Safety Commission codified as 675 lAC 26 which are based on
the protection of public health and safety. These regulations are intended to protect
buildings and other structures from serious structural damage associated with exposure to
vibrational impacts from the use of blasting explosives.
15. The consideration by the Board of Zoning Appeals of the potential
incompatibility and inappropriateness of the proposed use of blasting explosives at the
Mueller South property under MMM's proposed special use with surrounding residential
property uses is not inconsistent with, or barred by, state statutes authorizing the Indiana
Fire Prevention and Building Safety Commission to adopt rules intended to protect public
health and safety, such as those codified as 675 lAC 26.
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L;' ~j 4e of the Remonstrators
11268 Williams Court
Carmel, IN 46033
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PRINCIPLES OF ZONING LAW
March 27, 2006
1. Non conforming uses are not eligible to be
expanded.
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2. Carmel has declared all of MM uses to be non
conforming uses.
3. Martin Marietta and the City have defined this
Application is for the purpose of expansion of
MM's existing quarry.
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4. As an expansion of the existing quarry, this
application is not eligible for special use treatment.
Yedlick 3-27-06
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BEFORE THE CARMEL/CLA Y ADVISORY BOARD OF ZONING APPEALS
RE: Martin Marietta Materials' Application for Special Use Approval for Surface
Mining/Blasting at the Mueller South Property Zoned as Residential S-1 District
Docket No. 05090003 SU
REMONSTRATORS' PRELIMINARY PRESENTATION
. My name is Larry Kane. My family and I reside at 11268 Williams Court. I am a
member of the Mining Committee of the Kingswood Homeowners Association and I am
a Remonstrator.
. Martin Marietta's (MM's) special use application proposes the surface mining of
limestone from the 96-acre Mueller South tract through the use of blasting explosives.
This expansion of MM' s existing open pit mining operation would bring blasting at its
current or greater force as much as 1300 feet closer to Kingswood. W oodcreek and
Sycamore Farms. and nearly as much closer to Carolina Commons. See the attached map
depicting the location of the Mueller South Site in relation to the various residential
areas. Other subdivisions near the proposed expansion include Blue Creek Woods,
Williamson Run, Briar Lane Estates and Woodlands, which will also be impacted. St.
Elizabeth Seton Catholic Church is nearly as close to the proposed expansion as
Kingswod and Blue Creek Woods. Other neighborhoods and schools are somewhat
farther away but will also be affected by the proposed expansion. Around 1178 homes
and families are included in the neighborhoods specifically listed above and represented
here tonight.
. The Remonstrators oppose the proposed special use and respectfully ask the Board to
deny MM's application for the following reasons among others.
1. Mining routinely involving Blasting could not be within the intended meaning of
"Mineral Extraction" that may be permitted as a special use within a residential
district. As discussed in Remonstrators' Summary of Certain Arguments, which is in
your packet, blasting with explosives is a heavy industrial/manufacturing activity and is
markedly different from the excavation of dirt or sand & gravel that may be compatible
with nearby residential uses. From Appendix A to the Zoning Ordinance, it can be seen
that Mineral/Sand/Gravel Extraction. which is a potentially permissible special use in an
S-1 Residential District. falls within Light Manufacturing Uses. From the definitions in
this part of the Zoning Ordinance, however, Heavy Manufacturing Use. which may not be
permitted in an S-1 District as a special use, is the only use described as involving use of
explosives, an activity dangerous to the health, safety and welfare of the general public.
Thus. limestone mining with blasting must be a HeaVY Manufacturing Use and cannot be
Mineral/Sand/Gravel Extraction for purposes of an S-1 District special use. For this
reason alone, the special use application must be denied.
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Remonstrance Presentation - MartiQarietta Surface Mining/Blasting
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2. Even if the Board were to conclude that mining routinely using Blasting were within the
intended meaning of "Mineral Extraction" for a special use in a residential district (which
Remonstrators firmly believe should not be the case), the special use application must be
still be reviewed and decided on a case-by-case basis using the factors set out in the
Ordinance governing special use determinations.
3. Criteria for approval or rejection by the Board of a proposed Special Use include but are
not limited to the following under Section 21.04.01 of the Carmel Zoning Ordinance:
o Social/neighborhood factors, such as (i) compatibility with existing uses and those
permitted under current zoning in the vicinity of the premises and (ii) how the
proposed Special Use will affect neighborhood integrity.
o Economic factors related to the proposed Special Use, such as cost/benefit to the
community and its anticipated effect on surrounding property values.
A key overall criterion for the Board is whether the proposed Special Use is obviously
inappropriate based on a site-specific evaluation of these criteria.
4. Under MM's application, its blastin!! operations will be brought roue:hlv 400/0 closer.
over time. to the nearest residences in surrounding subdivisions. Since no reduction in
blasting force is proposed by MM, the adverse impact of the blasting on residences,
churches and schools will increase over time as the current buffer zone is consumed.
Contrary to MM's contention, Remonstrators think it likely that this increasing blasting
impact will have a negative effect on property values.
5. The existin!! blastin!! activities ofMM at its Indianapolis North plant (96th Street plant),
which are a part of a nonconforming use under the Zoning Ordinance, already pose
nuisance-level impacts to Remonstrators and other surroundin!! property owners as
will be supported by other speakers.
6. Martin Marietta has asserted that the Board must approve the proposed special use since
Chapter 21 of the Zoning Ordinance states that Special Uses will generally be considered
favorably. This assertion by MM ignores the remainder of the Ordinance's statement
that the generally favorable attitude toward a proposed Special Use does not applv where
the requested Special Use is obviously inappropriate for the setting in which it is
proposed. [Section 21.01.]
7. Martin Marietta has asserted that the Board has no right to regulate blasting. However,
Martin Marietta's assertion is erroneous and misses the point. The determination the
Board must make under the Zonin!! Ordinance is NOT ree:ulation of blastin!! at all.
and CERTAINLY NOT re!!ulation for purposes of public health and safety. which is
the purpose of state regulation. Rather. the Board must decide. as in any other special use
proceeding. whether MM's proposed limestone mining use (which happens to include
blasting) is compatible with. and otherwise appropriate in consideration of. surrounding I
property uses. This calls for the exercise of the Board's core responsibility under
pertinent statutes and ordinances to evaluate a proposed special use in accordance with
generally applicable criteria.
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~emonstrance Presentation - MartiQarietta Surface MiningIBlasting
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8. Martin Marietta has also asserted that the Board must approve its proposed special use
since its blasting operations comply with state regulatory standards. This assertion is
grossly mistaken and erroneous since it merely means that MM's proposed use is not
illegal. That just gets MM to the table so that its proposed special use can even be
considered.
9. The blasting standards with which MM asserts compliance are based on national
guidance intended to protect buildings from serious structural damage. They do not
address the nuisance impacts of blasting on residents occupying the affected structures or
the emotional and/or psychological distress resulting from those impacts.
Ironically, MM also proposes to comply with the blasting limits in the City's Mining
Regulation ordinance, even though MM appealed and obtained a court order invalidating
that ordinance. This commitment has no significance given that the blasting limit in the
City's ordinance (1) is based on the same national guidance designed to protect buildings
only against serious structural damage, and (2) expressly does not apply to the current
context in which MM seeks to expand its blasting operations to a new site.
10. Again, we reemphasize that the matter before the Board is NOT the regulation of blasting.
It is, instead, a fundamental determination under the Zoning Ordinance of whether MM's
proposed Special Use should be denied because of its obvious inappropriateness due to
incompatibility with existing residential and related uses of surrounding properties and
other negative factors.
CONCLUSION: Martin Marietta's proposed Special Use should be denied as failing to
satisfy requisite criteria of the Ordinance because:
The heavy industrial nature of the proposed surface mining through blasting
explosives is:
(i) outside the scope ofthe available Special Use of Mineral Extraction in a S-1
Residential District or, alternatively,
(ii) obviously inappropriate for the Mueller South property since (a) it is
incompatible with the nearby high-Quality residential developments. churches
and schools. especially given that the encroaching blasting operation will
exacerbate current adverse impacts, (b) it is a serious threat to the continued
intee:ritv of the nearby residential communities, (c) it presents an unfavorable
costlbenefit ratio considering the great disparity between the low property tax
paid on the Mueller South tract in comparison to those paid by owners of
surrounding residential properties and (d) it may lead to decreased residential
property values.
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~emonstrance Presentation - MartQarietta Surface MiningIBlasting
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Following me will be several representatives from various constituencies among the
Remonstrators.
Speaker Representing Membership
Susan Becker Kingswood 221 Families
Matt O'Donnell Williamson Run 175 Families
Fred Glaser Dist. 5, Carmel City Council
Charles Lane Woodland 490 Families
Karen Karr Briar Lane Estates 160 Families
Chuck Appelquist Blue Creek Woods 67 Families
Chris Jensen Sycamore Farms 65 Families
Pastor Tom Macy Kingswood
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KINGS WOOD HOMEOWNERS ASSOCIATION
P.O. Box 234
Cannel, Indiana 46082
March 17, 2006
VIA HAND DELIVERY
Michael Hollibaugh, Director
Department of Community Services
City of Cannel, City Hall
One Civic Square
Cannel, IN 46032
RE: Martin Marietta Materials Special Use Application
BZA Docket No. 05090003 SU
Dear Mr. Hollibaugh:
Enclosed on behalf of Remonstrators in the above-referenced proceeding are two
documents for submittal to the Cannel/Clay Advisory Board of Zoning Appeals for
consideration in regard to the referenced proceeding. These two documents are:
(1) Remonstrators Summary of Certain Arguments Presented in Opposition to Martin
Marietta Materials' Application for Special Use Approval; and
(2) a letter from Jeffrey L Hudson dated March 17,2006.
An original and 8 copies of each document are enclosed. Please forward these
documents to the Board of Zoning Appeals for their review and use in regard to the
upcoming March 27,2006 public hearing on the above-referenced subject.
Please call me at 317-590-3517 with any questions.
Enclosures
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STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
CARMEL/CLA Y ADVISORY BOARD
OF ZONING APPEALS
DOCKET NO. 05090003 SU
In Re: Application of Martin Marietta Materials, Inc.
for Special Use Approval for Mueller Property South
Surface Limestone Operation and Artificial Lake
.REMONSTRATORS' SUMMARY OF CERTAIN ARGUMENTS PRESENTED
IN OPPOSITION TO MARTIN MARIETTA MATERIALS' APPLICATION
FOR SPECIAL USE APPROVAL
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lIDs document summarizes, for the benefit of the BZA, Remonstrators' arguments on the
following specific issues. Remonstrators have raised additional issues in their Statement of
Remonstrance and will discuss those other issues, as well as the issues addressed in this
Summary, before the BZAat its public hearing on MM's application.
ISSUES DISCUSSED
In this document, Remonstrators provides a summary of arguments in support of their
positions with respect to the following issues:
I. Whether the BZA has authority to deny Martin Marietta Materials' (MM' s) application
for special use approval for surface limestone mining and associated blasting operations
even though:
(A) state law is alleged by MM to exclusively regulate blasting operations; and
(B) MM contends that its proposed blasting operations at Mueller South would comply
with the state blasting regulations?
2. Whether "Mineral/Sand/Gravel Extraction" which is potentially eligible for approval as
a special use in an S-I residential district may include blasting operations?
ARGUMENT ON ISSUE l(A)
MM has contended in its Executive Summary of Application for BZA Action for Special Use
Approval Request ("MM Executive Summary"), dated February 2006, that the BZA has no
authority to deny its application for approval of its proposed special use of surface limestone
mining on the basis that the mining operations will employ blasting since state law gives
exclusive authority to regulate blasting to a state agency.
Remonstrators' response is that MM's contention is erroneous, as a matter of law. A
decision by the BZA to deny the proposed special use would be solidly within the BZA's
authority. This position is based on the following reasons.
MM's contention is based on a false premise: MM incorrectly characterizes a potential action
of the BZA to deny MM's special use application as the regulation of blasting, which violates
state law giving sole authority to regulate blasting to a state agency - the Fire Prevention and
Buiding Safety Commission. This is simply not so.
It is true that the Indiana Fire Prevention and Building Safety Commission adopted rules in
late 2005 codified as 675 lAC 26 which create licensing requirements for the use of regulated
explosives such as would be used at MM's proposed surface limestone mining operations at
Mueller South. These rules adopt certain recommended technical standards which, among
other things, set a maximum allowable peak particle velocity at buildings on properties
adjacent to a blasting operation. These rules were adopted under the specific authority of
state statute IC 35-47.5 and the more general authority of state statute IC 22-13-2-2 directing
the Commission to adopt rules establishing a statewide code of fire safety laws.
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It is also true that IC 22-13-2-3 that fIre safety rules adopted by the Commission generally
take precedence over any ordinance or other regulation of a political subdivision that covers
''the same subject matter" as the Commission's fIre safety rules.
However, this is where MM's contentions clearly fail. A hypothetical decision of the BZA
denying MM's application for special use approval would be barred as in conflict with
state law on the subject of blasting regulation ONLY IF the BZA decision were !y!
ordinance or other reolation covering the same subiect matter as the Fire Prevention
and Building Safety Commission's rule on licensing of regulated explosives. Such a
hypothetical BZA decision, however, would not be an ordinance or regulation; it instead
would be a case-specifIc decision, turning on the consideration of site-specifIc facts. More
importantly, however, such a hypothetical decision of the BZA WOULD NOT deal with
the same subject matter as the Fire Prevention Commission rule governing licenses for
the safe use of explosives.
Instead, such a potential BZA decision would be likely to be based, for example, in view of
the criteria governing BZA special use determinations, on the alleged incompatibility of
surface mining and blasting with the use of nearby residential, educational and religious
facilities associated with nuisance-type impacts and other substantial interferences with the
reasonable enjoyment of property. Such a BZA decision, in other words, would be a land
use planning decision, simply speaking, and NOT a safety-based regulation of explosives.
There would be NO CONFLICT between such a BZA decision and the safety-based
rules of the Fire Prevention Commission.
In conclusion, the BZA's AUTHORITY TO DENY MM's application for special use
approval for surface limestone mining at Mueller South is NOT AFFECTED OR
PRECLUDED by state law which regulates blasting operations for purposes of
protecting public health and safety.
ARGUMENT ON ISSUE 1(B)
MM has also strongly asserted in its Summary that the BZA must approve its application for
the proposed special use of surface limestone mining (and blasting) since MM's blasting
operations allegedly can comply with the maximum peak particle velocity set by the recent
rules of the state Fire Prevention Commission discussed above.
This assertion by MM is even more clearly erroneous than the previous one. The ONLY
significance of MM's assertion that its proposed blasting operations would comply with
the vibrational impact standards of the state rule is that those proposed operations
would not be categorically illegal. This simply means that the proposed surface limestone
mining use is not barred from consideration by the BZA because of illegal blasting operations.
It means nothing more and most certainly does not imply, as MM contends, that the BZA
must approve its proposed special use merely because its blasting operations would be legally
compliant with state rules seeking to protect public health and safety.
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ARGUMENT ON ISSUE 2
Remonstrators contend that surface limestone mining which depends on blasting operations is
NOT within the scope of "mineral extraction" that may be permitted as a special use within a
residential district under the Zoning Ordinance of the City of Carmel.
Blasting is a heavy industrial/manufacturing activity which markedly differs from the
excavation of dirt from borrow pits or the excavation of shallow sand and gravel which may
be compatible with nearby residential uses.
This distinction can be readily seen from an examination of the Zoning Ordinance.
Appendix A to the Zoning Ordinance is entitled "Schedule of Uses". For each type of zoning
district within the City, this Appendix describes those uses that are: "permitted," "prohibited,"
a "special use," a "special exception," or "excluded."
Only two Industrial Uses are identified as potential Special Uses within an S-1
Residential District - (i) Borrow Pitffop Soil Removal and (ii) Mineral/Sand/Gravel
Extraction. An examination of page 4 of Appendix A (a copy is attached) shows that an
Industrial Use described as "Borrow Pit/Top Soil Removal and Storage" is identified as a
Special Use within an S-1 residential district. This Borrow Pit use is listed immediately under
the Industrial Uses heading prior to any of the subheadings for Heavy Industrial, Light
Industrial, Light Manufacturing or Heavy f\1anufacturing. This implies that the Borrow Pit
use is perceived as having the least impact on residential uses of an S-1 district of any type of
industrial use. No other industrial use of any type may be allowed, as a special use or
otherwise, within an S-1 residential district except for Mineral/Sand/ Gravel Extraction
Operations, which is also designated as a Special Use within an S-l residential district. This
alone suggests that these two uses, as contemplated by the drafters of the Zoning Ordinance,
would not be expected to have a significant adverse impact on nearby residential uses.
The Mineral/Sand/Gravel Extraction use is a Light Manufacturing use. Notably, the
Mineral/Sand/Gravel Extraction use is located on Appendix A under the Light Manufacturing
subheading along with other light manufacturing uses such as printing, storage distribution,
and wholesaling facilities, and considerably above the subheading for Heavy Manufacturing.
This strongly suggests that mineraVsand/gravel extraction is considered by the Zoning
Ordinance as Light Manufacturin~ or as having an impact on other properties comparable to
Light Manufacturing.
Heavy Manufacturing is NOT permitted in an S-1 district nor is it listed as a possible
Special Use.
Limestone mining with Blasting is a Heavy Manufacturing Use. When the definitions of
the Zoning Ordinance for Heavy Manufacturing and Light Manufacturing are compared, it is
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clear that limestone mining through the use of blasting explosives falls within the Heavy
Manufacturing category. An. excerpt from the Zoning Ordinance with these two definitions is
attached. Only Heavy Manufacturing includes activities necessitating use of explosive
materials and/or other materials that are considered dangerous to the healtl4 safety and
welfare of the general public as determined by the State of Indiana. Indisputably, the use of
explosives is considered dangerous to the health, safety and welfare of the general public and
its regulation by the Fire Prevention and Building Safety Commission, as pointed out by MM,
is clear and eloquent evidence that State government recognizes those dangers posed by
blasting operations.
Consequently, Mineral/Sand/Gravel Extraction which may be approved as a Special Use
for an 8-1 Residential District does NOT include use of blasting explosives, which is a
Heavy Manufacturing activity.
~~ne
11268 Williams Court
Carmel, IN 46033
Attachments:
Excerpt of Appendix A to Zoning Ordinance
Excerpt of Definitions (Chapter 3) of Zoning
Ordinance
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ATTACHMENTS
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CITY OF CARMEL ZONING ORDINANCE .
APPENDIX A: SCHEDULE OF USES
P = Permitted
A = Accessory
"Blank" = Prohibited
SU = Special Use
SE = Special Exception
E = Excluded Use
Primary Zoning Districts Old Meridian Zones Overta Zones
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M I ~ .~ ~ ..,. M ..,.
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Type of Use rJ.. len I~ Io! Io! .~ ~ 1m 1m 1m 1m 1m I lu lej 25
ICultural1 J!;ntertalnment Uses
Art Gallery P P P P P P P P P
Art & Music Center p p p p p P P P P P
Carnivals, Fairs, Circuses, etc. P P P SU P E E
Hotel SU SU SU P P P P P E
Hotel (Full Service) SU SU SU P P P P
Indoor Theater P P P P P P P P P P E
Outdoor Theater SU p P E E
Caterim! Establishment P p P P P
RestaUlllnt, without drive-thru food sales p P P P P P P P P P P
RestaUlllnt, with walk-upldrive-thru food sales p P P SU P P E E E E E E E E E E E
Meeting or Party Hall p p p p p p p p p
Museum p P SU P
Stadium or Coliseum p p
TavemlNight Club P P P P P P P P P E
Industrial Uses
Borrow Pitrrop Soil Removal & Storage SU SU SU SU SU SU SU SU SU SU SU SU E E
Heavy Industrial p SU E E E E E E E E E E E E E E
Sanitary Landfill, Junk Yard, Slavage Yard W SU SU E E E E E E
Ught Industrial SU p P E E E E
Storage and/or Warehousina, Indoor SU p P P P E E E E
Storage and/or Warehousing, Outdoor SU p SU E E E E E E E E E E E E E E E
Storage or Sale of Petroleum Products SU P P P E E E E E
Coke OvensIBrick YardsIKilnslOpen HearthlBlast SU
Fumace P E E E E E E E E E E
Light Manufacturin2 P P P E E
MineraVSandlOravcl Extr.cdon Opmtions SU SU SU SU SU SU SU SU SU SU SU SU SU E E E E
PrintinJ!/Publishing Establishment SU p P SU P P P E
StoragelDistnbution Facility SU P P SU SU E E
Wholesalinl! Facility p SU P E E E
Heavy Manufacturing E E E E E E E E E E E E E E E E E
- -
c
c
Page 4 r' 'l
Winter 2f
Q
U CITY OF CARMEL ZONING ORDINANCE
MANUFACTURED HOME PARK OR SUBDMSION, NEW. a manufactured home park or subdivision
for which the construction of facilities for servicing the lots on which the Manufactured Homes are
to be affIXed (including at a minimum, the installation of utilities, the construction of streets, and
either final site grading or the pouring of concrete pads) is completed on or after the effective date
of this Ordinance.6
MANUFACTURED HOUSING SALES. See SALES, MANUFACTURED HOUSING.
MANUFACTURING, HEAVY. 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 to the
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 offlammable liquids or gases.
MANUFACfURlNG, LIGHT. 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.
MARKET, CONVENIENCE: An establishment, not exceeding 5,000 square feet of Gross Floor Area,
serving a limited rrulrket area and engaged in retail sales or rental, from the premises, of food,
beverages and other frequently or recurrently needed items for household use, excluding gasoline
sales.
MEDICAL-HEALTH CENTER. See CLINIC or MEDICAL-HEALTH CENTER.
MEDICAL LABORATORY. See LABORATORY, MEDICAL.
MEDICAL OFFICE. See OFFICE, MEDICAL.
MEETING OR PARTY HALL. A building designed for public assembly, containing at least one room
having an area equivalent for four hundred (400) square feet per dwelling unit or 2,400 gross
square feet, whichever is greater.
MINERAL, SOIL, OR GRAVEL EXTRACTION OPERA nONS. Any process used in obtaining, from the
earth, naturally occurring substances.
MOBILE HOME. Any vehicle, including the equipment sold as a part of a vehicle, used as a conveyance
upon streets by either self-propelled or non self-propelled means and which is designed,
constructed, reconstructed or structurally altered in such a manner as will permit the occupancy
thereof as a Dwelling and which is both used and occupied as a Dwelling but having no
foundations other than wheels, jacks, skirting, or other temporary supports.d
MOBILE HOME PARK. An area of land upon which two or more Mobile Homes are harbored for the
purpose of being occupied either free of charge or for revenue purposes, including any Building,
6 Ordinance No: Z-3 I I effective November 6, 1995.
Chapter 3: Definitions
3-23
as amended per Z-320; Z-339; Z-340; Z-345; Z-365-01; Z-369-02; Z-389-02; Z-415-03; Z-416-03; Z-417-03; Z-
419-03;Z-453-04;Z-46J-04;Z-47J-05
Winter 2005 v2
;' ..
u. U
JEFFREY L. HUDSON
March 17, 2006
Dear Members of the BZA:
The opposition to the Martin Marietta petition to expand limestone extraction is based in part, on the
concern that open pit and blasting expansion will have a detrimental affect on home values in the area.
Rather than inject more emotion into an already emotional issue, I wish to present a more quantifiable
objection to the open pit expansion. As a state-licensed and active real estate appraiser, I am extremely concerned
about the reduction in property values based upon the concept of External Obsolescence. While in the practice of
appraising real estate, we as appraisers, are bound and must consider all forms of depreciation affecting a property.
The three types of depreciation we must consider are Physical Deterioration, Functional Obsolescence and
External Obsolescence. Of the three types, the one that WIll be applicable to all properties within close proximity
to the blasting expansion is External Obsolescence.
External Obsolescence is defined as "An element tif depreciation; a defect, usuallY incurable, caused i?Y negative influence outside
a site and genera/fy incurable on the part tif the owner, landlord, or tenant." (The Dictionary of Real Estate Appraisa4 4th ed., Chicago:
Appraisal Institute, 2002, Page 106.).
Furthermore, The Appraisal tifReal Estate, 12th Edition, defines it as <~ temporary or pef1Jlanent impaif1Jlent tif the utilit;y
or salabilit;y tif an improvement or property due to negative influences outside the property. External Obsolescence mf!} result from an
adverse market condition, because tif its .fixed location, real estate is suI?Ject to external itifluences that usuallY cannot be control/ed l?Y
the property owner, landlord or tenant." (The Appraisal of Real Estate, 12'" Edition, Chicago: Appraisal Institute, 2001, Page 305). It
should be noted that The Appraisal tif Real Estate is the internationally recognized textbook, and comprehensive
repository of knowledge for appraisers. Additionally, External Obsolescence is the result of diminished utility of a
structure due to negative influence from outside the site, resulting in a loss in value to the property.
There are any number of techniques an appraiser can use to quantify an appropriate adjustment for this
type of depreciation, the details of which are beyond the scope of this letter, but suffice it to say, it should be
applied to every home in dose proximity to the blasting expansion. I work from my home 50% of the time and
while the current vibrations felt by existing blasting operations is highly undesirable, it pales in comparison to what
can be expected if the petition is approved.
An appraiser engaged by a federally regulated lending institution to appraise real estate is required to
conform with Uniform Standards of Professional Appraisal Practice (USP AP) of the Appraisal Foundation and
the Standards of Professional Practice of the Appraisal Institute, as well as Title XI of Financial Institutions
Reform, Recovery, and Enforcement Act of 1989, otherwise known as FIRREA. As such, an appraiser MUST
consider ALL factors of depreciation including any external elements that affect the property's value. Whether or
not an appraiser actually applies the deduction or not can be strongly influenced by pressure placed by a lender on
the appraiser to "get the value."
u
u
I have read an appraisal report performed by a local appraisal firm on behalf of Martin Marietta that
addressed the impact (if any) that mining operations have had on home values and marketing times (days on
market). The conclusion of that report was that no clear evidence of said impact was noted. However, I
staunchly oppose the findings of that report and the methodology used in their analysis. Furthermore, the
proposed mining expansion would be a drastic departure from the scope of that previous report.
I believe very strongly that if you gave the facts of the current situation to 100 qualified appraisers, every
one of them will conclude that blasting expansion will have a detrimental and adverse affect on property values.
Aside from the quantifiable evidence I discussed above, at some point common sense must prevail and
enlighten anyone to the fact that homes located within close proximity to eJq>anded blasting operations will be less
desirable than similar homes located elsewhere. Less desirable homes require longer marketing times which also
puts downward pressure on list prices and eventually sale prices.
In closing, I ask that the petition to expand mining operations be denied.
Sincerely,
?1IUM
['
"
o
(j'
STATE OF INDIANA
)
) SS:
)
CARMEUCLA Y ADVISORY BOARD
OF ZONING APPEALS
DOCKET NOS. 05090003-SU
AND 05090004-SU
COUNTY OF HAMILTON
In Re: Application of Martin Marietta Materials, Inc.
for Special Use Approval for Mueller Property South
Surface Limestone Operation and Artificial Lake
STATEMENT OF REMONSTRANCE
COME NOW Susan Becker, Jason Eckerle, Marcus Freihofer, David P. Gilley, Fred
Glaser, JeffL. Hudson, Larry J. Kane, William D. McEvoy, Janet Rodriguez, Rex Weiper, the
Blue Woods Creek Homeowners Association, the Kingswood Homeowners Association, Inc.,
the Sycamore Farms Homeowners Association, and the Williamson Run Homeowners
Association, (collectively, the "Remonstrators"), and file with the Carmel/Clay Advisory Board
of Zoning Appeals (the "BZA") their written comments in support of their remonstrance against
the Application ("Application") filed by Martin Marietta Materials, Inc. ("MM") for a Special
Use to conduct surface extraction of limestone on the land known as "Mueller South," docketed
as number 05090003-SU. The Remonstrators reserve the right to supplement these materials in
the future and to present further oral comments at the hearing( s) on this matter. All such written
materials shall be deemed to be incorporated into the oral comments at the hearing( s) on this
matter unless specifically withdrawn or modified at or before such hearing(s).
The Remonstrators respectfully urge that the Application be DENIED. The reasons for
Remonstrator's position are set forth hereinbelow. Remonstrators offer no comments on MM's
companion application for a special use approval to establish an artificial lake on the Mueller
South property following completion of the surface extraction of limestone, docketed before the
BZA as No. 05090004-SU, since this application would be moot if the application in Docket No.
0509003-SU were denied.
4
~
RECEIVED
DEe - 2 2005
DOCS
I,
Remonstrance
w-
W
Docket Nos. 05090003-SU and 05090004-SU
THE PARTIES. There are three main parties, or groups of parties, in this
proceeding: the Applicant, Martin Marietta Materials, Inc. ("MM"), the Remonstrators, and the
Department of Community Services of the City of Carmel ("DOCS").
(a) Based on public information, MM is a foreign corporation having its principal
offices in Raleigh, N.C. MM has operations in many states in the Midwest and East Coast and
is one of the largest companies in its industry - the production of raw aggregate materials.
(b) The individual named Remonstrators are residents of the City of Carmel, all
living within the zone of impact ofMM's mining operations at its Indianapolis North Plant
located at the intersection of 96th Street and Gray Road, Carmel, Indiana. The names and
addresses of the individual Remonstrators are: Susan Becker, 5029 Kingswood Drive; Jason
Eckerle, 4980 Kingswood Drive; Marcus Freihofer, 11136 Bradbury Place; David P. Gilley,
5049 Huntington Drive; Fred Glaser, 10538 Lakeshore Drive East; JeffL. Hudson, 11125 St.
Charles Place; Larry J. Kane, 11268 Williams Court; William D. McEvoy, 5120 Williams
Circle; Janet Rodriguez, 10575 Power Drive; and Rex Weiper, 11179 Westminster Court. Each
individual Remonstrator has a real property interest in the southeast portion of Carmel and each
is disturbed on a regular basis by the operations of the Indianapolis North Plant (south of the
Mueller South property). The Kingswood Homeowners Association, Inc., is an Indiana non-
profit corporation with 221 members whose families live in the Kingswood subdivision.
Kingswood is zoned S-2/Residence District under the Zoning Ordinance. Blue Woods Creek
Homeowners Association is associated with the Blue Woods Creek subdivision which is located
south of 106th Street and immediately adjacent to the west boundary ofMM's Indianapolis North
Plant. Williamson Run Homeowners Association comprises 187 members whose families reside
in the Williamson Run subdivision, which is located contiguous to Blue Woods Creek
subdivision. A portion of Williamson Run is adjacent to the west boundary ofMM's
Indianapolis North Plant. Sycamore Farms Homeowners Association is associated with the
Sycamore Farms subdivision located north of Kingswood and west of Wood Creek, but sharing
the same watershed, street accesses, and aquifer.
In addition to the individual named Remonstrators signatory to this Statement of Remonstrance,
an additional 306 persons residing in Kingswood subdivision, Sycamore Farms subdivision, or
Williamson Run subdivision have expressed their opposition to the Application in written
petitions, copies of which are attached as an exhibit hereto and incorporated herein by reference.
Remonstrators reserve the right to supplement this Statement of Remonstrance prior to or at
hearing of the Application by the BZA with additional petitions representing the opposition of
additional persons residing in communities proximate to the Mueller South site.
(c) The DOCS is a department of the City of Carmel and functions as the planning
department for the City of Carmel and Clay Township, Hamilton County, Indiana.
(d) In addition to the Remonstrators, it is anticipated that there will be substantial
numbers of the general public, mostly neighbors of Mueller South, who will want to express
2
Remonstrance
Q
Q
Docket Nos. 05090003-SU and 05090004-SU
their opinions with respect to the Application. Such individuals will be expressing their own
opinions.
THE APPLICATION. The Application covers a 96.92 I-acre tract of farmland and
wooded creek side located at the southwest comer of 106th S1. and Hazel Dell Parkway and
zoned as S-l/Residence District under the City of Carmel's Zoning Ordinance. The owner of the
land, E. & H. Mueller Development, LLC, has leased the 96.921 acres to MM. Since MM has
not provided a copy of such lease with its application, it is left to the DOCS and ultimately the
BZA to assume that MM has the power to file this Application. Such authority should be
adequately demonstrated to the DOCS and the BZA through the provision of a copy of the
foundational lease to both governmental bodies before this Application is considered.
Simply speaking, the Application indicates that, once the soil overburden and the shallow sand
and gravel stratum are removed from the site, MM will commence excavation of the limestone
from the bedrock It may be inferred from the Application that limestone extraction would
occur on roughly 65 acres of the 96.921 acre leasehold., once the 300-foot setback along 106th
Street and lesser setbacks on the east and west are excluded. Given the projected depth of
limestone at 215 feet, the site would theoretically be capable of producing roughly 22.5 million
cubic yards of limestone aggregate.
MM projects in the Application that operations to extract limestone from the site could continue
for a period of 25 years or more.
It is apparent from the Application that the Mueller South surface limestone operation would be
integrated into the existing surface limestone mining operation at the North Indianapolis Plant.
While the application offers scant information on the proposed sequence of mining operations .
for the Mueller South SLO, it is stated that the existing face of the open pit on the north wall of
the North Indianapolis Plant would be moved north into the Mueller South Property and taken
progressively north across that parcel. Thus, initially, the limestone from the open face would
be blasted into the existing North Indianapolis plant and collected and transported from the North
Indianapolis plant pit to the processing facilities there. The expansion onto Mueller South would
be a seamless progression north of that existing North Indianapolis SLO.
Ultimately, the north face of the open pit would move 1300 feet or more north of its current
location as the limestone at Mueller South were extracted, eliminating 42% of the existing buffer
between MM's existing blasting operations at the Indianapolis North Plant and the south edge of
the Kingswood subdivision and lesser percentages of the current separation between those
existing blasting operations and several other
It is quite clear from the stormwater permit documentation provided with the Application that
surface and ground waters generated at the Mueller South Property SLO would be directed into
the North Indianapolis Plant to be managed and processed in the same way as surface water and
ground waters generated from the property of the North Indianapolis Plant. There would be no
3
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Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
distinction between the waters genemted from Mueller South Property versus those genemted
from the North Indianapolis Plant Here again, the proposed Mueller South SLO would be a
seamless continuation and expansion of the existing opemtion of the North Indianapolis Plant.
Remonstmtors contend that the Application is deficient, first and foremost, for having failed to
provide any infonnation on blasting impacts (in tenns of peak particle velocities or airblast
levels) to be occurring on the Mueller South property and at the boundaries of nearby residential
developments if the Application were to be approved. This is a glaring omission. Nor is any
infonnation provided as to specific blasting techniques to be used or how MM intends to
mitigate the seismic impacts of its proposed blasting operations. This deficiency has been noted
as well by Spectm Environmental, special mining consultant to the City of Carmel, as stated in
recent correspondence. MM has provided only very general and vague infonnation to DOCS in
response to Spectra's statement of deficiency.
For this reason alone, the Application should be found deficient and not appropriate for further
considemtion.
A second deficiency involves the utter lack of discussion of hydrogeologic impacts to result from
the surface mining opemtion. The blasting and excavation of limestone from the Site will
unavoidably lower the groundwater table in the immediate proximity of the proposed operation
and will reduce groundwater reserves otherwise available to Carmel's wellfield located at
Carmelot Park. The reduction in production from this well field will have to be made up
elsewhere within Carmel's water supply system. The Application should be viewed as so
deficient that further considemtion will be deferred until adequate infonnation on the
hydrogeologic impacts of the proposed mining opemtion are provided. This deficiency as well
has been cited by Spectra in its comments on the Application.
No financial security to ensure completion of the reclamation plan, whatever it is, has been
tendered or even suggested in fonn or amount, and the appropriate amount could vary depending
on the approved design for reclamation.
Other than a statement by MM that the ''restrictions on opemtions outlined in the MM
Application will be proposed as written commitments in recordable fonn," MM has failed to
offer any commitments, and, as a result, the Remonstrators are unable to comment on any MM
commitments.
PRELIMINARY ISSUES
The Remonstmtors have the following preliminary or threshold issues to bring before the BZA
which either preclude consideration of the proposed Special Use or, alternatively, are gennane to
its consideration.
4
o
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Docket Nos. 05090003-8U and 05090004-8U
Remonstrance
I. Public Policy and the Intent of the Carmel ZoniD2 Ordinance Re2ardin2
ScoDe of Soecial Uses within the S-llResidence District Zonine Ordinance. The Soecial Use
for Mineral Extraction Should Not Be Construed to Include the Laree-Seale Commercial
Limestone Minin2 and Attendant Blastin2 Prooosed bv MM.
When interpreting an ordinance, the starting point for a reviewing court is to examine the literal
language of the ordinance. If the language is facially ambiguous, a court will seek to determine
the intent of the legislative body in adopting the ordinance and to construe the ordinance
accordingly.
The Remonstrators believe that the reference to mineral extraction found in the special use
section of the 8-IIResidence District zoning classification requires interpretation to define the
limits, ifany, of such use in the 8-1 zoning district. The designation of special uses in the 8-
llResidence District section of the Carmel/Clay Zoning Ordinance ("Zoning Ordinance")
includes a brief reference to "mineral extraction, borrow pit, top soil removal and their storage."
Other than an increased setback to 300 feet from a residential district, there are no performance
or development standards included in the 8-1 ordinance.
The corresponding M-l/Manufacturing District sections of the Zoning Ordinance are quite
different, where "Mineral extraction operations including sand, gravel, soil, aggregate and all
related processing operations" are allowed as a Special Use only, with a 50-acre minimum size.
Further, the "[ s ]torage, utilization or manufacture of explosive materials (does not include
petroleum products)" is permitted as a Special Use on sites of at least 10 acres. The mineral
extraction activity is further restricted by height restrictions, front,. side, and rear yard. setbacks,
maximum lot coverage, parking and loading requirements, and a variety of performance
standards. The performance standards in the M-I zoning district specify the amount of noise,
vibration, air pollution, glare, erosion, and water pollution that will be tolerated before a
violation of the Zoning Ordinance will be found.
From the wording of the Zoning Ordinance, without more, it appears that the intent of the
Carmel Common Council was that large aggregate operations, such as those that are larger than
50 acres, must be subject to the terms of the M-l zoning classification, even with Special Use
permission. That would infer that in the S-1 zoning classification, "mineral extraction, borrow
pit, top soil removal and their storage" would be relatively small, would most likely be
conducted in conjunction with the development of a single-family subdivision in conformity with
the 8-1 regulations, and not be so intense or long lasting as to require the performance standards
and setbacks found in the M-l zoning classification. Otherwise, this BZA would need to
conclude that the Carmel Common Council intended to control mining in the M-l zoning
classification but to leave it unregulated in the S-l zoning classification. That would be illogical.
The Carmel Common Council has made clear its intent with respect to activities permitted within
the 8-1 zoning classification. At Section 5.00 of the Zoning Ordinance, when defining the
purpose and intent of the 8-1 sections, the Carmel Common Council stated:
5
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Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
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.
Cannel City Code, Chapter 10, Article 1, Section 5.00.01 (emphasis added).
In the above quotation there is no reference to promoting business, employment, development of
natural resources for extraction. Instead, the intent includes no uses other than single-family
residential subdivisions. The other Special Uses that can be permitted by the BZA in the S-1
zone are cemeteries of 30 acres or more, commercial greenhouses of 10 acres or more, day
nurseries and/or kindergartens of 1 acre or more, and plant nurseries of 10 acres or more. The
cemetery, greenhouse, and plant nursery uses are extremely benign, low intensity, low traffic,
low noise, surface uses, after which redevelopment may occur as subdivisions. The day nursery
and kindergarten are moderate intensity uses that generate consumer traffic but which are best
located near homes where the children might live. They create minimal noise, no fugitive dust
pollution, no vibrations, and no trucks, and are closed in the evenings and during weekends.
What did the Cannel Common Council mean by "mineral extraction, etc."? Is it possible that the
Cannel Common Council intended to allow commercial mining, with all of its blasting and other
nuisances, adjacent to day nurseries and kindergartens? Remonstrators believe not. Then why
allow mining in a residential district at all? The ReD;1onstrators believe that the intent was to
permit the digging of borrow pits and drainage ponds in connection with subdivision
development. Under current drainage laws, all subdivisions need borrow pits that can be used
for storm water detention and are available for use as "open space." In creating such borrow
pits, a subdivision developer might discover marketable aggregate in some quantity, as would be
the case of the unconsolidated sand and gravel on the Mueller South site. If the developer
wished to sell the aggregate, he would then obtain a Special Use approval from this BZA,
remove the aggregate along with the soil, and store it on site for later disposal. However, there is
no direct reference to large scale commercial mining operations nor is there any reference to the
use of explosives, even though such activities are mentioned under the M-l zoning classification.
Therefore, the Remonstrators conclude that the intent of the Carmel Zoning Ordinance is that
large, commercial, mineral extraction operations should be located, if at all, as Special Uses in
the M-l zoning district, and that only mineral extraction in conjunction with subdivision
development would be permitted with Special Use approval in the S-1 zoning district. The more
specific text of the Zoning Ordinance describing open spaces and landscaped areas further
reinforce the lack of intent on the part of the Zoning Ordinance to permit commercial mining in
the middle of subdivisions.' MM has sought to avoid a necessary step in gaining permission to
6
(;)
Q
Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
mine Mueller South: it failed to apply for a rezoning of Mueller South to M-l/Manufacturing
District before applying for Special Use to extract minerals. This can be easily corrected by
either (a) filing for a rezoning with the CarmeVClay Advisory Plan Commission, or (b) filing for
a variance of use with this BZA. The Application for Special Use is, however, an unlawful short
cut.
2. Public Policy and Threats to the Public Health. Safety and Welfare.
Carmel's Duty is to Protect the Public. Apart from the single-family residence sections of
the Zoning Ordinance, the Carmel Common Council has expressed its more general intent with
respect to zoning as follows:
Purpose and Intent
The Zoning Ordinance is an ordinance for the development, through zoning, of the territory
within the jurisdiction of the Carmel City Plan Commission. In interpreting and applying the
provisions of this ordinance, they shaD be held to be the minimum requirements for the
promotion of the public health, safety, comfort, morals, convenience and general welfare.
The Commission has given consideration to the future probable use of land in the territory
affected by this ordinance, and has prepared a Comprehensive Plan showing the future
development of this area which has served as a guide in the preparation of this ordinance.
Carmel City Code. Chapter 10, Article 1, Section 1.02 (emphasis added).
Thus, the legislative body has expressed its intent to use the Zoning Ordinances as a means to
further its public policy of promoting the public health, safety, comfort, morals, convenience and
general welfare. The Ordinance includes no reference to paying deference to business interests,
per see
3. A22ravation of Nuisance ImDam. The Remonstrators are adversely impacted
in various ways as a result ofMM's operations that interfere with the peaceful enjoyment of
Remonstrators' respective properties. Some of the more significant of these impacts, described
below, would be exacerbated if approval of the proposed Special Use were granted and would
constitute private nuisances, at the very least.
(a) Noise. The Remonstrators suffer almost incessantly from a variety of
objectionable and irksome noises from MM's operations, including, but not limited to, noise
from the sifting and sorting of sand and gravel at the Carmel Sand and Gravel Plant, noise from
back-up beepers of trucks and loaders, noise from the crushing of rock at the main crusher at the
Indianapolis North Plant, and airblasts from the blasting operations. Should the Mueller South
Property be surface-mined to extract limestone, the objectionable noises generated by MM's
operations would be exacerbated as the following noise sources are brought closer to the
Remonstrators' homes and other properties - the airblasts from blasting, which can be as severe
in its impacts as the seismic impacts of blasting, loading of the raw material, once blasted from
7
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Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
bedrock, onto trucks for transport to processing facilities at the Indianapolis North Plant; and the
back-up beepers associated with transport trucks and loaders.
(b) Blasting. At present, the Remonstrators are impacted by both the noise (air blasts)
and seismic shock waves produced by open-air blasting occurring within the open pit
immediately south of the Mueller South property at the Indianapolis North Plant, as well as by
the seismic shock waves from MM's underground blasting in various locations. These existing
impacts are quite disturbing to the Remonstrators' enjoyment of their respective residential
properties, as wll be recounted by individual speakers to follow. By its Application, MM
proposes to bring its open p~t, surface blasting as much as 42% closer to Kingswood by
eliminating 1300 feet of the current buffer between the subdivision's southern boundary and the
north wall of the open pit at the very southern boundary of the Mueller South Property. The
buffer reduction will be less, percentage-wise, for other residential subdivisions affected by the
proposed Special Use but there will be greater proximity for all to the MM blasting operations as
proposed at Mueller South. As the BZA no doubt realizes, MM also has a pending application
on file for approval of a special use for underground mining of Mueller North.
MM has provided virtually no information in its Application concerning blasting operations that
are proposed to occur on the Mueller South Property. There is no meaningful mining plan for
the property, and certainly no information on how blasting is to be conducted or how MM might
mitigate the impacts of its blasting upon surrounding properties.
The adverse impacts of blasting upon residential and other properties proximate to the Mueller
South Property are the most serious and objectionable that are likely to occur from the proposed
Special Use. The only information provided by MM on blasting impacts is contained in its most
recent supplemental materials submitted to DOCS in response to certain questions posed by
Spectra. In those supplemental materials, MM states that it intends for its proposed blasting
operations at Mueller South to comply with the constraints recommended by the U.S. Bureau of
Mines in the1980's (publications RI 8507 and RI 8896). It must be understood that those
blasting constraints are designed to prevent significant structural damage to structures subjected
to seismic impacts resulting from blasting. They are not intended to protect residents of such
structures from adverse effects or impacts other than structural damage. The Remonstrators
assert, emphatically, that mere compliance with the Bureau of Mines criteria will not prevent
nuisance impacts upon them or other occupants of proximate properties from occurring as a
result of blasting operations by MM, particularly as it brings those operations substantially closer
to surrounding properties.
The BZA should deny the Application or table its consideration until MM provides much more
specific and detailed information concerning the blasting impacts, as measured in terms of both
airblast levels and peak particle velocities, expected to occur at residential and other properties
proximate to Mueller South and DOCS and the Remonstrators have a reasonable opportunity to
review such information.
8
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Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
(c) Fusritive Dust and Dirt. At present, the Remonstrators occasionally suffer a
dusting of lime dust migrating from the Indianapolis North Plant. If and when the Mueller South
mine is developed, there would be fugitive dust from the earthwork described above. At such
time as the surface mining is approved, there would be considerable lime dust generated by the
blasting and hauling of material from the blast site. Limestone dust is primarily calcium
carbonate, which can have acute health effects, such as contributions to asthma and other
pulmonary problems. Further calcium carbonate acts as a corrosive on automobile paint. Those
members of the public who suffer from asthma or other breathing problems should not be
subjected to fugitive limestone dust and neighbors of the mine should not be forced to leave their
automobiles inside garages or wash them daily. The M-l zoning classification forbids such dust,
but no such controls exist in the S-1 zoning classification. The BZA could impose such controls
as commitments, of course, but none have been proposed by MM at this time and enforcement
would be difficult.
4. Adverse Impacts on Ground Water Resources. . The Remonstrators are
directly tied to the aquifer underlying their properties by virtue of the fact that Plant 4 of the City
Water Utilities is located in Carmelot Park, adjacent to Kingswood, and the aquifer from which
the four wells in Plant 4 draws its water is located directly under Kingswood (and other areas).
The residents of Kingswood and other nearby subdivisions, drink the water produced by Plant 4.
MM pumps out virtually all of the water entering its large pit at the Indianapolis North Plant into
a pond (the "Southeast Pond") on the west side of Gray Road, from which the water flows
through conduit connectors to the large pond at the southwest comer of Gray Road and 106th St.
(the ''North Pond"). The North Pond then serves to recharge the aquifer of the wells at Plant 4
and directly provides over half of the drinking water of Plant 4, and thus to the residential
communities of southeast Carmel. The Remonstrators herewith incorporate by reference the
Assessment of the Effects of Proposed Mine Expansion at the South Mueller Propertv on Public
Water Su\>ply Wells near Carmel. Indiana. Wittman Hydro Planning Associates, Inc., June 30,
2004, (the "Wittman Report") and a letter from Mundell & Associates, Inc. dated August 4,
2004 (the "Mundell Report"), both of which were submitted to the BZA in conjunction with its
proceedings on MM's application for a special use for sand and gravel extraction at Mueller
South
Taken together, these reports and letters describe a system designed, managed, and run by MM
that causes groundwater from the aquifer serving Plant 4 of the Carmel.water system and
Kingswood to be drained into the Indianapolis North Plant pit, mingled with other groundwater
and surface water runoff from around the pit and other potential contamination, and then pumped
westward up and under Gray Road into a sediment pond. From the sediment pond, a substantial
part of the mixed water flows into the northern pond next to 106th Street and percolates into the
aquifer and drawdown zone of the Plant 4 water wells.
As described in the Mundell letter, once the Mueller South mine is operational, the water drawn
by the Plant 4 wells will consist of over 80 percent recycled mixed water with very little time of
9
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Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
travel from the north pond to the wellfields. This means that the natural cleansing nature of
water flowing through the earth will not have had much time to occur. The opportunities for
contmnination are obvious, including all manner of disposal on the surface of the land of
contllmiTlants that, due to the mixing of surface and underground water, would inevitably find
their ways into the water supply of Carmel. Although various contingency plans can be drawn,
the City of Carmel and its citizens should not be held hostage to the vagaries of surface
contamination by third parties and potential fuel contamination due to the potential negligence of
MM.
PROPOSED FINDINGS OF FACT.
There are many significant deficiencies in the materials presented by MM in their initial
Application on December 13, 2002, including, without limitation, MM's proposed Findings of
Fact, to which the Remonstrators object and would restate as set forth below:
1. Findinf!S of Fact number 2 res:ardine: consistencv of commercial surface
limestone minine: with the character and Dermitted land use of the zooine: district and
Carmel/Clav ComDrehensive Plan. The S-1 zoning classification includes only low-density
single-family uses as its primary land uses; all other uses must seek approval through appropriate
procedures specified lJIlder the Zoning Ordinance. It is obvious that a 95-acre commercial
surface limestone mine dependent upon blasting operations is very unlike the hundreds of acres
of expensive single-family (over 2,000 lots), multi-family, and retail developments that surround
the MM complex. The existing MM surface limestone mining is a nonconforming use which
cannot be said to be "consistent" with such residential and low intensity commercial uses.
Consequently, the proposed Special Use consisting of an expansion of MM' s surface limestone
mining (and blasting) operation onto Mueller South cannot be said to be consistent with the
character of the SI/Residential District in which it is located.
As is argued elsewhere, the mineral extraction activity identified in the Zoning Ordinance for
special use consideration in an S l/Residential District does not include the proposed surface
limestone mining proposed by MM for Mueller South, which is of a heavy industrial nature.
Rather incredibly, MM proposes a finding that "The proposed mineral extraction and artificial
lake use will be a less intrusive and lower intensity transitional use." Nothing could be further
from the truth. The proposed surface limestone mining of Mueller South and its essential
blasting component is among the most intrusive and highest intensity industrial uses that could
be contemplated. It should be self-evident that such a proposed use is not compatible with the
character of the surrounding neighborhood in the SI/Residential District.
MM suggests that when they are done the open space remaining will conform to the
requirements of the S-I/Residence District. Such a suggestion is deceptive because (i) MM
10
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Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
knows that it does not intend to create any open space other than a 2I5-foot deep pit; (ii) MM
knows that it will take 25 to 50 years to finish mining in that pit, whereas open space
requirements are supposed to be met from the beginning of the development, not 50 years later;
and (Hi) MM knows that a 2I5-foot deep pit is NOT open space. The Zoning Ordinance defines
"designed open space" as follows:
Land areas, free of Buildings, carefully designed and specialized in function, which act as
neighborhood focal points, and allow for passive or active recreation Use. Designed Open Space
is not incidental, residual land between Buildings, but land areas which are integrated into an
overall site or neighborhood design, are accessible visually as well as physically, and are
functional for us by people for gathering or play.
Carmel City Code, Chapter 10, Article I, Section 3.07.
In addition, all types of "open space" are described in the Subdivision Control Ordinance,
Carmel City Code. Chapter 10, Article 2, including designed open space, natural open space,
agricultural open space, and conservancy lots. None of these descriptions include anything close
a commercial mining operation or its reclaimed lake.
Therefore, the BZA should find that MM has failed to satisfy the requirements of this Finding of
Fact.
The Remonstrators would restate this Finding of Fact as follows:
The proposed Special Use is not consistent with the Character and Permitted Land Use of
the S-I/Residence District and the Carmel/Clay Comprehensive Plan because it is neither
residential nor low intensity commercial; rather, it is incompatible with residential
housing, does not conform to applicable development standards, and is of a high-intensity
industrial nature.
2. Findin2 of Fact number 4 re2ardin2 the effects on adiacent land or DrODertv
values. MM's response to this Finding is nonresponsive because it does not deal with potential
injuries or damages to the Remonstrators and similarly situated persons in Carmel.
(a) The City of Carmel and all of its citizens will be negatively affected by the
proposed Mueller South mining because of the increased dewatering to result from the deep
excavation it will generate. As appeared from reports submitted to the BZA in its Special Use
proceeding on the Mueller South sand and gravel application, opening of the Mueller South
property for mining will increase the amount of water pouring out of the aquifer into the mine by
50 percent, to approximately 9,600,000 gallons per day. Wittman Report, pages 17 and 36. This
increase will decrease the capacity of the aquifer by approximately 15 percent during normal
conditions, and a great deal more under drought conditions, assuming no additional drawdown
requirements by the City of Carmel and no additional mining by MM. Remonstrators are
11
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(.;)
Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
unaware of any estimates being provided to the DOCS in the additional dewatering of the aquifer
that would result from the surface limestone mining operation proposed at Mueller South.
Moreover, during mining over the next 25 to 50 years, the primary source for groundwater at
Plant 4 of the Carmel Utilities will be groundwater and surface water that is pumped out of the
MM stone pit to the sediment pond on the west side of Gray Road. Wittman Report, page 36.
According to the Wittman Report, "[a]s Carmel's role as a regional drinking water supplier
grows, it is critical that the city protects the aquifers from any deterioration in yield." Wittman
Report, pages 1-2.
(b) Since the water pumped up from MM's open stone pit to its sediment ponds is
among the primary sources of groundwater for Plant 4 of the Cannel Utilities system, it is critical
to recognize that such groundwater is exposed to considerably more risk of contamination than if
it were left in the aquifer. Such contamination is possible in the stone pit due to the storage of
large amounts offuel and the necessary refueling operations that occur there daily. Such
contamination can also occur despite the best of intentions due to the fact that the source of the
water is contained in two large sediment ponds and comes from surface water drainage as well as
groundwater leakage. The City of Carmel has a direct and critical interest in securing such
aquifer recharging sources from contamination at the present time.
(c) The Remonstrators are negatively affected by the possibility, and perhaps
probability, of sinkholes and other subsidence occurring in their subdivisions. One such sinkhole
has already occurred behind two homes on the west side of Oldfield Drive in Wood Creek. Such
sinkholes and other subsidence may, and is more likely to, occur, when there is substantial
dewatering of a near-surface sand and gravel aquifer and periodic ground vibrations such as
occur from blasting. Those circumstances exist. for the Remonstrators inasmuch as there is
constant dewatering of the aquifer under their homes and constant blasting by MM in its existing
stone pit immediately south of the Mueller South site. The vibrations cause the sand and gravel
under the thin layer of clay till at the surface to settle into the numerous cracks and voids in the
limestone layer underneath, thus wi:thdrawing the vertical support for the clay and the homes
situated thereon. The threat of subsidence in Carmel should not be tolerated by this BZA nor
should individuals be exposed to its devastating effects.
(d) Finally, MM's suggestion that property values would not be adversely affected by
its proposed Special Use in view of existing development around the mine misses the point
entirely of the effect on property enjoyment and value as the objectionable nuisance impacts of
the mine's operations are brought substantially closer to existing residential, religious and
educational properties. This point is discussed more fully elsewhere herein.
The Remonstrators would restate this Finding of Fact as follows:
The Special Use will injuriously and adversely affect the adjacent land or property values
and the use and enjoyment of adjacent properties because of the following impacts to
occur for a period of twenty-five years or more: (a) the seismic and airblast impacts of
12
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C)
Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
MM's conducting of blasting operations in an area substantially closer to residential and
associated property uses'than at MM's existing mine, (b) increased noise from rock
loading and transport; (c) increased lime dust from blasting; (d) increased risk of
subsidence and the catastrophic losses of value in the affected homes and all those that
might be affected; (e) decreased yield for the Carmel Utilities water wells at Plant 4; and
(f) significantly increased risk of contamination of the aquifer serving the Carmel
Utilities water wells.
Remonstrators have objections to certain aspects of other of MM' s proposed findings of fact, but
in the interest of brevity have expressly focused herein on the foregoing two proposed findings.
FACTORS TO BE CONSIDERED IN SPECIAL USE DECISIONS.
The BZA is required to make its decision in this matter based on the five general factors
set forth in Section 21.04.01 of the Zoning Ordinance. The Remonstrators assert that the
application of certain of these factors to the proposed Special Use demonstrate substantial
negative impacts and the application of other factors fail to demonstrate positive impacts or
"benefits". Therefore, the Remonstrators further assert that the Special Use Application must be
denied. Each of the five factors are addressed in turn:
1. The Darticular Dhvsical suitability of the Dremises in question for the
DroDosed SDecial Use. The Mueller South Property contains a substantial depth of limestone
which can be extracted for aggregate production once the unconsolidated soil overburden and
sand and gravel have been removed. On this point there is no dispute. However, much the same
can be said for roughly 50 % of the state of Indiana, which is underlain by limestone strata, the
residue of a prehistoric inland sea There is little to distinguish the Mueller South Property
from thousands of square miles of land elsewhere in the state in this respect. Moreover, while
limestone can no doubt be mined profitably at Mueller South, there are many alternative
locations where it also may be mined profitably in the Carmel vicinity. MM states, in Appendix
B to its Application, that "Carmel needs access to a supply of stone and sand" and, further, that
"it is important to have such an aggregate source in close proximity to its market location."
Anyone familiar with the state of development in the Carmel area, however, would recognize
that development in the immediate vicinity of Mueller South has been trending down in recent
years and the bulk of recent development is in the western, northwestern and northeastern areas
of Carmel and Clay Township. Thus, Mueller South is not really in "close proximity" to the
current Carmel market. In addition, consideration of the physical suitability of Mueller South
must include the fact that ground water will flow into the Mueller South Property at the rate of
millions of gallons per day (1,600,000 gallons per day??), aggravating the dewatering of a
critical aquifer which will commence with the previously approved sand and gravel extraction at
the site. The much deeper excavation that would eventually occur as limestone were extracted
over decades would result in a greater extent of dewatering of the shallow aquifer located in the
general area of Mueller South and which is the source of water for the City of Carmel's well
13
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Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
field located in Carmelot Park. Viewed most favorably from MM's perspective, this factor is
neutral with respect to the proposed Special Use; however, a more realistic assessment places
this factor in a somewhat negative position relative to the MM proposal.
2. The economic factors related to the proposed Special Use. such as
cost/benefit to the community and its anticipated effect on surroundine: proDertv values.
(a) The central point of this factor is whether the benefits to the community of granting the
Special Use outweigh the several costs to the community caused by the Special Use. The profits
MM would make or the lease royalties that E. & H. Mueller Development, LLC might realize
from a surface limestone extraction operation at Mueller South are not relevant to this factor.
The likely or potential costs to the community of Carmel and its residents include the following:
(i) increased costs of adding more water wells to the Carmel UtilIties system by reason of the
loss of water production from Plant 4 in Carmelot Park; (ii) increased risks of contamination at
the Plant 4 wells; (iii) increased costs of on-site and other monitoring due to the recharging of the
aquifer from the sediment ponds (see the Wittman Report); (iv) increased costs of the City's
regulation of mining activities at Mueller South; and, (v) the increased risk that property damage
may occur as a result of vibration-induced subsidence.
The potential benefits to the City of Carmel and its citizens appear to be limited and uncertain.
They may include: (a) facilitating the maintenance of a competitive market in aggregate
suppliers if it were assumed that MM's Indianapolis North Plant had exhausted its supply of
stone reserves (however, this assumption is unwarranted given various statements by MM of
substantial remaining stone reserves in the open pit and underground operations); (b) any local
tax revenues that would increase by reason of a limestone operation at Mueller South. However,
there is no evidence of any such projected increase in tax revenues.
Summarizing, it would appear that, in order for MM to generate more profit, the community
would incur more immediate costs and take risks that appear unreasonable given the absence of
real benefit to the community from the proposed Special Use.
(b) With respect to the anticipated effect of an approval of the proposed Special Use on
surrounding property values, MM asserts in its Application that an expansion of surface
limestone mining will not adversely affect property values. The reasons offered by MM for this
position are not persuasive and fail to forthrightly address the issue.
MM: surface and/or underground mining are already occurring to the south, west and northeast
of the proposed Special Use area.
Response: MM's statement inappropriately and myopically focuses on its own operations that
are immediately adjacent to the proposed use of Mueller South. The crucial impacts to be
evaluated are on residential and other properties surrounding the various mining operations.
14
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Docket Nos. OS090003-SU and OS090004-SU
Remonstrance
MM: The land to the east and north of the proposed Special Use is currently agricultural.
Response: This statement is disingenuous since the agricultura1land to the north (Mueller
North) is in the process of being converted by MM to a sand and gravel extraction operation.
MM: The proposed surface limestone operation will be operated in a manner that will not be
detrimental to the heal~ safety and welfare of the community.
Response: Presumably, MM's statement is predicated on its ability to comply with the sparse
regulatory constraints on its operation. TIris again is disingenuous given MM's legal attack on
the City of Carmel's mining ordinance. In addition, MM's statement ignores nuisance-type
impacts as discussed herein.
MM: High quality residential and commercial development has occurred around MM's other
sand and gravel operations and its existing open pit.
Response: The fact that homes and apartments have been purchased or rented in proximity to
one ofMM's mining operations does not prove its assertion. First, only development near the
existing open pit is relevant since only there does blasting present impacts comparable to those to
occur from the proposed Special Use. Second, the practical reality is that most residential
transactions occur after one or two site visits of one-half to one hour in length. The likelihood of
a blast occurring during such a visit is quite small. Thus, the transaction occurs with the
purchaser/renter oblivious to the reality of periodic seismic shocks. Only after a purchaser/renter
moves in does the experience ofliving close to a blasting operation become realty.
MM: The proposed surface limestone operation is a low intensity use of this land.
Response: Remonstrators find this statement most incredible. If a mining operation that creates
earthquake-like seismic tremors and consumes the land surface, transmogrifying it into a 230-
foot deep pit of desolation is a low intensity use, it is very difficult to imagine what would
constitute a high intensity use.
Remonstrators believe that property values of the residential neighborhoods surrounding Mueller
South on the west and north would be reasonably expected to decline as word of the ever-more
closely approaching blasting circulated among the real estate community. Past reviews of effects
of the existing MM mine on property values have dealt with a rather constant circumstance
concerning MM's open pit location and have not addressed the prospective impact of an
encroaching blasting operation. The values of homes in the area could be drastically reduced if
any more events of subsidence occurred in one of the neighborhoods.
Attached hereto as an exhibit and incorporated herein by reference is a summary of the gross
assessed value of the residential properties in eleven of the residential subdivisions located most
closely to Mueller South and the existing Indianapolis North Plant. These data are obtained
from the Metropolitan Indianapolis Board of Realtors (MIBOR). The total gross assessed value
of these properties is $415,779,400. Even a 10% reduction in value of these properties would
substantially exceed the value ofMM's Indianapolis North Plant and auxiliary properties
estimated at $6,680,000.
15
Q
(;,)
Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
In conclusion, Remonstrators believe that this second factor, when applied to the proposed
Special Use, yields negative impacts.
3. The sociallnei2hborhood faetors related to the oroposed Soecial Use. such as
compatibility with existin2 uses and those oermitted under current zoninS! in the vicinity of
the premises under consideration and how the prooosed Special Use will affeet
neie:hborhood inte2ritv.
These social/neighborhood factors are the most critical of the five Special Use decisional factors.
They go to the heart of the probable impacts of the proposed Special Use on preexisting uses in
the neighborhood in real life terms. . Will the proposed use be of such a nature as to be
incompatible with the use and enjoyment of surrounding properties?
In this case, the neighborhood consists of that portion of southeast Carmel that may reasonably
be expected to be impacted adversely by the proposed surface limestone mine on Mueller South.
This encompasses several residential subdivisions, including but not limited to Blue Woods
Creek, Williamson Run, Carolina Commons, Kingswood, Wood Creek, and Sycamore Farms, an
apartment complex, a county park (Carmelot), a church (St. Elizabeth Seton), a school
(Woodbrook Elementary), a planned school (St. Elizabeth Seton), commercial offices (C.P.
Morgan), a car dealership (Car Max), a City well field, and MM's operations (including the
Indianapolis North Plant, Mueller South sand and gravel, and Mueller North sand and gravel).
The adverse effects of the proposed surface limestone operation at Mueller South have already
been described, including most saliently airblasts and seismic impacts resulting from blasting
operations, other noise impacts from loading and transport operations, aggravated dewatering of
the aquifer providing a source for Carmel's water plant at Carmelot Park., and increased risks of
groundwater contamination and ground subsidence. The Remonstrators respectfully contend
that such impacts are not compatible with the many residential properties, churches and schools
that constitute the major portion of the neighborhood. No one could seriously contend
otherwise. While increased noises from heavy loading and transport equipment are problematic,
it is the blasting which takes the proposed operation out of a compatible posture relative to
residential and associated property uses. The blasting operations are of a heavy industrial
nature that no one would associate with a residential setting.
While the impacts from the existing Indianapolis North Plant have been present for decades, it is
quite another matter to propose, as MM does, to bring such adverse impacts markedly closer to
the residential, church and school settings. The existing buffer between blasting operations and
residential areas would be reduced bv as much as 42% under the pending proposal.
Remonstrators do not believe that the adverse impacts attendant to the proposed surface
limestone mine are consistent or compatible with the use and enjoyment of residential, religious
and educational facilities. It is difficult to believe that, in a community which aspires to be
16
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W
Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
among the leading "edge cities" of the nation characterized by the provision of upscale
amenities, such adverse impacts could be approvable, whether the homes affected are expensive
or otherwise.
Remonstrators respectfully assert that the Application should be denied on the basis of this factor
alone.
4. The adeouacv and availability of water. sewae:e. and storm drainae:e facilities
and Dotice and fire Drotection. MM's proposed surface limestone operation at this location
would not appear to require the extension of public utilities and will not create gatherings of
people that would require additional police control or fire protection.
5. The effects of the proposed Special Use on vehicular and pedestrian traffic in and
around the premises upon which the Special Use is proposed. The proposed opening of a new
source of limestone for extraction at Mueller South would not appear to be expected to increase
the density of truck traffic in the short term but would substantially extend the time period in
which heavy truck traffic would occur attendant to the processing of limestone at the
nonconforming existing use represented by MM's Indianapolis North Plant.
17
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Docket Nos. 05090003-SU and 05090004-SU
Remonstrance
Conclusion and Recommendations bv Remonstrators. The Remonstrators
respectfully urge and recommend, for the reasons set forth above, that the Application by MM
for approval of special uses for a surface limestone extraction operation be denied. A summary
of the more salient points supporting denial of the Application includes:
. The mineral extraction activity identified in the Zoning Ordinance as a potential special
use in an Sl/Residential District was never intended to encompass a very large
commercial aggregates mine with blasting operations. Therefore, this Application should.
be rejected and the Applicant directed to reapply in the form of a rezoning application to
the M-l/Manufacturing District wherein such intensive mining activities could occur with
special use approval.
. MM's Application, as supplemented, does not satisfy key factors required by law for the
BZA's grant of approval for a special use. Therefore, even if the foregoing
recommendation were rejected, the Application should be denied.
Respectfully submitted,
e .1.;. Hudson
11125 St. Charles PI
David P. Gilley
49 Huntington Drive, Carmel, IN
William D. McEvoy
nimns~
Marcus W. Freihofer
11136 Bradbury Place, Carmel, IN
Rex Weiper
~ 1179 Westminster Court, Carmel, IN
{I ~ /lv. r~
o
Remonstrance
~~
et Rodriguez
10575 Power Drive, Carmel, IN
Williamson Run Homeowners Association
By~e . :
.etRodfigu~
U
Docket Nos. 05090003-SU and 05090004-SU
-u
Remonstrance
Kingswood Homeowners Association, Inc.
:~~i~
Title: /~ ~
Q
Docket Nos. 05090003-SU and 05090004-SU
Q
o
Petition to Oppose BLASTING Expansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Inc.'s application to the Carmel-Clay BZA for
special use approval of surface limestone (open pit) mining on the Mueller South property
(immediately south of l06th Street). Martin Marietta's application to expand i$S limestone mining
operation would bring BLASTING dramatically closer to our homes and lirould likely have a
substantial negative impact upon the quality of residential life in our SE Carmel neighborhoods.
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Date
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J/. 11 (Xl
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v
Petition to Oppose BLASTING Expansion toward SE Carmel Subdivisidns
I strongly oppose Martin Marietta Materials Ine.~s application to the CarmeI-Clay BZA for
special use approval of surface limestone (open pit) mining on the .Mueller South property
(immediately south of l06th Street). Martin Marietta's application to expand its limestone mining
operation would bring BLASTING dramatieally closer to our homes and would likely have a
substantial negative impad upon the quality of residential Me in our SE Carmel neighborhoods.
Name (printe4l Sienatore Street Address (CarmeL IN)
(rVr;.('~ r:n'{J'e, ,Q'lMtJ 0 1. Ii:; SOVq f'/I"u. L. -4..
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(/ .
.
Date
It/1q./ f) ~
( / 17 I t:) 5-
I 110/ /)~
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(.)
Petition to Oooose BLASTING Exoansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Ine.~s appDcation to the Carmel-C1ay BZA for
speeial use approval of 8urfaee liinestone (open pit) mining on the Mueller Soutb property
(immediately south of l06tb Street). Martin Marietta's appDcation to expand its limestone mining
operation would bring BLASTING dnmatically eloser to our homes. and would likely have a
substantial negative impad upon the quaDty of residentialUfe in our SE Carmel neighborhoods.
Name (printecJ) S' /)
Y<~ (X,-I? ~I/A- V~ "'
- Ti ('(\ a' N' ~ OIl'~ ~:1. ~ (W YJO\)/
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.
Street Address (CarmeJ.1N)
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Date
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IlltCIfJ OS-
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Petition to Oooose BLASTING Exoansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Inc.~s application to the Cannel-C1ay BZA for
speeialuse approval of surfaee limestone (open pit) mining on the Mueller South property
(immediately south of 106~ Street). Martin Marietta's application to expand its limestone mining
operation would bring BLASTING dramatieally eloser to our homes and would likely have a
substantial negative impaet UPO~aIiYJidentiallife in our SE Cannel neighborhoods.
Date
/I~/-?J r-
/ll. 21 (.) .'-,. .
Nam., (prin teet) Si2nature~ / ~ Street Address (CarmeLINl
IIEC~/J1l )C4--IC"f-A~k ~ X.,-.,,"~ 4~'b)? /?'l/hodCh _/....\.r.l_
A-'\,." t~1 'iI I 1J J -f~, i} 1:~"U]7k#::-.J- ,', ,J-.e ;.2 t;:f I } j~ ---;..j ./'U.; , '2. .hv?,
11'" /" I n. .is \I __ _ v -___...... _ /' -----
C~ n~~ A!dn.; \.s;\,4lc; C1 n nJ), i'''s;Y4S (/ Lf-'13 :lWcrnJr I\D.l r J.::v\.
~ YlI (.~~ Ai La ~ ~ ~.J..~L ~'j() K~-~j..A-If La...,......)
Er 6/A,ss ~--'.--. f}a~ ~ 4 1-3 y,..A4A_/ ,.J1f6
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~A~lu.s F(lEtHf)FeR / 'A /JJ. f 7J ..A.. III?~ BI!.P,DBu.Q ;>LI~C.r;;-
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?NtS/J'JAJ /-iY5c1Z ,n ......C./.. 4'J3i, f?G:/:',rr:";tICY Pl./t-OE
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(j
u
Petition to Oooose BLASTING Exoansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Ine.~s appUcation to the Cannel-CIayBZA for
speeial use approval of surfaee llinestone (open pit) mining on the Mueller South property
(immediately south of l06tb Street). Martin Marietta's application to expand its limestone mining
operation wt)uld bring BLASTING dramatically closer to our homes and would 6kely have a
substantial negative impaet upon the quaDty of residential life in eur SE Carmel neighborhoods.
Name (printe4l SiJ!naJure,
.J(PP 1-L-1> S..y ~ /7f I.J II ~
-/(A-rI-tJ i ~')10 \ 1.! .I~ L -' J. , Ie L'l
117.,1 d _ ..u ~ ':j ~ CJL
l\ I c,I./ ~ I ~,_~,{, J lA, A J'
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i11 A ,1L "7." d . F Jt, r.., -zJ /11rA'fiVL-
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()/~ l-ff-( ~ i^ I ///1 1 r ~RLhA' A. .
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f> A{H G fl< HA {(tTr ,.JI~tj P 7i p A. J. J .J-
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~ v ·
Street Address (CarmeL IN) Date
/1(2-;- ~, vh',~ (v fl. 't. ..2 1--CS-
111% q..- ('jll --'- PI II.z:z..b~
1/1 '7.L c:;.-l, ;"I L l~ r ( II / 2-7 ~")<'
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J ' ,
o n__ --
u
Petition to Oppose BLASTING Expansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Inc.~s application to the Carmel-Clay BZA for
special use approval of surface limestone (open pit) mining on the Mueller South property
(immediately south of 106tb Street). Martin Marietta's application to expand its limestone mining
operation would bring BLASTING dramatically closer to our homes and would likely have a
substantial negative impact upon the quality of residential life in our SE Carmel neighborhoods.
Name (printed) Sipature
1:~aYU ZHONt ~ dl-. ~j.", ~ " __
.,.;.;- /btl.. \ ::-z.. al\ l ~t - ~ >{jA. /
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Street Address (Carmel, IN)
11..),61 W /~/ '- au,..,.
../
//2 71 IL/.lk.~ ../r
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4q-\:fC W~.l. (k.L~ j)r-
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Date
II ~ /;U} tlj
t/
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o
l)
Petition to Oppose BLASTING Expansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Inc.'s application to the Carmel-Clay BZA for
special use approval of surface limestone (open pit) mining on the MueUer South property
(immediately south of l06th Street). Martin Marietta's application to expand its limestone mining
operation would bring BLASTING dramatically closer to our homes and would likely have a
substantial negative impact upon the quality of residential life in our SE Carmel neighborhoods.
-
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Petition to Oppose BLASTING Expansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Int.~s application to the Carmel-Clay BZA for
speeial use approval of surface liinestone (open pit) mining on the Mueller South property
(immediately south of 106th Street). Martin Marietta's application to expand its limestone mining
operation would bring BLASTING dramatieaDy closer to our homes and would likely have a
substantial Degative impact upon the quality of resideDtiallife in our SE Carmel neighborhoods.
iaDle (priDte4) Sj !Piatore /l Street Address (Carmel, IN)
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Petition to ODDose BLASTING EXDansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Inc/s application to the Cannel-C1ay BZA for
special use approval of surface limestone (open pit) mining on the Mueller South property -
(immediately south of l06tb Street). Martin Marietta's application to expand its limestone mining
operation would bring BLASTING dramatieally closer to our homes and would Ukely have a
substantial negative impaetupon the quality of residential life in our SE, Carmel neighborhoods.
Name (printe4) SieDature
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Petition to Oppose -BLASTING Expansion toward SECarmel Subdivisions
I strongly oppose Martin Marietta Materials Ine.~s appDeation to the CarmeJ.Oay BZA for
speeml use approval of surfaee liiDestone (open pit) mining on the Mueller South property
(immediately south of 106* Street). Martin Marietta's application to expand its limestone mining
operation would bring BLASTING drainatically closer' to our homes and would 6ke1y have a
substantial negative impad upon the quality of residential life in our SE Carmel neighborhoods.
Name (printe4) Sipatare \
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Petition to Oppose BLASTING Expansion toward SEe.noel Subdivisions
I strongly oppose Martin MarIetta Materials Ine.~s appHeation to the Carmel-C1ay BZA for
speehil ose approval of sorfaee Hinestone (open pit) mining on the Mueller Sooth property
(immediately sooth of l06tb Street). Martin Marietta's appHeation to expand its limestone mining .
operation would bring BLASTING dramatieally eloser to our homes and would likely have a
substantial negative impad upon the quality of residentialllfe ill our SE Cannel neighborhoods.
Name (printe4) SiJDlllture.
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Petition to Oppose BLASTING Expansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Ine.~s application to the Carmel-Clay BZA for
speeml use approval of surfaee limestone (open pit) mining on the Mueller South property
(immediately south of I06tb Street). Martin Marietta's application to expand its limestone mining
operation would bring BLASTING dramatieally closer' to our homes and would likely have a
substantial negative impact upon the quality of residentialHfe in our SE Carmel neighborhoods.
Name (printe4) Suature Street Address (Carmel, IN)
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Petition to Oppose BLASTING Expansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Ine.~s appHeatioD to the Carmel-ClayBZA 'for
spe~iail use approval of surfaa timestone (open pit) mining on the Mueller South property
, (immediately south of 106th Street). Martin Marietta's applieation to expand its limestone mining
operation would bring BLASTING dramatieally eloser to our homes and would likely have a
substantial negative impact upon the quality of residential life in our SE Carmel neighborhoods.
Name (printe4) SiJ!nature /', n Street Address (Carmel., IN) ,
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Petition to OppOse BLASTING Expansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Ine.~s application to the Carmel-C1ay BZA for
speeial use approval of surface liinestone (open pit) mining on the MueUet South property
(immediately south of 106th Street). Martin Marietta's application to expand its limestone mining
opention would bring BLASTING dramatieaJly closer to our homes and w~u1d likely have a
substantial negative impad upon the quality of residential life in our SE Carmel neighborhoods.
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Petition to Oppose BLASTING Expansion toward SE Carmel Subdivisions
I strongly oppose Martin Marietta Materials Ine.~s application to the Carmel-Clay BZA for
spe~ial use approval of surfa<< funestone (open pit) mining on the Mueller South property
(immediately south of U)6th Street). Martin Marietta's application to expand its limestone mining
operation would bring BLASTING dramatieally closer to our homes and would likely have a
substantial negative impact upon the quality of residential life in our SE Carmel neighborhoods.
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Name
Blue Creek Woods
Briar Creek
Briar Lane
Carolina Commons
KingsWood
Sycamore Farms
The Woodlands
Williamson Run
Wood Creek
Woodland Green
Woodland Springs
# of Lots
68
148
163
65
223
70
282
187
233
172
400
2011
Morgan
Open Pit Real Estate Taxes
1714090000003.000 $8,011
1714090000002.000 $4,485
17 14 09 00 00 012.000 $38,629
17 14 09 00 00 011.000 $3;039
17 14 09 0000005.000 $3,517
17 14 09 00 00 001 .000 $25,046
$82,727
Gross Assessed
Value GA V Per Lot
$14,261,600 $209,729
$26,087,800 $176,269
$25,222,700 $154,740
$27,237,000 $419,031
$62,416~806 $279,896 ..
$18,532,600 $264,751
$49,286,700 $174,776
$48,750,500 $260,698
$40,087,800 $172,051
$25,749,400 $149,706
$78,146,500 $195,366
$415,779,400 $206,753
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Annual Real
Estate Taxes
$164,768
$288,746
$271,021
$350,839
$7'56~813 ..
$229,170
$551,760
$589,347
$517,083
$277,765
$885,231
$4,882,603
$9,415
$742
$5,430
ARET Per
Lot
$2,423.06
$1,950.99
$1,662.71
$5,397.53
· ... $3,a94;05A
$3,273.86
$1,956.60
$3,151.59
$2,219.24
$1,614.91
$2,213.08
$2,427.95
U THOMAS C. YEDLICK . U
5053 St. Charles Place
Carmel, Indiana 46033
317-844-0141
00..
.~Y:
December 1, 2005
Michael Hollibaugh, Department of Community Services
City of Carmel
One Civic Square
Carmel, IN 46032
RE: Docket No.s 05090003 SU and 05090004 SUo Special Use Approval to
Establish Surface Limestone Operations on Mueller South Propertv
Dear Mr. Hollibaugh,
Provided with this letter are 11 copies of my comment letter re the above Docket. Please
provide these to Board members in their usnal packets. /:
Thomas Yedlick
U THOMAS C. YEDLICK U
5053 St. Charles Place
Carmel, Indiana 46033
317-844-0141
December 1, 2005
I,)
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RECEIVED
DLe - 1 2005
DOCS
Carmel/Clay Board of Zoning Appeals
City of Carmel
One Civic Square
Carmel, IN 46032
James Brainard, Mayor
Michael Hollibaugh, Department of Community Services
City of Carmel
One Civic Square
Carmel, IN 46032
RE: Docket No.s 05090003 SU and 05090004 SUo Special Use Approval to
Establish Surface Limestone Operations on Mueller South Property
The following comments are being submitted for you consideration in reviewing the above
referenced applications docketed for December 12,2005.
It would appear that the docket on December 12, 2005 may be premature and a rush to judgment.
There is substantial evidence to indicate that the "use" being applied for is a use variance for
expansion of a nonconforming use, and not a special use. That determination is required from the
Director. It cannot be both expansion and a special use.
If the use requested by the Petitioner is actually an expansion of an existing nonconforming use, it
would not seem to be appropriate for the Board to hear this Application based on Special Use
criteria. The appropriate action by the Board should be to deny the Application because it does
not comply with the criteria for a special use, or in the alternative, table the hearing until the
Director can make an appropriate determination.
SUMMARY OF ISSUES
1) Whether the uses contained in the applications, when viewed in their entirety, are
considered expansions of the existing quarry nonconforming use and therefore cannot be
considered as a special use;
2) whether under Indiana law and Carmel zoning, expansions of nonconforming uses are not
eligible for special use treatment; and
3) whether the appropriate treatment of an expansion of a nonconforming use is a variance of
use.
STANDARD OF REVIEW
A special uses is a creature of the legislative body. A special use is a designated exception to the
zoning ordinance allowed only when it meets the specified conditions established in the
ordinance. A board of zoning appeals is not permitted to waive the requirements or conditions of
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the special use ordinance to meet special or unique circumstances. Doing so is deemed to be spot
zoning requiring the granting of a variance, not a special use permit.
,"\
The first standard of review is to determine whether this special use is one of the permitted uses tA." ~ lJ,i
under the ordinance. "Surface Limestone Operations" is not a designated special use in the S-l - , \ 1.Af. 0ft/hl'\
Ordinance. This alone should disqualify this Application. ['f. { vUi
The second standard of review is to determine whether this special use meets the specific
conditions in the ordinance without any variances or deviations. When viewed under the legal
definition of use (''the purpose for which a parcel of land is intended" Harbour Town
Associates, v. City of No blesvill e), there can be little doubt that this Application is actually the
expansion of the existing quarry. Such expansion requires a use variance.
The fact that Martin Marietta submitted their Application for limestone operations on a Special
Use form is not determinative of its actual legal use. Martin Marietta simply used an Application
form which best suited their objective. By applying for a special use, Martin Marietta avoids the
much more rigorous standards for an expansion of a nonconforming use.
If the Petitioner has not applied for the appropriate variance in connection with this Application,
by law this application is not within the jurisdiction of the BZA.
Chapter 28 of Carmel's Land Use Regulations provides the Board with guidance in making this
determination:
28.1.6 Existinf! uses eligible for special use approval shall not be considered legal
nonconforming uses nor require use approval for continuance but shall
require special use approval for any alteration, enlargement or extension.
Essentially this means that an existing nonconforming use cannot be expanded as a special use. If
the existing use is eligible for special use treatment, the Petitioner must first qualify the existing
use as a Special Use before an application for expansion can be considered.
mSTORY
Martin Marietta filed this Application in December 2002 as part of a package of five separate
applications to expand its existing mining operations. When taken as a whole, these applications
constitute the expansion of existing mining operations onto the Mueller North and South
properties. These existing mining operations include the Carmel Sand quarry on Hazel Dell and
the limestone open pit and underground operations on 96th Street.
Martin Marietta makes no secret that the applications were filed in anticipation that the City was
about to amend its zoning ordinances to create new zoning regulations for mining. This approach
was intended to allow them to avoid any new regulations.
Martin Marietta (or their predecessor American Aggregates) has been conducting limestone
operations at this 96th Street location for many years. The operations being conducted include
open pit and underground extraction (including blasting), processing (including washing,
crushing, hauling, sorting, and stockpiling), and sales activities. Further, Martin Marietta has
established non-mining operations at the 96th Street location, including asphalt manufacturing,
cement mix plants, and truck hauling operations.
()
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All of the existing Martin Marietta properties are zoned S-I Residential. The Mueller properties
are also zoned S-I Residential. "Mineral Extraction" is a permitted special use in an S-I district.
Mineral extraction does not contemplate the full range of quarry operations contemplated by this
Application.
The standard of review for the BZA is whether this Application, taken as a whole with the
supplemental information provided by Martin Marietta and the review comments provided
by Spectra Environmental Group, is actually an impermissible expansion of the existing
quarry operations.
EXPANSION OR SPECIAL USE?
What is a "Use" under Indiana law
The legal definition of "Use" is the standard to be used to determine whether "limestone
operations" are an expansion of an existing use, or are a separate and independent special use.
In their Application, Martin Marietta is applying for "surface limestone operations" as a Special
Use. The S-I Residential zoning ordinance enumerates what special uses are "permitted" in an S-
1 District. "Surface Limestone operations" is not one of those enumerated uses. This alone
should disqualify this Application.
Other indications that "Limestone operations" are expansion ofthe existing quarry use can be
found: 1) in the definition of "Use" under Indiana law, 2) in the Application and supporting
information supplied by Martin Marietta, and 3) in the review of the City's consultant (Spectra
Environmental Group). The only conclusion that can be made is that the proposed "surface
limestone operations" are an expansion of the existing,.{lOnconforming quarry use. As such, it is
not eligible for special use treatment. 1€9q:j
1) Definine: the term "Use" under Indiana law
The term "use" is defined in Indiana case law. "The term "use" in a zoning context is a work of
art denoting the DurDose for which a parcel ofland is intended ..." (Harbour Town Associates,
v. City of No blesvill e). "Viewing the concept ofland use should take into consideration how the
land is actuallv beine: used." (Metro. Dev. Com 'n of Marion County v. Hair)
"Surface limestone operations" is not a term defmed in Indiana law or Carmel zoning ordinances.
Therefore the BZA may take guidance from the Harbour and Metro precedents to define
limestone operations based on the actual use intended by Martin Marietta. Their expressed intent
is to expand the existing mining operations onto the Mueller property.
Martin Marietta's existing open pit is a quarrying operation. By its very nature, quarrying
involves a unique use of land. The normal types of nonconforming use involves such things as
setback issues or adding accessory uses. These are things that are done on the property and
involve the use of land.
However a "quarrying use" is unique because it involves "consumption ofland" as the "use".
A quarrying operation relies on the consumption of land for it's continued existence. Essentially
when the minerals are exhausted, the quarrying use expires.
A quarry is defined by the boundaries of its mineral reserves. When a quarry expands beyond its
boundaries to obtain additional reserves, it is actually expanding its use. If the quarry is a
nonconforming use as is the 96th Street location, expansion beyond its boundaries is considered
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an expansion of that nonconforming use. But "it is not permissible to extend the protection of a
nonconforming use established on one parcel of land (i.e. the existing pit) to physically separate,
though adjoining, parcels (i.e. Mueller South)." Syracuse Aggregate Corp v. Weise, 414 NE2d
651.
Conclusion
Expansion onto Mueller South property cannot be viewed in isolation. Both Martin Marietta and
Spectra acknowledge that the existing open pit is being expanded to obtain additional reserves.
2) Martin Marietta Acknowlede:es Expansion of Existine: Use
In Martin Marietta's "REASONS SUPPORTING THE SPECIAL USE FOR SURF ACE
LIMESTONE OPERA nONS', limestone operations are defined in the following manner:
"the proposed surface limestone operation will serve as an expansion of the existing
operation which has been conducted by Martin Marietta for a number of years on the
property south of the subject property (North Indianapolis Plant)." (page B-1)
"Thus, continued development of the existing area which has come to accommodate
this use makes sense from a planning standpoint." (page B-2)
"Martin Marietta will develop a surface limestone operation on the subject property. . .
This operation will serve as the extension of the existing North Indianapolis Plant."
(page B-2)
"There will be no aggregate processing on the subject property since processing will
occur at the existing North Indianapolis Plant..." (page B-3)
Carmel's Mining Ordinance defines mining "operations" as extraction and processing.
"Processing is an integral part of mineral extraction" (Affidavit of John Tiberi December, 2004).
From this there can be little doubt that Martin Marietta intends to use the Mueller property as an
expansion of its existing operations.
3) Review bv Spectra Environmental Group
Comments in Spectra's October 26, 2005 letter to DOCS:
"Comment 4: The Additional Information submitted explains that the existing surface
limestone operation will be extended to the north to encompass Mueller Property
South... All plans, cross-sections and plates should indicate that the existing operation
will be extended to the north to incorporate Mueller Property South." (emphasis added)
"Comment 5: The method of mining, particularly blasting and advancement of surface
limestone benches onto the Mueller South property is not described in the Additional
Information submittaL.. it is critical that Martin Marietta describe how the existing
surface limestone operation will be expanded into Mueller South..." (emphasis added)
Comments in Spectra's November 22, 2005 letter to DOCS:
"Comment 4: The map updates and addition to the Notes portion of each map are
sufficient to convey to the reader that the existing North Indianapolis limestone
excavation area will move north toward and will eventually include the Mueller
south property." (emphasis added)
u
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"Comment 5: Assessment of Blasting Impacts... There needs to be an assessment of how
MM will mitigate impacts (vibration and air blast) to residents as MM progresses north
from their current location into Mueller South..." (emphasis added)
Conclusion from Spectra's Comments: As the City's experts in the field of mining, Spectra
recognizes that this Application is in reality an expansion of the existing operations, that existing
limestone operations are being expanded, and that the appropriate standard of review is to
measure the impact of expansion based on the impact of the existing operations being
expanded.
SUMMARY
Special uses must be viewed in strict terms. Expansions of nonconforming uses are not permitted
as special uses. There can be little doubt that reasonable minds would view this Application as an
expansion of the existing limestone operations. That is also the intent ofthe Petitioner.
The Board should also take guidance from Indiana law when considering expansion of
nonconforming uses. "The policy of zoning ordinances is to secure the gradual, or even
eventual elimination of nonconforming uses and to restrict or diminish rather than increase
such uses" Jacobs v. Mishawaka Bd of Zoning Appeals. Expansion ofthe existing quarry is in
direct conflict with the judicial policy expressed in Jacobs.
The Board may also take guidance from land use polices in the Comprehensive Plan. The Plan
does not provide for a mining use anywhere in Carmel. The subject property is designated as a
Low Intensity Regional and Community Employment area on the Land Use Plan. Uses suggested
in this region are commercial employment uses, not the industrial uses suggested by the
Petitioner. The nature of a quarrying operation involves high intensity activity, especially when
considering blasting is involved. Therefore, granting an expansion of the existing quarry, even as
a special use, would be in direct conflict with the land use policies expressed in the
Comprehensive Plan.
Finally, even if considered under the Special Use ordinance, Section 21.1 provides that the Board
may find adopt findings that "the proposed Special Use is obviously inappropriate as a result of
special and unique conditions determined as a result of the review procedure."
Spectra has submitted two comment letters to the City outlining its concerns on this Application.
Comment 5 in its November 22, 2005 letter is particularly significant:
In summary, the application needs to be supplemented with additional information on
blasting and blasting issues. Blasting is the primary focus of public concern and
complaints. To adequately assess whether there will be any detrimental impacts to
the residents of Carmel as mining progresses into Mueller South, MM should provide
the following: (1) all blasting studies including any isoseismic studies as noted above
that would support this application, (2) an assessment of blasting impacts, and (3) and
basic information that we refer to as a blasting plan.
Without such information the application does not contain sufficient information
to make a recommendation to the DOCS for either approval or denial of the
application for a special use variance.
u
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The Board should take guidance that the City's own mining consultant is unable to come to a
conclusion that this Application will not have an adverse impact on neighborhood integrity.
THEREFORE, on behalf of the residents of Kingswood and surrounding neighborhoods of
Williamson Run, Blue Creek, Carolina Commons, and Woodcreek, this Application should not be
approved.
Respectfully,
--7C/
Thomas Yedlick
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STATE OF INDIANA
)
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)
Docket Nos. 05090003 SU and 05090004SU
COUNTY OF HAMILTON
v.
)
)
)
)
)
)
)
)
)
)
)
/-
Thomas Yedlick
Appellant,
~
RECEiVED
OCT 1 8 "'~"J'"
c..UI.)
DOCS
Department of Community Services
of the City of Carmel/Clay
Township,
Respondent.
APPEAL OF DIRECTOR'S DETERMINATION
AND MOTION TO DISMISS
This statement is submitted by Thomas Yedlick, Appellant, in support of his appeal of the
Determination by the Director of Department of Community Services to docket Martin
Marietta's application for Surface Limestone Operations as a Special Use (Docket Nos.
05090003 SU and 05090004 SU):
1. In December 2003, Martin Marietta filed this application for expansion of their
current surface limestone operations. In the application, Martin Marietta
acknowledges it has been conducting surface limestone operations similar to this
application for many years. Surface limestone operations are deemed to be
"alienation of mineral resources" under Indiana law, and consist of quarry operations
where limestone is extracted and processed as a finished product.
2. Carmel's special use ordinance does not allow for surface limestone operations as a
permitted special use in an S-1 District.
3. Sometime after 2000, Martin Marietta obtained a lease of the Mueller property
directly abutting and adjacent to the north of the existing surface limestone quarry.
Martin Marietta has previously announced their intent to expand their limestone
quarry operations onto the Mueller as a geographic expansion of the existing quarry.
4. Both the Mueller property and the existing quarry are in an S-1 Residential District.
As such the existing quarry is being operated as a nonconforming use under Indiana
law and Carmel zoning because it has never been in conformity with any zoning
classification. Zoning law does not permit the expansion of nonconforming uses,
except if the BZA approves a use variance.
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Existine Minine Operations Defined
5. The existing surface limestone operations have been established under Indiana law
exempting the "alienation of mineral resources" from regulation by local
municipalities when it exists outside an urban area. Alienation of mineral resources is
the process by which minerals are extracted and processed for the end user.
Processing, as an integral part of a quarry operation, relates to the minerals extracted
from the quarry. Processing is not a permitted special use in an S-1 District.
Implied Chanee and/or Expansion of the Existine Processine Use.
6. Implied in this special use application is the processing of limestone extracted from
Mueller as an expansion of the use of the existing processing facilities. Under
Indiana law, this is a change and/or expansion of the existing "processing use" and
requires a use variance, not a special use.
Special Use Purpose
7. Indiana law permits municipalities to establish "special uses" which may be permitted
if they meet criteria set forth in a special use ordinance. In this instance, "mineral
extraction" is a permitted special use in an S-1 District, but limestone operations
(including processing) are not. The acceptance of this application as a "special use"
circumvents the review and approval processes that should be required for a "use
variance" for processing.
Director's Responsibilitv
8. Under the applicable zoning regulations, the Director has the responsibility to review
zoning applications to determine they are complete. This would include a
determination that the application meets all zoning requirements, including meeting
the requirement for a "permitted special use", and whether there are any uses implied
that do not qualify as special uses. Since the application itself clearly describes that it
is an expansion of existing mining (a nonconforming use), it is also clear that
treating the application as a special use is erroneous.
THEREFORE, Appellant requests:
1) The Director dismiss this application because it does not meet the standard for a
special use, or
2) In the alternative, that this appeal of the Director's Determination be set for a
hearing by the BZA after scheduling an appropriate pre-hearing conference.
;;;r::;b~
Thomas Yedlick
5053 St Charles Place
Carmel, IN 46033
844-0141 x253
October 18, 2005
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Tingley, Connie S
From:
Sent:
To:
Subject:
JanetRodriguez [janetrodriguez@indy.rr.com]
Monday, October 17, 2005 2: 11 PM
Tingley, Connie S
RSVP for Agenda 5h on 10-24-05
Hi Ms. Tingley,
My name is Janet Rodriguez, an "interested party" representing my neighborhood Williamson
Run. I left you a message earlier today, but wanted to follow-up with an e-mail stating
that I will be present at the 10-24 meeting. I live at 10575 Power Drive Carmel, IN
46033. My phone # is 705-0177, my e-mail address is janetrodriguez@indy.rr.com Please
feel free contact me if you require further information.
Thanks, Janet Rodriguez
1
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MARK V. BROMUND
4436 Blue Creek Drive
Carmel, IN 46033
(317) 843-1781
January 13, 2005
James R Hawkins, President
Carmel/Clay Board of Zoning Appeals
One Civic Square
Carmel, IN 46032
RE: Martin Marietta
Dear Mr, Hawkins:
I am writing in opposition to the special use permit request filed by Martin
Marietta to conduct open pit blasting on the Mueller property south of l06th Street as a
means of extracting mineral deposits. I understand that this property is currently zoned S-
1 which permits mining operations, but I feel that the use of explosive materials is an
inappropriate use for this property when less disruptive mechanical extraction methods
are available.
I live in the Blue Creek Woods subdivision which is comprised of69 single
family residences and is located southwest of the intersection of l06th Street and Gray
Road. I have lived in my current residence since April 2002 and maintain a home office
which I work out of every day.
I have endured the multiple daily airblasts resulting from the detonation by Martin
Marietta of explosives in connection with its current mining activity on property adjacent
to 96th Street. The resulting waves rattle my house and dislodge pictures hanging on my
walls. On overcast days, the clouds serve to hold in the resulting waves and the noise
sounds like you are under attack. Numerous meetings with clients in my home have been
disrupted when these airblasts occur and the clients wonder what just happened. I expect
that expanding the area where the use of explosives by Martin Marietta is permissible
will result in an increase in both the frequency and intensity of these blasts.
I am also concerned about the long temi effects of all ofthese blasts on my home.
I have made the kind of financial investment in my home over the past 3 years that I
believe the city leaders want everyone to do-new root: siding, windows and furnace.
Again, I expect that expanding the area where the use of explosives by Martin Marietta is
permissible will result in an increase in both the frequency and intensity of these blasts
that will ultimately shorten the useful life of these improvements and reduce property
values in my neighborhood.
As I am sure you are aware, the portion of l06th Street where Martin Marietta
wants to expand its mining operations is a narrow 2 lane road between Gray Road and
Hazel Dell Parkway with no improved shoulder area and numerous mature trees adjacent
to the roadway. This road is barely wide enough for 2 cars to safely pass in opposite
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directions and until recently the posted speed limit on this section of 106th Street was 50
MPH. The current level of traffic on this road by uncovered trucks spilling gravel on the
road and damaging cars makes travel hazardous. Once Gray Road is closed for
reconstruction and expansion between 96th Street and 106th Street, this section of l06th
Street will be the primary route available for traffic to reach Hazel Dell Parkway in order
to access areas to the north and south. I would not be surprised to see an increase in
serious accidents on this section of 106th Street once truck traffic increases as a result of
Martin Marietta's expanded mining operations.
I have no objection to Martin Marietta using mechanical methods to extract the
minerals, but given the proximity of this property to existing residential areas I think that
the use of explosives is an inappropriate use and should not be permitted. I also believe
that in the interest of public safety some operational limitations on the truck traffic on
106th Street between Gray Road and Hazel Dell Parkway should be imposed regardless of
the method of mineral extraction.
SN;;Y'1UJ
Mark V. Bromund
cc: Fred Glaser- Carmel City Council Representative District 5
Chuck Appelquist- Blue Creek Woods Homeowners' Association President
2
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JONES & HENRV ENGINEERS
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SUBJECr: Martin Marietta ~nem.1 Use ADoroval Ap,plic:ations '<-J~_;/
FROM:
Brian W. Hnllohtnn
DATE: laauarv 20. 2003
The following are questioos developed after a nMewofthe Special Use Applications submitted by
Martin Marietta for the Mueller Property North and South.
When will the artificial lake in the Sur&ce Limestone and ArtifidalLake application for
1.
the South Property be fiRed with water. Prom the application the mining operations will
continue for 25 years but will the lake be filled with water at the completion of the 25 year
period?
2. The tunnels for the Underground Limestone Operation for the South Property are
proposed to be constnJcted at multiple levels beginning at approximately 160-ft. in depth.
The Surface Limestone Operation and Artificial Lake application for the South Property,
proposes to remove the 6mestone to a depth of approximately 210-ft. We assume the
tunnels wiD gradually drop below the surface mining operations. Is this assumption tnle
and will the water in the artificial Jake interfer with the tunnel operations or will the lake
need to be dewatered1
3. In the application for Mueller Property South Surface Limestone and Artificial Lake:
In the Pindings of Fact, page 11 of II, paragraph 4.; The findings offi1ct compare the
proposed mining operations to the mining operations to the west and northeast of the
South MueDer Property. Whereas.the mining operations west and northeast of the
proposed Special Use area are "wet" mining operations and do not significantly impact the
groundwater in the area. The mining proposed in the Special Use area will require the
aquifer to be completely dewateredin the Special Use area. Complete dewatering of the
aquifier in the Special Use area will be injurious and adversely a1fect the City's property
east of the proposed Special Use area. The City's property was intended for use by the
Water Utility as clearly indicated in the Settlement Agreement which Martin Marietta was
a party to.
4. The Mueller Property South Underground Limestone Operations; Page B-2, paragraph
2.2 says that " The underground mine will be accessed via existing Martin Marietta
workings adjacent to the southwbich are part of the North Indianapolis Plant's
underground mine; therefore, no additional portals or other means of access are being
proposed". However. in the Mueller Property North Underground Limestone Operations,
page B-2, paragraph 2.2 says that the tunnels north of 1 06111 Street wiD be connected to the
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tunnels south of 106* Street and access will be through the North Indianapolis Plant or
from the Carmel Sand Plant which is located north of 106* St aDd west ofHaze1dell
Parkway.
It appears the first report referenced is incorrect and the south limestone operatiODs will
have access to the twmels &om the Carmel Sand Plant. Does.tms chaDge traffic patterns?
We assume Martin Marietta wiD need to tunnel under the area indicated as the Carmel
Sand Plant. If so. is limestone mining permitted in that area? Will blasting occur in the
area of the Carmel Sand Plant? What dewatering efforts will be required in the area of the
Carmel Sand Plant and will the lake need to be drained?
451.,..70
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May 2, 2001
Dear Members of the Carmel Board of Zoning Appeals,
Our neighborhood of Williamson Run is affected by Martin Marietta and its
desire to expand mining operations. We are encouraged that this matter is
before the Board of Zoning Appeals who will represent the citizens of this
important quadrant of Carmel.
We understood when purchasing homes in Williamson Run that we would
be minimally affected by Martin Marietta's daily blasting. However, it was
not our expectation that the operation would be expanded and would be a
significant threat to our quality of life and property values not only in our
neighborhood of 172 homes, but in Blue Creek Woods, Carolina Commons,
the residences on Lakeshore Drive, and all neighborhoods in between. The
effects of these blasts reverberate further west than you may realize,
impacting many more homes than those directly contingent to the gravel
pits. We do not want to see these beautiful neighborhoods compromised by
exponentially increasing the daily mining disturbances.
We look to you for protection, and know that you will consider the long term
impact of this very important decision. Thank you for representing our
comer of Carmel.
Board Member and Past President
Williamson Run Homeowners Association