HomeMy WebLinkAboutCause No. 29D02-0206-PL-510 Martin Marietta vs. BZA
BARNES & THORNBURG
11 South Meridian Street
Indianapolis. Indiana 46204-3535 U.S.A.
(317) 236-1313
Fax (317) 231-7433
Thomas H. Engle
(317) 231-7499
EmaiI: tengle@btlaw.com
www.btlaw.com
June 27, 2002
VIA HAND DELIVERY
Connie Tingley, Secretary
City of Carmel/Clay Township Board of Zoning Appeals
One Civic Square
Carmel, Indiana 46032
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RECEIVED
JUN 21 2002
DOCS
RE: Docket Nos. UV-23-02; SU-24-02; SU-25-02; V-26-02; V-27-02;
Martin Marietta Materials. Inc.
Dear Connie:
Enclosed is a copy of Martin Marietta Materials, Inc.' s Petition for Writ of Certiorari and
Notice of Filing of Petition for Writ of Certiorari, which was filed today in Hamilton Superior
Court, regarding judicial review of the above listed matters. Copies are also being served by
certified mail.
Sincerely,
Enclosure
lNDSOI THE 518931vl
Indianapolis
Fort Wayne
South Bend
Elkhart
Chicago
Washington, D.C.
HAMILTON Superior COURT NO. ~
CCS ENTRY
CAUSE NO. 29D02-0206-PL- r; LO
MARTIN MARIETTA MATERIALS, INC.
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Petitioner,
v.
CITY OF CARMEL/CLAY TOWNSHIP
BOARD OF ZONING APPEALS,
Respondent.
DATE: June 27.2002
JUDGE'S APPROVAL:
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The Clerk will please enter the following entry on the Chronological Case Summary
(This entry will not appear in the Record of Orders and Judgments):
TYPE OR PRINT LEGIBLY
1. Martin Marietta Materials. Inc. files its Appearance. Petition for Writ of Certiorari.
Notice of Filinq of Petition for Writ of Certiorari. and (proposed) Order to Show
Cause.
Submitted by:
Jan M. Carroll, Attorney for
Martin Marietta Materials, Inc.
NOTICE: Pursuant to Local Rule 104.1, this form must accompany all filings with
the Circuit, Superior or County Courts of Hamilton County. This form may not be
used as an order of the Court. Pursuant to Local Rule 104.2, a separate order
must be submitted with each request for relief.
This section for Court usage only:
CODE
Entered by:
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COPY
STATE OF INDIANA )
)SS:
COUNTY OF HAMIL TON )
IN THE HAMILTON SUPERIOR COURT #2
CAUSE NO. 29D02-0206-PL---5:.&
Respondent.
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RECEIVED
Jill 8 2002
DOCS
MARTIN MARIETTA MATERIALS, INC.,
Petitioner,
v.
CITY OF CARMEL/CLAY TOWNSHIP
BOARD OF ZONING APPEALS,
ORDER DIRECTING BOARD OF ZONING APPEALS
TO SHOW CAUSE WHY WRIT OF CERTIORARI SHOULD NOT ISSUE
.
This matter is before the Court on the filing of Martin Marietta Materials, Inc. Verified
Petition for Writ of Certiorari to Review Decision of Board of Zoning: Appeals. Pursuant to
Ind. Code ~ 36-7-4-1006, the Court directs the City of Carmel/Clay Township Board of Zoning
Appeals to show cause, if any there be, within twe.nty days of the date of this Order, why a writ
of certiorari should not issue.
SO ORDERED' this6L 1 day of
,2002.
~
Judge, Hamilton Superior Court #2
DISTRIBUTION:
Jan M. Carroll
BARNES & THORNBURG
11 South Meridian Street
Indianapolis, IN 46204
Connie Ting4ley, Secretary
City of Carmel/Clay Township Board of Zoning Appeals
One Civic Square
Carmel, Indiana 46032
John R. Molitor, Esq.
MOLITOR, GRISHAM & HESTER, P.A.
11711 North Meridian Street
Carmel, Indiana 46032
IN0501 THE 513929v2
IN THE HAMIL TON SUPERIOR COURT #2
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
MARTIN MARIETTA MATERIALS, INC.,
Petitioner,
v.
CITY OF CARMEL/CLAY TOWNSHIP
BOARD OF ZONING APPEALS,
Respondent.
CAUSE NO. 29D02-0206-PL-S" 10
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APPEARANCE FORM (CIVIL)
Initiating Party
Case Number:
(To be supplied by Clerk at the time of filing)
(File stamp)
/ / Check if Pro Se. NOTE: This form is not required for pro se protective' orders.
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1. Martin Marietta Materials. Inc. 2.
Name of first initiating party Telephone of pro se initiating party
(Supply names of additional initiating parties on continuation page.)
3. Attorney information (as applicable for service of process):
Name: Jan M. Carroll
Address: BARNES & THORNBURG
11 South Meridian Street
Indianapolis. Indiana 46204
Atty Number: 4187-49
Phone: (317) 236-1313
FAX: (317) 231-7433
Computer Address:
(Supply information for additional attorneys on continuation page.)
4. Case Type requested: ~PL 5. Will accept FAX service: Yes _No~
[See Administrative Rule 8(b)(3)]
6. Social Security numbers of all family members in proceedings involving support issues.
Name: SS # Name: SS #
(Supply social security numbers for additional persons on continuation page.)
7. Are there related cases? Yes
No~
If yes, list case and number below:
1
APPEARANCE FORM (CIVIL) - Initiating Party
Caption Case Number
Caption Case Number
(Supply information for additional related cases on continuation page.)
8. Additional information required by state and local rule:
Continuation of Item 1 (Names of initiating parties):
Name
Name
Phone (Pro se only)
Phone (Pro se only)
Continuation ofItem 3 (Attorney information, as applicable for service of process):
Name: Thomas H. Engle
Address: BARNES & THORNBURG
11 South Meridian Street
Indianapolis. Indiana 46204
Atty Number: 19337-49
Phone: (317) 236-1313
FAX:. (317) 231-7433
Computer Address:
Name: David R. Warshauer
Address: BARNES & THORNBURG
11 South Meridian Street
Indianapolis. Indiana 46204
Atty Number: 2130-49
Phone: (317) 236-1313
FAX: (317) 231-7433
Computer Address:
Continuation ofItem 6 (Social Security numbers of family members in cases involving support):
Name:
Name:
SS#
SS#
Name:
Name:
SS#
SS#
Continuation ofItem 7 (Caption and case number of related cases):
Caption
Caption
Case Number
Case Number
Authority: Pursuant to Trial Rule 103.3, this form shall be filed at the time an action is
commenced. In emergencies, the requested information shall be supplied when it becomes
available. Parties shall advise the court of a change in information previously provided to the
court. This format is approved by the Division of State Court Administration.
Use additional continuation pages if needed.
Respectfully submitted,
ij~ 1)... L1w~h
Ja . Carroll
INDSOl THE 518812vl
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IN THE HAMIL TON SUPERlOR COURT #2
STATE OF INDIANA )
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COUNTY OF HAMIL TON )
CAUSE NO. 29D02-0206-PL- ~I D ,:;~
MARTIN MARIETTA MATERlALS, INC.,
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Petitioner,
v.
CITY OF CARMEL/CLAY TOWNSHIP
BOARD OF ZONING APPEALS,
Respondent.
VERIFIED PETITION FOR WRIT OF CERTIORARI
TO REVIEW DECISION OF BOARD OF ZONING APPEALS
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Martin Marietta Materials, Inc. petitions this Court pursuant to Ind. Code ~ 36-7-4-1003
for a writ of certiorari to review the action of the City of CarmeVClay Township Board of
Zoning Appeals (the ''BZA'') taken May 28, 2002, on Martin Marietta's applications for a
variance of use, two special uses, and variances of development standards, docketed as Nos. UV-
23-02 (the "Use Variance"), SU-24-02 and SU-25-02 (the "Special Uses"), V-26-02 and V-27-02
(the "Setback Variances"). In support of its petition, Martin Marietta states:
1. In its Use Variance application, Martin Marietta sought approval to relocate a sand and
gravel processing plant from its property west of Hazel Dell Parkway in Clay Township, to its
property east of Hazel Dell Parkway in Clay Township, more particularly described therein (the
"Martin Marietta Property"), in order to locate such plant farther from the Kingswood
subdivision than it is currently. The Martin Marietta Property is currently in the 8-1 Zoning
District pursuant to the Carmel/Clay Zoning Ordinance ("Ordinance").
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2.
In its Special Use applications, Martin Marietta sought approval to conduct sand and
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gravel extraction, and in the process create an artificial lake, on property located north of 1 06th
Street at 10750 River Road, Carmel, Indiana 46280 (the "Mueller Property"). The Mueller
Property is currently in the S-l Zoning District pursuant to the Ordinance.
3. In its Setback Variance applications, Martin Marietta sought approval to modify the
dimensional standards and reduce the open space buffer for the Special Uses on the Mueller
Property.
4. After extensive review, the Carmel Department of Community Services (the
"Department"), the professional staff for the BZA, recommended approval of the Use Variance,
the Special Uses and the Setback Variances, writing in its Department report of May 22,2002:
The Department believes that Martin Marietta has met all the
criteria set forth for Special Use approval in ZO 21.4 and thus
recommends Board approval ofSU 24-02, SU 25-02, V-26-02, and
V-27-02. The Department further recognizes that great community
benefit can be achieved by the relocation of the existing processing
plant to the east side of Hazel Dell Parkway and recommends
approval ofUV 23-02.
5. In addition, Spectra Engineering, P.C. was engaged by the Department on behalf of the
BZA to review the applications and supporting materials pertaining to the Use Variance, Special
Uses and Setback Variances, and the Department's recommendations reflect the results of that
review.
6. The BZA denied all the applications by a split vote of two in favor and three against.
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7.
Martin Marietta is aggrieved by the BZA's decisions in that it is the owner of the Martin
Marietta Property and the lessee of the Mueller Property pursuant to that certain lease. agreement
dated January 1, 2000 between Martin Marietta and the Helen M. Mueller Conservatorship on
behalf of Helen M. Mueller, pursuant to which lease Martin Marietta is permitted to mine
. a~gregates, including. sand and gravel, on the Mueller Property.
8. The BZA's decisions are illegal in that:
a. The BZA's decisions are not supported by the evidence, are not supported by
substantial evidence, are contrary to the evidence, and are clearly erroneous.
b. The BZA's decisions are not supported by findings that show an adequate basis
for the BZA's decision, and the BZA has failed to make adequate written findings of fact
required by Ind. Code 99 36-7-4-915 and -919(f).
c. The BZA's decision pertaining to the Use Variance violates the Ordinance and
Ind. Code 936-7-4-918.4 because:
1. The Martin Marietta Property is located in the S-1 District.
11. As set forth in Section 5.1 of the Ordinance, the Permitted Uses in the S-l
District include:
Antenna, if collocated on an existing or previously approved tower
Home occupation
Kennel, residential
Single-family dwelling
111. The Martin Marietta Property is located entirely within the floodway of
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the White River, which is a Special Flood Hazard Area according to the Ordinance.
.
IV. Martin Marietta has obtained a permit from the Indiana Department of
Natural Resources to permit the requested construction of a sand and gravel processing
plant in a floodway pursuant to Ind. Code S 14-28-1.
v. Section 22.6 of the Ordinance provides: "[w]ithin the floodway identified
on the Flood Boundary and Floodway Map or the Flood Insurance Rate Map, the
following standards shall apply: 1. No development shall be allowed which acting along
[sic] or in combination with existing or future similar works, will cause any increase in
the elevation of the regulatory flood. . . ."
VI. The Permitted Uses in the S-1 district may not be placed on the Martin
Marietta Property because of Section 22.6 of the Ordinance, but the sand and gravel
processing plant would not be contrary to that provision.
Vll. Section 22.9 of the Ordinance provides ''No variance or exception for
residential use within a floodway subject to Sections 22.6(a) or (b) may be granted."
V1l1. Because of its location in the floodway, the Martin Marietta Property
cannot be used for any Permitted Use.
lX. Section 30.4 of the Ordinance establishes that: "In deciding whether or
not the applicant has presented sufficient proof to permit the granting of a variance of
use, the [BZA] shall determine in writing that:
1. The approval will not be injurious to the public health, safety,
morals and general welfare of the community;
2. The use and value of the area adjacent to the property included in
the variance will not be affected in a substantially adverse manner;
3. The need for the variance arises from some conditions peculiar to
the property involved;
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4. The strict application of the terms of the Zoning Ordinance will
constitute an unnecessary hardship if applied to the property for which the
variance is sought; and
5. The approval does not interfere substantially with the
Comprehensive Plan."
(the "Use Variance Standards"). See also Ind. Code S 36-7-4-918.4.
Xl. In its written reports to the BZA, the Department set forth how the Use
Variance would meet each of the Use Variance Standards.
X11. The record of proceedings before the BZA establishes that Martin Marietta
showed sufficient proof of each ofthe Use Variance Standards as a matter oflaw.
d. The BZA's decision pertaining to the Special Uses violates the Ordinance and
Ind. Code S 36-7-4-918.2 because:
1. The Mueller Property is located in the S-1 District.
11. Section 5.2 of the Ordinance provides that an "artificial Lake or pond (not
part of a plat)" is a Special Use permitted in the S-1 District.
111. Section 5.2 of the Ordinance provides that "Mineral extraction, borrow pit,
top soil removal and their storage" is a Special Use permitted in the S-1 District.
IV. Despite Section 5.2 of the Ordinance, the record of proceedings
establishes that at least one member of the BZA based his or her negative decisions with
respect to the Special Use applications on the belief that they were not a proper matter for
the BZA to consider.
v. Section 21.1 of the Ordinance provides "Special Uses shall generally be
considered favorably by the [BZA], except in cases where the [BZA] finds the proposed
Special Use obviously inappropriate as a result of special and unique conditions
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determined as a result of the review procedure established herein."
VI. Section 21.3 of the Ordinance sets forth certain criteria which the BZA
"shall give consideration to" in reviewing a special use or special exception application
(the "Special Use Criteria").
VlI. In reviewing the Special Use Criteria, the BZA "shall base its decision on"
the factors set forth in Section 21.4 of the Ordinance (the" Special Use Factors").
Vlll. "[A] special exception [or use] is a use permitted under the zonmg
ordinance upon showing of certain statutory criteria." town of Merri/lville Board of
Zoning Appeals v. Public Storage, Inc., 568 N.E.2d 1092, 1094 (Ind. Ct. App. 1991).
"[T]he granting of a special exception [or use] is mandatory upon compliance with the
statutory criteria set forth in the ordinance." Ash v. Rush County Board of Zoning
Appeals, 464 N.E.2d 347,350 (Ind. Ct. App. 1984).
lX. In its report to the BZA, the Department stated that Martin Marietta had
met the Special Use Criteria.
x. The record of proceedings before the BZA establishes that Martin Marietta
showed compliance with the Special Use Criteria and the Special Use Factors.
Xl. The BZA did not determine that the Special Uses were obviously
inappropriate as a result of special and unique conditions.
XlI. Upon showing compliance with the Special Use Criteria and the Special
Use Factors by Martin Marietta, the BZA was bound to approve the Special Uses SU-24-
02 and SU-25-02 for the Mueller Property, which are permitted uses in the S-1 District.
e. The BZA's decision pertaining to the Setback Variances violates the Ordinance
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and Ind. Code S 36-7-4-918.5 because:
1. Section 5.2.2 of the Ordinance provides that a use for mineral extraction,
borrow pit, top soil removal and their storage requires a "minimum perimeter Natural
Open Space buffer (as defined in 7.3.B of the Subdivision Regulations) of 300 ft. when
adjoining or abutting any residential use of [sic] district" (the "Buffer").
11. The Mueller Property adjoins or abuts a residential district along its
western boundary and a portion of its northern boundary.
111. Martin Marietta's Setback Variances sought to reduce the Buffer to 100
feet along the western boundary and to 150 feet along a portion of the northern boundary
of the Mueller Property, pursuant to Martin Marietta's agreements with certain adjoining
property owners intended to bring the new lake as an amenity closer to their homes.
IV. Section 30.4 of the Ordinance establishes that: "In deciding whether or
not the applicant has presented sufficient proof to permit the granting of a variance of
development standards, the [BZA] shall detemline in writing that:
1. The approval will not be injurious to the public health, safety,
morals and general welfare of the community;
2. The use and value of the area adjacent to the property included in
the variance will not be affected in a substantially adverse manner;
3. The strict application of the terms of the Zoning Ordinance will
constitute an practical difficulties in the use of the property."
(the "SetbackVariance Standards"). See also Ind. Code S 36-7-4-918.5.
v. In its written reports to the BZA, the Department recommended favorable
consideration of the Setback Variances.
VI. The record of proceedings before the BZA establishes that Martin Marietta
showed sufficient proof of each of the Setback Variance Standards as a matter of law.
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f.
In addition, the BZA's decisions are otherwise contrary to law because:
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1. The BZA's decisions were impennissibly based upon a poll of the
sentiments of certain of the neighboring property owners.
11. The denial of the Use Variance constitutes an unconstitutional taking of
private property under Section 21 of the Indiana Constitution and the Fifth and
Fourteenth Amendments to the United States Constitution, in that the Ordinance as
enforced denies any use of the Martin Marietta Property for which it is reasonably
adapted.
111. The denial of the Special Uses and Setback Variances constitutes an
unconstitutional taking of private property under Section 21 of the Indiana Constitution
and the Fifth and Fourteenth Amendments to the United States Constitution, in that the
BZA's decisions were based upon Martin Marietta's refusal to accept a condition (which
condition was also opposed by certain of the property owners in the adjoining Kingswood
Subdivision who appeared in support of Martin Marietta) that Martin Marietta dedicate a
strip of land adjacent to the proposed lake as a public pathway. Such a dedication would
have required Martin Marietta to give up a constitutional right in exchange for a
discretionary benefit having little or no relationship to the proposed use of the property
and not reasonably necessary for any government purpose.
g. The BZA's decision is arbitrary and capricious and an abuse of discretion.
9. The following are "adverse parties" entitled to notice under Ind. Code 9 36-7-4-1005
because they either appeared at the BZA hearing on April 22, 2002, and/or the continuation of
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'.: the hearing on May 28, 2002, and spoke in opposition to the granting of the special use and
variance, or filed a written remonstrance in the record:
Kingswood Homeowners Association, Inc.
Bill Curry
D. David Ezell
Bill Kincaid
1. Philip Comet
Helen M. Comet
Marcus Freihofer
Jeffrey D. Joliet
Ellen Johns
Keith Johns
WHEREFORE, Martin Marietta asks,
1. Pursuant to Ind. Code S 36- 7 -4-1006, that this Court direct the City of
Carmel/Clay Township Board of Zoning Appeals, within 20 days after the date of the filing of
this Petition, to show cause why a writ of certiorari should not issue.
2. The Court to allow the writ, directed to the BZA; and, further, that the writ
prescribe that a return shall be made to it by the Board within 30 days of the date of the issuance
of the writ, and that the return include, pursuant to Ind. Code S 36-7-4-1008, a complete
transcript of all proceedings, filngs, and evidence in this matter before the Board, verified by the
secretary of the Board, and a complete copy of the Carmel/Clay Zoning Ordinance, all at the cost
of Martin Marietta.
3. That, pursuant to Ind. Code S 36-7-4-1009, the Court then set this matter for an
evidentiary hearing, for the purpose of supplementing the evidence.
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4. That, pursuant to Ind. Code S 36-7-4-1009, the Court then reverse, remand, or
modify the BZA' s decisions which denied Martin Marietta a special use and variances to allow
sand and gravel extraction on the Mueller Property.
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M Carroll, # 4187-49
T as H. Engle, #19337-49
David R. Warshauer, #2130-49
BARNES & THORNBURG
11 South Meridian Street
Indianapolis, IN 46204
317-236-1313
Attorneys for Petitioner
I affirm subj ect to penalties for perjury the foregoing statements of fact are true.
v~--2L
Jo~Schuler
Director Governmental Affairs & Public
Relations
Martin Marietta Materials, Inc.
INDSOI THE 513946v3
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STATE OF INDIANA ) .
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COUNTY OF HAMIL TON )
IN THE HAMIL TON SUPERIOR COURT #2
Petitioner,
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CAUSE NO. 29D02-0206-PL-~
MARTIN MARIETTA MATERIALS, INC.,
Respondent.
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CITY OF CARMEL/CLAY TOWNSHIP
BOARD OF ZONING APPEALS,
ORDER DIRECTING BOARD OF ZONING APPEALS
TO SHOW CAUSE WHY WRIT OF CERTIORARI SHOULD NOT ISSUE
This matter is before the Court on the filing of Martin Marietta Materials, Inc. Verified
Petition for Writ of Certiorari to Review Decision of Board of ZoniD!! Appeals. Pursuant to
Ind. Code ~ 36-7-4-1006, the Court directs the City of Carmel/Clay Township Board of Zoning
Appeals to show cause, if any there be, within twenty days of the date of this Order, why a writ
of certiorari should not issue.
SO ORDERED this6L 1 day of
,2002.
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Judge, Hamilton Superior Court #2
DISTRIBUTION:
Jan M. Carroll
BARNES & THORNBURG
11 South Meridian Street
Indianapolis, IN 46204
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///Cclnnie Ting4ley, Secretary-~---'~ ---
,-,/ City of Carmel/Clay Township Board of Zoning APpeals~.
One Civic Square)
Carmel, Indiana 46032 /
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John R. Molitor, Esq.
MOLITOR, GRISHAM & HESTER, P.A.
11711 North Meridian Street
Carmel, Indiana 46032
INDSOI THE 5 I 3929v2
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STATE OF INDIANA )
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COUNTY OF HAMIL TON )
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IN THE HAMILTON SUPERIOR COURT #2)'// (~'f/l~t:"f)
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CAUSE NO. 29D02-0206-PL " C; lO IJOCS
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MARTIN MARIETTA MATERIALS, INC.,
v.
CITY OF CARMEL/CLAY TOWNSHIP
BOARD OF ZONING APPEALS,
Respondent.
NOTICE OF FILING OF PETITION
FOR WRIT OF CERTIORARI
FOR REVIEW OF DECISION OF BOARD OF ZONING APPEALS
Pursuant to Ind. Code S 36-7-4-1005, you are hereby notified that a petition for a writ of
certiorari has been filed with the Hamilton Superior Court on June 27, 2002, seeking judicial
review of the decision of the City of Carmel/Clay Township Board of Zoning Appeals made
May 28, 2002, denying Martin Marietta Materials, Inc.'s applications for a use variance, special
uses and setback variances to allow sand and gravel extraction in an area zoned S-l and located
in Clay Township, Hamilton County at 10750 River Road, Indianapolis, Indiana [Docket Nos.
UV-23-02; SU-24-02; SU-25-02; V.;26-02; and V-27-02].
Because you filed a written remonstrance in opposition or were among the first to appear
in person on either April 22, 2002 or May 28, 2002 at the City of Carmel/Clay Township Board
of Zoning Appeals hearing on the applications filed by Martin Marietta Materials, Inc., and
because you are a property owner, you are what Ind. Code S 36-7-4-1 005(b) calls an "adverse
party" and are required to be given this notice.
You are not required by law to make any response to this notice.
COpy TO:
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Jan . arroll, #4187-49
Tho H. Engle, #19337-49
David R. Warshauer, #2130-49
BARNES & THORNBURG
11 South Meridian Street
Indianapolis, IN 46204
Phone: (317) 236-1313
Attorneys for Martin Marietta Materials, Inc.
Connie Tingtley, Secretary [to be served by Sheriff and Certified Mail)
City of Carmel/Clay Township Board of Zoning Appeals
One Civic Square
Carmel, Indiana 46032
John R. Molitor, Esq.
MOLITOR, GRISHAM & HESTER, P.A.
11711 North Meridian Street
Carmel, Indiana 46032
Kingswood Homeowners Association, Inc.
P.O. Box 234
Carmel, Indiana 46032
Bill Curry
11121 Bradford Place
Carmel, Indiana 46033
D. David Ezell
5068 Huntington Drive
Carmel, Indiana 46033
Bill Kincaid
5000 Huntington Drive
Carmel, Indiana 46033
1. Philip Comet
4971 Williams Drive
Carmel, Indiana 46033
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Helen M. Cornet
4871 Williams Drive
Carmel, Indiana 46033
Marcus Freihofer
11136 Bradbury Place
Carmel, Indiana 46033
Jeffrey D. Joliet
11158 Bradbury Place
Carmel, Indiana 46033
Ellen Johns
5019 Huntington Drive
Carmel, Indiana 46033
Keith Johns
5019 Huntington Drive
Carmel, Indiana 46033
Jeffrey Joliet
11158 Bradbury Place
Carmel, IN 46033