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Home My WebLink AboutPresentation 10-13-04 STATE OF INDIANA CARMEL/CLAY ADVISORY BOARD OF ZONING ApPEALS CITY OF CARMEL Docket No. 0.4070020 A Thomas, YedlicK, APPELLANT William D. McEv.oy, Gregory M. Policka, Susan Becker, Rex A. Weiper, Rene Pimentel, and Donald K. Craft APPELLANT INTERVENORS v, Department'of Community Services for the City~of Carme!.. Indiana RESPONDENT Martij1 MariettCi Materials" Inc. RESPONDENT INTERVENOR WRITTEN PRESENTATION For October 13. 2004 HearinQ Prepared by Appellant Intervenors William D. McEvoy GregoryM. POlicka Susan Becker Rex A." Weiper Rene Pimentel Donald K. Craft ~ u v 5T A TE OF INDIANA CARMEL/CLAY ADVISORY BOARD OF ZONING APPEALS CITY OF CARMEL Docket No. 04070020 A Thomas Yedlick, /~'.~-~ .~ - / , >- /f// ~ {/ '-1 RECfIVED" , Li OCT 13 ~C04, : \) DOCS ,. . , .\ i" : " ..., ...., / ./~ d"o '.:;, /-,.._ r" 0' . I <c-' \'.' .... '- ' .~- - -~ APPELLANT William D. McEvoy, Gregory M. Policka, Susan Becker, Rex A. Weiper, Rene Pimentel, and Donald K. Craft APPELLANTINTERVENOR5 v. Department of Community Services for the City of Carmel, Indiana RESPONDENT Martin Marietta Materials, Inc. RE5PONDENTINTERVENOR WRITTEN PRESENTATION For October 13. 2004 Hearing Prepared by Appellant Intervenors William D. McEvoy Gregory M. policka Susan Becker Rex A. Weiper Rene Pimentel Donald K. Craft TABLE OF CONTENTS ~ Written Presentation Bv Appellant Intervenors October 13, 2004 Introduction The Present Use of the Land and Plant are lIIeQal Standard of Review of the Letter of Determination Findinas of Fact and Conclusions of Law ReQuest for Relief Exhibits: l.; A. Tax Assessment information on the Land B. S1/Residence District, Chapter 5 of the Carmel/Clay Zoning Ordinance C. M1/Manufacturing District, Chapter 20B of the Carmel/Clay Zoning Ordinance D. Clark County Board of County Commissioners v. King E. Aerial Photograph from 2001-see also the large board not included herein F. Aerial Photograph from 1985 G. Improvement Location Permits in Wood Creek H. Deeds to Consumers in Wood Creek I. List of Lots, Addresses, Builder, Permit Dates, and Dates of Deeds to Consumers in Wood Creek J. Map Showing Location of Wood Creek Homes and Carmel Sand and Gravel Plant K. Affidavit by Rex A. Weiper L. 1989 Special Use Application by American Aggregates Corporation Including Aerial Photograph of Kingswood and the Land M. Oak Hill Mansion Web Site Home Page N. Settlement and Release Agreement dated May .17, 2002 O. Letter of Determination by the Director of the Department of Community Services, dated June 24, 2004 P. City of East Chicago v. Sinclair Refining Co. Q. City of New Haven v. Chemical Waste Management of Indiana R. Secretary of State information on American Aggregates Corporation S. Affidavit of Laura Conway dated October 12, 2004 T. Affidavit of Thomas Yedlick dated October 13,2004 U. Letter from Zeft A. Weiss dated June 18, 2004. V. Requests for Information from DOCS, Responses from Carmel Legql Department, and List of Documents copied LJ STATE OF INDIANA CARMEL/CLAY ADVISORY BOARD OF ZONING APPEALS ~ CITY OF CARMEL Docket No. 04070020 A Thomas Yedlick, APPELLANT William D. McEvoy, Gregory M. PoJicka, Susan Becker, Rex A. Weiper, Rene Pimentel, and Donald K. Craft APPELLANT INTERVENORS v. Department of Community Services for the City of Carmel, Indiana RESPONDENT ..-J Martin Marietta Materials, Inc. RESPONDENT INTERVENOR Written Argument Presented at October 13, 2004 Hearing COME NOW William D. McEvoy, Gregory M. Policka, Susan Becker, Rex A. Weiper, Rene Pimentel, and Donald K. Craft (the "Appellant Intervenors"), by counsel, and file with the Carmel/Clay Advisory Board of Zoning Appeals their written comments, analysis, exhibits, argument, and requests for judgment in the captioned action as appellants of the determinations by the Director (the "Director") of the Department of Community Services of the City of Carmel (the "DOCS") in the Director's letter dated June 24, 2004 (the "Letter of 1 ~ -.J Determination") addressed to the original Appellant, Mr. Thomas Yedlick (the "Appellant"), and in support thereof. provide the following information and arguments. Introduction On November 15, 1979, the Declaration of Covenants and Restrictions For Wood Creek, a subdivision in Hamilton County, Indiana, were recorded in the Office of the Recorder of Hamilton County, Indiana, indicating that the primary and secondary plats of Wood Creek had been approved. Thus, on or about that date the land later to be developed as the Wood Creek subdivision was included within the land planned for residential development by the applicable planning and zoning authority for the area. Wood Creek is adjacent to the Land, as defined below, that contains the Carmel Sand and Gravel Plant ("Plant"). ~ On February 29, 1988, Ryan Homes, Inc. sold Lot 106 in Wood Creek subdivision and the new home located thereon to Peter N. Chen and Tina T. Chen. This was the eighth home, as it turned out later, to be located within the one quarter mile square that included the site whereon would later be located the Plant. In September 1990, the Oak Hill Mansion, which was originally located adjacent to the east line of the Kingswood subdivision, was moved to its new location on the south side of 116th Street, east of Hazel Dell Parkway. Sometime after September, 1990, American Aggregates Corporation moved or erected the present Plant on the Plant site, defined below as part of the Land, 2 ( , V ..J which is located east of Kingswood subdivision, southeast of Wood Creek subdivision, and commenced a sand and gravel processing operation, which included loading, sifting, sorting, separating, stockpiling, sales, and shipping of sand, gravel, and raw aggregate. That use now includes the sale of mulch. American Aggregates Corporation also stripped the Land, installed a large waterw borne dredge, and began pumping out the sand and gravel to the Plant for processing. This operation ultimately created a lake covering approximately 100 acres, extending from very near Kingswood and Wood Creek subdivisions to Hazel Dell Parkway. This work was all done without any rezoning, application for special use approval, or variance of use. The records of the DOCS indicate that there were no permits applied for or issued for the erection of the Plant or the commencement or continuance of this operation. The Appellant Intervenors believe that all of this work was done in direct violation of the Carmel/Clay Zoning Ordinance, specifically Chapter 5 thereof. In the Fall of 2002, American Aggregates Corporation, also known as Martin Marietta Materials, Inc. (the "Respondent Intervenor"), see Exhibit R included herewith, parked the dredge on the bank of the lake and ceased extracting sand and gravel aggregate from the Land. See Exhibit T, included herewith. Shortly thereafter, probably in the Spring of 2003, the Respondent Intervenor began shipping in from other locations than the Land large amounts of raw sand and gravel aggregate for processing in the Plant, which material is now being stockpiled on the Land. See Exhibit T, included herewith. Again. no 3 ~ ~ ..J permits have been found or disclosed to allow this operation and the Appellant Intervenors believe this continues a clear violation of Chapter 5 of the Carmel/Clay Zoning Ordinance. In the latter half of 2002, the Land was annexed into the City of Carmel. The Appellant Intervenors request that the BZA take administrative notice of such annexation and date. On June 24, 2004, the Director of the DOCS issued his Letter of Determination, included herewith as Exhibit N, stating that: .J 2. The land uses that were established on Martin Marietta's properties on or about May 17, 2002, constituted legal, nonconforming uses; 3. Those uses do not appear to have been substantially modified, expanded, or added to since May 2002; and 4. Therefore, those uses remain legal, nonconforming uses under the Carmel Clay Zoning Ordinance which may not be substantially modified, expanded, or added to without a change of zoning classification or Board approval of a special use or variance. This appeal was timely commenced by Thomas Yedlick and the Appellant Intervenors filed a timely Notice of Intervention. The Respondent Intervenor filed its Notice of Intervention on August 17, 2004. The principal issue to be decided. by the Carmel/Clay Advisory Board of Zoning Appeals (the "BZA") is Whether or not the Letter of Determination should 4 ~ ...J have been issued by the DOCS. In order to make a defensible decision in that regard, the BZA must examine whether or not the use appealed from by Thomas. Yedlick and the Appellant Intervenors was a permitted or legal nonconforming use as described in the Letter of Determination. Thus, the BZA must hear evidence and apply the law to the evidence concerning the legality of the use of the Land and Plant and determine whether or not the Plant and Land constitute a legal use. When the legality of the use has been determined, then the BZA will be able to decide whether or not the Letter of Determination was issued in error. ...) 5 ~ A. The present use of the land and Plant are Illegal. ~ All zoning is local. The State of Indiana provides a framework for cities such as Carmel to adopt zoning ordinances, see Ind. Code S 36-7-4-1 DO, et seq., but generally the content of the comprehensive plan, zoning ordinances, and rule of procedure are left to the sound discretion of the applic~ble legislative bodies. The Appellant Intervenors hereby request that the BZA administrative notice of all of the provisions of I.C. S 36-7-4 and the authority granted therein to local boards of zoning appeals and plan commissions. In this case, the Town, now City, of Carmel and Clay Township, Hamilton County, Indiana, on May 2, 1961, entered into a Joinder Agreement for the purpose of combining the planning and zoning work and authority to be conducted in their respective jurisdictions into one agency, one plan commission, ~ and one legislative body. Thereafter, all planning and zoning was performed by the Common Council of the Town, now City, of Carmel, Indiana; the Carmel/Clay Advisory Plan Commission; the Carmel/Clay Advisory Board of Zoning Appeals; and the Carmel Department of Community Services. Therefore, since May 2, 1961, the Carmel Department of Community Services (the "DOCS") has been the agency charged with administering the planning and zoning functions of all of Clay Township, including the site of the Carmel Sand and Gravel Plant (the "Plant"), as defined below. The Appellant Intervenors hereby request that the BZA take administrative notice of all of the provisions of the Carmel/Clay Zoning Ordinances. 6 \ ~ ~ This appeal relates to the land (the "Land") owned by American Aggregates Corporation that is located in the Northeast Quarter of Section 4, Township 17 North, Range 3 East, in Hamilton County, Indiana. The tax parcel number for the Land is 1714040000018.00. See Exhibit A. The general location of the Land is west of Hazel Dell Parkway, east of Kingswood subdivision, and north of land owned by the Mueller family limited liability company. It is also the same land as is described in the Appeal filed by Thomas Yedlick in this case. In addition to the Land, this appeal relates to the operation of the Plant on said Land, questions the reasonableness of the Letter of Determination, and questions whether or not the operation of the Plant is legal. During all times relevant to this appeal, being 1988 through the present day, the zoning of the Land has been "S1/Residence District" under the Carmel Zoning Ordinance, the uses of which are described in Chapter 5 of the Carmel/Clay Zoning Ordinance, contained herein as Exhibit H. This zoning classification has always prohibited mineral extraction, processing of materials, and sales of goods. To escape this prohibition, an applicant must either receive (a) a Special Use approval or (b) a Variance of Use. Neither of these has ever been filed with respect to the Land for the purpose of continuing the operation of the Plant. The request filed by the Respondent Intervenor for the further extraction of sand and gravel from the Land (but not the operation of the Plant) was denied by this BZA and the appeal is still pending in the Hamilton County courts. Therefore, use of the Land for mineral extraction, processing of 7 ~ ~ .-J materials, and sales of goods is in violation of Chapter 5 of the Carmel/Clay Zoning Ordinance and has been in violation since the use was started. Such uses are, of course, more appropriate In the M1/Manufacturing District, found at Chapter 20B of the Carmel/Clay Zoning Ordinances, included herewith as Exhibit C, but even under that zoning classification a Special Use Approval by this BZA would be required. On June 29, 2004, the Appellant Intervenors requested a copy of the entire file of the Director of the DOCS on the matter of his determination that the uses ofthe Land were legal, as well as other documents in the possession of the Director. See Exhibit V, included herewith, which includes the responses to those requests and a list of documents ultimately copied from the DOCS files. The Director's file contained copies of the 1997 and 2002 agreements between Martin Marietta Materials, Inc., American Aggregates Corporation, the City of Carmel, and others, but did not include any photographs, Inspection reports, disclosures of information, payroll records, sales records, mining history, construction information, history of other permits issues by governmental agencies, or third party reports that could lead a reasonable person to conclude what activities were occurring in 1988, 1990, 1996, 1997, 2002, or the present time. Without any basis for determining the nature of the activities and uses of the Land at the crucial times, there can be no reasonable basis for determining that a use is legal or illegal, conforming or nonconforming, for the Director cannot know what the use was when the Land first became subject to the Carmel Zoning 8 ..J ~ ~ Ordinances or at any time since then. This, alone, would create the reason for the rescission of the Letter of Determination; however, the Appellant Respondents believe that there is good reason to not only rescind the Letter of Determination but to issue a new Letter of Determination declaring that the use of the Land and Plant is illegal. There are no aoad excuses for the illeaality. So, on what basis could the DOCS and the Respondent Intervenor justify the continued operation of an obviously illegal use, pnd how can the DOCS justify issuing its Letter of Determination? No Exemption reQardina "urban area" First, the Respondent Intervenor has alleged that at the time it commenced operating the Plant on the Land, in 1990 or later, it was exempted from complying with the Carmel/Clay Zoning Ordinance by I.e. 9 36-7-4-1103, formerly I.C. 9 18-7-5-61, commonly known as the "urban area" statute. This statute states in pertinent part: (b) ADVISORY-AREA. For purposes of this section, urban areas include a/l lands and lots within the corporate boundaries of a municipality, any other lands or lots used for residential purposes where there are at least eight (8) residences within any quarter mile square area, and other lands or lots that have been or are planned for residential areas contiguous to the municipality. .-J 9 ~ ~ (c) ADVISORY-AREA. This chapter does not authorize an ordinance or action of a plan commission that would prevent, outside of urban areas, the complete use and alienation of any mineral resources or forests by the owner or alienee of them. I.e. S 36-7-4-1103(b) and (c). .-J This statute has been interpreted in several cases, but the most definitive for our purposes is the case of Clark County Bd. Of County Commissioners v. King, 160 Ind.App. 152, 310 N.E.2d 560 (Ind.App. 1974), of which a copy is included herewith as Exhibit D, in which the court refined the second definition of "urban area" found in I.e. S 36-7-4-1103(b) as follows: We . . . construe the term "quarter mile square area" as defining a square one quarter of a mile or 1,320 feet on each side, rather than a square one half mile, or 2,640 feet on each side. The number of residences located on the subject property [emphasis in the original] within any given quarter mile square area is not dispositive of whether all or any part of the property lies within an urban area. The identification of an urban area as defined by the statute bears no relationship to the boundaries of the subject property. Once an urban area has been defined, the position of the subject property becomes relevant for the determination of what part, if any, of the property falls within any established urban area. As to any part of plaintiffs' property 10 ~ -.J which falls within a defined urban area, the statutory limitation on defendants' authority is inapplicable. However, the statutory limitation does apply as to any part of plaintiffs' property lying outside of any established urban area. 310 N.E.2d at 564-5. Thus, if at any time before the commencement of operations of the Plant there were eight or more residences occupied within a square measuring 1,320 feet on all sides and including the Plant, then the Plant could not operate without a Special Use Approval or a Variance of Use. To establish that in fact the Plant has been operating illegally since its inception, the Appellant Intervenors would call the attention of the BZA to the following Exhibits: Exhibit E: Aerial Photograph taken in 2001, large scale, with the tax assessor's mapping overlaid upon it as of March 2003. This photograph clearly shows the locations and outlines of the Plant, the lake surrounding it, the property lines, and the homes in Wood Creek and Kingswood to the west of the lake. The parcel number of "018.00" is an abbreviated form of the full parcel number for the Land. Exhibit F: Aerial Photograph taken in 1985 of the same land as in Exhibit E above. This photograph shows the commencement of Wood Creek subdivision, the location of the Oak Hill Mansion on the Land east of Kingswood, and the farming activity on the Land. --.J 11 ~ ~ Exhibit G: Various building permits issued to Ryan Homes, Inc. for the construction of homes along the east line of Wood Creek subdivision. Exhibit H: Various deeds from Ryan Homes, Inc. to the first home purchasers of the homes listed in Exhibit F above. Exhibit I: List of Lots, Addresses, Builder, Permit Dates, and Date of Deed to Consumer for the homes listed in Exhibits G and H above. Exhibit J; Map showing the location of the homes listed in ~ Exhibits G, H, and I within a one quarter mile square that includes the Plant and a substantial part of the lake on the Land. The Appellant Intervenors have requested that the Respondent Intervenor provide the date when the Plant was built on the Land in its present location, when the Plant commenced operations, when the dredging stopped, and when the importation of off-site sand and gravel commenced. So far, the Respondent Intervenor has refused all such disclosures. The Appellant Intervenors therefore offer the following evidence on the question of when the Plant was built: Exhibit K: Affidavit of Rex A. Weiper dated October 13, 2004, indicating that the Plant was not built before 1990 and providing reasons to support his statement. Exhibit L: 1989 Special Use Application by American Aggregates Corporation to mine the land at the southwe'St corner of 106th 12 ~ ~ 81. and Gray Road in 1989, including an aerial photograph taken at the request of American Aggregates and filed in connection with its request for a Special Use Approval. This photograph clearly shows that as of 1989 the Kingswood subdivision was nearly complete, the Oak Hill Mansion was still on the Land, and the Plant was no where to be seen on the Land. This photograph was obtained from the offices of the DOCS pursuant to a valid discovery request and was reviewed by the DOCS and the legal department of the City of Carmel before being released to the Appellant Intervenors. ~ Exhibit M: Copy of the home page from the Oak Hill Mansion web site, indicating that the building was originally south of Cool Creek and west of River Road, and that when the house was moved it was taken down a hill and across a corn field in 1990. The corn field would not have been there to be crossed if the lake were already there, indicating that the lake was not yet there and the Plant was not yet in operation. Through formal requests submitted to the DOCS and the responses of the DOCS, the Appellant Intervenors have discovered all of the permit records for American Aggregates Corporation and the Respondent Intervenors, and there are no such records for the Plant. There does not appear to be a Plan Release issued by the State of Indiana because the Plant is apparently not a building in which occupancy is expected to occur. Therefore, although the Appellant Intervenors do not know where the Plant came from (it might have been 13 ~ ~ relocated from the southwest corner of the Indianapolis North Plant, see Exhibit E)., the Appellant Intervenors are convinced that the Plant could not have been in operation prior to the Land becoming an "urban area" under I.e. S 36~7~4~1103, as interpreted in the Clark County case cited above. A second reason why the land was in an "urban area" at the time of commencement of operations by the Plant is that the Carmel Common Council had adopted a Comprehensive Plan for the area including Wood Creek and Kingswood subdivisions prior to 1988, amended in 1996 with the Vision 2020 Comprehensive Plan, that indicated that the land was "planned for residential areas contiguous to the municipality." I.C. S 36-7~4~11 03(b). There is no requirement in such statute that the Land be contiguous to or included in the municipality at the time of planning, so long as the planning includes land that is contiguous to the municipality, regardless of distance. The Comprehensive Plan constitutes the "planning" required by the "urban area" statute. The fact that the Comprehensive Plan includes the Land, the areas between the Land and the municipal boundaries, and the City of Carmel means that the planned areas are contiguous to the municipality for purposes of the "urban area" statute. Therefore, upon the adoption of the first Comprehensive Plan that included the Wood Creek or Kingswood area and the area between them and the municipal boundaries the Land became part of an "urban area" and the City of Carmel was no longer restricted from imposing the restrictions of the Carmel/Clay Zoning Ordinances upon the Land. The Appellant Intervenors request that the BZA take 14 ~ ~ ~ administrative notice of the contents of the Comprehensive Plan that was applicable at the time of the erection of the Plant. No Exemption based on aQreement with the City. A second defense for the DOCS, and perhaps the Respondent Intervenor, may be that they believe that the May 17, 2002 Settlement and Release Agreement, included herewith as Exhibit N, somehow cured all of the zoning defects in the Land and the Plant, and thus allows the Plant to continue as a legal nonconforming use under Chapter 28 of the Carmel/Clay Zoning Ordinance. Such reliance is misplaced, for at least the following reasons: 1. Pursuant to I.C. S 36-7-4-201, -202, -205, -402, -405, -501, -601, - 701, -801, -918.1, -918.2, -918..4, -918.5, -919, and -920, the planning and zoning authority and jurisdiction are vested in the Carmel Common Council, the Carmel/Clay Advisory Plan CommIssion, and the Carmel/Clay Board of Zoning Appeals. None of these boards, or commissions, or councils signed the Settlement Agreement. Therefore, those who have the jurisdiction to change zoning status are not bound by the Settlement Agreement and it did not alter the nonconforming status of the Land or the Plant. 2. By its own terms, the Settlement Agreement does not attempt to alter the zoning status ofthe Land, as follows: Kingswood, Martin Marietta, Hughey and the City recognize that this agreement is for the purpose of settlement of ttie Lawsuit and is not binding on the BZA, the Carmel Clay Plan Commission or the Common 15 ~ ~ ~ Council of the City in the exercise of their responsibilities for land use and zoning of Clay Township and the City of Carmel. Settlement and Release Aqreement. dated May 17, 2002, at page 8. 3. Until the June 24, 2004 Letter of Determination, included herewith as Exhibit 0, no one had followed the proper procedure for determining the nonconforming status of the Land or the Plant. The Letter of Determination is the cause of the Appeal by Thomas Yedlick and the Intervention by the Appellant Intervenors. Until now, the issue has never been properly raised and, therefore, has never been properly adjudicated or determined by anyone with the jurisdiction and authority to do so. No Exemption based on leQal nonconforming use supposedlv created by the "urban area" statute Third, the DOCS and the Respondent Intervenor may attempt to rely on Chapter 28 of the Carmel/Clay Zoning Ordinance, Nonconforminq Uses and Exemptions, to claim that the Plant is a legal nonconforming use because (a) during the time it commenced operations it was exempted from compliance with Chapter 5 of the Carmel/Clay Zoning Ordinance by the "urban area" statute, and (b) once the exemption was lifted due to annexation of the Land into the City of Carmel in 2002 the uses of the Plant and Land were by then legal nonconforming uses; however, that reliance is likewise misplaced. As set forth in the definitions in the Carmel/Clay Zoning Ordinance, ..J 16 ~ .-J USE, CONFORMING. A Use of a Building, land or premises which does conform to all of the applicable provisions of this ordinance. USE, NONCONFORMING ILLEGAL. A Use of a Building, land or premises existing at the time of the passage of this ordinance which does not conform to all of the applicable provisions of this ordinance nor those of any ordinance superseded by this ordinance. USE, NONCONFORMING LEGAL. A Use of a Building, land or premises existing at the time of the passage of this ordinance which does not conform to all of the applicable provisions of this ordinance but did conform to applicable provisions of any ordinance superseded by this ordinance. Carmel/Clay Zoning Ordinance, Chapter 3: Definitions. As set forth above, the Land and Plant as presently being used do not conform to any zoning ordinance, thus the uses are nonconforming. Secondly, because they never conformed to a superseded ordinance, they are illegal nonconforming. There is nothing in the definitIons to indicate that being temporarily exempt from compliance with a zoning ordinance will allow a legal nonconforming use to spring forth when the exemption- is lifted. Therefore, the fact that I.C. 9 36-7-4-1003 might have provided a temporary exemption from enforcement of the Carmel/Clay Zoning Ordinance against the Plant and Land with respect to "complete use" of minerals, had they been conforming in the first instance, cannot elevate their illegal uses to legal nonconforming uses. An 17 ~ ~ ~ Indiana statute is not "an ordinance superseded by this ordinance," as required by Chapter 3 quoted above, and even if it were deemed to be the equivalent of an ordinance, I.C. ~. 36-7-4-1103 is not in the form of an ordinance creating or restricting rights; instead, It is in the form of a prohibition on certain actions by the legislative bodies of cities, town, and counties. In other words, I.C. S 36-7-4- 1103 does not seek to directly regulate land use in Carmel, it seeks to restrict authority of the Carmel Common Council. There is no way that a land use could "conform to [the] applicable provisions" of such a statute. No Exemption based on interpretation of ordinance to create a "permitted use'" o.ut of a nonconforming use that would be eliQible for special use approval Fourth, the Respondent Intervenor may be relying upon its interpretation of Section 28.01.06 of Chapter.28 of the Carmel/Clay Zoning Ordinance, which states in relevant part: 28.01 Leqal Nonconforminq Use Specifications. A legal nonconforming use may be continued, although such use does not conform to all the provisions of this Ordinance, as hereinafter provided: ..J 28.01.06 Existing uses eligible for special use approval shall not be 18 -..J -.J considered legal nonconforming uses nor require special use approval for continuance but shall require special use approval for any alteration, enlargement or extension. The Respondent Intervenor interprets this subsection as granting its illegal nonconforming use the status of a "permitted use." Nothing could be further from the intent of the Carmel Common Council. The correct interpretation is to read "for purposes of this section" after "legal nonconforming uses" to make clear that subsections 28.01.01, -.02, and -.05 do not apply to those few uses that could be converted into permitted uses by means of a Special Use Approval. Thus, for those uses that could be converted to permitted uses by a Special Use Approval. they may not be extended throughout a building, subsection 28.01.01, the use may not be changed to another use having the same restrictions, subsection 28.01.02, and, the discontinuance of the use for more than a year will not work a forfeiture, subsection 28.01.05. While subsection 28.01.06 may not have been artfully drafted, it clearly applies only within Section 28.01 and to reach the conclusion that all uses that are eligible for special use automatically become "permitted uses" is absurd. Summary of Illegal Nonconformina Use The Appellant Intervenors have demonstrated that the Plant and the mining of the Land between the Plant and the east lines of Wood Creek and Kingswood subdivisions have been illegal since their beginnings. Further, each potential defense to the allegation of illegal nonconforming use has been 19 ~ -..J -J addressed and defeated. Therefore, the use of the Plant has been and continues to be illegal. ~ 20 ~ ~ B. Standard of Review of the Letter of Determination In reviewing the DOCS Letter of Determination, the BZA is not limited to merely approving or disapproving such Letter, but may modify it in any ~ appropriate manner and may take further steps that are justified to enforce the provisions of the Carmel/Clay Zoning Ordinance where appropriate. The Board of Zoning Appeals is not limited to an affirmance or reversal of the action of the building commissioner or other administrative officer charged with the enforcement of the ordinance, but may use its judgment and discretion in making such modification of the official's order and attach such conditions and restrictions to the granting of a variance as in its opinion should be made, so that the spirit of the ordinance shall be observed and substantial justice done. City of East Chicago, Ind. V. Sinclair Refining Co. 232 Ind. 295, 111 N.E.2d 459 at 467 (Ind. 1953), copy included herewith as Exhibit P. Therefore, the BZA need not sit merely as a reviewing panel but may take affirmative action. Further, although it could review the DOCS decisions without a hearing, once the hearing is granted, it should make its own decision based on the law and the evidence without any weight given to the DOCS Letter of Determination. City of New Haven v. Chemical Waste Management of Indiana, L.L.C., 701 N.E.2d 912 (Ind.App. 1998), copy included herewith as Exhibit Q. Therefore, decisions should be based on a preponderance of evidence, not on an arbitrary and capricious standard of review, and the BZA should be able to 21 ~ , -..-J fashion a remedy and/or direct the DOCS to follow a particular course of action in order to avoid confusion and/or further hearings and in order to exercise and preserve its powers granted by the state and Carmel Common Council. ~ 22 -.-J ~ C. FindinQs of Fact and Conclusions of Law. The Appellant intervenors herewith submit the following Findings of Fact and Conclusions of Law for consideration by the BZA: Findings of Fact. 1. The Land, as described in the Appeal filed by Thomas Yedlick, is Iqcated along the east lines of Wood Creek and Kingswood subdivisions, west of Hazel Dell Parkway,and north of land owned by the Mueller family limited liability company. 2. Prior to September 1990 the Land was occupied by a vacant home known as the Oak Hill Mansion and the Land was used exclusively for . agricultural purposes or was unused. 3. In November 1979 the Wood Creek subdivision was approved for development and a Declaration of Covenants and Restrictions For Wood Creek was recorded in the Office of the Recorder of Hamilton County, Indiana. 4. On February 29, 1988, Ryan Homes, Inc. sold the home located 5260 Westwood Drive, Carmel, Indiana, on lot 106 in Wood Creek subdivision, to Peter N. Chen and Tina T. Chen. 5. Upon the sale of Lot 106, there were at least eight homes located within one-quarter mile square of the future, now current, location of the Carmel Sand and Gravel Plant (the "Plant"). ~ 23 ..J ~ 6. Commencing during or after September 1990, the owner of the Land, American Aggregates Corporation (represented in this case by Martin Marietta Materials, Inc., the "Respondent Intervenor"), began operations to extract sand and gravel from the Land an-d erected the Plant thereon. 7. Since development of the Land as a quarry and until the Fall of 2002, the Land has been used by the owner for mineral extraction by means of a water-borne dredge; mineral processing at the Plant; stockpiling of sand, gravel, and mulch; and, sales of goods to customers. 9. The dredging of minerals from the lake created by the owner of the Land, whether American Aggregates Corporation or the Respondent Intervenor, terminated in the Fall of 2002 and has not resumed. 10. Commencing in the Spring of 2003, the owner of the Land began importing large amounts of aggregate for processing at the Plant into marketable sand and gravel, including the stockpiling thereof and the sale thereof to customers. Such sales include the sale of mulch. 11. In 2002 the Land was annexed into the City of Carmel. 12. The owners of the Land have never sought to obtain a Special Use Approval to continue mineral extraction, mineral processing, or sale of goods on or from the Land. ~ 24 -.-J 13. On June 24, 2004, the Director of the Carmel Department of ~ Community Services issued a Letter of Determination stating, in pertinent part, as follows: 2. The land uses that were established on Martin Marietta's properties on or about May 17, 2002, constituted legal, nonconforming uses; 3. Those uses do not' appear to have been substantially modified, expanded, or added to since May 2002; and 4. Therefore, those uses remain legal, nonconforming uses under the Carmel Clay Zoning Ordinance which may not be substantially modified, expanded, or added to without a change of -.-J zoning classification or Board approval ofa special use Of variance. 14. The files of the Director of the Department of Community Services do not contain sufficient information about the actual uses of the Land to determine what they were or are at the times mentioned in the Letter of Determination. Conclusions of Law. 1. The Land is within the planning and zoning jurisdiction of the City of Carmel, the Carmel/Clay Advisory Plan Commission, and this Carmel/Clay Advisory Board of Zoning Appeals (the "BZAIJ). 25 \ ~ \ ~ 2. All parties to this case have timely filed all necessary pleadings to be subject to the jurisdiction of this BZA and to join the issues herein determined. 3. Prior to the adoption of the Zoning Ordinance Z-160 in 1980, the Carmel Town Board adopted a Comprehensive Plan that included the Land as part of the residential uses of the immediate area. 4. As of the adoption of Zoning Ordinance 2-160 by the Carmel Town Board in 1980 and at all times since that date, the zonIng classification for the Land has been S1/Residence District within Chapter 5 of the Carmel Zoning Ordinances. 5. Uses permitted within the S1/Residence District included and still include the use of single-family residences, but do not include and have ~ never included mineral extraction, mineral processing, or sales of goods. 6. The uses of the Land and Plant presently constitute nonconforming uses. 7. The nonconforming uses of the Land are illegal uses unless the Respondent Intervenor establishes a defense to such allegation, such as by exemption, Special Use Approval, or Variance of Use Approval. 8. Respondent Intervenor's claim that Ind. Code S 36-7-4-1103 provides an exemption from compliance with the restrictions found in Chapter 5 of the Carmel Zoning Ordinance is unavailing because the Land was already part of an "urban area" for purposes of said statute at the time 26 ~ of the. commencement of the mineral extraction, processing, and sale ~ uses. Even if the statute did provide an exemption for a period of time, the exemption is now lifted due to the annexation of the land into the City of Carmel in 2002. 9. Respondent Intervenor's claim that the Settlement and Release Agreement granted a permanent legal nonconforming use status to the Land is unavailing because the Settlement and Release Agreement by its terms does not purport to alter the current zoning status of the Land, and, none of the officials of the City of Carmel who have planning and zoning jurisdiction sufficient to grant a change in zoning status executed the Settlement and Release Agreement. On the contrary, the Letter of Determination is the first opportunity that this BZA and the public have had ~ to discuss and decide the issues raised in this appeal. " 10. Respondent Intervenor's claim that I.C. ~ 36-7.4.1103 allows it to continue the nonconforming uses after the annexation of the land into the City of Carmel is unavailing because such statute is not a land use ordinance of the City of Carmel to which the land was in conformity at the time of the annexation; thus, the statute cannot assist the Respondent Intervenor is creating a legal nonconforming use. 11. Respondent Intervenor's claim that Subsection 28.01.06 of the Carmel Zoning Ordinance grants it a "permitted use" without any application therefore is without merit because the provisions of that 27 ~ ~ subsection apply only to the other subsections in Section 28.01 and are not intended to overturn the several other provisions of the Carmel Zoning Ordinance that must be complied with to obtain changes of use. 12. Respondent Intervenor has not presented facts or argument to sufficiently rebut the evidence and argument of the Appellant Intervenor and thus the Appellant Intervenor has satisfied its burdens of proof and persuasion. 13. The facts and law lead the BZA to the conclusion that the mineral extraction, mineral processing, and sales of goods on the Land are illegal nonconforming uses and are subject to immediate suspension. 14. Because the uses of the owner on the Land are illegal, the issuance of the Letter of Determination by the, Director of the DOCS was inappropriate and should not have been done. 15. This BZA has the power to rescind the Letter of Determination, to order the issuance of a corrected Letter of Determination in conformity with this ruling, ,and to order the immediate suspension of all illegal activity at the Plant and on the Land. --.J 28 ~ ~ D. Request for Relief Based on the above discussion and the Exhibits included herewith, it is clear that continued operation of the Plant will be just as unlavvful as it has been in the past and cannot be justified. The nuisances caused by the Plant to the neighbors in Wood Creek and Kingswood have continued long enough and should be terminated by' immediate closure of the Plant operations. Accordingly, the Appellant Intervenors pray for the following relief: 1, An Order to the DOCS to rescind its Letter of Determination dated June 24, 2004 and to issue a new determination in accordance with the BZA's decision that the Plant operation is illegal and must not be allowed to continue. 2, An Order to the Respondent Intervenor to immediately cease all operations of the Plant and to immediately begin removal of the stockpiles of sand, gravel, mulch, aggregate, and/or other materials located on the Land that are currently for sale or regularly sold from the Land, All such materials should be removed within a reasonable time to be determined by the DOCS. The Order should include the right of the DOCS to inspect the Land on a regular periodic basis to determine compliance by the Respondent Intervenor with the BZA's Order, ~ 3. An Order to the Respondent Intervenor to pay the maximum fines that may be allowed under Indiana law and the Carmel City Code, as applicable, and all other relief that is appropriate under the circumstances. 29 --.J ~ Respectfully submitted. Thra~~Bu mann Griffith & Voelkel, P.C. ~~ _ '1 i~eYSf~et:~~ William D. McEvoy, Gregory M. Policka, Susan Becker, Rex A. Weiper, Rene Pimentel, and Donald K. Craft Distribution: Mr. Zeff A. Weiss, Esq., Ice Miller, One American Square, Box 82001, Indianapolis, IN 46282-0002 (by hand delivery on October 13,2004) Mr. Michael Hollibaugh, Dire~tor, Department of Community Services, Carmel Town Hall, Carmel, IN (by hand delivery on October 13, 2004) ~ Mr. Thomas Yedlick, 5053 S1. Charles Place, Carmel, IN 46033 (by hand delivery on October 13, 2004) 30 ~ u u u Hamilton Co., IN - Online Reports Page 1 of 1 Online SE Property Card Select A Different ReDort I New Search for Current Report Disclaimer: This program allows you to view and print certain public records. Each report reflects information as of a specific date; so the infonnatior provided by different reports may not match. Allinformatioll has been derived from public records that are constantly undergoing change and is not wa for content or accuracy. It may not reflect the current information pertaining to the property of interest. The information located on this web site is provided by Hamilton County, Indiana. Continued use of this web site is conditional upon your explicit accep of the terms and conditions set forth in this disclaimer document. The data provided herein may be inaccurate or out of date. Any person or erltity who on said information for any purpose whatsoever does so solely at their own risk. Neither Hamilton County, Indiana, or any agency, offices, or employee other information provider warrants the accuracy, reliability, or timeliness of any of the data provided herein. This data is provided "as is" without wam any kind. Any, and all information contained onthis.web site report is the result of assessment data extracted on the most recent taxable year - March 1,200 Improvement characteristics may differ from those used to determine the total assessed. value listed. Summary Information - Parcel Number: 17-14-04-00-00-018.00Q Property Data Property Owner as of June 8, 2004 Parcel Location RIVEP. AVE,INDIANApOLIS American Aggregates 'Corp Taxing Unit Cannel Most Recent Valuation as of March 1, 2003 Legal Description 186c80 A 9/22/95 RjW SPLIT Assessed Value: Land 634500 9552806 Assessed Value: Improvements 0 Sedion/T ownship/Ra nge 504 T17 R04 Total Assessed Value: 634500 Subdivision Name NULL Lot and Block Lot Block Acres 71.72 Effective Frontage Effective Depth Prope rty Class Mines& Quarries Exterior Features and Out:Buildings - This application is developed and maintained by the Infonnation System Services Department. ]f you have any questions or comments, please contact I @ 2002 Hamilton Co. Website Suaaestions or Issues I Conditions of Use I Privacy Policy I Site Map I Technical Helo I HOME @ 2003, Hamilton County, Indiana - "II rights res€rved. http://www.co.hamilton.in.us/apps/reports/rptpropcard.asp?parcelno"" 17140400000 18000 9/29/04 1714040000018000 PARCEL NUMBER 1714040000018000 Parent Parcel Number American Aggregates Corp OWNERSHIP American Aggregates Corp 1337 Dayton Xenia Rd Xenia, OH 45385 RIVER AVE Tax. ID 140400 380 ADMINISTRATIVE INFORMATION TRANSFER OF OWNERSHIP Printed 07/14/2004 Card NO'1 of Date Property Address RIVER AVE Neighborhood 299922 TOWNSHIP OTHER RANGE Property Class 380 Industrial Mines & quarries TAXING DISTRICT INFORMATION Sect- 04 Twp- 17 Range- 04 Acres~ 71.72 186-80 A 9/22/95 R/W SPLIT 9552806 3/24/97 SPUl' ']'0 KING 9710709 11/7/97 R/li SPLIT CARME Ju.risdiction 29 INDUSTRIAL Area VALUATION RECORD ASSEssment Year 03/01/199~ 03/01/199, 03/01/199~ 03/01/199~ 03/01/200 03/01/2002 Reason far Change 4Y Reval NC Sp li t Split 100pct A 4Y Reval VALUATION L 58300 380300 379300 338000 336900 336900 634500 Appraised Valu'B 12900 14200 14200 0 0 0 0 S 0 0 0 0 0 0 0 VALUATION L 19430 126770 126430 112670 112300 336900 634500 True Tax ValueB 4300 4730 4730 0 0 0 0 T 23730 131500 131160 112670 112300 336900 634500 017 CLAY Corporation 16 District 16 Site Description Topography, Rolling Public utilities, Elect.ric St.reet or Road: Paved Neighborhood, Static Zoning: Legal Acres, 71.7200 LAND DATA AND CALCULATIONS Land Type Rating Soil ID -or- Actual Frontage Measured Acreage .or- Effective Frontage Table Prod. Factor -or- D"pth Factor ~or- Square Feet Base Rate Adjusted Rate Extended Value Influence Factor Value Effective Depth 1 Secondary Comm/Indust Land 2 Undeveloped unusable CII Land 3 Primary Commercial/Indust Land 21.B700 43,8500 6.0000 LOO LOO LOO 33000.00 3000.00 66000.00 33000.00 3000,00 66000.00 721710 5 - 55% 131S50 3~6000 5 -55% 324~ 131, 178; DE9B; SPLIT TO 018.001 MOVED IMPROVEMENTS 6-16-~B PJ NC03, ANNEXATION 3/1/03 ES NC99, ANNEXATION/SPLIT 2.24 AC TO 01B.002. 7-B-~9 DF PSP, LAND IS NOW A STONE QUARRY Supplemental Cards Supplemental Cards ~ MEASURED ACREAGE 71.7200 FARMLAND COMPUTATIONS Parcel Acreage 81 Legal Drain NV [-] 82 Public Roads NV [-] 83 UT Towers NY [-] 9 fiDIneBite,s) [-] TOTAL ACRpr -'[MLAND TRUE TAX J TRUE TAX VALUE 634520 Measured Acreage 71.7200 Average True Tax Value/Acr.. TRUE TAX VALUE FARMLAND Classified Land Total Homesite(s) Value (+J Supplemental carc'.] TOTAL LAND VALUr 634500 CITY OF CARMEL & CLAY TOWNSHIP ZONING ORDINANCE u CARMEL CITY CODE CHAPTER 10: ZONING & SUBDIVISIONS ARTICLE 1: ZONING CODE CARMEL/CLA Y ZONING ORDINANCE CHAPTER 5: S-lfRESIDENCE DISTRICT 5.00 S-llResidence District. 5.01 Permitted Uses. 5.02 Special Uses & Special Exceptions. 5.03 Accessory Building and Uses. 5.04 Height and Area Requirements. 5.00 S-l/Residence District.1 u 5.00.01 Purpose and Intent. 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. 5.01 Permitted Uses:2 See Appendix A' Schedule afUses. R 5.01.01 Mmm1Um Area C{ UlIcm ems: Use, Location: Minimum Area Equivalent Density (Maximum): (Acres): Residential subdivision, located 0.77 acres, times number of lots in 1.3 lots, times number of acres in west of Spring Mill Road and subdivision subdivision north of 14151 Street Residential subdivision, located 1.00 acres, times number of lots in 1.0 lots, times number of acres in west of Spring Mill Road, north of subdivision subdivision 116th Street and south of 141 st Street Residential subdivision, located 0.77 acres, times number of lots in 1.3 lots, times number of acres in west of Spring Mill Road and subdivision subdivision south of 116th Street Residential subdivision, located 0.35 acres, times number of lots in 2.8 lots, times number of acres m east of Spring Mill Road subdivision subdivision u ISfLction 5.00 amcnd~d per Ordinance No. 2,327. 2 SectIOn 5.01 amended per Ordinance No. 2-320; 2-322; 2-327; 2-415-03, sa. Chapter 5: S-llResidence District 5-1 as amended per Z-309; Z-320; Z-322,' Z-327,' Z-366-0J; Z-369-02; Z-415-03 Autumn 2003 vI u u u CITY OF CARMEL & CLA Y TOWNSHlP ZONING ORDINANCE This section does not affect the height and area requirements for individual lots that are contained in Section 5.04 of the Zoning Ordinance. 5.01.02 Area density requirements for qualifYing subdivisions shall be regulated on a sliding scale based upon the amount of open space provided. (see Subdivision Regulations, Chapter 7: Open Space Standards for Major Subdivisions) 5.02 Special Uses & Special Exceptions:3 A. See Appendix A: Schedule of Uses. B. See Chapter 21: Special Uses & Special Exceptions for additional regulations. 5.02.0] Minimum Area Requirements: Use: Minim urn Area (Acres): Thirty (30) Ten (10) One (1) One (1) Ten (l0) Cemetery Commercial Greenhouse Day nursery Kindergarten Plant nursery 5.02.02 Other Requirements: Use Other requirements: Mineral extraction, borrow pit, top soil removal and their storage Minimum perimeter Natural Open Space buffer (as defined in 7.03(B) of the Subdiyision Regulatiom) of 300 ft. when adjoining or abutting any residential use or district. /~ o 5.03 Accessory Building and Uses.4 (See Chapter 25: Additional Use Regulations for additional regulations.) 5.03.0] See also Section 25.01. 5.04 Hei!!.ht and Area ReQuirements.5 (See Chapter 26: Additional Height, Yard, & Lot Area Regulations for additionaLregulations.) 5.04.0 I Maximum Height:6 Thirty-five (35) feet. 3 See/ion 5.02 amended per Ordinance No. 2-320; 2-327; 2-415-03, sb-c. 4 Section 5.03 amended per Ordinance No. 2"309; 2-369-02, fh. 5 Section 5.04 amended per Ordinance No. 2-327; 2-366-01, 6 See also Section 26.01.'01. Chapter 5: S-l/Residenee District 5-2 as amendedper Z-309; Z-320; Z-322; Z-327; Z-366-01; Z-369-02,' Z-415-03 Autumn 2003 vl CITY Of CARMEL & CLA Y TOWNSHIP ZONING ORDINANCE 5.04.02 Minimum Lot Area: u Lots without service by a community water system and a community sanitary sewer system, 43,560 square feet. B. Lots with service from a community water system, and private septic system, 35,000 square feet. A. C. Lots with service from a community sanitary sewer system and private water system, 25,000 square feet. D. Lots with community water system and community sanitary sewer system 15,000 square feet. 5.04.03 Minimum Lot Standards:' A. Millimum Front Yard:? Forty (40) feet. B. Millimum Side Yard:8 1. Sillgle-family home: Ten (10) feet; 2. All other uses: Twenty (20) feet. C. Minimum Aggregate of Side Yard: 1. Single-family home: Thirty (30) feet; 2. AII other uses: Fifty (50) feet. D. Minimum Rear Yard: u 1. Single-family home: Twenty (20) feet; 2. All other uses: Fifteen (15) feet. Millimurn Lot Width: ]. Single-family home: One hundred twenty (120) feet; 2. All other uses: Two hundred (200) feet. F. Maximum Lot Coverage: Thirty-five percent (35%) of lot. E. G. Minimum Ground Floor Area: 1. One-story dwelling: One thousand (J ,000) square fcet; 2. Two-story dwelling and All other uses: Eight hundred (800) square feet. 5.04.04 Qualifying Subdivisions. Any lot within a Qualifying Subdivision, as described in Chapter 7 of the Subdivision Regulations, is exempt from the requirements of Sections 5.04.02 and 5.04.03. u 7 NOTE: For the Minimum Front Yard requirement fmany Lot in a Qualirying Subdivision utilizing relaxed Front Yard standards per Section 7.00.01 of the Subdivision Control Ordinance see Section 26.02.07. 8 See also See/ion 26.01.01. Chapter 5: S- l/Residence District 5-3 as amended per Z-309; Z-320,. Z-322,. Z-327,. Z-366-01; Z-369-02,. Z-415-03 Autunm 2003 vI u u u CITY OF CARMEL & CLA Y TOWNSHIP Z.ONING ORDENANCE CHAPTER 5: S-l/RESIDENCE DISTRlCT AMENDMENT LOG Ordinance No. Docket No. Council Approval Effective Date Sections Affected 2-309 Novern ber 20, ] 995 2-320 July 11, ]997 Z-322 May 19, 1997 Z-327 January 4,1999 Z-366-0] 76-0] bOA nla N ovember28, 200] 5.04.01 Winter 2002 V2 Z-369-02 160-02 OA Aprill,2002 April ],2002 5.03 Spring 2002 v2 Z-4 I 5-03 39-02 OA November 17,2003 November] 8, 2003 5.0]; 5.02 Autumn 2003 v I Z:\JJiIIig\Protected Copies\2003-09 Aurumn\ZO Ch 05 Sol Residence {Autumn 2003 vl).rtf Chapter 5: Sol/Residence District 5-4 as amended per Z-309; Z-320; Z-J22; Z-327; Z-J66-01; Z-J69-02; Z-415-0J Autumn 2003 vI u u u CITY OF CARMEL & CLA Y TOWNSHIP ZONING ORDINANCE CARMEL CITY CODE CHAPTER 10: ZONING & SUBDIVISIONS ARTICLE 1: ZONING CODE CARMEL/CLA Y ZONING ORDINANCE CHAPTER 20B: M-IIMANUFACTURING DISTRICT 20ROO M-l fM:'mnf~cnl1'inE f)i~trid. 20ROJ P~mlitterlT Jses. 20R02 SpeciRJ IIses. 20B.03 A cces<.:nr:y Rllilrlines RnrlT 'sps. 20B.04 Heieht RnCl A feR Reqllin~ments. 20B.05 P~rkine f1nrlT oRrline ReIth Refjllirpment" 20B.06 Performfln~e St~nrlA'nis. 20B.07 T ,Ant1~CApine ReC]llirements. Chart A Maximllm A l1ow"rI N()i~e T evel,. 20B.OO M-1IManllfac.tllrin~ Oidril't. 20B.OOm PlIrpo<.:e ~nrllntent. The purpose of the M-I Manufacturing District is to create and protect areas for manufacturing establishments which may be characterized by objectionable factors which are exceedingly difficult to eliminate because of specific manufacturing techniques. These industries therefore require large sites buffered by sufficient land areas .in order to be isolated from non-compatible uses because of heavy traffic generation, open storage of materials and possible emission of noise, glare, dust, odor, smoke or other offensive characteristics. This district is intended to insure proper design, placement and grouping of manufacturing concems within the community so as not to create a nuisance to other sun-ounding land uses. Land to be placed in this district is intended to have generallY level topography, public utilities (sewer, water, etc.) and major transportation facilities readily available. This district should be buffered as much as possible from undeveloped commercial and residential districts. Establishment of the M-I District directly adjacent to an established or platted residential subdivision should be avoided. No M-I District should be created withiIl onc hundred fifty feet (150') of an established or platted residential subdivision. Vehicular traffic serving the M-I District should .llot be routed into or through a residential development or onto a street serving a school or community-facility. Truck traffic serving the M- I District should be prohibited from using surrounding residential strects. 20B.Ol Permitted Uses:) See Appendix A: Schedule of Uses. 20B.Ol.0 I Minimum Area Reqnirement<:: None. '1--' Section 20B.01 amended per Ordinance No. Z"415-03, fat. .. Chapter 20B: M-llManufacturing District 20B-l as amended per Z-320; Z-365-01; Z-369-02; Z-415-03 Autumn 2003 vi u u u CITY OF CARMEL & CLA YTOWNSHTP ZONTNG ORDINANCE 20B.02 20B.OJ.02 Il..sf Oth~r Re:qllir~mp.nt<:: Oth~r r~qllir~m~nts' I. Commercial (retail or wholesale) sale of products manufactured and/or assembled within the same building or bujlding complex Floor space of sale area shaH not exceed ten percent (10%) of area devoted to actual manufacturing or the assembly of products A. B. Special Tl~~~:z See Appendix A: Schedule of Uses. See Chapter 21: Special Uses & Special Exceptions for additional regulations. 20B.02.01 IIs..e Minimum Area Requirements: Minimum Area (Acres) 1. Commercial sewage, trash or garbage disposal or recyeling plant 2. Mineralcxtraction operations including sand, gravel, soil, aggregate and all related processing operations Ten (10) Fifty (50) 3. Open hearth.and blast furnace, coke ovens, brick yards and kilns 4. Power generating plant 5. Sexually oriented business 6. Storage, utilization or manufacture of explosive materials (does not include petroleum products) Also, same as I-I District regulations of Section 20A. 02. OJ. Fourteen (14) Ten (10) Three (3) Ten (10) 2 Section 20B.02 amended per Ordincmce No. Z0320; Z-365-01; Z0415-03, fau. Chapter 20B: M -lIManufacturing District 20B-2 as amended per 2-320, Z-365-01; 2-369-02; Z-415-03 Autunm 2003 vI u u ~!70 2( u CITY Of CARMEL & CLAY TOViNSHIP ZONING ORDINANCE 20B .02.02 ~ Other Requirements: Othpf fl'C1llifl':m/'nt~. 1. Commercial sanitary landfill or refuse dump The requirements listed in Section 20B. 04 and Section 20B.OJ shall be increased by fifty percent (50%) 2. Commercial sewage, trash or garbage disposal or recycling plant 3. Junk or material and/or salvage yard or storage of material not manufactured or assembled on- site Same as above. Same as above. 4. Mineral extraction operations including sand, gravel, soil, aggregate and all related processing operations 5. Open hearth and blast furnace, coke ovens, brick yards and kilns 6. Penal or correctional institution Same as above. Same as above. Same as above. 7. Power generating plant 8. Sexually oriented business Same as above. The requirements listed in Sections 20B.04.02, 20B, 04.03, and 20B.OJ shall be increased by fifty percent (50%) 9. Storage, utilization or manufacture of explosive materials (does not include petroleum products) 10. Storage, utilization or manufacture of flammable liquids or gases other than those used by the manufacturing establishments in their operational activities Same as above. Same as above. 20B.03 Accessory Buildings and lJses.3 See also Section 25.01. 20B.04 HeieM l'mrl A rel'1 Requirements. (See Chapter 26,' Additional Height, Yard, & Lot Area Regulations for additional requirements.) 20B.04.01 Maximum Height Sixty (60) feet. 3 u.___ Section 20B.03 amended per OrdinlinceNo. Z-369-02; fak. Chapter 20B: M-llManufacturing District 20B-3 as amended per Z-320; Z-365-01; Z-369-02; Z-415-03 Autumn 2003 vi OTY OF CARJ\1EL & CLAY TOWNSHIP ZONING ORDINANCE u 20B.04.02 208.04.03 Minimnm Fmnt Yrmi: Fifty (50) feet. Minimum Side and Rear Yard: 1. Next to Existing Residence(s): One hundred fifty (150) feet or three (3) times building height, whichever is greater. 2. Next to Undeveloped Zoned Residential District or Development: One hlUldred (100) feet or three (3) times building height, whichever is greater. 3. Next to Zoned Business District or Development Seventy-five (75) feet. 4. Next to Zoned Manufacturing District or Development: Five (5) feet. 20B.04.04 Maximum Lot Coverage: all uses ninety percent (90%) of the lot. In no instance shall more than nmety percent (90%) of the land area be developed by uses permitted in the M-1 District, including buildings, paved or unpaved parking areas, storage areas, etc. 20B.OS P9rkine ~mri T ,o~Hfine R~rth R~(lllire:ments. (See Chapter 27: Additional Parking & Loading Regulations for additional requirements.) 20R05.01 1. All c.ommerda 1. i nrlnslTia 1 ami storaee far.ilities exr.ept offi('.e hllilrlinei>: 2. 5,000 - 20,000 square leet of Gross Floor Area: One (1) berth (loading dock or ground level loading door). 20,001 c 50,000 square feet of Gross Floor Area: Two (2) berths (loading docks or ground level loading doors). Each additional 50,000 square feet: one (1) additional berth (loading docks or ground level loading doors). 3. u 20B.05.02 ()ffir.e hll ilrlines: 1. 100,000 or less square feet gross floor area: One (I) berth. 2. 100,001 - 300,000 square feet gross floor area: Two (2) berths. 3. Each 200,000 additional square feet: One (1) additional berth. 20B.06 PerfornnJn(,~ Stanrlanls. No land or building in this district shall be used or occupied in any mailller so as to create any dangerous, injurious, noxious or otherwise objectionable element or condition. 20B.06.0 I Fire Hazards. Any activity involving the use of flammable or explosive materials shall be prolectedby adequate fIre fighting and fire suppression equipment and by such safety devices as are nonnalIy used in the handling of any such material. All requirements of the State Fire Marshall shall be followed. u 20R06.02 RrHiioClctivity or EleclTical Distllfhances. No activity shall emit any radioactivity or electrical disturbance at or beyond the property line of said maul)facturing establishment. All requirements of the State Fire Marshall, Indiana State Board of Health, Administrative Building Council and the Indiana Air Pollution Control Board shall be followed. 20B.06.03 No.ise.. No noise shall be discernible at or beyond the property line of said manufacturing establishment, except during construction operations, in excess of the following: (See Chart A). Air raid sirens and related apparatus used solely for public purposes are exempt from this requirement. All requirements of the Indiana State Board of Health and the Administrative Building Council shall be followed. Chapter 20B: M-IlManufacturing District 20B.4 as amended per Z-320; Z-365-0]; Z-369-02; Z-415-03 Autumn 2003 v I u 20B.07 +(<-J 17, U -I:~C/'1. '1.)(7 fJa CITY OF CARMEL & CLAY To\VNSHIP ZONING ORDINANCE 20B.06.04 Vihr;Jtion. No vibration shall be pennitted which is discernible without instruments at the property line. 20B.06.05 Air Pollution. No hannful air pollution shall be discernible by sight, smell or testing at the property line. All requirements and regulations established by the Air Pollution Control Board and the Indiana State Board of Health shall be tollowed. 20B.06.06 G.l:are. No direct or reflected glare in excess of 0.1 footcandle of light (lights, flIe, etc.) shall be pel111itted which is visible from any property adjacent or from any public street, road or highway. 20B.06.07 F.rf1~i()J1. No erosion, by either wind or water, shall be pennitted which will carry substances onto neighboring properties. All requirements of the Indiana State Board of Health, the Indiana Department of Natural Resources and Hamilton County Soil and Water Conservation District shall be followed. 20B.06.08 WaterPollutinn. Water pollution shall be subject to all requirements and regulations established by the Indiana State Board of Health, Hamilton County Health Department, the Indiana Department of Natural Resources and the Indiana Stream Pollution Control Board. Landscaping Requirements.4 20B.07.01 Building (Front): A landscaped and fIlaintained yard area shall be provided adjacent to the front of the building which is equal to an area that runs the entire length of the front of the building and the depth shall be a distance of not less than twenty-five percent (25%) of the height of the building. 20B.07.02 Front Landscaped Yard: A fifteen-foot (15') landscaped and maintained yard area, composed of trees not less than two and one-half inches (2],1") dbh and spaced fifty feet (50') on center, shall be provided next to (an) existing residence(s) or a platted residential subdivision unless otherwise determined by the Commissioner or unless otherwise required by the Board for Special Uses. 20B.07.03 Side and R~l'Ir l ;Jnrl~cl'lrerl Yflnk A laQdscaped and maintained yard area shall be provided, including a solid visual buffer or screen of at least five (5) feet in height next to (an) existing residence(s) or a platted residential subdivision, as follows: 1. Next to (an) Existing Residence(s) or a Platted Residential Development: Forty (40) feet. 2. Next to Undeveloped Zoned Residential District: Thirty (30) feet. 3. Next to Zoned Business District or Development: Fifteen (15) feet. Next to Zoned Manufacturing District or Development: Five (5) feet. 4. 20B.07.04 1. landscaping Tnstl'llll'ltion l'Inrl Ml'IintenAnce: Tnstl'llll'ltion. All .required landscaping shall be installed prior to the issuance of a Certificate of Occupancy by the Department Administrator. If it is not possible to install the required landscaping because of weather conditions, the property owner shall post a bond for an amount equal to the total cost of the required landscaping prior to the issuance of the Final Certificate of Occupancy. Mainten;Jnce. It shall be the responsibility of the owners and their agencies to insure proper maintenance of the landscaping in accordance with the standards set by this Ordinance. This is to include, but is not l.imited to, replacing dead plantings with identical varieties or a suitable substitute, and keeping the area free ofrefuse and debris. 2. u 4 See/iOll 20B.O? amended per Ordinance,N". Z-365-01. Chapter 20B: M-I /Manufacturing District 20B-5 as amended per Z-320; Z-365-01; Z-369-02; Z-415-03 Autumn 2003 vi LJ u u CITY OF CARMEL & CLA Y TOWNSHIP ZONING ORDINANCE Chapter 2GB: M-lfManufacturing District 20B-6 as amendedper Z-320; Z-365-01; Z-369-02, Z-4/5-03 Autunm 2003 vi u u u CJTY 01' CARMEL & CLA Y TQ\VNSHIP ZONING ORDINANCE CHART A: MAXIMUM ALLOWED NOISE LEVELS OCT AVE-BAND PIANO .MAXIMUM ATA GIVEN CENTER NOTES SPL BOUNDARY ENVIRONMENT AL FREQUENCY RANGE (DECIBELS) DISTANCE (HERTZ) 31.5 (Bo - C]) 80 Light trucks in Offices with tabulating city 20' machines 63 (B. - C2) 79 Light trucks in Offices with tabulating city 20' machines 125 (B2 - C3) 75 Conversational Average Traffic 100' Sneech 3' 250 (B3 - C4) 69 Conversational A verage Traffic 100' Sneech 3' Accountino Offices: 500 (B4 - Cs) 63 ]5,000 KVA 115 KV Transformer at 200' 1000 (Bs - C6) 57 15,000 KV A 115 KV Transformer at 200' 2000 (B6 - C7) 52 Private Business Offices Li~ht Traffic Averal!e Residence: 4000 (87 - Cs) 48 Private Business Offices. Lioht Traffic 8000 ( - ) 45 Chapter 20B: M-I/Manufacturing District 20B- 7 as amended per Z-320; Z-365-01; 2-369-02; 2-415-03 Auturrul 2003 y I u u u CITY OF CARMEL & CLA Y TOWNSHIP ZONING ORDINANCE CHAPTER lOB: M-l/MANUFACTURlNG DISTRlCT AMENDMENT LOG Ordinance No. Docket No. ronncil ApprovlIl F.ff~('tive Oate Sel'tifln ~ A ffecterl Z-320 Julv 11 1997 Julv 1 i 1997 2-365-01 76-01aOA November 5, 2001 November 27,2001 20B.02; 20B.02.0 1; 20B.02.02; 20B.07.02; 20B.07 .04(]) 2-369-02 160-01 OA April 1, 2002 April 1 , 2002 20B.03 Snrin" 2002 v2 Z-415-03 39-020A November 17,2003 November 18,2003 20B.Ol; 20B.02 Autumn 2003 vI Z:\Ilillig\Protected Copies\2003-09 Autumn\ZO Ch 20B M-l Manufacturing (Autumn 2003 vl).rtf Chapter 20B: M-I/Manufacturing District 20B-8 as. amended per Z-320; Z-365-0 I; Z-369-02; Z-415-03 Autumn 2003 vI 660 Ind. SID ,NORTH EASTERN REPORTER, 2d SERIES u cuned. 'The time lapse between Blake's refusal to testi:fy and summation was sig- nific.ant. Again, for tactical reasons; t~e defendant may have chosen not to broach the subject again; To' contend that be- cause the defendant did not submit a final instruction and that he, ;herefore, somehow "waived" error 'does not appeal 10 the: sen- sibilities of this Court. " Considering our disposition of the"first issue raised, we, d,o not reach th~ question of the sufficiency.of the evid~nce. , The cause i5 remanded for a new trial. Rr;versed and remanded. ARTERBURN, ~. J., and DeBRULER, GIVAN and PRENTICE, ;1'., concur. , . , u CLARK COUNiY BOARD OF COUNTY COMMISStONERS, Appellaftt (Defendant Below), ' Y. Oeorge T. KING et al., Appellees (Plaintiffs 'Below), Clark county P,lan Commlulon et' al.. ,and , Clark county Board 01 Zoning Appeals, Appellees (Def81ldants Below). No. 1:"373A51. ' Court of Appeals of J.ndlrinu, First District. May S, 1974. Action wherein plaintiffs sought., a judgment declaring their right. to quarry limestone on certain 'real estate without ob- taining a permit from defendants. The Clark Superior Court, Warren ,W. Martin, Jr., J.,entered judgment for plaintiffs, and . defendant countY board of 'commissioners a'ppea1ed. The Caurtof Appeals, Lybrook, J., held' that' question 'as to juris~iction of board to 'regulate or control useofpr'oper- u ty' in '3 manner consonant with' general considerations of health, safety, and public welfare:was waived,' that plaintiffs' were not estopped, from ,pursuing' action by rea- sonof their having previously appeared be- fore board,'and that question 'as to whether any part of property fell within a defined urhan area 50 as to make st,atutory limita- tion on board's authority' applicable would be remanded to trial court 'for' determina- tion in view of construction given a "qt]ar~ ter mile square area" as found in statute. , . A:ffirmed in par~ reversed in part, and remanded. I~ Appeal and Ertllr e=>170(I)' Question as. LO whether county board of commissioners, though rendered power- less to prevent complete use and alienation of minenll resburces outside 'urban areaS, had jurisdiction 'to regulate or control use in a manner consonant with general con- sideratiops of, health, safety, and public welfare was waived by :failure of board, to raise question in its motion to correct er- mrs-:.,Rnle TR. 59(G); Ie 1971,-18-7-5- 61, Bums',lnd.St.Ann. ~ 53-759. 2..Courts E=>37(2) Questillns oJ 'subject matter JUTisdic- tion may be raised.at any time. 3. CDuntl4ls ~7 , .. , County board 'of comrriissioners has -ju- risdiction to hear .and determine cases of a general class, whether ciass is defined as planning and zoning' in county tir use of mineral resourceS generally, but within the general class, a .jurisdiction~l limitation in particular ca.ses has, been fashio~ed, viz., those involving use o'f ,mineral resources outside "urban areas." IC 1971, 18-7-5..,61, Burns' Ind.5t.Ann. ~ 53-759. 4. Eatoppel ~81 , Request by plaintiffs that county board of commissioners act. in' a legislative capac- ity, by passing an ordinance rezoning sub. ject realty from A~l agricultural to M-:l OLARK COUNTY BOARD or COVNTY.. CQM'I!J3~. KING Clh~ liE 3](1 N.E.:td Il6I) u g~tleral industry did not. Once request was withdrawn, estop plaintiffs from initiating action for a judgment declaring. tl1at board lacked jurisdiction to regulate quarrying of ririiestone on' realty, where' 'there had beet'! no ,action taken' bY,anadniljii'strative body 3ctin'g ina judicial capacity and there had heen no age'n'cy d~cision to whidl, pJ,\in- ti ffs' actkmc:ouJd constitute: an impermissi- ble'collateral attack. Ie 1971, 18-7-5--61. ,B,u,rns' Ind.st.Ann..~ 53-759. i MineS ~nd Mlneralslto>92.22 Woods llId FONtllts €=:oS u Term , "qll~rter 'mile squ~re. .area:' within sta'tute: pro~j bitin~ enactment of laws ,which'would permit complete use and alienation of any 'mineraI resource or for- est outside urban ar.eas and defining urhan areas as 'any l~ni:ls or lots used for residen- . tial ,.purposes wh~re there. are eight or more, "residences, withi'n any gua~ter mile square area, must be defined as a square one-guarter of a mile or i,320 feet on each side,riither'than a square one-half ,'mile, Or 2.640feei'on each side:-IC 1971, '18-7...:.5-- 51,'Burns' lnd.St.Ann. l5J-759.: Seepubllcatioli. Words llDd Phases for oUler 'jlldiciaJ" :coDlltrnetious and' . definition...... ,. 6. Mlnes.and Minerals ~92.22. ' . " WODds and Foresta <<=6 .. -, Once an. urban area has been defined, for purposes of ,statute prohibiting, enact- ment :of Jaws which would prev-ent .com.. plete use and alienation of any mineral re- source or' forest outside an urban area by an ; (Jw~er or alienee therl'Of,; position of subject ,propertyl.lecomes relev,ant for de- termination. of. what part, j~ any,~alls within an established urban area and, as to such part, statutory limitation is applicable, bufstatutory limitation doe! not apply as to anY'part lyingontside an established ur- ban area. IG 1971, 18-7":S-QI, Burns' Ind. St.Ann.'~ 53-759. '10 N:r.2d-36 u Ind. 561 Sam'ue] A. ,Bradshaw, . Charlestown, for ~ppcllant... . Robert'H.Kerripf, Jr., Robert L' Schnat~ ter. Jeffersonville, for appellees, George T. King, . Edith:, ;R" King and .Liter'sQuarry. .]nc. ".; ... Samuel K: Gwin, Jeffersonville; for ap- pellees, Clark County Plan Commission, and Clark County Board of Zoning Ap- peals. .:. i' :1 L YB,ROOK,]udge. Defendant-appellant Oark County Board of . Commissioners appeals from' the' judg- ment ,of :the trial court declaring the tight of plaintiffs-appellees, George T. King, et a!." to .quai'rylirnesLone on certain real es- tate without obtaining a permit from de- fendants. The issues presented fOT review are :' II' ' ,. 1. Whether the' trial court erred in con- cluding that the Plan Commission,- Board of ,Coun~y Commission~rs, and Board of Zoning Appeals lacked' jurisdiction over . the subject matter of plaintiffs' action. 2. 'Whether the trial court erred in con- cluding that plainti!f~'wer'1: hot estopped ftom pursuing the instant action by rea- son of their having previously appeared . before defendant Board. or. Commission- ers. 3.' 'Whether, the trial court erred in con- cluding that the real. estate involved in the instantdispule is not .located within . an ,urban area as defined by relevant , statu~e. Title to, the real, estate inqllestion is held by.plaint!ffs-appeilees King infee.simple. subject to the rights of plaintiH-appellee Liter's Quarry, Inc., alienee':ciL the lime- stone located thereon. .' , ;;- :' The Kings and Liter's -Quarry jnitiated t:fte present action' in the Clark'Superior COl.lrt seeking a judgment declaring that the Plan Commission, the Board of Com. ~.D - 562 IDd: 310 NORTH EASTERN REPORTER, 2d SERIES u missioners, and the County Board of Zon- ing Appeals lacked jurisdiction to regulate the .quarrying of limestone on the, ,subject realty. ' , Plaintiffs relied on IC .l971, 18-7~5-61, Ind.Ann.Stat. ti 53-759 (Burns 1964), which reads: "N othing in this act' [~~ 5~701-53.:.795] shall be deemed to authorize an' ordi- nance by law, rule or regulation which would prevent, outside of urban areas, the complete use llndalienation ,of any mineral resources or 'Iorests by' the own- er or alienee thereQf.For the purpose 'of this section, urban areas shall include all lands or l.ots witnin the limits of in. corporated cities and towns and any,oth- er lands or lots'used for residential pur- poses wnere there are eight [8] or more residences within any quarter mile square area and such other lands or lots as, have been or are planned for residen- tial areas contiguous to incorporated cit- ies or towns;' ' u Trial was held without ,the intervention of a jury, and pursuant 'to Ind.Rules' of Procedure, Trial Rule 52, the court entered the following findings of fact, conclusions of law; and judgment: . "FINDlNGSOF FACT , 1. That George T. King and Edith R. King are the owners in fee simple of the real estate that is the subject of this ac- : tion. 2. That Liter's Quarry, Inc., by reason of a real estate option is the alienee of the limestone located at said real 'estate. 3. ,That limestone is located' at the real , estate that is the subject of this action. ',4. That limestone and 'crushed rock are mineral resources. 5. That the subject. real estate and all adjoining properties within any quarter square mile area are not located within the boundaries of an incorporated city or town, nor contiguous thereto. u 6. That there ;Ire not 8 or more resi- dem:es located within any quarter mile , square area on the subject property. ,7. That plaintiff, Liter's, Quarr)', Inc., by and through its attorney, :Robert L. Schnatter, appeared befor.e the defendant Board of County Commissioners of Clark County, Indiana, .on May 15, 1972 to request passage, of an ordinance granting a change of zoning from agri- culture to M-l for the subject property, but prior to any aetilm being taken thereon, the said Robert L. Sdinat1er, on behalf of plaintiff, Liter's Quarr.y, Inc., withdrew said petition and request and . further the said County 'Commissioners have never since said date taken any ac~ tion regarding said withdrawn request," "CONCLUSIONS OF LAW 'J. That, the subject property is not lo- cated within an urban area as defined by Burns ~ 53'-759. 2. The subject propetiy "nd the intend- ed use' come within the prohibition set out in Burns ~ 53-759 and the complete use and alienation of the .limestone at the subject pwperty may ~ot be prevented or controlled by ordinance, rule or regula- tion, 3. That the defendants have no juris- diction over the, subject matter, of this action and the plaintiffs can not be es- topped in this action by reason of filing a petition and appe;tring before the Clark Coullty Plan Commission and ap- pearing before the Clark County Com- missioners." "WHEREFORE, IT IS CONSiD- ERED, ORDERED, ADJUDGED AND DECREED that George T.' King and Edith R. King as the owners of said sub- ject real estate and Liter's Quarry, Inc., as the alienee of the plaintiffs King, have the right to use the subject proper- ty for the purpose of operating a lime- stone quarry and crushed stone operation without the necessity of obtaining a per- CLARK COUNTY BOARD OF (]OUNITOO~I'R.S v. XING Cite as 31Q N.E.2d llOO '!l1it from the, def~ndants or from ~ny ,c~nsent" ~ither express. other loca} government authority." " (Dllr Emphasis~) " u ,: Initially, we' note -that the appellate briefs filed by the parties in this cause re~ f1ect a 'certain measure of misunderstand~ ing withrcspect to' the triili ;c6ur't's use of thephrase."jurisdiction ,over ,the subject matter of this action" in the third para- graph oUts conclusions of Jaw. We there- fore deem" it "advisaule"to interpret:and clarify the coun's'use.of terminology prior to engaging in a determination of the con- t~ntions' raiscd ill this appeal. . u IridistingUishing the 'concepts of juris- diction' over subject matter and jurisdiction over a particular case the court in Farley v. Farley (1973), Ind.App., 300 N.E2d 375 quoted as fonows from I Wiltrout, Indiana P.ractice ~ 122;' "0) Jurisdictjon~S11bject Matter. The subject matter of an action, when refer- ence is made to mailers of jurisdiction, "means the nature :ofth~ action and the relief sougl1,t.:lf the court has jurisdic. , ,tioz:t,of the c:la.$.S of actions to which the , particula,<:ase, under mnsideratioij .be- " longs, it has, jurisdiction of the subject matter ,of. the action., If. the court does , not ,ha ve ju~isdicti~n 4?f the dass ofac- tiolJs, tne' parties cl!nnot confer such j u- ,risdiction. . The phrase 'subject matter of the action' is sometimes used to refer to the thing involved in Oil parti~ular c,,"se but such is not its mean'ing when 'used:i~ ,the rule .rega~djng ,ju{i~ictio~:' '(ori~- nal empha5j~) , " , ", * . '" .. .. . "(3) JurisdictiQn-PardClJl'a'rCase: . juris- " diction of the p~rtic~iar: ~as~ ,is" differ;en) them jurisdic.lion of, the IUbjeci-matter, although occasiotlaUy the courts speak Of ; jurisdictioll of the .rubjf:(t~maUer of the particular tase. A 'coui1 may have juris- diction' of thesubjectomatter; that is,' of the general class of cases to which the . .:particular case belongs" but not Jurisdic- tion of th~, particular case.' Jurisdil,":tion of' the p~~ticular case may' be given by u Iud. 563 or: ,i,npIie.,d/' In our opi,nibn; the"" court's '~onclusioti, {s i-rouniled in" the concept' of 'j titisdiction over a pa.rticular 'case' rather than that of sUbjectmatter,jur'isdictloTi. This isapP!l.r~ ent because the holding is contingent upon the factual determination of whether plain- tiffs' realt.r;;withi~ ~n "urban' area~'. as defined by ~ ,53-759, s14Pra." cr. Tucker ~. Sellers (1892)" 130 Ind. ,514, 30 N:E: 531. " ,ISSUE I: ,Appellant first s~bmits ~~at the trial court improperly construed ~53,-7S9, Supra. h is argued that ,":hile the statute ~a'y ren~ der defendantspowerJcss .to pr.e7.'enl the complete use a~d alienation or mineralre- sources out!lide urban' areas" it doe~ n'ot deny to' them ju;isdiction to regu1/'lte. or c~nlr~l : said use ina manner con so'n ant . '->. . -' ! , with general, considerations o.f heal~, saf~- ty"and pUblicwelfare.;: " , [ljH.owev:~r, asappei'lee's point out, appellan~, has waived ,coI:Jsideration . of' this issue byfaiHng to raise the question in its motion to' correct. errors. lnd. Rules' of Pr~cedtii,e, Trial 'Rule '59(G); Yellow Manufa'eturing Acceptance, Corp. ,v; ',Vo~s (197~). ind:App., 303N.E.2d 281;' McAfee V. Sta1te ~x 'rel'Stodola:~ (1972), Ind:; 28-i N.E.2d' '778. "Therdore, the is'su~ of ~heth~r the court improperly con~trueqth~ fIrst sentence of ~ 53-759 in framing tts conclu~ion is not. before ,this court. Like. wise, appellant has" waived' the .. issue of ~~et~er, f'lai~tiffs.should have ,been:. ,re- quirec\. to exhaust any available administ;ra- tive ,procedures and remedies prior to initi~ ating the instant acti~n. 'ISSUE 2. ,,' Appellant next contends ,that the ,trial court erred in failing toconcJudc that plaintiffs were estopped from pursuing the instant action. The'record'revea,l~ thatrirt '14ay is; 1972/ Liter's' Quarry, 'through its 'attorney,' ap- ... ... Ii II Ii i: Ii .. Ii .i I: "i ", , ' ---a1 T 564 Ind. SlONORTH EASTERN 'It:EPORTER, 2d BE.RIIlS u pea red before defendant Board of COmmis- sioners a!1d requested passage of aU ordi- nance rezoning the real estate in question from A-I Agricu1t1,1ral to ,M~l General In- dustr,Y. However, the request was subse- quently, withdrawn prior to alJ.y action being taken thereon by the Commissioners. The ilubstanceof appellant's argument is that plaintiffs waived consideration of the jurisdictional issue which they submitted for determination in' the instant case by failing to raise the issue when they ap- peared before the Board of Commissioners. u '[2,3) It is conceded that as ~ g~~eral rule, questions of subject matter jurisdic- ti~m, may be raised at any time. State ex reI. Standard Oil Co. v. Review Board, etc. (1951), 230 Ind. 1,101 N.E.2d 60; Park Improvement Co. v. Review Board, etc. (1941), 109 Ind.App. 538. 36'N".E2d 985. However, it is ur.ged that th~ defendants 'were possessed of jurisdiCtion ov~r the subject matter oi the instant case and that the issue preserited in this case, merely turns upon jurisdiction over the particular case. ' To this extent, we must 'agree with appellant. Defendants clearly have juris- diction to hear and, deter!lline cases of the general class with which the instant case is identified, whether that class be defined as pianning and zoning in Clark County or 'the use of mine~al' res(Jurces generally. Within the general class, ~ 53-759 fashions a jurisdictional limitation in particular cas- es-viz., those, involying the use of mineral resources outside "urban areas." [4] 'While questions of jurisdiction over a particular case may be waived, we cannot agree that plaintiff Lite!'s' request that the Board act in' it~ legislative'capaci- ty estopped them irom initiating this action aiter that request was withdrawn. The in- stant case is distinguishable in two respects from the cases cited by appellant in sup- ,part of its ,a:rgument. Here;there has "been no action taken by an administrative body acting in a jU<iicIal capacity., Moreover, there has been no agency decision to which u plaintiffs' action could constitute an imper- missible collateral attack. At this point, we note that while appel- lant makes reference in its brief to an al- leged appearance and petition by plaintiffs King before defendant Plan Commission, such tendered evidence was excluded by the trial court. Appellant offers no ar-gu- menithat the court erred in excluding this evidence. Therefore, we may not consider it in, reaching our determination. We therefore hold that the trial court was correct in concluding that plaintiffs were not estopped from initiating the, in- stant action for declaratory judgment. ISSUE 3. Appellant finany contends that the trial court erred in concluding that plaintiffs' realty is not located within an urban area as defined by ~ 53-759, supra. [5]' We construe the' statute as provid- ing 'three separate definitioTls of urban areas, these being: (1) a.ll lands or lots within the limits of incorporated cities and towns: (2) lands or lots' used for residen- tial,purposes where there are' eight [8] of more residences' within' any' quarter mile square area; and (3) lands or lots as have been or are planned' for residential areas contiguous'to incorporated cities or towns. We further construe the term "quarter mite square area" 'as deiining'a, square one quarter of a mne or 1,320 feet Qn each side, rather than a square one half mile, or 2,640 feet on each side. In our opinion, this constructio~ is more, consistent with the appaient legislative intent tei protect a property ownei"s right to use mineral re- sources located on his property. By stipulation of the parties at pre-trial conference, definitions (1), and (3) above have no application to the facts in the in- stant case. :The trial court concluded that plaintiffs' property was not located wi,thin an urban BETHLEHEM STEm. OORPORATION v. CUMMINGS Cite as Jll0 "',E,2d 565 area as ddined by ~, 53-759. su~ra.: The conclusion. appar~ntly.. rests, upon, the court's finding t~:~t there' are, not~ight ,or mQre 'residences loca'ted withIn any quarter mile squar~ 'area. on }h~&'ubject' proper/i. u u , " . '. .. , ~. ',' . . . ,', - . ,[.6J Th,e I}~ture" of, t@~ linding,' when compared ,with ,the exhibits ;md, testimon.Y thereto, pr~s~nteda,t trial, c:ompelsus to the cpnclusion ,that ih~ ,c:ourtmiscons,trued ' ~ 53-759. The number of r~sidences locate~ on the subjut properly within any given quarter mUe sqUare ll,Tea is not, dispositive of whether a1] or any part ,of the property lies wi(hin' 'an urban,area~' The identific~- tion 9f an orbanar~a. 35' defined by the statute bears no relationship to the bounda- ries of _th~ subject property. Once an ur- ban area' has been defined, .the' positiort ,of the subject property become's relevant 'for the determination_ot what part, if any, of the property falls within any established urban' area. ' As to any part of plaintiffs' property which' faUs within a defined .ur- ban area, the statutory, 'limitation on de- fendants' authority is, in,applicaiJle. How- ever, the statutory Iim'itation'does apply as to any part of plaintiffs' property lying outside of any established urban area. Therefore, upon rem~hd, it must' initially be' determitledif any of the subject proper- ty' and' the areas surrounding it, are urban within the statutory definition. Once the urban areas have',been located 'and legally described, then the frial court must deter- mine what part,if a~y;,of,pJai~tiffs' land falls within the defined urban areas. This cause is affirmed' in part, reversed inpaft and remanded to trial court for a determination as to whether any portion of plaintiffs' land falls within &nurban area pursuant to the directions'contained in this opinion. The, ,court shall then enter 'appro- pri~te judgment. upon the findings., Affirmed in part, reversed in part and remanded. ROBERTSON,' P. -1., and LOWDER- MILK, J., concur. u .... Indo 5G5 '. . : ," . '..' {." : - . ~ Ji . . ,I,." .',. BETHLEHEMSTEEL GORPORAT!ON, ' , Defendant.Appellsllt. v. DavhICUM':1'NGS, Plell1tlU-Appellee. - :; "No.'2-773AI64. ., Court of Appeals of Indiana, Thlrcl DIstrict: . l\iaY,9,1974~ . . ., Rehe8;ing Denied JUly' ]0. 1974. . : , . - . -.- . ., " ,Claimant, who in' January. felt sha'rp pain in his lower.. ba~k while attempting'to Carry bucket, of material and who in May allegedly'hurt his back while attempting to lift large ladle, sought .workmen's 'C!ompen~ sation benefits. The Industrial ,Board awarded temporary total disability and per- manent partial.impainnent for low ,back in- jury,;;\nd ,~mployer appealed. Tht;,Court of Appeals, Garrard, J., held that evidence supported finding tpat althoogh claimant had preexisting partial 'luinbarization of the, first sacra.l ,segffient of his. spine to- ~ether. with ~. slight scoli,osis there. was no sU,~ficientpreexist:ingimpairme!lt as ,to rt:- quire apportionment ,betw~en In'dustrial and nonindus~rial inJury" that failure 'tq make apportiqnment: betw~~!1, ~ffec:ts attributable tr;,January accident ~pd tho~e attribut'able to th~ May accident w'as not contrary to. law and that evidence supported determination that claimant sustained injury from .the January accident. . ' , ,Affirmed. ,.:Workmel!'8 Compensation e=;o~45, , Wh'ere workmen's' co'mperisation iben~- iits claimant ffi'erelyhasa;, physicaJcoridi~ 'tlon' which renders hiinmote susceptible to being injured, rather, than an existing Im- 'pairment or disability in theaffecte-d mein. ber:, he is entitle<l to rixov'er for the furl 'extent of the injury received.,~, IC1971, 22-3-3-12, Bums" Ind~St.Ann. '~ 40-1305. -:i'::,c.;;"'>;~"~~ ,~...~.~:\ ~>i:i~ '~~J TO;".; ._'J:.-r-.:;--: " CAJlHEL DEPT . l'&llZtrl APPLI( PDKI'l CONF'01 'lb. f, ~ If~ ~11 I C2 OM "I CIJlM SIell ADDR tuJiE VALl BUILDI "......... QUl.R\.e5 IS. ~ .~~c ~ ';',', ,,,.' TNS'j:>Ti:C:TION RECORD D. . ^. I BUILDER ~ .~ ~ A. 1 ~ B. C. LOCA nON TYPE OF CONSTRUCTION l.~Residential (One or Two Family) f 0 'Residential (Multi:lamily) 3. 0 Commerdal L.... \ ...,.)'0 Se-"....\.J..L 4. 0 Indushial ~\....... ".J I ,....... -++- 5. 0 institutional F/5/ D 5 ::L- TYPE OF SEWAGE DISPOSAL 1 Rublic 2. 0 Private (Septic Tank, etc.) rf OF IMPROVEMENT 1. New Structure . 0 Addition Porch Room 3. 0 Remodel 4.0 Foundation Only 5. 0 Demolition <t: 6.0 Ac~essory Building a.. 7.0 Swimming Pool' .. 8. 0 Garage Detached AlIacherl (0 E. 00 g? en >- ocr x: 0 F. '. ': .~:-.' t ~- ~ '",,~i B C T o c PRESENT USE OF PROPERTY 1. 0 FarmfVacant 2. b(Residential (One or Two FamilyJ 3i:) Commercial 2 ~ 4. Q Industrial 0.:.'; . 5.0' Other ISj)'!cily) r.: "1 ~ , U ;:-'v '-' a: ~--- PROPOSED,USEOFPROPERTY :;)~;',0 u. 0 l'~ One or Two Family Dwelling [:::3 ~, 16 a. .~. ~ o"'''Multl-fami!y ,S:J ~ <~ ~ :c >= 3. 0 Commercial t~ '=;! -; ti ~ ~ 4. 0 IndustTlal 0 , ::~:: 3; 6 5. 0 Other (Sepcify)" ,~~~ 8 u ZONING CLASsiFJCA;riON OF PR6PE~~:~ ~ Present ~- I- c, ' " '" ,,' ' , ~.:. . , : '~ ~;: G, ESTIMATE COST OF CONSTRUcnON' ;:; ,..-.,,~ (Excluding Land Value) } 0- 3 '. fi) F-J -'" y.~ H. LotSpllt Yes No!' ',~ ;; ".,- .. II' , t ~ The undersigned agrees that any. construction, reconstruction, enlargement,. relocation or alteration of structure, or any change in the use of land or slru ctu res requested by this application will comply with, and comform to, all applicable laws ofthe State of Indiana:and the "Zoning Ordinance 01 Carmel, Indiana - 1980", adopted underthe,!uthorlly of Acts of 1979, Public Law 178 Sec. 1 et seq, General Assembly 'of the Slate of Indiana, and all Actsamendatorylhereto. I further certify that th~ constructl~n will not be used or occupied until a certlficate of occupancy has been Issued by the Department of Community Development, Cannel, Indiana. llurther certify thaI only kitchen, bath, laundry and floor drains are connected to sanllary sewer. 'Inspections Needed: ~Jh Y7',e ClJ(\--\~ ~.ture of ~ner or Authorize~genl (on . (;(tJ \.1 d Address . l/ "ia &- ~Y\o..rf\ll ~ "IN h.23 j- [)2D~ City State Zip Phone Flood Zones: Yes--,-- No A. B. C.:/ Sump Pump:. Yef5' I NOe--- Geottp~t Pump' Ye1 No~ ~ Director, Department of Com ----.: ~eive'd By ~_.i; ___--------- Footing/Under Slab Temp Pole Roughtn Meter Base Final C/O Square Footage Permit (Sq. Footage) .. . . . . . . . . . . Inspections... .......... . ..... . . Certificate of Occupancy. . . . . . . . . Total. . . . . . , . . . . . . . . . . . . . . . . . . . Plan Comm. Approved (Date) Board of Zoning Appeals Approval (Oate) ~~'3 ?o I~~~ _ __. _ .....". _ ~'T'.____'_" '_._-'-' --.----' ~'--""""'.,~ ''',''~ \. '-., ' -~~>.". i CARMEL/CLAY TOWNSHIP DEPARTMENT OF COMMUNITY DEVELOPMENT B~lld~ng Perm~t Inx~rmation ---~-_... -- . ..........,. ~ ~ :r . .....'" DIIT' fiTtorr! rl:ll'lMT.<:<:TflNlO'V (nTfll;,(~'N'IP, STATE SECTION ',TYPE OF CONSTRUCTION , t:Jl. Residential (One or Two Family) '2.'0" Resideritia] (Multi'.famlly) "3.'O,Com'mercial ' , 4, Q,lndustrial ' 5. Olnstituliomil ' e..~ PRESENT USE OF PROPERTY /;$ 1 Ylf... __!Vacant &:!! 2. 0 Residential iOne or Two Family) ,~ 3. 10 Commercial v 4. 0 Induslrlal ; 5, 0 Other (Specify) , E. PROPOSED USE OF PROPERTY ::J 1.)Q: One o~ Two Family Dv.>elling~ Z. 0 Mulll.famlly :;; 3. 0 Commercial oJ 4. 0 Industrial 1/ 5. 0 Other (Sepcify) F. ZONING CLASSIFlCATlO/.ILOF PROPERTY Present .::;,- -I G. ESTlMA TE COST OF CONSTRUCTION (Excluding l.andValue) 77930 H. Lot Spilt Yes_ No~ ,,0' ~,' B. ,TYPE OF SEWAGE DISPOSAL ~." '1.ll.Public , " ~ ' ... ,: 2. 0 PrIvate (SepticTank, etc.) ~C" ,TYPE OF IMPROVEMENT . 1."S(, Nmv Structure r'. ,..:",:,,2.0 . AdditlO. 'n. Porcl> " .3:0:Remodel ' ' . 4'.0 Foundation Only , ,,'5.0 Demolition ' 6.0 Accessory Building 7.'0 Swimming Pool 8, 0 Garage Detacherl .." ";"'T ... CJ :,~ ~"'~ ':'~-:."'{' ifat\' 3 ~~,~ J:.; "f " ..~':: t~ ~ , R~~!;1, '~::::: ri;~ I . ~ " ;:.: ;;.~ r.:.; I~'- ::~ " ' :", ," .J Attached l...."..-........... 1 ','\1' .Q.t~ Sui Oal Thl ZIP on on -1 of I co QO 5U u;) C'-I z :=> -" :0 ~ n. The undersigned agrees that any construction, reconstruction, enlargement, relocation or alteration of structure, orany change in the' use of land or structures requested by this application will comply.",,]!h. and .comform to, all applicable laws ofthe State of , Indiana;arid the "Zoning Ordinance of Carmel, Indiana. 1980", adopt~d under the auihorily of Acts of 1979, Public Law 178 Sec. 1 et seq, General Assembly'of the State 01 Indiana, and all Acts amendatory thereto. . i.---. I further certify that the construction wUl not be used or occupied until a certificate of occupancy has been issued by the Department of-Community Development, Carmel, Indiana, , I further certify that only kitchen, batli, laundry and noor drains are connected to sanitary sewer. Inspections Needed: Footing/Under Slab p A .1e@l p,h\1l Rough In Meter Base l '[:5:5 I~~O 90 ~- /hf-~/ , ""~N R'I7-SOO1 Slate Zip Phone No Final C/O Square Footage Permit (Sq. Footage} . . , . . . . . . , . . Inspections, . . . . . . . . . . . .. , . . . .. . Certificate of Occupancy.. . . .. . , , Total..".,"'."'" ,".......,. Plan Comm. Approved (Date) Board of 20nlng Appeals Approval (Date) ~.$ ( Director, Department of Communi C. (V"\~ Received By o CARMEL/CLAY TOWNSHIP, DEPARTMENT OF COMMUNITY DEVELOPMENT Bu.::l...ld:i.nR Pe.'%::,m:i.t In.format::i.on. CARMEL ZONING ORDH-IANCE Z-160. SECTION 29.4.2(J): THE BUILDING COMMISSIONER (DIRECTOR. DEPT, OF COMMUNITY DEVELOPMENT OR ST~~F) SHALL APPROVE OR DENY THE IMPROVEMENT, LOCATION PERMIT (BUILDINC PERMIT) WITHIN FIVE (5) WORKING DAYS OF T-HERECEIPT OF THE WRITTEN APPLICATION FORM AND ACCOMPANYING MATERIALS. THE IHPROVEHENT LOCATION PERMIT (BUILDING PERMIT) SHALL BE ISSUED WHEN THE PROPOSED STRUCTURE, IMPROVEMENT OR USE AND ITS LOCATION _~..<f"'''''''''''' ..-.. I"" n"'''''n1:lf'l1'l''C' ",,., ~'T.c: npnT)J,AJlJr.;:_ C'J M/ ~ i U Improvement Location Permit rQrm't~l~~,r*l~~' TOWnship: . D"t.,~, :J:-,2,~<."':,'+-' 'J},I. ;;.imlllsvalldonly II conslrudlon 1<51art~dwllhln I ZOdaysolls<uancQ date: all con.lf\ldlon I. completed Ic/olsSued) wilhin ,..::(zjtwo yean of IsSuance dateunles. "" ""tension 01 lime 11115 been olllclally granted by teller by the Dlr.clOr. Departmenl of ",';, COmmunity Developm.ml. ' . , LOCATION """:,:if;[... '/.~F STATE liP SE ' 01'1 ,A. m;F CONSTRUCTION D. ^'PRESENi'''usf:OF PROPERTY ',"'r. . Re.ldentlal [On. oi Two Family) ,1,0 Fann/Vacanl , ,.,t.. ,,0 Residential (Multi-family) -,\,}' Z;O::::.R..,denllal (One 01 Two Family) . --'.1-':'; 3:-0 CommeTdDI ._,~...........:t,r~ \"_\,,~-,.,/,, 1. 0 ~Commercial ", ""~":" 4~ 0, Induslrlal . ., 4.0 Industrtal .:'1,' 5. O'lnstRullonbl ~0:""" 5.0 Other (Specify) :';" 'B;'~.. bFSE.WAGEDlSPOSA~o':\-.,..... ..'.... >.;/" I'.. mSEDUSEOFPROPERTY " ,I;': ',l~Publlc., .4.;,,'0 ,,..{,,,..' \ <'-"'c(;.:,: ,'j-O' One or Two Fomlly [)welling P' 2. 0 Prtvale(SeptlcT:t~l<'~V ('.,,~, ;P;d"~,;;~' 2. Multl-'amlly ,,+v', C' lYPEOFIMPRO~~\,,,\r'~~'''_('''-'::')' 3.0 Commerclal :.t;;:; .' ~: g ~:I;:ct~:rc~0~~ lJ.~t::-~ :: g ~hu:1~fy) 'l;,!~:i~' '~:g,'~:'=o~on Only Yo F: :=~~CLA~Fl/CAT10N OF PROPERTY ,~;~~o.:"" ~:g.~;;~:nBUlldlng G, ~::~~:0~~e~ON~~ , "., :0,:': 7.0 SwImmIng pool . ~;:l~.' ,,:' 8.0 G~rag" Oetached- AltJlch.,<L-c H. Lot Split Yd_ No-X-- . " f/~; ~~"'" Tho undersigned ogr"..I",,1 an;> construction. reconslTuction, enlaTll",,"enl, reloeallon or alleT1lllon olslfU~u'e. or any change ';:.~;W'!;:'1n Iheuse.ofland or structur.. requesled by.lhlnppllcallon wlll,eomplywllh. and eomform 10. aU applicable law< ollheSlale of , ri;;!:",:;,'}n'dlana,',;nd Ihe "Zoning oTdllUlnCl! 01 CanneL I"dlar>a _ 1980", adopt"'; under the aulhorlty 01 Ads 0' 1979, Public ~ 178 I"",;,,' :..Sel;c 1 et se<l,'General Assembly of Iho Slate of Indiana, IlI1d all Act> am.ndatory Ih....eto. ,r :Uhqf\:l:f~~h" ~~~I~ the constructlonWUl ~ be..$e<l or _pled until a certificate of occupancy ~ been Issue~ ~ Ihe ;1.p~onl ~l Community D.....~en!..Carmel, Indiana. ' ".",.;,:(lUrtlier\:erttfy' that on~ kitchen. bath, Jaur.d,y IlI1d noor d~I.""8l'C conn. ecte<llo 5llnll8l"/ ~'7J "f.;'.'..'~" ' .,,;",' . /l .--.L.. . lnspcctlo... Needed: ' lL(Jt ?;lr, '/kr jA_b..'~'" ' ' &"h.s~~a '" of ~~or A~",d AIl""~4 ' . FootIng/Un~er Slab Temp Pole ~;,:fj~'ff~t9.; '~;. '-;~i.~,";'. . ~ Rough In . MdnBa>e ~1::~<!:u,~/1,,~~(Y ~~2~~iY-01~naJ' , CIO .'r~.V~ ..~ _""'F_,\,:'."~~~~:~Q Ge IlIIpectlO"'...'. ,.' .... .'........ . I & ~V Ccrtll\cale. of ()c,cUpIll1CY. . . . . . ... If. J "'it. Total. . .. ..... .. .> . . . . .. .. . .., . I 2. _ 50 Plan Cornm. Approved [Oalel Board of ZonIng Appcab Approve! (Dl>Iel . (0 ~ "'J >- <( ::t:: o <(- Q "j' .,j ____ ___--.,..~_.~~f"-:-.~ T_'T_~____~~ .....-:-__ .}!alII. ., CARMEL/:CLAV TowNSJ-lIP . 'DEPARTMENT, OF COMMUNJ:TY DEVELOPMENT I,' Bui1d~irl"" ,Pa'rrn:Lt J:nfo-r:ma1::.:i.on '" ~:~ Z~~O'RDlNANCEZ-16a. SECTION 29.4.2(3). 1HEBUILDING COHHISSIONER (DIRECTOR, ',.: DI!.P1'. OP COHHUNITY DE'nLOPI1El/T' OR STAfF) sHALL APPROVE OR DENY THE IHPROVDtEM1' LOCATION PERMIT (IlUILDINCl PEllMIf) WITHIN PM'(S) \lORKING DAYS OP m.E RECEIPT Of 'l'KE IlRITTl'll' APPLICATION }'(lRH AND ./IcCoHPANYIJ/G IiATtR1A1.5. THE IMPROVJ1;HENT L(iCATIONPER!1IT (BUILDING pERMIT) SHALL BE ISSUI!DWHEN THE PROPOSED STRUCTURE, IHPROVEMENT OR USE AND ITS ~TION CONFORM IN ALL llESPZCTS TO TIllS ORDINANCE. . ',~1,;,~~'::;-' . ','. . . :,::", '. Th8;followinll lllU.t be received by' the Departnu!nt of CO""""tlitv DevelOtl1ll8rit before any '.~~""j'.~',~t,(',.,'.'.';:,:i~.~...~',d..t.._R :r c:m:::~~n;;:::: :~:~::e;:rm:: :::::~,~o:~ .taff I , , . ... ,,-tvo--:nrcomjilet6I1BU' of 'cotlatruction ,plan.. In cOlIIpliance with, tho Sut. Energy "', ,....: Code.'lII\J,lIt'l1at R-vdu.e" an,.....lla. celling8. etc. If 8 e_rcia1 eon"tl'Uction. ;,0f::,~:;iY;il/"'l:;: plana 'm,uut"be .tamped appTovnd by the Indiana Sute Il4Ipllrtmant ot Fin, ... (iHi,,i'il.-"""<' .~re~CJltion,1U1d BulldlnKS.IIfllty. " A"copy'of' .IIe..et'p6T11lt (from City ot Clit'lllll Ena.lneer1"'S Dept'. or Hamilton Western' UtilltlD8. vhlchevor applie.) or sepHc ps",.it (HamLLton County K.altb o.putJDont). ' , , , ' ncea" ,CJ)'copie'-,of 8 dto or plot plan aha..lng tho follovinB RJ::IlUIKIW info~t~o~ (can be,obtalned from the landovnor or land developer)1 '~' LOt"draw to' 8calo ~ AlldlmBnalono c f}Cf(c, 93 >' Building Permit No. r:.2.:i F -f.r;, Cate /JL7 '"') / Cj Jllj.._. . This certllies Ihat Ihe premises buil' on land herein described as ~ on this dale complies with Ihe regul. -1980. adopled under Ihe authority of Indiana. and all Acls Amendatory I l, ~~..~~~,",r;~~~(.~~::~i:3~~:'~'..:.. !lev. 4-14-86 PERMIT NO: ~2 (1(' --- APPLICATION IS HER SUBDIVISION'tV1>-, ADDRESS I WITH, THE PUBLIC SA THIS APPLICATION I 1USINESS ADDRESS: THE PLUHBER MAKING PHONE, PERMIT ISSUED BY: ."UP. nH1T"riT~~ ~F.WRR lfrri~!:~'~i.,tii;,\i!:~':~[~;~'~st..:", :>.",':'::';';:".>":":: .':i\';- .-"',:". ~-m"i'~ .f"'.-;....:-.l,~ 1:1'; ti, .,; .'W ZIP ,-,y . . PHONE CITY , STATE ZIP ;r SUBDIVISION ()OO nt=E. ADDRESS OF CONSTRUCTION I,N'tMO LIt: . A ' TY~OF CONSTRUCTION ... DC"'; 6~O Residenlla~r Two Family) . 1. esidenti~~rTwoFllmlly) "-::-,.-~,} 'l"t[J'3.0 Commereial . ~ rC" "1'1--''' \ 2. esidential (Multt-family) . ,O?.J ,,(i.. r::' .i Co..:.t 0 Industrilll 3. 0 Commerclal " Ss.'0 T( 1;<<"""" \ .V':: ";1.'.:-"1\. 5. 0 Other (Specify) 4 0 Ind~s'r:al I:\:..\.~:--; ",,,,1' .1,: 0"" ~"S'~ E. PROPOSED USE OF PROPE~ 0 5 O.lnslltullonal ~ \.,\\ (n'" -\.. ~'O. fOn'e T F '11dllI ":'\ ',- c2..,)o~. \.,. . ~ \1' .. or wo /lml y '(' e g B. 1YPE OF SEWAGE DIS~L I~ ~::/. v: ?ri~..J'.\' 2. Multi.family 1. Q.. Public (Name of sYst~ _ :::i~ ~::F7 ) 3. 0 Commercial 2.0 -Private (Septic Tank. e .)CJ:?,~ 4. 0 Industrial C. TYPE OF IMPROVEMENT '. 5. 0 Other (Sepcify) l.'e" New Structure , F ZONING CLASSIfICATION OF PROPER1Y 2. b- Commercial Tena~Space Present r=-j 3. 0 Adaition Porc~ ," Room_ G, ESTIMATE.COST OF CONSTRUCTION 4. 0 Remodel. "I..t:/V/"o. (Excluding Land Value) 8AIPa...r- 5.0 Foundation Only " ') t \ 6.0 Demolition , ... "'~"... t- P H. Lot Spilt Yes_ No_ 7.0 -ACCe5sory Building .' ...' ~' I. Flood Zones: y"s'~..____ No --- 8, 0 Swimming Pool ,,) '0" B C ''''''8 A... 9.0 Gar/lge Detached---,- Attacherl J. Sump PU!TIP: Ye5_~ No__. D. P~SENT USE OF PROPERTY K. Geothermal Heat Pump: Yes_~ No__.~ 1. r- .,...,/Vacant The undersigned_agrees thaI any construction. r'econstruction. enlargement. relocation or altenltion of structure. or any change in the use. of Jllnd or structures requested by this application will comply with, and comforrn to, allllpplicable laws of the State 01 Indiana:and the "Zoning Ordinance of Carmel. Indiana .1980", adopleduriderthe authority 01 Acts 011979. Public Law 178 Sec. 1 et seq, General Assembly 01 the Slate 01 Indiana, and all Acts amendatory thereto. SECTION ~ \:>:'\ ~\,'\.~ .. ~e..t J further certify that the construction wUlnot,be used or occupied until a cel1ilicate of occupancy has been issued by the Depal1ment of Community Development. Carmel. India..Il, (Iurther certify that only kitchen. bath. ,laundry and noar drain n~dl~tary' sewer. .~. 51 nature of Owner or Aut~zed Agent gI9~-E:. ~J'" -Si"-'2G"ET Addre-ss -/..#-12.E!:.s... City Inspections Needed: Drainage <E...""oID"d.~ W ~gh9 er 1~;YY~S!i.'M".do , ~ ~ Stale Zip Phone Square Footage .u<.-II-/.-u'l-------- Permit (Sq. Footage) .....,...,., --~if--.l..L;;:,j5$-- Inspections. . Certificate of Occup~ncy. > . . ' Total..... .. -, Plan Comm, Approved (D31e) BOllrd of Zonil)9 Appeals Approvlll (Dlllel __~_ _____nn_ _ , iI -i.-t"f!P-1:<'~ ~-7fll--~:. Director. Department of Communily Development _c._rY\~__._-_ Received By i I PHONE NO, 897-5001 ..' .' . ,. INSPECTION RECORD " BUILDER: R a.n. Hom<es LOCATION: Lot 96 Wbodcreek 5-3 (11261 Wood Creek Drive) ,- d' BUILD]! LOCATJ BUI LDJ TYPE 1 GJ 1XJ o t3J o [l .rr c STATE SECTION 3 ZIP. 2. 0 Residential (One or Two FamllYI 3. 0 Commercial . 4. 0 Indusm3\ ~ Other (Specify) ~O\l\:~ ~POSED USE OF PROPERTY... 1.J!(~ or ~ Family Dwelling~ - !~ ~~~". \~~T:;~~ w;,':"-. -.'. ,I F. ZONING CLAS~~FlCATlON OF PJir~RrY . .:. ~. Present S " ~, '.': c" G. ESllMA 1'E COST OF CON~TRUcm6N:..: '.' (ExcludIng u.nd Value) B I.. .'f-<F.;J. '. ' I - . ,~', :. . ~ . i ~.l H. Lot SpUI Yes~ No~'~'. :.' " ;:': I. Flood Zones: yes___--- No ~X:':. ~.~. J :i A. B. C, ::1 .::~ J. Sump Pump: Yes~ No ":' ~ 0 K. Geotnermal Heat Pump: Yes ~;:: "', No-X.... u lYPEOF CONSTRUCTION 1. li'Res~dentia~?r Two Family) 2: O. Residential (rvIuiti.famllyj . 3. O' Commercial 4.0 Industrial 0 5~ 0 Institutional 'P A , B. TYPE OF SEWAGE DISPOSAL /). ,. / . .' . 1.)BLPublic (Name 01 System L,t{.I'Vl(/ 1 . '. ...2. 0 Private (Septic Tank; etC.) r 7 7l f 719 . 'c. "1YPE OF IMPROVEMENT . ('ewe./..r walhV' . 1.ll New Structure - : 2.' 0 Commerclal Tenant Space . '3.0 Addition Porch . Room~ .,4.0 Remodel. . 5.0 Foundation Only 6. 0 Demolition. 7. 0 Accessory Building 8. 0 Swimming Pool 9.0 Garage Delacherl' D. PRESENT USE OF PROPERTY 1. Q' \iBIKlfVacant Attach ~c!. The undersigned agrees that any construclion. reconstruction. enlargement. relocation or alteration 01 structu~e. or any change in the use of land or strUctures requested by this ~pplicalion will comply with. and comlorm 10, all applicable laws of the State of Indiana. and tne "Zoning Ordinance 01 Carmel. Indi/lna . 1980", adopled urider the 2luthority oj Acts of 1979. Public Law 178 Sec. 1 et seq, Genernl Assembly of the State of lndi~na, and all Acts ~mend21tory thereto. . I further certil)i that the construction will not be used or occupied unlil.a certilicate of occupancy has been issued by the Dep~rtment of Community Development. Carmel, Indian21. I further certil)i that only kitchen. balh. l21undry and Iloor dra' s are C nn cted to sanlt21ry sew~r. Inspections Needed: ~g;'Un~ ~ ~~~~ ~ Drainage .e..+ 41a~7 Zip Phone . ~p Pi0 61e~ cfD = Square Foot21ge -,_~L7_ ." Permit (Sq Foot21ge) . . . .' . . . . " _"":-j~-Q O. Inspechons. . . . ~~"6-' ..- . Certificate of Occupancy. . . . .. ~- fo-:/lO. - 0 I Tolal............... .., ...c '~'~Lo. Plan Comm. Approved (Date) --.A-I- f..f/ Board of Zoning Appeals / V / t Approval (Date) . -.... . ..-..-.. 5A\~ of OWner or Auth~d Ag nt 5~ .::l \ S Ad~ \ ~\ '_ _Q..\.J__S City irector. Departrnent of Community Deve~oprnent --._--,.~.---...-.- Rec~ived By L._.r',___~", ...' ~;"".~_.. u CARMEL/C -...- DEPARTMENT OF CLAY. TOWNSHIP Bu.:i.ld inp; Pe.~::~J~t~-NiT;- DEVELOPMENT n orm.a.t:i.an CARMEL ZONINC ORDINANCE DEPT. OF COMMUNITY DEV Z-160, SECTI0tl 29.1,,2(3)' ~~i~~~g,;~~:; ~~~i~:~iEF~Iei.m :~~N~;~~~io~~Z,:,\~~~~~'UDio~~' PERMIT) SHALL BE ISSUEll WHPt-.T 'l'~~C p MATERIALS. THE IHPROVEH~T R~~EIPT OF THE WRITTEN N lu'p....<:'r.n <:''''0'',...''''...... T..~ CATION pr.-puIT (BUILD ~,....._.._.._ . """-I" ING r- ''f. .~ . ~ '.1 , ! \ u u u Hamilton Co,) IN - Online Reports Page 1 of 1 Online SE General Parcel Information Select A Different Remlrt I New Search forCorrent ReDort Disctlimer: The information available through this I'rogram is current as of 10/4/2004, This program allows YOLJ to view and printcert:arn public records. fachreport reflects information as'of a speclfh; datei so tt1e Infonnatlar provided by differentreporn may not match. All information has been derived from public tecotds that are constantly undergoing ch~nge and is not warranted for content or accuracy. It may not reflect the current Information pertaining to,the property of Interest. Parcel No: 16-14-04-03-01-009.000 Propertv Address: Deeded Own~r: Hurley, Donald C Jr & Teresa 5 5245 Westwood DR OWner Address; Carmel, IN 46033 5245 Westwood DR Carmel, IN46033 Legal Description: WOOD CREEK SEe 3 A 9120/84 10/26/84 ]8()-478-480 ANNEX '1/6/88 8806094 FROM RYAN HOMES 5/16/88 8809079 5/16;88 R.E.RECORDED SectionjTownship/Range: 04/17104. Subdivision Name: Block: 3 Deeded Acres: 0 Political Township: Oay Lot Number(s): 108 Most Recent R.ecorded Date:' NotA...ailable. This application 1s developed and maintllined by the Infonnalion System Services Department. [f you have any questions ar comments, please contact 1 @ 2002 Hamilton Co. Website SUQqestionsor Issues I Conditions of Use I Privacy Poli~ I Site MaQ I Technical Help' I HOME @ 2003, Hamilton County, Indiana - all rights reserved. http://''NW\\I.co.hamilton.in.us/apps/reports/rptparcelinfo.asp?parcelno= 16] 404030 1009000 10/12/2004 u ~/~}r';'~~\:: ~~.:':.:::;~' ." ~~:<..~;~!.;~~~::/r..,. . :.':".. };{ff~~;:::;{:_,.;. :;~:fif :.f..~:~(.::r~ ..'.:: :--.". . '{.:: w"~~f;Y.; .. Y::;\~~;'{::":>~'}"" ; _f"Fl"" ~~~!j~l _l~~"il "'0:'-"" L- I". "(,. ~",..~..;..i}':. ':: ,'\0,. .' ." I:~". ~- :'. ~ :P<.' . w i I ! ~ t f t r I F ~ g .! ~ Jrl rVl o ~4 ~~ ~)1 ~~ ~<S u ,',a,__,~*~~';". ~;g ~~I . E ", ;r' '" ., q,)~ ':;'0 ~l cc ' -~ '" ~ '" '" ;::J;;: ~~ - '" ~ c: -- '" '" - ,_ <II -<= '" ..... U) y7t :/9/7/tJOjE 88060'96 WARRl\.N'r.[ DlU:D '.rHIS INOF::JTuRE WI 'l'NES'YoETH, 'that RYAN HOMES, INC.. a corpOl"atiol. organized and exisl:~n9 undex the laws of tb,e State of Pen!1sit1vania, and RYAN CPERATIO~S G.P.. a Virginia qeneral partnership C"'Grentor"), CONVEY AND 'W~NT to DONALD C. HlmLEY, JR. and TERESA L. HuRhIri', husband and wife <"Grantee"), 'of Marion County, in the St"te of Indiana, fo~ tbe sum of Tan :nnd OO/lOODollar.s ($10.QO) and othc;\r, valuable consideratio...... '.the r'ecei:{)t of wbich h hereby acknowledged, thE) follow-ing descr.ibed real estate in Marion County, in the State of Indiana: Lot Numbered lOB in Wood Creek, Section Three, an addition in Harni lton. County, Indi ana, as per plet thereof reC{lrc1ad in Plat Book ll, page 75 in the Office of the Reco~der of HamiltOA County, Indiana. togetheF with all of thG rights, privileges, easements and $ppurtel1.snt Ownership inh,cest in and to premises previously or. subseguently conveyed by ::;ran~.or to Wood Creek Recreations 1, Ine. by deed recordbd in Hamilton County. anda:l;; more fully defined in tbe Pe'cla;(at:iOI~ of CO\<Elnants and Restrioti.ons recorded. in Hamilton County a:s snown in Miscellaneous Record 159 pages.: '247-265. Grantee "covenants and agrees to be bound by and to COmply 'with the afol:esairf DeClaration of Covenants and Restrictions inClUding th~ personal obligation to pay assessments PU7.-3uant: to said DeClaration alui Grantee hereby p-xeclltes and acknOwlf;1dges this deed for such purpOl';e. Grantee agrees thai; the p:;-opey\y herein conveyed i;hall' be SUbject to such assessments in such amount:s as shall be determined by Wood Creek Recreational. Inc., its SUCCeSSOrs and assigns. Also subj'-lct: to: 1. Taxes fox 1987 and 1988 due and payable in May and November 1988 and 1989 and taxes for 311 subseqUent years. 2. Possible future asseSSments for repair and maintenance of the r-roffit:t-Williamson Drain. 3. Possible municipal assessments and~or Se~er. use chargt~B levied by City of Carmel, In,Uana. 4. Possible etlsements for drtlinage ditches anr;'! tile dJ:tIins. ':i. Easement for drair.cge. pl~blic utilities. sewer ano incidental ,purposGs over a 7.5 foot strip along the Northerly, Westerly, Southerly and Easter11 sides of lot as sho~~ on plat.. Easement for drainage" public utilities, sewe.r and incidental purposes over a 25 foc.,t strip along the Northerly and Westerly sides of lot as shown on plat. 6. Thirty foot front: building line as shown on pht. 7 .Covenal,ts, conditions and restrictions set: out in: plat. 8. Covenants. conditions and restrictions set out in Declaration of Covenants and RestI'ictions For Wood Creel> ~:c 6;~ November 15, H7~~~BcellaneOUS1 R"~OZ'd 159, ~p.Elges , ~ n j{"~~ ' DONALD C. J)R., Gr~-- -EllS -L. ~'.n~ STATE OF INDIANA ) S8: COtrnTY OF MARlON ) SubScribad and sworn to beforerme, a Nota~ PUblio, in and for said County and StatEl, this.J..f!!!. day of i"ebruary, 1988. My Commission Eltpires: Dr51!3 Printea Notary Public, J>ULY ENTERE. D FOE ';\.'AXA:fJ6N ~ C2f!L1 r) 1&2 <P~(p~~un~' PareJJ1." ;'I-/)f!-,J3 'O(-rU),9.Mo " w ,,~ .~~: ~.; ,.. [ . l~'\~ ~ ~m.\f , i I ! ;, [ ~. r. ~ i; . " ~ i' f .: f, ~ f ! l I, i. ;, ~, .. h ~. t t ! ~f ~ ~. ! .. ~ U: ~. y t ~' f <, " E 5 . t I' r I r I I I r ; ; I I ! i i t, ~ * :\' ~<: ~~ ~~.'~".'.' ~.,+, " fi}; i,~-'- -.. u u u . wo', ',~' :~j;!;:.~,';'!':'~'~;;:.l~'~{~:'~~?::':~:~:':::.~7--,:;: ,:-~-..-,:': .'.J ..,'...' .' .,":....,.- r" ...: "..' .~:~.. " ,-.' .~.. , , . ~..-:' ..\..... ~ ".'.".: .. -2- The unaersign~d petsons executing this deed on behalf of Ryan IJomes, Inc. I represent Bna CEl:rtify that they are: dUly elected officers of Rya~ nomes, Inc. and have been fUlly ,"I'lmpowereCi, by propel:' resolution of the Hoard of Pi>:ectorsof Ryan' Homes, Ine. to execute and deliver thi$ oeed.: that RYIH! ,'Home's, Inc. has full corporate capacity to convey the real estate C1eacribad herein; and th...t all necessary corporation a'otion fol:' tile making of such conveyance has been taksn and 'done. The undersigned persons e::ll:ecuting this deed on bebalf of Ryan Operations G .P. represent and cert:ify that they are duly ~lected officers of Ryan Homes, Inc., a general partner of Ryan Operations a.p., and have been fully empowered by proper resolution of the Boaxd of Directors of Ryan Homes, Inc. to execute amI deliver this aaee, On b",half of tbe partnersh:ip; ,th<it Ryan Operations G.P. ,has f'lll pa~tnership capacity' to c(mvey the real estate deseri,bed hel:'ein; and that all necessary partnership ac:tion for the making of such conveyance has been taken and done. ' IN WITNESS WHER:ZOF, Ryan Homes, Inc. and Ryan Operations G. P. have caused this deed to .be executed this 31st day of March, 1988. ATTEST: By CJt;4J~ 1Jfl../ Adrian N. ll<lnd Assistant Secretary :'~~,rHr-~ .~. "~~ I"Jark S 'aurette' . Vice President (}A~ d/2J By: Adrian N. Rand Assistant Secretary '"T'1 0;0 :;rJ rn fl~ "n _ '~-:>< .':;;IM ::0 0 o w C> "" -'t) ;3l: 0'::",-, :;c :;.:.. ("')o,::~ 0..1 :.-:: . :;:;J IT\ ~ ;;D :z:. ~ STATE OF INDIANA } ) 58: COUN'n' OF 1~RroN ) = 1:0 Beforem~, a ~otor''y PUblic, in and for sa~;d County and State, personally appeared Mark Shaurette and Adrian N. Rand, the Vice President: and Assistant S(:lcretary, respectively of Ry~n Homes, Inc., who acknowledged execution of the foregoing Deed for and on bebalf of said R],ran Homes, Inc. and on behalf of Ryan Homes, Inc" CIS general partner of Ryan Operations a.p.. ano who, having been duly sworn. stated that the representations therein contained Bre true. Wi tn.aS5 my hand March, 1988. and NO~~~~I of Sharon K. BrUhn, Notary ?ublic Residing in Johnson County, IU ,-"'::~~~;:~7:,'. ' . ,"l~":,,,.,;,,~ {tcl1ll'llission Expirt!6: .:'.:1,;inW,"JuJ,y' '1}.3,1990 , ."", ":";'-' . (.. :,~ / ,~\" .~ Th~g ~1n!Strument prep~rea by '\\) ':', '400..:tf~lj,on Federal Buildingr " ..' "f .- " \" I!, U \,_ .." Jamen F. Eeatty, Attorney at Law, Indianapolis, Indiana 46204. r India'oo <;IOiS,IRCGlIIt T,b 1111, 5eIe DI ileal Est.titl faldtly .dJI' --i/,ve-. k""... t4., Gfc1lltor ~ , .</ - (', -yf ,);;\n paid - . - .;2 <I '\m()U~1 Paid $ .s?.:l;2. I rrms\lrerllec:ii~O'::Z~ -~j L ' Ii ~ Thi~ InSlIllmen. Recordoo l ...'" l!JB1l Sh~rOfl K, Cherry, Racorller. Ha",ifIiJ"'COlJl11v.IN ~'.: i e-'~.~;::'. i : :(1 . ~-' :-;:-1'~-~ ~fti-~- t~;;::'f~;~:li f) . ._.'~.,"'r,.~ ,..-. ..,......"'^.~."'.... ... '.lA .~-+J 1~;"i ?? qO~Qf~ I.. ,.' ,~._~..T: .j'-1.-.1 .-. , .- ..J.. ,,-. ", I. . ,._...., ..... .,.... _ _.J ._'. .. ....'..'i. f i i ,/:,i I 'I . p /. )'{;''',~ ': 'I ~ ~ ~ ~ ! F I :1, l 1 r j ! i " , , i i i r t I t ~ I t I I ! , I t ~ ' ~. >". .. ;t;.~ ~:':" . . .:. :-:-....~.;~;.,t...:.~:;:;.~~ .~..-~.,.~~.~~....} ;\:~.~:"~ '-:.:..~,..",.,...:-. .:..-.... '.--..r' u ....-.. ::.:. ...~.. :.' [.i.tl~)i',;,~;"i ?i~1:tt';;', ~i .1 l.., . Ii' : :,i :..t:.:; ;i),I,'::::; :~;{lj;P'* 1'1 'j I , f I 1 I I r ! t I r I, 1: ,!' r. u ~ f r f j, f ., I; r " u . .. r... ,.....~" ~ .,;....... ~'J ~,J.~ ...-=:.~~.::~;:~:?'~I;~.!:,/,;r.. ;:'~; .;:.;;~,:,. .k:..~-'-j i r....... ...,....... '-;..';', '~:;' .;" :-, ,',~: ,ltit ;)911/tJojE ~Th15 <lee:d is being l'e-recQl"oed \:0 correct Grantee' oS middle inUial. ~ WARIWfl'Y DEED 8809079 THIS Il'IOENTURE WI'l'NESEETH, Th3t RY~ HOMES, lNC., a corpo~atiQn Qrganized and e~ist~ng under the laws of the State c:rf Pe.l'lnl',:ylvania, and RYAN OPERATIONS G.P," a virginia gene~al pa'rtnership ("Gt:antor"). CONVEY AND WJ\gRANT to DONALD C. . ,HURLJ:."Y. om. 'ancJ TERESA S. HURLEY, husband and wife ("Granl:ee"). of M.:.:r ion Connty" in the State of Lldi ana I for the sum of Ten an,d 00/100 Do11ars ($10.00) and other valuable consideration, the receipt of l<"hich is hereby- acknowledged, the following descri~etl tea.l estate In Marion County, in the State of Indiana: ~ot Numbered lOB in Wood Creek, Section Thr~e, an addition in Ha:ll'.ilton County-, Indiana, as per plat thereof recordad in :Plat: Book 11, p"ge 75 in the Office of the Recorder of Hamilton County, Jndiana. together with all of the rights. privileges, easements and appurtenant ownership interest in ana to premises previOUSly or subsequently con'leyed b:'l Grantor to Wood CreElk Recreat; ional, Ina. by deed recorded in Hamilton County, and as more fully defined in the Declaration of CoVem;iilts. and Restrictions recorded inll,~'ai lton County as shown in Miscellaneous Record 159 pages 247-265. Grantee COvenants ~nd agrees to be bound by and to comply with the aforesaid Decli:lration of Covenants and Restrictions inCluding the per~onal obligation to pay asse8smentl\" pursuant to said Declaration and' Grantee hereby executes and aCknowleCiges this deed for such purpose. Grantef;! agrees t!tat the property herein ccnveyQO shall be subject to .,,such assessments in such amounts F,IS shall be determined by Wood "Creek Recreational, Inc., its succelSsorse.nd assigns. Also subject to: 1. Taxes for 19S7 and 1988 due and paY(J.ble in May and November 1988 and 1969 and taxes for all subsequent years. 2. possible future assessments for repair and maintenance of the Moffitt-williamSCll) D.cain. 3. Possible municipal assessments and/or sewer use charges levied by City of ~armel, Indiana. 4. possible easements for drainage ditches and tile chains. 5. Easement fQ~ drainage, public utilities. sewer and inciderltal purposes over a 7.5 foot strip along the No-rth;;.=2y, Westerly, Southctly and Eaoterly s:i.des of lot as shown on plat. Easement fOl: drainage, pUblic uti Ii t:ies. sewer and incidentE;] . purposes .('I~'e~ a 2S foot strip along the Northerly and Westerly siees of lot as shown on plat. 6. Thirty foot front building line as shown on plat. 7. Cov~nants, condi~ions and restrictions set out in plat. a.. Covenants, conditions and restti:ctions set out in Declaration of Covenants and Rest~ictionB For Wood Creek reco ed NOvember 15. 1979 in Miscellaneous Re ord 159, pages 24~ 65. ~~- JR., Gr~ .J ~ rl l~ 1~ V\""3 :::r~ Cl.-J \{)~~ STATE OF INDIANA tSlS' r.:: - II This jnslfomen"'Rij~(lrdcil L-L- 1988 Sli&"~n K. Cller/v. nur.olil~f, lJamillollCoultly.I/Il ss: COUN'I'Y OF MARION Subscribed and sworn to befor3rme, e ~otary Public. in and for said County and State, this ~ day of FebruaJ:Y. 1988. My Commission Expires~ #fJl!...i I .Pi: !b L41 6'; pri nted Notary Public, jOULYENT.ERlID FqF, !I'.MA'fiVi'l ~~~__195Y (\fDD"lI '(i>~A~ ~ Samnton Cottnt;'1 P8l'calt Lf-t; 'i-oj -{); .-<J.O!j. ()()o .;'''i'.'' f _ tL1-:gtj -q.;.,~.c./~{)()9. COO , ". A;'_':..__' I,.J '-~:, I.~__ 1.-.-,.- ,.j .un...J '.' ..,.....'..,.. ". ~ i i ; i 1"'~ \ 5f,ar . .....,.;" ;~ . , i } t ~ ~ i; ~ j: ~ ~ .:0;; ~ r~ ~ ~ ~J.~ ~. .-';. ~? ~~ I ;;. i:. ~: !; r , .\ ~: :.: ~1 ~ ;.. l~~ ~::.a : LJ ".-'" LJ u -2- The untle::;signed persons executing this deed on behalf of Ryan Homes. loc.. represent B.nd certify that they are', duly elected offlcers of Ryan- Homes. Inc. and have be~n fully 8m~cwered, by' prope.r resolution of the B06rd of Directors of Ry-;:iriHomes. Inc. to e36cute and deliver this deed; that Ryan HOIneiS, Inc. has full corpor6te capacity to convey the real estate desc::ribeo herein; and that <111 necessary corporation action for the malting of such conveyance has heen taken and done. Tbe undersi9ned persons e:x.ecuting this deed on behalf of Ryan OperlltionsG.P.l':epresent lIno certify that they are duly elected officers of Ryan Homes, Inc.. a general par-tner of Ryan OJ,"lerations G.P., and have been fully empowered by proper re.solution of: tne Board of. Direotors of Ryan Homes, Inc. to execute and deliver this deed, on behalf of the partnership; that Ryan Operations G.P. has full partnership capacity to convey the res 1 estate described herein; and that all necessar.y partnership act:ion for the making of such convey<,nce has been t.aken and done. IN WI'lNESS. WHEREOF, Ryan Homes. Inc. .and Ryan Operations G.P. have ,ca;;'lied t~i8 deed to be executed this 3] st _ day of Ma::ch, 1986. ----.' . ATTEST: By O@~iJ ~/ Adrian N. Rand .?\8sil5tant secretary (}A~ ~/ti4/ By Aa:doen N. Rano Ass~~tant Secretary , l~ ':li oF> STATE OF Il'lD.!ANA '.>U. 0 u_ S5: n,i~ Ins!rumenJhRecorded ..::- - I '-" leB6~ Sharon K. Gll(lrrv. Recorder. KllllllllnR COImlv; IN :;0 c:o -< <:t'" CO~.NTY OF MARION Before me, a :Notary Public. in and for said County and State. personally appeared Mark Shaurel:te apd Adrian N. Rand, the vice President ana Assistant Secretary, respectively of Ryan JIomes, Ine '.' who acknowledged execution of the foregoing Deed for and on hehalf of said Ryan BOllles, Inc. and on behalf of Ryan Homes, Inc. , as general partner of Ryan Operations C.P., and who, having been dvly sworn, stated that the representations thErein contained are true. Ma<C"~ii;~~ my h.nd .nd Dotoriol -" ..)1'1' ,,31st daY, of ~~, Sharon K. Bruhn, Notary Public Residing in Johnson County. IN ~';1.',.' ,..___"'e'l...;:_'" "_ . '~f,~~~..~#i~;'c'Q~i6sion. E:x.pires: ,.>~~.iNM(";".JU'~.Yr '":1.3,1990 .,,~..:.. ;1:-:.".' .. .,1.-.\ ,:' ~'." .'Xhi1fi ~nstrurnent prepared by :.,\ I' '400,iUi1/ion Feoeral Building, .: T, . . cr. ~ J6meS F., Beatty, Atto:@ey~ at""4Loa.."\ Indianapolis. Indiana 46~~ en 9.:=ll' '-"f""iO ::;v f"T4 '-It":' Z ~_... ;0 0 ;;;, """ m ~ -.,:><: ,,- ~'S' e 0< ('., <:I ;-0 om ~,~;; -0 ;0 0 :::l = '0 ::0 cai -< a:.. l t., l ~ ' ~_/ r-liiiii3na GTOSS'll'tOOlOO, Tn Qn Salt\ 01 R~ Eli13te \ ~~54?'~l ~/~t \,. ... ..J - G -S'f 11"'1:'1 Q~'L' --:..-- . I ........ .., r?.:J""f' !\I:'loun\ l'md $ """ ~ --: :? I freasuraTllecmt# .'1fI2t.?..../J L Hnm1ltlln~~ !!iJ9tJ t--z 9 ~ q-.0"/ #f.,.~ This)nslrtlmDnHlllcnraeil- -tf.....ct- :'~191ll1 s~~,.;;,-ry.~~C"ml!T.1JAm;nn~.cOllllly .IN : f ~ ". ".' , ~.-...:.&C ~:~~~;' i>:'~1~~;I:~',t.jJ ... . -" .....~...r,. ..... ....t~ :.,' '\ .,,"'. ,," _. r::)J"")/",O ~;,.., () C)D-' . ~. , t ; l ;; ~' i ~. l; I? ~ ~ ~. ~i ~: ~ ~j ,. ~ l' ~ ! i: . j t , i, ~~: ~~, ~L , '~:')'::';:::.:.i u u L) Hamilton Co., IN - Online Reports Page 1 of 1 Online SlE General Parcel Information Select A Different Reoort J New Search for Current Reoort Disclaimer: The information available through this program is current as of 10/4/2004. This program allows you to view. and printcertaln 'public records. Each report reflects information as of a specific date; SO the Informatior provided by different reports"may not match. All Information has been derived from public records that are constantly undergoing change and Is not wamlnted for content or accuracy. It may not reflect tne current Information pertalnlng to the property of Interest. Parcel No: 16-14-04-03-01-008.000 Pmperty Address: Deeded Ownet: Kehoe, Douglas F & Laura E 5257 Westwood DR Owner Address; Carmel, IN 46033 5257 Westwood DR Cannel, [N'l6033 Legal Description: WOOD CREEK 175.97X -170.41 Ii. 5/20/87 FROM RYAN HOMES 1l(25/92FRM WOOD 11/18/9'l FRM SASSO SectionfTowrlshlp/Range: 04/17/04 Subdivision Name: WOOD CREEK 61ock; 3 Deeded ACres; 0 Political Township: Clay Lot Number(s): 101 ~st Re<:ent Recard€d Date: Not Available. This application is developed and maintained by the Information System Services Department. If you have any questions or cnmments. please CDntact 1 @ 2002 Hamilton Co. . Website Suagestlonsor Issues I Conditions of Use I PrivacY Policy I ~te MaR I Technical Helc l HOME @ 2003, Hamilton County, lndlana - all rights reserved. http://www.co.harnilton.in.us/apps/reports/rptparcelinfo.asp?paTcelno=] 614040301008000 10/] 212004 u 8'711805 CORPORATE WARRANTY DEED I , I t I' i ,: I 'rHIS lI:iIDBl\lTURE WIl'NESSETH, Th~t RYAN HOMES r INC. I nGtantor") , a corporation organi2ed and existing under \;:he laws of the State of Pennsylvania, CONVEYS AND WARRANTS to "lICIiAEL C. WOOD and MARY BETH WOOD, husband anQ wife ("Grantee."), of Marion County, in the State of Indiana, for the SUlI! of Ten and 00/100 Dollars f$lO. 00) and other valuable conSideration, the receipt of which is hereby aCknowledged, the fOllowing de.soribecl re~l estate in Hamilton County, in the State of Indianall ' 4;/ ~~ ~ ~ Lot Numbered 107 in Wood Creek, Section Three, an addition i!. ,c." I in Hamilton County, Indiana, as per pla.t thereof recorded ' ~ ~ in Plat Book 11, page 75 in the Office of the Recoraer of K~- ~I Hamilton County, Indian<l. ~ ~ ogethel' with all of the rights, Privileges, easements and ..i. I. app. urt,enan.t ow ne..rs hip interest.. in ano to. premi,.ses. pre viously or ~ sUbseguent:.ly conveyed by Grantor to Wood Creek Recreational, t' ~Ino. by deed recorCled in Hamilton County, and as more fully u ~aefined in the Declaration of Covenants and Bestrictions 1 ,. ~.record.ed in Hamil. t.. on County as 8. h ow.n ill M..lS. cellaneo. us ReCord ~ f ~159 pages 247-265;. Grantee covenants .md agrees to be bound by ~ and to comply with the afores1:\id DeClaration of Covenants and ~. , · Restrict.i'on5. inclUding the personal obl.igation to pay f ~ iassessment.s pursuant to said De.Clarat l.'.on. and Grantee hereby .~ 0.., executes and aCknowledges this deed for such pur.posE!. Grantee ' agree8 that: the p,roperty l1erein conveyed shall be subject to such assessments in such amounts as shall he de'termined by Wooo C~eek Recreational, Inc., its SUccessors and aSSigns. u '3 ]6 1~ ~~ ~~~ ~~ ) I ~ Also subjeot to: 1. Taxes for 1986 due and payable in May and November 1987 and taxes for all subseq~ent year.s. 2. Possible future assessment for repair and maintenance of MOffitt/WilliamSon Drain. 3. Possible municipal assessments and/or sr:!\...er U!5e char9~s levied by City of Ca~lllel. 4. Possible easement~ for drainag& ditches and tile drainl;. 5. Easement for drainage, pUblic utilities, sewer and incHlental purpODes Oller a 7.5 foot strip. along the Northerly, Southerly, Westerly l;ides of lot and easementfo,r drainage, pUblic utilities, sewer and incidental purposes ove'r 'a 20 foot strip along the East side of lot as shown on plat. 6. Thirty foo\;: front bUilding line shown on plat. 7. Covenants, conditions and resttictions set out in plac. B. Covenants I condit ions and restrictions set out in "Declaration of Covenants and Restrictions For Wood Creek recoraed November 15, 1979 in Miscellaneous Record 159, pages 247-265. 9. Jl.nnualand special aSl!lessments as provided for in claration of Covenants, and Rest!: ictlons set out. in Item (8) 1 a 0 e which said assessments shall become a lien on the ~ I 0 e ty,.but subordinate to the lien of a mortgage as provided ,::!, or t ere~n. W :Q~~O '"~OOD' "<ant., ~T~h~f;;;!t..hr~ ~ ~. ~ OF INDIANA ~ '''' 58: rhi~ !l;,~l;umenll!ewr&:d ~- z;.:) 1007 . .~ ShaWl! K. CilCUY, Rec~rdel. Hamilton Co~nty.llId, .~ ~ I Subscribed and SWorn .to before me, a Notary Public, in and .ill S . 0 said County and State, i:hi.e~\~. daof ~, 1987. ~if ,"! J./ ~ ~~ .. .,\ot., .~. . Explres: ':.,' . . ,.... ....,. .. _ ""'. fl ~,---,---,-,- """co ,,,,,. '''' \ ," .. .ot ary Pu lio, ~ ,....... GOu"" 'JII....I.f\'r .~~-~, ::~JiC:,r,' .i.~j:r.f;l ;..)'. r: ~ G t'" "'L.,.... t~. ',. P U .. L \ \.,' -itt ((.:;':I!,:.~,.,< f.~"."~~ r.::tl1\1.:).t;"j. ",.. LJ ;':.':rl',.",~.~ r.!f~';l'.l\ ~~:lt:'" .....~~:.. ._" "1;" ". . , l I'F ,..' \ ~ ~" u 0, r. ;g.,t')f;!"'~?-'.Ci:,:';;''';'';''';;;''':'''':;'''';{'''w...:;.", ""'.....::.:;,'.". ,',. . i I j r ; , I"~ " I I: , ! f. l' f I f t , t I f f I f 1: I I [ I i , , I f ! i i I, , i i ~ r i, f ~ ~ u u u -2- 'The undersigned persons executing this deed on behalf of Grantor represent and oertify that they are duly elected officers of Grantor and have been fUlly empowered, by .proper resolution of the Board of Directors of Grantor, to execute ana deli ver this deed; that Grantor ha.s full corporate capacity to convey the real estate oeser ibed hereinr and that aHnecessary corporate action fur the making of such conveyance h;;j$ been taken and don~. "(' . . .. ~ c IN WITNESS WHEREOF, Grantor hOlS caused this deed to be elCecuteC! !)ds --.Sl:h day of Mav , 1987. ATTF!s)ti) A OB Ry':;.,,~"~..=. -, / /) By [)tf;iI1f:t!,AI(jd~ r~.~ Adr ian-N. Rand Mark Sh8,ure te Assis~~t Secretary Vice President , . STA~E.~ INDIANA . ' COU~.T'2' DE' MARrON ss: Before me, a Notaty Public in and fOt' BOlJ.a County and State, personally appe.ared Mark Shaurette and Adrian N . Rand, the Vice President ana Assistant secretary of Ryan Home'!';, Inc., who acknowleClged >?xecation of the foregOing Deed fQr and on behalf of sa.id GrantQr I anil who, ha villg been (july SWorn r st"lt.ea that the rep[esentEltiollS therein contained are true. WITNESS of &y ;', <...My',c.ommission .~ ~:.: .. . "., "'(' . ,~;. ._uJU1}l;',13, 1990 . . i ~ " ~ ..,. v .. , ~ \.~~: -':; ~ '/ :~)' , .:/ ;"". . "I': MY HAND AND NOTARIAL SEAL, th is 8th day , 1987. ~~~ Shi:'lron K. Btuhn Notary ~ublic - John~on County Expires: This instrum&nt was prepared by James F. Beatty" Attorney at Law, 400 union Federal BUilcing, Indianapolis, IN 46204, (311) 632-3030. t::" _ '}.-iJ. 1987 R diltl~- T!l;5 'nslrl~\l1an! cwr. HamillOIl G(luaty, \1111. SMI~II i\, ~tlcrry, Recu1UCf. (I) ::>\ ::!:: ::c " ~ ~ r-. ~ ~:~J ';-' -'- '., ~;; ~ C" n -:.., :"" c~' - .-, .;- ~ - 0 17, :.J1 .. , ;;t.;, rr-: '" ,-;) "-" I~ 1-1 ;:Q 0 z: ::( <:::0 ~..:; ~~}AY ~ ~~ 7//R'a,s- 1 f:{ ~ t /, i ,. I, b"",", {' I 5 I I I t J r...,;!~; " 8 . ..~ t. I: I ! i l I , ! i I i I ~ , I Ii. !. t',. LJ ,...' . .~.- . ',,--,. ". ,J . ~.~ c",. ,;:~ ". ", ""'-,'.... .,- ." ".-' :.~ ',:T "j ".1 :':,J:." ; f;~:;~f; ,U'., f U ):~,. J~ ;';~' ';1':,' 'ftifilJr ~1~_ ~:'''''''''.r~r.;,,:~.I:'',': ~. '~"a' J:l:ilit;'r;'':i1li:lirli:.,:,N~/.:B:~'J)a96c aria: 'r'<.t'e??l:d~'d 'l!o.\\~ ,4~ ..:1.'988.....9 .:tn.~~liUiri!'1nt: ,Ni:>.',:'~~"a;~~ (,;'#:t ,'tti,e':Of:f~C:B ;Pf. ~h'~,;~edJl,"d~("Q.t 1f&n3>l:ton 'c!o~.n~y I ITl,Oi,en,a;, ~i-'a'((1:,Dt:;:JiiJr.e.3;n:w~i:t~tit::";tful:E:"the'unpil.r:~i"<<1.'a,(1ce '~u,e '\'IiiBi!r~-saii,i"\li6'r~9~ :e',h~ll:.l#jiiii.d'i:f:,tu'1:L"#rim,i::ral'i!:or' BprQCee~~ .of liIIl.ie a'l: ~me-~'of fJ.:ll~:L _ ,:U(:;"ing:. - . " - 3:: _.',' 0 "l' .~;; 'S'~Jjje-C'f:t.o',reBJ:-eg:!:'at~t'Ei~ee ,for ,tile year 19!11, pay-abl.e ~'~p_verobe~1992~;~ :i1ii~"'eoil:;jCObt..o,,'I:&lt:e.;.'pa~ab'le :l<l\ereaf'l:I'!r-. g~'i:. ' <:Xl '~1;:':; , t-, ''-; , ;:?rc :>: ;--"< :SQbjl<lC~ .'t:'C>'eal!l~l'ltiiis,' ,re.&t~i",tionll, covenallh.. r.i9hts of- ,,,,)ir," anil -~ ~;'r(- ,1:iQndii;i!:l~~:-'~:PP.~4~~[,.1g ,a'f,';;~CQ~d~ . ~ " '::.'6' l'ar6t:.l"Jh 1:6":1:'4,;'0-4';';03,.,01-008';000 ..e... PDill:::'Of.t1~e:/I"d(ff~'l;'i"t' '1:hil O:i''\U:I't.ecH 52,S7 Welil'l:wClor! ;;'d7e ~ ca~el, In. 46033 executoo t.bis deed' this ~f u ., , .j J:nWit.tleS& .Will;J/:'ODf. Grantor as Octo be t" ." 1992. ~/j ~ll () .Eli!Pl4t;Ui'/i)tl',~r.; ~(Eil!lal) M.!:C/hael C. Wood :illth day of ~ Signu.1:ur~~pt)At1)~Senl) Mary ,8th Wood DULY ~NT!m~~ 'fAXA1'ION Suej,'-';', i ::.:.1 :;.::~(!ptancDfort.ransrel' ~r1'J.YO~19'h_ Ii 1],/2 -t\tlditor r 111 ?"" aam1J'~h.o.;'l/.IU1 PaJccl, jt/.__t5./-03- (JI-6Ci$d~ fOor Ila:i.d COUllt.y and 1;lt;8t.e, pBrso'nally Beth ~ood, husband and wife ..,' ~ ; S:ign&l:;ure ___~_ (Sed) S.ignBt...re Sta1:.e of I~cliQ.na ~ ;~ !~ f S6; co=t.ll' Of HamUton .,. .gef'aro me, a NOl:lIt']' Public in lii:ld ~ppeared Michael C. Wood and Ma~ ) who ackno~l~ged ~avi~g'bee~' duly .a're tl:Ue. li!tn.0~am)' ~anc), ll1;d :1otar.:l.n1, Hll"co~Il~~~n ~~Rires: 12/30/95 tha BlCeclltioll of 1:h.e foruga:1n,g W't:>::J:"'-1lt:]' 'C,.loilldi swam. 6tatlllCl that. D.tlll' l'epreB.ftl3t.atv;lns 'I:h,l!lr~._' '..... . ~ .'~ ; - ):!. ! " ..Q .;:(......,. ' .~_~ "..Relum 10; , .' ' !11lJ'~erV\ces ilJiJi Clepl, . " ~j QO.MG1idiari'Sq, ", , '- 2D 1$. 91 'lSlf!lllli}.:~ite 210, (~W1a..w/S;4, N40~' ~l tdAc.f:S\/ 'i-: ~ ~iE; J.JlI.trll,lllen1: WlIS lleturn TIU National sed this 6igDat:u",1 Printed'; Reai~ng i~ Marion pxspKre~ by ~erQy D. Medl~y, ~it16 Services, lnc. (Case#l :~t;::~!~?;':\:',~,,,- .lr,'~...., ..,;....~....-. -' ','.- oJ', .." -', ".',\. ........h''7j , ':'"O~;0i'i:?:~T:;':S~-:f)~?'~~"T7:'i~ u u u I 1- ~~;" !i'm-'._ ~;.:. ; w-- ~~;: Ii --"~"--~;~f I <-;1-<~'f:;1 ~r~ti - , --',/ ~~I p~1 1 , I I r J f I : 7Varranly Veed 10D 94477~{ 7.fuJ 9nd"enlure m;i/nessrdJi. ih~I~-.M...~lt ("Ornnwr") cr ~'I:on CourHy,lnlheSlalMf frrliana _.CONVJ:;Y.......Jj ANI)W....RRANT -----1L-IO~1I?1as F. Xt:1hoe and ~F;'. Ke1n". l~ w.Im_ ....."---.- of HilmUton Counry,illtlll~Sluleor ~ ,(orlkS~1Il of . Two wl(l no! 1 00 . Dolhlrs. ($ Z.OO ) and mher >uluQblc COllsidl!rali<m, !he r~cipl of whEch is Iwreby Rdwowledged, lba lallowing described rCllI esl~IC in ~t:c;q CllI'n!)', ;n L1le SI>lle r1C Il'IdillJ1a: !ct Numbered 10'7 .in ~ Crreet::, Sectl.a:1 'If>>::oe, an Add:I.tI.on :I.ri ~1.Uton Qxmty, Ino?'lana, as per plettha:reof, ~ In Plat &:.ok 11, pag;e 75, :Ill tre Off.tea of the Ra:on'3ar of Ramtlton ~', Indiana. SUl:ljBGt to 1:he lien of a Illtlrtgaga 1:0 N:xwest: Mor!:gage, Inc. in tre o:d.ginal pclnctpal. BrI'OI.rnt: r.4. $99,086..00 (!atad 0ct:0beiIt- ::JO, 1992 and ~ ~ 25, 1992, as InsO:l.lmsl1:t;; No. 92-46711 i':} the naxas of the Offb Of tha ~ of H5mil:b:n C'ounty, Indiana, which unpaid balance the Gl:'a.n1:ea herein asames 8n:i aQnBs 'to pay. Subject to.~ for the ~. half of 1993, ~.le in Novec1l.?er 1994, and soli: ,SStB ~ payable :I.n 1994, and wbjrot: to t.al>eB a1'Xl sol1d ~.:aste ~"tS payabl.e ~~. Subject tD easemants, :rest::ds;:!t.1G!ls, a:l\Ienantsal'ld agre.,.....Jtl3 Of ~. mn.Y~ftM~'l'm'Ji! ~~ to li"n,ft'$JIWSeo fOIl' i~ '~IlJ'Cr.' fI1~ 1{)~ I A DR. Alldit... ;,.. '/l? r 1I......11<>1l CIlIDlfil JImelf t~-(4J04- "03-01 ~ ._~ , '.'::; ,~ ~ :i1 '- ~') c') ~ " .' ..- ." ,'1 : - i? ,.,", ~..! .. ..... -'. ....,) .. J N Frcperty Mdress: 5~7 ~ DriWl '~r DI 46033 'fuxing District; Carmel Parcel No" 16..'J ~..ro..(}'-C1i1R. nt'In 1l1is lr1slmnal1l R;oorOed / /-/J' -V ,Py Snanm K. Cl\e.'!)', R~. H~ COunty, gn 7RJiln~.ss Wbereof Grar110r hase~~culed lhisdeed Ibis rJ fJlltM.15 {I'...... , 19~ Sigllal~f~ 4,A.-U C' "d..w:..c (SEAL) Sign3lure Prinled RQm,.. !':.<>......... Primed ~ W-u.J~(5ll,~ } I 5S: COUNTY Of' ~ &8'.r'\ . . Before me, 1\ NOlary Publk ill and fur said COUJlIY and Slale, JlCl'$onally ap-p.:!~.:e~ ~ ~.... rrl",~ JI W~~~~lOwledgC{lllle e~ccution of !l,e foregoing Wammy Deed, and wllo. having been duly swo~, s~~:;~;" -. ,;~::.;... lIlIY rilfJr~nlaliOlls Iherein conlained arc lruo, .' !" _: \1l : o ,_ 0 _. _ J : IJj : . .-;" cJ..... HI' '"it . _~, ;" C: i Wilnc~s my han~' nud Notarial Seal tlli~ r-::I- . . _.."......-. V 0 ~ - ~ .' ,-:':' ..... -. .....-. \...,...... ". Noca.);'pubSlc.'.:' ,..' Residing ill ~<~^ COllnly, ~V.(.<GCiu...1 Micll8el J. ClIrry _ _, ~lI<lrn~y Rllaw. .. -'J k day of (SEAL) STATE OF Mycomll~~ --,~~~ --- ~~~~Q,1M Signamre Primed 'mis inqlrllllllllH WllS prepared by nC-lllm 10: _~_ Prep;Jred F:ran li'nterpr:l.se 'l'.:lt1e Carm1tm9nt No. 94-3579 ~ ~w-~. ;;.J......~~~l~__.::.....--' -,..........1....:.,.. ~ '"-', ~...?:'!Ii: ... . ," '.,.. .~....". I....,,,... _. . ,_ L_n.~..... ._,.,..:.,.,:....~._.~;.",d,~ _.5 .~____L_._.__lc._ u u u Hamilton Co., IN p Online Reports Page 1 of 1 Online Sf General Parcel Information Select A Different Reoort I New Sear<:h for Current Report Dlsdalmer: The 'nformatlon available through this program Is current as of 10/4/2004. This program allows you to view and print. certain 'public records. Each report reflects information as. of a specific datei so the Infonnatior provided by different reports may not match. All infOl1Tliltian has been derived from publiC records thtlt are constantly undergoing change and Is not warranted for content or accuracy. It may not reflect the current information pertilining to the property of interest. Parcel No: 16-14-04-01-03-020.000' PrClperty .Address: Deeded Owner: Ho, Yuan Chuan a LI Yun Chen 5260 Westwood Dr OWner Addte$S: carmel, IN 46033 5260 WestwoodDr CElrmel , IN46033 legal Description: WOOD CREEK 11~.99 X 15M7 A 3/4/88 FROM RYAN HOMES 4/1/93 FRM CHEN SectlonjTownship/Range: 04/17/04 Subo'Mslon Name: WOOD CREEK Block: 3 Deeded Acres: 0 Political Township: aay II Lot N umber(s): 106 Most Recent Recorded Date: Not Available. This application is developed and maintained by the Information System Services Department. If )IOU have aTlY questions or comments, ptease t<lntact: I @ 2002 Hamilton Co. Webslte SUQQ€stlons or Issues, Cono'ittons of Use I EIivacv Policy I Site Ma~ I Technical Help I HOME @ 2003, Hamlltllll County, IMlana - all rights reserved. http://www.co.hamilton.in.uslapps/reports/rptparcelinfo.asp?parcelno= 1614040 103020000 10/12/2004 u u u ,. . ~1~R"~:"7'?:":\"~":--'''''<O' ....O..",..<.,"",.,,-.",,.....,.,-,..J".;O,,,....,,,, '.~;' ..'".;.....'.;;''''f.''";:~:',., ".,.:"..~,-,. ..:'. "1;",';";',.;,-,.,,':.:;..:';.1'-'''',..;,,;.-;,,.,-;;;;:;,-'. ":>';Ac::.m;;;~.',;,:,-.-",;~;,;""-:";'-:",i:c,,;,',,,:;,'A:,:~~ ;"":~O'IW": 'h~~~:(~- . . ;;~~),:~l~""" .. 8S03916 / i Qi .. >> ~ "-'--^'} ! ! ! I i I I I j . I ~ . OJ ~ .....N "'1""1 <::10 "" 'tl ..,. o " :07- 4:>H lO Q) . :>:;.... ~ 0"" ""~ (\1(1) t(\[) ) f ! WAARAN'I'Y nEED l'RIS INOEltTUllE WITNESSETH, That RYAN HOMJi:S, INC., a ~01'po:t~t;:lon organizeo and existing under thE! laws Qi; the State .ofPepl1sylv.ania, and RXAN OPERATIONS 0.1'. I a Virginia general pa:r.tne1:$hip ("Grantor" >, CONVEY AND WARRANT to PETER M. CHEN 'and. TltIIA '1'. CHEN, husband and wife {"Gran.tee"), of llf!)rion . County, in the State of Indiana, fo:c I:: he sum of Ten and 00/100 lloUats ($10. (10) ~nd other valuable consideratioD. the receipt of which is hereby acknowledged, the following descdbec:l real estate in Marion County, in the StOlte of Indiana: Lot Numbered 10& in Wood Cr.eek, Section Three. an addition in Hamilton County. Indiana, as per plat thereof recorded in Plat Book 11, page 75 in the Office of the Recorder of Hamilton County, Indiana. together with all of the rights., privileges, easements and appurtenant ownership interest in ana to premises previously or subsequently conveyed by Grantor to Woad Creek Recreatio-nal, Inc. by deed recorded in Hamilton County, and &S mOre fully defined in the Declaration of Co~enants and Restrictions recorded: in Hamilton County B/j: shown in Miscellaneous Recor:d 159 pages 247--265. Grantee covenants and ag:r:ees to he bound by and to comply witb thl'l eforesaid Declaration of Covenants ana Restric.tion$ inclUding the personal obligation to ps.y assessmen.ts pursuant to .said Declaration end Grantee hereby e1;ecutes and aclmowledqes this deed for such purpose. Grantee agrees that the property herein conveyed. shall be subject to such assessments in such amounts as shall be determined by Wood Creek Recreational, Inc., its successors and assigns. ~lso subject to: 1.. Taxes for 1987 due and payable in V..ay and riovelllber 1988 a~d taxeo. for all subsequent years, 2. possible future assessment:; for repair and maintenance of the Moffitb-Williamson Drain. 3. Possible municipal assessments and/or sewer use chat'gBs levied by City of Carmel, Indiana. 4. possible aasements for drainage ditches and. tile drains. 5. Easement for drainaqe. pUblic utilities, Sewer and incidental purposes over: 8 7,5 foot strip along the Norl:h and West sides. I"..ilot as shown on plat . Easement for d:CClin<lge, public uti Ii ties J sewer and incidental purposes ove:c a 20 foot strip ~lon9 the' Easth side of lot: as shown on plat. Easement for drainage, pUblic utilities, sewer and incidental purposes over a 25 fDot strip along the South side of lot: as sho'lol"li On plat. 6. Thirty fool: front building li~e as shown on plat. 7. Cove"ants, conditions and restrictions set out in plat. 8. Coven~nt~, conditions and 'restrictions set out in Declaration o~ Covenants and :Restrictions For Wood Creek r:ecorded' November 15, 1979 in Mil>cellaneous Record 159, pages 247-265. P,v"b--- 'h-, ~ PETil:R M. CI!EN, Grantee ~tmlrc._) -rOL- T T. CHEN, Grantee STATE OF INDIANA COUNTY OF MARION ) ) ) This InSlrUmellt Recorded "b ~ L-\ 1988 Sharon K. C/lerry, RecQrder, H~rnillon Counly.IN ;!:,:::'i$ I 1 I ! I ~ ! ~.' ~. l y: ~; ~. M: ~i- W. f i.~ "" ~ I, I i * ~ ! ~ .':,:>'-<':W: Subscr1bed andJJ,wW"II~~I~fere me, a Notary Public, in and ~ If(~.''t~~.fi~...'d C.Ollilty andl'St~~'tI!l,j)tj~tlS ~ d}Y O.f Fepr~.ua...rryy" ~ 1~988. i :'."";/. ~~~~Sion E%pi~l!~3110 "!lOllV~~ ~ l' . $ (- 'l '::;,:' ; gn IJd 5' 7 h, l3Ilinted DF..IDlA.)': n~ft~D . ~ '. ~.~:;::.".~i. ....~Vll.. IU 15, 1988 01 n B r.,. r No'fary Publi~, lS(tl1~OI".. co. u r,ty .:.. m .. 'jl' -.":';1' .,. ;F:Y .. , . :DDL'Y~ FOlt T4XM'ION ' ~ \ :.r,_>~;;;?~.;~:~~~. -/ mal ~~) ::'I.;~ ~3 ~:l t{ 01", fX\.iA,i?~(lj "" ~9" <:7<:.7 ~. ., "...,;'., ;';-: -;,)::.~ ::J p, :...1 ~ t:2,:clL. citfii' . .. :.... ~~ Pof\,;.... "h'''''' f.r~'\r~~' I . u -..-- %~:..~:=:~;:1t~lt,:;~~.::~,%,'::i;:.J.~~... ;:\~.:;,:..~:~::~J1~.[~:~"i~:~~~:~1~:;i'f~~~!:~;.iV9.7'~l~:,~~~~:;I;.~::X:-~'~:c!:":d'-';~'l:'.-""""'~';"~".-:'.'~;::' '-'~-.-:-::':"::~;;l":'~ .:,- '", . ' .v.. '.. ,., . _..-:--,,~- - .. . 55: u u u -2- " "."" The" uiidGrs:i;gned persons executi ng this deed on beha If of <:"~.y.~fa;'::"Btimesi Inc., repre~ent and certifyt::hatthey are duly .; ';'e,1:~'9~~(l:'officer8 of Ryan Homes, Inc. and hal/abean fully "'::aJijpowerea, by pr.'opGr resolution of the Board of Directors of ::~:i~ff:"H6I'l1el>; Inc. "to exe~ute a'nd d~livet this eeed; that Ryan ",::',Ho'l!ie~~" Inc. ,has full corporate capacity to convey the real _" .e:d:'id:s oascribed he:tein; and that a 11' necessary corpora-tion >'In;t.i"on for the making of such conveyance has been taken and 'dOD'!!. r ';'::0;:' ~ j i;, I ,~ ' 1 t ~ t I ~. ~" ~, ~~ 'f,.' ~ a: tZ' ~~ 0.: ~. w' If ~ ~; 10;: ~: I... I ,. ('-, r f I l t I i ! I i I I I I t;, .: .. a: ..' . iiJ#;",,,t;.'&"l""~'<li;~'1jp."""~"_k,,~~~1iU",~i4'j;:,:t6.1 'L'he undersigned p;:;rsons e:xecuting tilis deed on behalf of . :Ryan Operations G. P. represent and certify 1:hl!lt they are duly ,'elaCi:ted officers of Ryan Homes, Inc., a general partner of Ryan "pp'er.il.t;ions G.P., and have been fully empowered by proper .resolution of the Board of Directors of R1'an Homes, Inc. to execute and de li....e r this deed on behalf of the partnership; that Ryan Oper6t1ons G.P. hos full partnership capacity to convey the real estate described herein. e.nd that all necessary partnership action for the making of such conveyance haS been taken and done. IN WITNESS WHEREOF, Rycln Homes, In~. ana Ryan operatil)ns G.P. nave caused this deed to be executed this 29th day of February, 1988. :..~/~ Adrian N. Rand Assistant secretary Ey ack f;!lJ~ Adri an N, Rand Assistant Secretary STATE OF INDIANA ss: COUNTY OF MARION ~".--- Before me, a Notary Public, in and for said County and statfiJ, personally appeDred Mark Shaurette and Add'an N. Rand, the Vice Presldent ana Assistant Secretary, respectively of RY<:l-n Homes, Inc., who acknowledged eXl:cution of th.e foregoing Deed for anti on benalf of said :Ryan Homes, Inc. and on behalf of Ryan Homes, Inf;:., as general partner of Ryan Operations G.P., ana who, having been duly sworn, stated that the representations therein contained are true. wi tnesB my F~bruary, 1988. _r-It~~:~~, ., .' ,:.. ~'~;.~4:?~1"~~... Sharon K. 8ruhn, No ary Public "...<,.'iiiifcb~~~.sS:iQn E:t:pires: Residing in Johnson county, IN ?.: - "~!'" 13- f 1990 ^~: cp';!fL L !(H :. '?-t~, JoS A,pJtrument prepared by James F. Beatty, Attorney at Law, /> "..;f'~nb ..un~Dn Federal Building, Indianapolis, Indiana 46204. ....J'\t.,..n;.....~ ,.. ~ o I ~-,;,.."... ~: <' ~ . [. , i u u u !Z~. . ~~i'ilf.E~itl!\rst~JI~P1~_~liEFi11:;gi~~;B:1);~31f&tl?:t~ ., " :.if:\:.:t:, i .' ,.~ . '. -3- , "",.,' l.':~:-(.':' 'I' j-\t.: ': ~ I ~~~::/: ;' :.~. -,' ,-: . ~ Ft".'!',:': !ilid r~:\(: ,..' ...... ;.' i'W,. ".~~, ,.,. "..<<..:. ~~:~~~ ;;;b~r;:"~ 'obrison CounCr . f!~ '0" .,,:~ ::\ifn~,GJ;:, , ~<"; ':, ~ : '\ ,.,t.';., ' 'i~./':msUument: waE>, prep(l'r;ed by James F. Beatty, Attorney at',': · ';:,~.;~;~;"'~&t""'on Fed,,,.. Build in.. In"' 6n6poUs. IN .6.04. ('" 7) ~.~~. It!,'~,'r:,:,':,' .,;"::.,-; t,y; 1"; ~'::':'... ~:.": r> f' ,'" : " . II:" ,:',',,' :[,"." ~ ", '. ; $5: This In:;lru(l\~f11 Rocorded .~ - L.j 1988 Sharon K. OilerI)'. P.tcorder. Hall1lllon Gmll'\ly.IN Indla~~ Gi\lSSlncOma Taicll~ Slife of Real Estate P31~ ' :L-U24f, ~""/Ju&'~.J2.,.f1' . , - Gran"r Dale paId frJf4<lt"l3 j 17~f?' AmounlPakl $ ~/,<, e; tI TreaSllfer RecelllUI 4lJ./'7LJ.:J.S Hamillofl:CQUntY '." '-;. I, I, J, i f:.. ~. " 1 I I .tl ;0.' . ,'. .,e,-_' . - '~. '.:,:;: ...... . _.~ ......;-...: . ./ ,,' .,'" ,ii" . ,,:. ::{ {l::;:'i:'~ ~,-~ ~/~~; ~-~: j ~::~if~l~ .'(li,Q.::6.:7::j~Jii,,~ ' u .:3~. _ :~::: ~%t;~y:,6~, ..." -'.,-. -, .'.~ ,'-;, u .> ~ ,'~', , .. . .~~~:';i;iff,~~\f$~f~t:~: . ,- $1(':);<;; ,~o' ,.'.,<,., >', -~'~~n:R~~:-:'"4Cud~EJ" -~' " -, ,-'." -,' SliMOO!t~~,&;P~j HlllrililonCCiiij; _ _ . ',~, . . . ~ b ,'", ' -':'Bf,$~%!T~~1'~l;!:~J5;:c.co#itQP~Yki'1ownas: -5260 WESTWOOO DRIVE CARMEL, INDIANA ;: . ' :;::.46~~;> ' f ;';"':, I'~-:" ~taji:'bi.:Ussb:ouldOe-serit to Gl<IJltee'-at sllch address unless otherwise indicated bf'Jow_ In;.'Wlme$$Wkereoj'. Gnmtor has eXeoZuted this deed this 30th day of March 83~ I I.A r'; , 7 -/ /.., ~ to /'~ht... #flI;;rij~' ! rv' .~ (StMll.Ji ".. . ~- 7 u~h<. ~ (So>all. I n'ER M. CHEN TINA T. CHEtf .Il At'1. ~ , .~ {S<:.Ill) (Soal) } ~':: ~~ l; ~~ ~.(' b: ~i .~ :;~ !1~~ STATE OF INDIANA, HAMlL'fON COUNTY ss: ACKNOWLEDGEMENT Before me, a Notary Public in and for the said County and Slate, veJ'sonally appeared PETER M. CHEN..'AN[: TINA T. CBEN7. HUS13AND AND WIFE "'by J?eter H. <:h~l1}1.eJ: attorney in fa.Cl: I'IM acknowledged tbeeX~lItiOD o~ the fon:going Warmnty Deed. and who, having been duly sworn, _ .$l,ated-J:hat any represen~t10n~ therem contained are true. .t.i ' >.... .n, Imnd ..d .otnial "'" dU, ,,~ of r. ",-,,,, ,19" Signatur~-0.... ~ c.nto ~~j N<>lilry f\1bUc .-/ Printed Paula E. Marone Marion Re!iding in~ Co., Indiana Rf.;tum to~ u Send tax bil~ to: Property Address This docllm~nt prepared by: Wade'R. Nich-ois;-Attomey at Law Morg-.m & Associates, Inc.. 840 Logan Street, Nobles\'i!1e, In. 4606iJ ~ :. . j :~r. *- ~ ,{:~~:),J _ u u u Hamilton Co., IN - Online Reports Page 1 of 1 Online SE General Parcel Information Select A Different Report I New Se;;rrchfor'l~urrent Report Disclaimer: T1ie information i1vallllbl", through. this program 1$ C\lrrent as of 10/4/2004. This program allows you to vlew',mdprint certain publiC records. Each report reRects information as of a specific date; so the informatlor provided by different reports may not match.AJlinfonnation has been derived from pubiic records that are constantly undergoing change and is not wan'snted for content or aa:uracy. It may riot refiect the current information pertaln!ng to lt1e property of interest. Parcel No: 16-14-04-1>1-03-022.00c) Property Address: Deeded Owner: Fox. James R &. Gretchen A 5243 Woodcreek Ct OWner Address: Carmel, IN 46033 5243 Wood creek Ct Cannel , [N46033 Legal Description: WOOD CREEK 79.48 X 134.44 A 9/20/84 10/26/6'1160-478/80 ANNEX 10/6/86360-541/45 10/31/95 FRM WOLF 9558738 SectionjTownshlp/RBnge: G'l/17/04 Subdivision Name: WOOD CREEl( Block: 3 Deeded Acres; 0 Political Township: Oay Lot Number{s): 99 Most Recent Recorded Date: Not Available. This application is developed and maintained by the Information System Services Department If you have any questions or comments, please contact 1 @ 2002. Ham1lton Co. Website SuoQestlons or Issues I Conditions of Use I Privacy Policy I Site Mao I Technical Help I HOME @ 2003, Hamilton County, Indiana - illl rights reserved. http://www.co.hamilton.in.us/apps/reports/rptparcelinfo.asp?parcelno= 1614040103022000 10/12/2004 u u i i I .\ i ~ .1 J I I I 1..1 .. l ,1 1 --~'.'~ -' II " Ii ,1 )" :r - . .... l ....... .-.i ::~:~_::'~"~;~~i~e~f :':.(.l ~rrt1J"~:</;: .~ (;i"'_'~; _ \<. .... ~ !r'~~'~'" .', 'J ':'.:';r- -~ --.. .t U Ij.......~. \ I. , , , r, _. ..~..~.,,'":,:;:>~,.:.?~:;7.C"-'''..'.',I':;:;i,;,'f.;"-..'',.;7,;,"-:o\":r::'i",'.'~r;,,:.: .:"'~' i,: !:,' ,':'i;;!~it: 862Z185 eoo~ ~ :j 6 0 _ t'p.Ul: ...114_ cORPOR~TE WARRA~T~ DE~D TiltS INDEl'lTURE WITNBSSBTH, That RYAN !TOMES, rNC. ("Grantor") r .a corporation org(lni-:1;ea and existing lIndC'l' the .1.awa of the State of Pennsylvania, CONVEYS lIND WJ\.(lRi>.NTS to BRUCE S. WOLF and JACKIE L. WOJ,F, husbarid and wif<a [uGra11tes"j, of MarionCount.;.', in the State of. Inoiana, for thf;! SLIm of T~n ,'1.nd 00/100 Dollar's ($10.00) and othi'!r valuable consideration, the receipt of ....hich is hereby acltnowledged, t:he follawi 1'9 oescribed real estat.e in Ha;nilton County, in the State of J:noiana: Lot Nlimber.ad 99 in Wood Creek, section ThreE:, an addition in Hamilton County, Indiana, al3 pl:!r plat thereof recordec1 in Pla't 'BOO)( 11, page 75 in tbe Office of the' Recoroer of Bami.ll:on COLlnty, Indiana. together \'lith all of the rigbts, pr;.1.vileges, easements and appurtenant ownership i nt:erest in and toO premises previously or subsequently con-"eyed by Gr<ll1to.c to Woad Cr,,~~: Recreational, InCl. by deed recorded in Ha'!\i1 ton County, d::Q as more fully defined in the Declaration of Covenants and Restric'."-ops recorded in Hamilton COl,lnty as snown inM::l.scellaneous Record 159 pages 247-265. Gr:;inl:ees covenant an<'l agree to tip. bouna by and to comply with the aforesai<i Declaration c;Jf Covenants and !<.estrictions inCluding their persQnal obligation to pay assessments pursllant to said Declaration and Grantees hereby execu te and ..CKno~lledge \:11 is deed for such purpose. Grantees agree that the proper.ty herein conyeyed shall be subject to suoh assessments in suoh amoLlnts as shall be determined by Wood Creex Recreational, Inc., its successors and assigns. 1 ~ V ...f' C0 .1 V STATE OF I~DIANA COUN'l:t OF MARION coomis-sion 'Expires: r- . "f1-1l_~~=n ,~ rti:r~mtr;. UOMRY"PI,I~U(_~UI! ~l- rli!;:'.ItL-- ,..roh.:tU'lr~:J,at ~r.:oHp.~$r.H'I~ dl~ _11:I~f n. 1 ilr.~ JlJLYf'~lD FOR'lALtl'IOR ~C>>~.Cl~/\) _~ @.Di.... @~.~ crwcplll~~ I C; '7'4- ~f)lc-Q:.s -fl2f::'tJBD -ltldiBlli tlrllfS .1~llIe'1'DJi lilt . _ SIll\! '~ - ftE~l' ESlllk !'iild,p:'bY' .*..~-. - "-. ~.~..!:fbv . . Gr~nW .'03(~.;hiil .1lt t. 11 ~ C. ~'~~NI'~i(j, S ::'IJ't!. 0.(1 v __ :JI~ilI~O: ~ec~!111 }SI/'.2."':a 2- . .[j~~>J,:,~.:.:[,~~F,t1mci~)~l)/:. _:::'f:..:~:;~-~';~.-.-<~~n.I.-:~:;. . .... u I I f / J . .1 '1 ~ :. I I ~ ~ II II " I ) ~;'l. >> lj.... I" .~ I;: )'11;' ; .' l.:. I" . ~",... ,I " ; ~/tJl!J u ~. . ,., . . .-u I~;) lid'. .':';:~::~:~ ~'~~:;,;: ~~ .i-~ ,;',-,c.,_;-., . ........-' ", . -:". ," ',' ". " :'~:' . -,.."., .,' - .~. -,' ~.- c.~t::I\j*;~f\~i.: , -2- 3.60 '. (C'.' 545 BClO~ _~...--'- t-,.~"'t:. ~-- The und~rsigned persons executing this Cleed on behalf of. Grantor repr.esent and certi,fy that they are (holy elected officers of Grantor and l1ave been fully empowered, by proper resolution of the Board of oil::ectors of G::antal:, to (!xec\Jte Olnd ddiver this dE'fOldi that Grantor has full (:orporate capacity to convey the real ~state desoribed herein1 and that all necessar.y corporate gr::t1on for the making of such conveyance has be!!n taken and done. IN WITNBSS WHEREOF, Gr<1ntor has caused this. deeo to be execu ted th i e 26th' day of September I 1986. ..r...;,,~. - . RYAN HOM:~S r INC. .. ';~: d _. //' /J~<<- . ," --r:/Z~A'h~ By,;.?::q,t.: fiVj. .~~,.../ T:--G~- MarK Shaure"- ~-. ~?~t secreta~y vice president STATE OF INDIANA ) ) ss: COUN'l'Y OP l4f\RI0N ) 1 ~:~~I ~n:SH'llm~~!~! RCCOf~1~:j _..C:P-__~...... '~~H~~ flt~;!. L. Cl~n:"," RerOH:;!::f,. it~~nH;~~~:! ~:t!!';I"Y, :;;~-1 BeJ:ore me, a Notary Publ ic in and for said County a.nd State. personeIly Olppeareil P.1<11'k Shaurette mid Ralpb T. Gonz&lez, the Vice President ana Assistant Secretary of Ryan Homes, Inc., who acknowledged E!Jo;ec\ltion of tne foregoing Deed fat. am'! on benalf of said Grantor. r and who r having bee.n dulY' sworn, stated that the representations therein contained are true. WITNESS of, September :. ,.'~.~'~~'tll.i.SSion ...,.. ".: ;I' \..;. :, -=.Jru:tiy....Bi 199'0 \ -,,' ,',. )' :<'.\I:-~.,I-./ . MY HAND AND NOTARIAL SB~L, 1986. this ~~ day Expires: ~.K&~-tJ Sharon K. Bruhn Notary Public - Johnson County This instJ:ument was prepare.:l by J..mesF. Beatty, Attorney at Law, 400 Union Federal Bu ild ing; Indianapolis r :::N 46204 r (:317) 632-3030. ,'.: '.". ,r.o" i l' .' /". . !" .< .,.".:,.",j~.;1&: u ~~!~l ~;',-:.. !1 ~'"":,,,,.,,:J Uo 11,,: , . ~ .n "I ~::o,....'.:"..;J " f , 1 " 1. ~t ..I :, ~ f I I '!'~r;C{!'-.:;':~,:,.,~,~~~...~~. U 1;)00 G:J 9558738 : "'~".J<... ..~I-;. ':"._'. ""';. , . ~ ~t.I~jcc:,:<., Ii '. ,-' . '.'., f.'i)(fi.1'!ON -5.j'. f1'"a' ','ttCCQ'f'JI.:>:JtL' !Cf l~-;Jr'''.(''\r _ t~'IY ,'," -. .~,a: ", ,,' " r' 1").'-- " - -.-' ') .::z..t ,;4.." A 1.4'___ : ;\udllc, .:.. .!~mlllonO"":.t.Y h',rc~j ,; J~!r.,( '()'/>(j ~ . WOI,F AND ,JACKI B L. -'wtiL"F~:Qj',c.::1 Q .<}:./;' Case No. 951G0002 Parr:el No. 16-14-04-01-03-022.000~ ~, ~-- ~ WARRANTY DEED 'This lndmtuy!! Witnesseth, That ER.UC~ S. HUSBAND AND WIFE (Grantor} of HAMILTON County, in the State of In4iana. C6n'Veys tl1Ul WarrQlIts to JAMES R, FOX AND GRETCHEN A. FOX, HUSBAND AND WI FE (Grnntee) of EiAMILTON County, in the State Onrwllll, for the sum of Tell. & 00/100 Dollars ($10.00) and Othervalllable consitlerati'Jn, the receipt and mifficiency of which !Ii hereby aclcnowledged, the: following descn"bed real esUlte in FAMILT0N County. in the State of Int.1lana : LOT NUMBERED 99 IN WOOD CREEK, SECTION 'rHRBEi M1D ADDITION n. HA.'\1ILTON COUNTY, INDIANA. AS PER PLAT THEREOF RECORDED INFr..AT BOOK ~1,'pAGE75 IN THE L'~'FICE OF TIJE RECORDER OF HAMILTON COUrilTY. I~IDI.ANA. Subject to .the l;ien of a mortgage to RYA-~ FINANCIAL SERVICES, 1:1>:''':. dOl.ted SEPTEMBER 26, 1986 recorded OCTOBER 6, 1986 as in.i'trurnent No. 86-22189 IN BOOK 518, PAGE 657, 1>ssigned. to N\!R MOt,TGAGE FINANCE, INC. by assignment dated OCTOBER 5, 1993, recorded OCTOBER 13 r 1993 aB Instrument No. 93-4'986~ in the Office of the Reoorde~ of :~ILTON County, Indiana. subject to ~he lien of a mortgage to NATIONAL C:TY BANK INDLANA Continued on next page Subject To any and all eawment5, agreements, and ~5trictiol15 of record. The address o! such real est:Bteis commonly known as: 5243 WOODC'.t\EEK COURT CARMEL, INDIANA 46033 Tax bills should be sent to Grantee at such a<'dress unless otherWise indlcated below. In Witness Whereof, Grantor has executed this deed this J~ day of OC-T06t::iL l~';, J"~ ~hl k --< &_ '''''" . ',udal fr- .An BRUCE S. WOLE' KIE L. LF (Seal) (S~.I) STATE OF INDIANA. ~lARlON COUNTY ss: ACKNO'WLEDGEMEN'I' Befop:: me, a Notary Public in and for the said County and State, personally appeared BRUCE S. WOLF 1U~ JACKIE L. WOLF, HUSBAND AND WIFE .. ~'\j o "\~' ;'1. . n ...... ~~'$ . Notary Publ~ (:) Coun~, lndia:.~ (.0) This ;'I$rnunem prepared by: $, ;:t;! -.. Return to: ~ ~~:: ~ ~~> Send tax bills to: I .. . . _ "I, ._, ~ '.'...n _.1 ,. " , ~. .." ...: . I '. r .. I u u u Hamilton Co., IN - Online Reports Page 1 of 1 Online S~ General Parcel Information ~I@ct A Different R~p'ort I NeviSearcb for CUrrent Report Disclaimer: The information available through thi5 program is current as Df lQ/<l/:l004. This program allowS you to view and print certain pUbllC;J'e<:ords, Each report reflects Information as of a specific date; 50 the tnformattor provided by different reports may not match. Arl information has been derived from publiC records that are constantly undergoing change and is not warranted for content or accuracy. It may not refled. the current information pertaining to lhe..property of Interest. Parcel No: 16-14-04-01-03-019.000 l'roperty Address: Deeded Owner: Brune, John C III E C Brune 5251 Wood creek CT Owner Address: Calmel, IN 46033 5251 Woodcreek Q CARMEL, IN46033 Legal DescrIption: WOOD CREEK 64.35X 147.78 A 9/20/84 10/26/84180-478-480 ANNEX 10/6/66.360-545-547 SectionfTownshlp/Range: 04/17/0'1 Subdivision Name: WOOD CREEK Block: 3 Deeded Acres: 0 Political Township: Oay Lot Number(s): 98 Most Recent Re.::orded Date: Thlsapptjcation Is de\leloped and maintained by the Infonniltlon System Services Department. If you have any questions or comments, please contact t @ 20D2 Hamilton Co. Webslte Suaaestlons Dr Issues I ~.9.nditions of Use I Pr~Vi'leY Pollev I Site MaD I Technlc;:al Help I !:!Q11!; @ 2003, Hamilton County, Indiana - all rights reserved, http://WWW..co.hamiltQn.in.us/apps/reports/rptparcelinfo.asp?parcelno= 1614040103019000 ] 0/1212004 u " I j I j :\ .1 J: ~ ,I 1 '. I I w l I , u l i \ , j , :1 ~,.~ ij i1 !j ~ !ll'.... I~ I~ ) ['.: - i~:~ 1 ~\..~.~,_"'.~'.-:f.ry ...>-,"- '. J ~ l? u ~ ~ ~ ., f:1 ~.,,!, ~. -U\ -~.<..._..' .~. .' -~' .":, ~ ~ 862:2:1\.81 BfJ('K _ 369... PAGE __~jJi CORPORATE I'1i'\RRAN1'1' DEED THIS INDENTURE tHTNF-SSE'ffl, That: RYAN HOMES, INC. ("Grantor"), a corporation or:ganh:eo.;lnd existing under the laws oJ: the State of Pennsylvania, CO~VEYS AND \>lARRll.N'rs to ,.;tILL r.AM H. DUPUIS and DBLORI S 11 . DUl.'UIS, hlJsl:nmd and I'/if e {"Gran\:eG"l, of Madan COllnty, in the State ::JfIndiana, for the sum of. Ten and 00/100 Dolhr.s {$10.00) ane othGr valuable consideration, the receipt of whi(.'h is heceby <lcknowledged, ttH! following describeo real estate in Hamilton county, in the State of Indiana: Lot Numbered 98 in Wood Creek, Section Three, "n adc1itic-n in Haroiltoo County, Indiana. as per plat thereof recardea in ~lat Book II, page 75 in the Office of the ~ecorder of Hamilton CQunty, Indiana. together with all of: the rigrcts, privileges, easements and appurtlmant ownership i ntetest in and to premises previously or .,;lIbsequently conveyed by Grantor to Wood Creek Recreational, Inc. by oeeorecordeCl in Hamilton County, and as more fully oefined in the Declaration of Covenants and Restriction~ recorded in Hamilton County as shown in Miscellaneous Record 1'>9 pag<!!s 247-265. Grantees covenant:. and agree to be boono by ana to comply with the aforesaid Declar.a ticn of Covenat1ts anc1 Restrictions including their persooai obligation to pay assessments pursuant to said Deel ;:icatlon and Grantees hereby execute and ackncl~lC2dge this deed for. such purpose. Grantees ag.ree that the property herein conveyed shall be subj ect to such assessments in such amounts as shall be determi neu by Wood Creek Recceat:ional, Inc., its successors and assign!';. Also SUbject to: 1, T.'l.X~S for the last half of :i.985 due and payc:tble in November 1986 and taxes for all subsequent years. 2. posSible future assessment for repair and mainteniloce of Moffitt/Wjlliamson Drain. 3. i?ossible municipal assessments and/or :Sewer use charges levied b~' City of Carmel. .1. possible easements for drainage ditches und tile drains. S. Easement f.or drainage, public utilities, Sewer anc incidentCal purposes over 20 toot ship along. West sioe of lot and t?asement for crainage. public utili ties, sel>,er and inci dental purposes over 7.5 foot sl:d~ along South r North and East side of lot and drainage, publlC uti1itil~$, sewer and incidental purposes oyer 25 foot strip along Northlfester ly side of lot as sho~n on plat. 6. Covena;nts, conditions -ana restrietions se'!: ont in plat. 1. Covenants, conditions and restrictions set out in Declar.ation of covenants and Restrictions. ~or Wood C~~e~ recorded November is, 1979 in l.lisr:o:llaneauS Record 159. pages ?}J/~65. ~ If///'~..&L '~J..--/ WI~LI~M H. DUPUI~, Grantee o:n => ~ ",' ~;. N Ss: T~l:l jnt1t~uml}nl ReCOrded -.LO - {..> 1985 ~ [~ r;::, M,if'l/ L. Clark. Recorder, HarnlltcmCcrmtv.lml. ~:: ;g '3 (:"_ subscribed and sworn to beJ:ore me, a Notary P~!"\ic~ ingi-nd for said County and State, this .;J.u~ay ofS.~(!l'n~' 1986. /YJ) . .L.J.... tit1/) %:.:::?' _ . Ii. ..t~~~~~~~:; ", STATE OF l~D!ANA COUNTX' OF MARION My Commission Expires: 1__ ~. P.~~':l.~~'r J' Io!. 1,~~",.'pr~1 1;(.1 .....,. " ,";;;l j- ~.:i.;r rr ~ j01 tJ:& !"i,: I ~~i ,r.''tl'~i'' :!fI' 1.":"":1'h~~!..~:; b!l' .~~\; :'~.H~~ DW..VENTE. ltEDroR'r~. (;v> -. (;,11. f\) t1' ..~, (). . _) ~ dq~ .._..".. &LoD.. (j'~ ~ . V'~ ~~ ~~, if ~()~~C;Jj}.-:t)Ci.f)6(J . .... L_ .. ___....._..1..:. ._.I....,~~d.t"J u u i 1 l ~ ~ ~ i j! ~. J 1 ! t ! i ~~ij [;, ;1 It f~ Iii, 'I ,~:~ji: ~............'.....j'.:..: .. I. ::.:.. ',,' ..:r .-u M II . ~ ......-.4: .' ,".:. ;~"\ --')- 800K _1..fJ..Q... PA~~;;.~ 541 Thli:'e are no exis ting other rest, let ionl:; and there are no encroachments thereot1o viol~tions of zoning ordinances 0':- applicable to the Real Estate. Tllere is no judgment of any court: of. the state of ImHanct or: of <loy CO\jrl:. .of the United StateS that is or may become a lien on the Re&l J:st.ate. No petition for bankruptcy has been fHeo by or against ;"sodor within the last sixrnontl~s, not is ./lny petition now pendi:ng dtl1 respect to Vendor for b<'HJkr~ptcy, insolvency or incompetency. Vendor is neither principal OJ: surety on any bond payable to the State of India11a. The Real B8t~te is now in possession of Venoot' aa o"mer a ,',d no other person has a right to pcssessiol'l or claims possession of all or any part oS: the Real Estate. Vendor ,.,ill deliver posse!3siol'l of Real J1lstate to purchaser or: or !)cfor e closing, free and clear of any right ()~ claim of :.ny person to th(; possession of the ReaJ. Estate. Vendor 1S not actingl directly or indirectly, in ~n1 capacJ.ty whBt.soever for any foreign country 01; nation thereof" and Vendor is a corp0J:aHon <!uly o.rgenized ane in g00d standing under t::he la\'ls of Pennsyl</'ania, and the persons executi ng l':h is af;fidallit and the deed on behalf of Vendor are dul:i elected officers ot: venc10r .md have been fully empowered by proper resolution of tile Board of DirectorS of Vendo!: to e-;ce(~ute ana deliver this aff1;;avit3no the Cleed; imd V<!ndor has f 1111 .corpo roate capac i.ty to cOnvey the r.eal estate de-sel: ibed herein and all m!"cassary cOJ:porate action for the-making of su~n conveyance has been taken and done. Vendor intendS t::hate/:lch of the statements made herein shall be cor.str lied as a representatIonr each of the representations is made for the purpose of inoucing Purchaser to purohase the "Real Estate; and each of the representatic:>nst whether constrlled joi ntly or severa l1.y, is true:, Vendor e~9re6s1y authorizes Purchaser and all other persons to rely on such repre.sentation8. RYAN HOMBS, INC. 1\.T':'ES'l': ;tftL;.~ ~/ By a~ T, ~9' zez7 ~SSlstant Secretary STATE OF IIW'IANA This Instrument Recordeo /e> - &.- " Mary l. Glllrk. R<OGOrder. H_~.'r~~~ to befo~e me, a Notary Public this 26tb_ oll.y of SllptcmbeT in and 5S: COtJNT~ OF MARION Subscr ibed and sworr. for sa:d County and State, 1986. ~?~ ShCiron-K. Bruhn Notary PUblic - Johnson County My Commission Expiros = !- 'I r .J'ulf;,l3, 1990 ",-.. " " .0/1'''101'1 \(1 j ., : (~ .X .'1 ;.J.i ;>i ""\1) ):1rhfs.'/i'rist::ruruent. was p1:ep"red by James F. Beattf, Attotney at . .'".':l'jii~/,Abo ul1i.on Federal BUilding, IndianapoHs, !N 46204, P17} , ,~",l.l'3'2-3 03 0 . . Inllianli ~rPIlli I"came ls1 .1iR , lIale 9/ ReiJl Esw ~.db.Y ..------.~ ~..,.~.-..w-.,..~........~ . llr~m~ l)~:1I flJIId' ..A.f t, ,.j<i.'f:k Arrinunl Pllid $ j R? ti:. l,.vsurtlIJi~cei~ 8'''I.JJ-;!.7d.~ if~~~t.clfr OsllInty . ~ . ~ . , \' I '( t ~ f. ;, i: F: r [: ...j....t,::.,;,,;;:'..\ LJ '\~~f II 200200059843 . FiL~d for R~~Drd 1ft HRMILTON CQU~TY. INDIANA MRIl:V L CUlRK 08-22-2002 Ol:G'G PM. WRRR DEED 16.00 WA.RRANIT DEED il This Indenture W"lInesseth, that WILLIAM H. DUPUIS AND DELORIS A. DUPUIS, HUSBAND AND WIFE (Grantor) of HAMILTON County, in the State of Indiana, hereby CONVEYS AND WARRANTS to GENE C.KROEGER (Grantee)ofHAMD...TON County, in the State of Indiana, for the: sumorJ'en & 0011 00 Dollm ($10.00) and other valuable consideration, the receipt lInd sufficiencyofwhich~ hc:reby !lclmowledgcd. the following described real estate in HAMILTON County, in lhe StAte of Indiana: LOT NUMBERED 98 IN WOOD CREEK, SECllON 1'HRBE, AN ADnmON lNHAMILTON COUNTY. INDIANA. AS PER PLAT THEREOF, RECORDED IN PLAT BOOK ] 1. PAGE 75, IN THE OFFICE OF THE RECORDER OF HA1\1ILTON COUNTY, INDIANA. The: address of such. real estate is commonlylrnown as 5251 WOODCREEK COURT, CARMEL IN, 46033. Subjecno (j}all easements, highways, rights-of-way, covenants. c.onditioDS, restrictions and allier manersofrecord;'(ii)all current, non..:delinquent real estate taxc:s and assessments; and (iii) and all matters that wouJd lie disclosed by an accurate surveyor physical inspection of said real estate. In Witness Whefeof, Grantor has executed this deed this 6th day of AUGUST, 2002. u DULY ENTERED FOR TAXATION @) Subject m tinal.acceptancefortransfer ~day of OltJl.rl'- ,20m::. 6 .e~ ~ AlrdIl<<DfHBIIIIlltClCOllntl Parcel #.llD~14 .:o~O\ .o?, -OIQ, 00b u u STATE OF INDIANA ) } 5S: ACKNOWLEDGMENT ) COUNTY OF HAMILTON Before me, Q Notary Public in and for the said County and State, personally appeared. WILLIAMH. DUPUIS AND DELORIS A. DUPUIS, HUSBAND AND WIFE, who a<:knowledged the execution l)Hhe foregoing Warranty Deed as his free and voluntary"act,and who. having been duly swom, ~ted that any representations therein contained are true. WitneSs my hand and notarial seal this ()Ol day of AUGUST, 2002. My commission expires: Signature ~-c"-'j ~ Printed Residing in 11J1s flUwmenl W4I' prt!JKlred by: Debbie Flngl!J7llNl, A.ttorney at taw. Retum to: Send tax bills to: 5251 WOODCREEK COURT, CARMEL,lNDlANA46033 u u u u LJ Hamilton Co., IN - Online Reports Page 1 of 1 Online Sf General Parcel Information Select A Diffarent ReDort I New SearchJor CUlTent Rep..9!!; Disclaimer: The Information available through thIs pro9ram is current Bs of 10/4/2004. This program allows you to view and print certain public reoords. Each report reneets information as of a :5ipedfic date; so the InfonnalIor providecl by different reports may not match. Alllnform~tion has been deri~ed from public rewrds that are constantly undergoing mange and is not warranted for content or accuracy. It may not rellectthe current information pertaining to the property of interest Parcel No: 16-14-04-01-03-018.000 Property Address: Deeded OWner: Smart, David M a..Karen 5254 Woodcreek ct Owner Address: Carmel, IN 46033 5254 Wood Creek 0 Garmel , 1N46033 Legal Description: WOOD CREEK 79.5 X'i45.31 A 359-557-5582-20-90 fROM MC ROBERTS 900384HITG Sect1onfTownstlipfRange: 04/17/04 Subdivision Name: WOOD CReEK ~:3 Deeded Acres: 0 Political Township: Clay Lot Number(s): 97 Most Recent Recorded Date: Not AvaiJa ble. This application is developed and maintained by the Information System Servi<:es Depclltment. If you ha~e any Questions Dr comments, please contact I @ 2002 Hamj[ton Co. Website Suggestions or Issues I Conditions of Use I Privacy Policy. ] Site Map I Technical Help I HOME @ 2003, Hamilton Cc;lI,Jnty, Indiana - ;Ill rights reserved. http://WW\.V.co.hamilton.in.us/apps/reports/rptparcelinfo.asp?parcelno= 161404010301 8000 10/12/2004 LJ u t:;i"'11 1'\';<::: .~' 'j,;.; ': fY!i:~I' ,..-.-..,. ".',....." ""'.""'. I;;'/:;~" '::;"'1 U .- jt!i! .' .'"..~ . .. ,........:.'..:.:.::....:1:.. r(~ .....i. .--. ".r .[- it " J:&..~..:...~;.\fi.. . ~;',~ ;-"'::- ;:..;-- ", ,;". . ~ ';;;:;",-,; ~ 1'( f. I,;' 1'''1' T~~~': ~ - ~(~,J;::r,:.:" r~~'~:r ~t J ) I J I 1 i ,~ t,~ .i .~ J f "F' ~ t ~J '.., ....' :~ l..., ,~ \-l r-"--'I.;;'P~ Gr~&:. l'Iiiim,,' fe~ en . e~'1 Sale 01 ~I ~~ Ill!: , .. ..~i'': 86;197~ 4,9D. J:J.PJJr~g_.._.._ ._~__ .___ """ if Ij:un~6~ Il~lr. I'M .. i5!f}i.....JiI_d7:...\i___~ CORPO.IUI.'n: !>lA1l1~\H'l'Y DS Alfo!nll'll l'aj~ 1_....2{~_ rttll!llUIQr R<:nipl ~ ...:/iAi!d.NI'.1 THIS INPENTORE WITNESSETH. That RYAl.i"~J'!l~Yll:1C ~ _ . 1"Granto~"I, a CO['Po~at;1~ organil!:e6 andeK:fiiUritiu~der i:he l.a1<JS of the St~l:e of PennlSyll/'ania. CONVf:YS AND.: Nl\RRl\NTS to BPWAIIO E. 1-lcROBERTS, JR. and SUSAN f.l.McR0ItERTS. husband all.;! wife ("Grantee"), of Madon County. in tho State of Indiilnn:. fer .the sum of Ten and QO/IOQ Dollars ($10.001 ana otn~r 701l.lable cona1(leution, t~e receipt of which is hereby ac/cnQwledgeCl. the followir.g described real eoj:ate h'l HOlllli1ton County, iri the ,State ~~ Indiana: Lot 97 in WoOd Creek, Seotion Three, an A~Cition in Hamilton County, Indiana, as p'erplat thereof. recorded in ;p lat Book 11, pa9E' 75 in tbe Offlce of' the Jlec()rd'er of Hamilton County, lndiana. tog~ther wIth all of the rlqhts, privIleges, easements and appurtenant ownerG~ip interest in and to pr.emises previDu~!y or subsequen~ly conveyed by Grantor to Wood Creek Recre.at::iol)al, Inc. b:( deed reoorded in Hamil ton County, and as mor~ i:ull!l defined in the Declaration of CO"ITa-n.mts. and Restfh:tions recorded in Hamil ton Count.y <IS shown in Miscellaneous Recrord 159 pages 247'-265"0 Granteli!s coven~n\: a:ndagree to be. bOund by and 1:0 comply with the af.oresaid Oeclaration of CoveFlants a.nd Restdction9 inclueing th\' tt' personal obl:!gat:ion to p..y aSSp.8~ents pursuant to said Declaration and G'rantees hei;eby executt! and acknol'lleds-e this deed for such purpOse. Gl:antees agree I:hat the property herein conveyed i;ha~l b~ subjeot 1::0 Buell a~s~gsment13 in such amounts as shall hf;! oetermined by Wood Creek lIecreetional t Inc., 1 ts successors and a.ssigns. 1 Also !,!ubjeot: t:()1 1. 'r.'l!l:xeS f9r the 11'lst balf of 198$ <Joe and Pily.ahle in Joloveml;lerU8.i:l'~".,:d t.a.xt!sfoJ: all sUblX!guent feat'S. 2.M-11:;nilH: .;=t~lilessment for repair alld mainten&l\ce of Mof.:f i.t:lW'i'l~Ji!fji~~n o.ii:i;i:.n. :3. P~'131,*1'e rilunic~pal asses,sments and/or sewer use c''')rge;s le~.J/e.ll', ~y Cit~ gf C!:111:mel. 4. :Poesfbl(t e8sem~:rits for &.ainage ditches am~ tile dr,airls.. S. E'a$.~.lll~~:t for drainage, pUQ.llj:: uJ:i;J.itiE::~., !!,ew~r i!l'I(I i-l'Jl~i,(!,e,n,tOilp"~fp.6~~s o.v~r e 20 fOol: i?.tr:ip al;~n.9 t'J're r{'~~~' sl;d~~ <lDd .eiSse.i'riei:ft Eric "iail'l",ge" 1 pub He ut'll.t.~J..eS'. Ilet<e.t atfd i 4Q.tQ.~iJ~~ip.~l:'pq::i~r,t o'~t' a 25 fOQt: att ip . .l'j1<:CfP~t tf!~ :W.~l;t,* $~i;I"~ iIlta >eiif8~m0nt nor ot''il i na;l~, pu~l i~ dt.i~:f.~:ic.el;li;. (I~~~e. 'l;li)~ ~~91~:t~:n~'~f::c.O:;sp~:~E1.r a 1.5 foot stdp '~loti'g .t-he tlor,t~ si'a.~ ~~ C9y~~~tS. ~b~it~on~ ana restri~t~~JB ~et out in plat. 7, CQv.en?,jnt's, c()l'Id~tions al1\i ,.estrJ:etl~s set OU'c. in Decla.rilt'ion BE Cov.enanlls ana Restrictiot1~ File [fQ~d (j'r,e'e"<<. !='~';9~4~d"'NoverribeI' 15, 197'9 in Misc.ellane"USRfi!~rihl 1:59, p~ljes 2;f?""~65J ~~f:;~~~ante~. S,l]lA~E ~ rntuA'N~ SUbseribep and sworn to befQ~~ ~e, ~ Not~ry for; sald County and State, this ~(Jay of ~e'" MY~~~~Sion Ex~irea: ~ '~"i!S~:'irllln~':l~ ~~ ~~ _ ;Z: ,r.:.~JJlJV r.':oIl- ~1 ~..." .~r' IJ:;ftft ~ .'?.;. a:.~:::IO~ It:c'..'HY ~ ~r!l~:ti:;~,;'~:'l t'11'- ~'\i' n.,l';1tD N] COUNTY OF MARION as: ,',::.-: : <.") ,~ ffV .~.:1 ,;; ., '" Co: a.. u. t:? 'M H'G tin" i~~=V7 11 >:u' .:.' '..-'.':~:-::'}^: .c' ";e~ Gg~... . ~_A':.AiiiIJtiilr . .. -""~.~.... ~.,"_.'~ ~, t.:L '//i.-;.')/ .(}:!j'-olt;~ eei() ~ c t~ p b fl ~ l~ u -u 5it:g fV:'^~'9;~'fu.. .PA~,~,:,"f)2" ~ ~:'-'!:"'" ,.~_..... ."...~~. " ... [; -2- . ~. ~ . r 1, J< ~,; .'c' ,r..:'.' .or..;.... ;'-,3~:' 'fl:~:. I. . ......--. r=H~ '1:0:..;:.;: [,"." j' " . f: } ..:',;. .ti':~i'.~. tL<~~ 'J.';,,', .1'....... . . fi(:; ~:.: .~;~.;, .:. i-" !.- ;'," ~..!r;.., ~'. .....-. . . ,,~_;~.~O_~~.:.~~~~~~'" .'t!Il'e ur\a:~t$19ne.;l p'r;rsons ejfeCll..ld,n;g tbis dr,;ed o.n bebaHQf ~:t~~!i~t .t.lapi~"8,i('.nt a~d e~1"I:Hy t;'i1~t~ .' t:.h~y. ~~:~ ~,i~$y. '.~J'~g.!:=~~ 9~~~t$ of t'3~~ntpr ~;~~. 'l:1<!r/\! . b~9t.! ~.~.Uy. e,l)]e.g'ij~r~~i;ff?~'.J~~P~~~ ....e.f1P);ut:t~~Qf '~'fi~ BO'~.lidof DJ"t.i1!C'~m:.i1 ofG:r~fi~o,!:" ~p"'.e.:t~!?~j~.e ',~~!f "~;~~~i~~~~l~eli~~~.t~~:~.f~~~1~~~~~.~i~~1 ~:%r:~~~;p:t:.i~:~~lt~;l~~i* t;!tl,;'iP-OC!::;l;I;~~ -?~~ioll for t:lIe lllsk'1'I1.9 of such ~.OtlV~{i;nc:e'li~s"hMn t.aJ(en:-a:ri'q a.M.!:. IN 191,~l'l.ESS WBE'R!;:OB r Grantor l:l{\~Cauii'Ba t-l'ib; .,deed . to be eXJ,~(:::i.1:t.eal':h-ii ~ day of S~Jl~!til1l:e~ . i~'8:6.. . , . '~y:~Jf ". ~'.1{< ..-;\.-.~. . '';/\\'s...",,_ eQUW!nY. Q!o'Wl:'JUON ) ,.-< s-s: B:Q"'.f-o.r;e me, a N.o,tary P',.ubUo in .~ntl -f,~:r ii~tq. ji:9.!,Il)I;,.Y,'.c,c@:l ~~~:1;~g~;-e~h~n~fl& i~l~i~ll9~ .~J1tk'1l;JU~~~ft~,~~':'1,;~'?i1~~~~ii~ HCiiii~$'r Ine. r whi:! ackrlowl:e~i:Jt\'a .e~AA!1:.tld.~ .q:~: t:1:Wf f,:-Q:r;jj;!-g9Jq,9';P~if.q' f.4~ and on ~ehalf of $lj,,1ia GtpiitOti., .i'ridv~o,~aVifi1!f~!:l~tf:i:;9.!!l,:, '~w'CI~.nr sta.ted thaI: the repre'sP-I'\.t:..itirot!S t'her.~i'h c'pn1:.ij.:lm.~:ei.:af'~ . ..t;l:ta~.. f:l,~~b '1,\~l>(,~QT;i.1i.:V!.!1.i: "$~P, :1i9.a'fi. . {~!h;i ~!1;ts. 'S.th:.. -~ . . --'::-.: '-'_.~ W/i,'~~,,:~~I~~W~V~~A~4 ~ ",;. ... ,: :" -' ~ .; ~~:>;::~.\~/ ~:,~:':i:)~;} . ~ " .' . ", ..: ~:~:". :~ :.~~_:"~:"; ~. '<' :.~~, .'~; u ....,. ....'. '..':--.-. ~: : . '.;. :.... l1li::ilH;d~' .'. .'" . ::';:': ~": :"... .-:: .~, r'-'., '" ...-.-:.'..,.....: .':" iil':' .!,,' .' ~,c, u \ I 4".....1 I :J, ;..~-':t '1' f;., >,) .fa }*~:. . Ii.. ~; fif i I I I ! f f . ':'"1, u r~~'......'."".""""J"1il't'."""'.mr;.::>l:'?::-~f}~.'t~~.'V~~~~~~~~~~~~1~'...... .~ ~ ' U811 of IbJII farm (lQn-tillItes proatic" 01 low Q7)d Je Jimitiid to prac1kiDf;! /cr;'1yem. < . ti ClCoPYl"Il1br. H186, by Indianapolis &r A""o<:ialion. RGI.". mrBS . P.",.l N.. J6-14-"-O'-091lb~3 I · WARRA~TY DEED ~ ~ P.. r~ .~~ ~ ~"" .J ..... ~~ ~] ~ I i ~ ~ ~t I I fl' ~;! i ! r 1 j ( J r I 1 l i ! j i ! r. I:~ I "ro.'~ ~.r&--.} I SI"'nah1re " . " . ! Printod N , ACKNOWLEDGMENT e ~ ~ THIS INDENTUn WlrNESSET1~, That. EDWAiU) E. MCROBBRtS. JR. AND SUSIIN M. MCROBERtS. HUSBAND .AND WIFE (Grantorl 01 HElWilton CQua1y, in the Ste-te 01 ---1mtii1na . CONVEY _ AND WAR.lUI.NT _ to DAVID M. SMART !\NTl ~ SMAll"', flHSRA1'Jl"l Atm 'JTPF., (Grantee) 0/_ of County, in the State of CALIFORNIA ---------------TEN---------____ Dollcro($ ZO.OO . for the Dum > and other voluable consideration, the receipt and. r;ulliciency of which 10 hereby acknowledged, the fOllowing dellCribed -eel Elll!alA in Hmrd.lton Counly, Slate of Indiana: Lot Nump.ered' 97 1uHood Creeo.k. Section Three, an ad~dition in llam.1.1ton County, Indiana, as per }ll'st thereof recorded tn Plat Book 0, pages 75-7B. in the Offica of the Recorder of Ha~Iton COl~ty. Indiana_ Subject to the Spr~'I,~ Installment of Real Estate Ta:.te6 dun and paya!>!e in Kay 1990 and all t~"'6 payable thereaftel:'. RECEIVED FOR RECORD FEll 2 VT~'..~' BmERED FOR 'l:"\XZ.::rroN . 0 90 ~I<ct.~. 'o.ll1::--"e''''Wl.J.~ :."': ..:~1l"'&6 ~~ .If(~,.. ~d:l~--. It).-;- . :..~ ~ (. ..... HIJoIlLTON cmJrm IlICORllEll ..f.... \["~ A......'or J I: /':5 1:>_""', (P lb;twre"" County This Instrument Rellll1'tlad d -diD - 1990 \ C\ '-oJ i. :--, " _ SharonK.Cherry,ReCOrder,JiamIJlOllCOUtlly,lN 3Pwctadl . . ~ -(')\. ~ ~ C\\tCQRJ .. ~ I ~ 17f. t~.~ Grantor: (SEAL) ....... 8i ~",;I,\!;'~;;,~Aj! f M q(~.., . ,~ .,,..~,,~~5'?/~_!:. '"t I!o: . , ,?"",.:i!1..i::J AJlD E. MCROBF.RTS JR, !i'~ .~. ~ b~;'.'_~:{>l Indiana i. ~'; ~~ . ,;.o.F,ht/ t1alniltCln \ .,. ,,'" . M '.' . 11., ~~.'f'F }$~W....,:.;., i' I~ "".:)'1i~~:(!';,,~ Notary I'ubhc in oDd lor BBid County and$latEt, pen;onally. Elppeared ~ ifi~~'\~'. MCROBERTS. JR. AND SUSAN M. MCROBERTS. HUSBAND AND WIFE', who aclmcwledged 'the execution of the lorego:nq Warranty Deed, and .....ho. havin9 beeD duly ~ sworn, slated that an)' repleaentatlona therein contained are true. . . 15th February 90 I~ W'MOOm, "'.d.. ~nd Not/mal Saal this day 01 <. "" '. ~'.:..~ :_' 19_. ~ MycommilllliQn'l!:i:pir"'~. 13i9natu~Oilo(\o- 6~hr-wv..~) May 17. 1991 "D-J d LadClTlna G. Thompson . N P bl ..- Hnte . . otary \l io ~..'...:' ~~~ Il Resident oi County, Indiana. . . JAMES J. NEL~ON . .~ Thul." metrument prepued by " Affortley at taw. NELSON & FRANKENBERGER. 3021 E, 98th St.. Suite 220, Ind~anapolis> Indiana 46280 Retuln deed 10 Subject to iilny aIid all&llB&menla,.agreements flnd ~ealdctionB of recDrd. The:> address of such tl>~1 ellt/!te is ccmll~cnly known ao --.i?~d Creek Court. Carmel. Indiana 46032 Taz billA ehould be sent to Grantee at sllch addrssB unless othelWiB9 indicated below. IN 'W.lTNESS WHEREOF. GIantor h68 ""Xecuted thiD deed thiB __.15th February , 19~. day of -Send lax bills 10 o..-{s"o/- 0~ ~~,_ ()d-__ ~~ ~ t{V.~~ ...;.'....~.~~=::;.=:~~~~~ ~~1 ;1 i I I ! i ~ . f ! ;, u u u Hamilton Co., IN - Online Reports Page 1 of 1 Online Sf General Parcel Information Select A Different Renort I New Search for Current Reoort Disdaimer: The information available through this program is current as of 10/4/2(1Q4. This program allows you to view and prin.t certain public records. Each report reflects Information as of a specific date; so the Informatlor provided by different reports I11(lY not matdl. All Information has been derived from public records that are constantly undergoing change and Is not warranted for content or aroJli!lcy. It may not rellectthe current Information pertlining to the property of Interest Parcel No: 16-14-04-01-03-017;000 Property Address: Deeded OWner: Keefer, Nan~ 11261 Woodcreek DR Owner Address: Carmel, IN 46033 11261 Woodcreek DR Carmel. 1N-46033 , Leo;Jal Description: WOOD CREEK 120.31X 148.05 A4-15-87 FROM RYAN HOMES IN( ENTERED H5-87 6/19/92 FRM MARTIN Section{rownshlp/Range: 04/17/04 SubdlvlslonName: WOOD CREEK Bled: 1 II Deeded Acres: 0 Political Township: Clay lDt Number(s): 96 Most Recent Recorded Date: Not Available. This ill'pHcatlon is developed and maintained by tI1e Information System Services Department. If you have any questions or C<lmments, please contact 1 @ 2002 Hamilton Co. Webslte Suaaestlons or Issues 1~_onQition5 of Use I Privacy PoliCY I Site MaD I Technical HeiR I J:I..QI1.!;; @ 2003, Hamilton County, Indiana ~ all rights reserved. http://www.co.hamilton.in.us/apps/reports/rptparcelinfo.asp?parcelno;;;;] 614040103017000 10/12/2004 " '.u .;;:.}.<;~:"'.~:::.;", '..". ""." ".';... I C_;.'. ._....r .__' - .:' .: ~:.:.,...:._~'<:;- ':'::~";"<:"" . '. = '-'- ~. . .: ;' I . ".:.:.'... ) .. -.. '. - . ....~;,.""'1 ..' I ""%ii . '~ro I '~..': :'..C).. . -.' . '-~ ..,::=r- .>"~ ];~]:"., , ~.' '~ ,~ :' -P ..'....j ,~; i-'. ~f u ;::',~;:,\~'::':::.' .,...._"....,... . ~:t~:*;:~;~,;:-,:':- ". .:~...- u 'fa'''.:.. ,". . ;":'-' ...", "-'...,.." ",.' -.;,,~.,.,., - " . .' . . ;. _~ :;_._.__, 'q;_ 0" ..'.:W1I'.~\:x,.,;:.,. ., . ." . c , ..~ . ',."'- ,"." 1". .. '.' "." <\ ::'" .:~I: . u J . . ' ,. .", . ':. .,.' ='" .; l. ::~. :.' ?:-:':.~':'~ '.......;:/.:~ :~.: ~r::~~~.:.~:..:~~'~~'~',.~~0.~y;'::{~??~!-.1: (1. ~rt.:~;;.iI.~.~~~.i~:":" ;~~~~~~~ll~;~ -:": / ),:~ ~ ~:.{~}.~~.~:.. ~.:~ r ',;..,f-.:~:' - ::~-';:"'" .:l::~ :: ,: : :},.;: t~: ~ ~~. '-. ~. :'~ --d ~.5' ..- . ~rf a ~~ '" ::c 8708541 COkI?CRAl'E WALmANTY DEED THIS INDENTURE WITNESSETH, That RYAN HOMES, INC. (uGrantQ~n), a corporation organized and existing undsr tbe laws of the State of i?ennsylvania, CONVEYS AND WARRANTS to JOSEPE B. MART1N , SR. and CYNTHIA L. MARTI'N. husband and wife ("Grantee"), of Marion County, in the state of Indiana, for the s~m of Ten and 00/100 Dollars ($lO.OO) and other valuable cons itleration, the receipt of which is hereby acknowleoged, the following described real estate in Hamilton County, in the Stateo~ Irtdiana: 'k!~ .... - .... = ..,~ 1;:10: ... . -eo $~ e"'" =<..:1 i:;:z? ""c, ~c;I .!': Jj e.,.., Lot Numbered 96 in Wood Creek. Section Three, an addition in H.amilton County~ Indiana, 'as per plat thereof reCot;c'leG in Plat Book 11, page 75 in th~ Office of the Recorder ~f Ham:l:ltcm County, Indi ana. together with all of thE! rights, privileges, easements and appurtenant ownership inte~eBt: in ano to premises previously or aubseguently conveyed by GrantOr to Wood. Creek Recreational, Inc.. by aeed recorded in Hamilton County, and as more fully defined i'n th41: Declaration of' Covenants and Restri<::tions recorded in Hamilton County as shown in Miscellaneous Record l .' ~_ 1. 59.. p.a,.ges .247;..265 . Gr:. antee covenantG.' an. d.. e.grees to he bound by I lh~d to comply with the aforesaid Declaration of Covenants and 'I!:I' 1- ~strictions including the personal obligation to pay ,..,. .:'~sessrnent:s pursuant. to said Declaration and Grantee hereby .....", .',. .'.: decutes and acknowledges this deed for such purpose. Crantee h:,' .... .. :r:ees that tht1 property herein conveyed shall be subject to ~ ...... ,..... . :('. Ch. assessments in such amounts as. Shall be determill"la by Wood \ ,',,~: '"'. eek Recreational, Ine.. its SUCCessors and assigns. ~ . ,I,: 1fJso subi ect to: :? .,'.... ..ltj. 1.. 'l'.a.x.es. for 1986 due . and payable in Mey and November ""',: , , '.' ~87 and ta:fes f!Jr aU subseguent years.. ~?/ 'J<:' . .~ 2. Po saible future ~ssesr;ment for repair and m<:lintenance -->J, :" '.-. em Moffiti;/WillialOson Drain. @.:(""IS,Cl3. . P~ssible . muniCipal assessments and/or sewer USe ..." . '., cfAarges levl.ed by Clty of Carmel. ~ lGo 4. possible easements for drainage ditches and tile :...jdrains. . 5. Easement for. public utilities, drainage, sewer and incidental purposes OVeI' 7.5 ,f(:>.ot Bt:r:iJ:,) ;llong Northeasterly side of lot. easement for public ub.1ities, dI';;inageand sewer and incidental purp9aes over 15 toot st~ip along Southeasterly aide (Jf lot and easement' for public utilities, drainage, sew~r and inCidentai purpose::; ovel' 7.5 foot strip along Southwe$terly side a.nd 'Northwesterly side, adjacent to the building set back line, 6. Thirty foot front building line shown on plat. 7. Covenants, conditions and reB~rictions set out in plat. B. Covenants, conditions and restrictions set OU~ in Declaration of Covenants and Restrictions For Wood Creek recorde" November 15, 1979 in Miscoetllaneous ReCOrd 159, pages 247-2155. 9. Annual and 'special asses~ments as p1;ovideO for in Declaration of Covenant~. and Restrictions set out in Item (8) above, whieh said assessments shall become a lien on the property. but subord~nate to the lien of a mortgage, as provided f therein. A ~1tf-Jt,7~~1rt.r~-;;:-~1 crn't;HIA L. ~ml EIQ:tl'8ntee 1 : :'~~~.~~.d.4~~- ! ss: / ',,1>,..<1 I COUNTY OF~XOQ . ::'!I' ,,': .. ~:7.-?:.fZ..__.__. i S.ubscribeli and sworn to ~efo~re ~,~~:e:.~;Q } i.~11Jii~i"~= dOd for said County and Stater"t-iH.!i 2'Jtl1 aa Or,' , 19~7. My comm\~~~~~ JA~K~R~f~s~;~j~>~~~G?:r~~' ~:~~,,:,~._:.7" .-,--~ ~ , -~O:!R'OU6\:ICS1!1E 01 JlIJ!~,r~~G;~,~o1"'! y.~'N'~'t't1.l:"i:~l>iibliC. ~"Ol'~m;:'~~:l~~S cH~&;f~d.~t'..\\~:&~~'~':i'''oj> ~., ' lSS~IO IHRC IMll41'A 1I01lJlT !~..\{\,1) U ~,,'"JJj/f'"''E:I::'X.:':.' '<. '.;'~; -: :;'~"1'~.'/Z:~:Ji~:'<::':;;:~;i': Grante~ STATE OF INDIANA " ,'}.' (:-i~;;":,,;.{~d;<t~~"~;;~';;;;;J?~~ij,;)jla4'i;:'~":;;"Y';;~:':'~';"","/:'J"<,;""""", . '."S.)~~'~~.... ....-....-. .~;),~:~.~?~~~,~.~~~w {\'~.:;:;:~;~:i~..j~~:~f~]~~~}~::jiy!,:.;~~~:;~~Xlt.(!f.0~t3, ~5~;~i "',-'to. ~~~~;.~: -~. .'. u -2- The undersigned pi:l['60nZi executing this deed on behalf of Grantor ~epresent and certify that they are duly elected offiC;:lrs of Grantor and ha'l7e be~ fully empowered, byp.rope.r resoluti~n of the Board of nireotors of Granto~, toexec~te an9 deliver this deed; t.ilat Grar.tor has full corporate capacity to convey the real es{~ete aescribed herein; an"- that all necessar}' corporate action for the making of such C'onvEiyance has beerl taken and done. IN WI'I'NESS WHERJ!:Ol' , Grantol:' has caused this deed to be ex.esu~~l;l tMs . 27th oay of Marcb , 1987. ;j' ..~c."- ..,di' "."~~.~"':'/ ~I~~~' ~i,""".'" , I I: /.rf~f.\l . ~,~,,~!~.: ;c ~"'" ~~':.:.t:)!';'1"Tf!. ,~\,.. JA~ '.Ii .",~I""J:'i' ',.J; 1, .~ ;",:~J:: '..r:f~"Bv ",~. -.\" ~ ZI ;.: .. " 11~~"'i" Ji .... ~ ..; :'!i.J~} (. \Atiti'an 91. Rand (r2;" "( :~ss~,st~t Secretary \;:, ,)s4~~:"~(;~/~DlrlNA ) . \ ,'N'\:.. r'~ /':f', . ) SS: ".:.i.'~} eo~":'6F~fwiARION ) ':~t;: .......,." ......-..~:", ", I ":1.' ..B.efP'.;ame, a'Not;al:Y' I'ublic in ana for said_ County and StatEi.,'-.~Fe'rsonal1y appeared Mer); 5hsurette and Adrian N. Rand, the .Yice'\Pres1dent and.Assistant SecretaIY of Ryan .Homes, Inc., ilbQ',acknow.ledged execution of the foregQing Deed for and on behalf af'said 'Grantor, anp who, having been' duly sworn, stated that the representations therein C'ontained are true, u Wj:t~~S RYAN ":-S' '00.. . a .y~~ - Mark Shaurette Vice Pr.6sident ~ HAND 1\ND NOTARIAL , 1987. SEAL, of this 27tb day J~~~~f~t.~O:i~Sion Expi res; ~~q:~r~, ~J' 1990 ',9f;tifu~ l' ~ '~( " ~"I,O:J~,(tL .: ,', . ;.~..., ~,,: ~--':'-~ / .- '~)N:~~~'f'~l"l:ltiu~ent WClS prrepa;;e~. by .lames F. ~eatty. Attprney .at :."":'<.)?-.1. ~:~.'.'::4()O.Un;l,on Federal Bu~Id1ng, Indi.anapolis, IN 46~04, '(317}' i\~~~W~.~~'2'. Thi~ IftslrumentReClJrd~d 5"'/6" 1987 Snarofl K. Cherry, Recorder, Hamilton eoun1v, Illl u __c", O-!."' '':&:''"''7&:''''::~' :'~" ..4/.:' ,:' _.C,.' . '/:.-,'1 ". '.- ._.,~,.. .'.~ - . 0.- .' .'. ", ~~~?~LJ Shlilron'K. Bruhn Notary Public - Johnson County Q:' ~ ;t:" )i:.: ~ :i5 ~,~~ r-..1'f1 0 ;:;:; C}n:?: ~ ~.7.: .b., c.o~ 1.&.0 ~.g;:x .... . M'J ~ ~ fg , ~. e "'i"i q'~;O ::Om :::;,Q ", ",. 0- o,jfi ;J:J'Q 0;;:, _..:..;:r. ". u u u . ~~>,i~.: ,. J~J~V\ i~;i1~ 0"'.'1"".' , .'1"".. , l~.;" '11. ~.: . 7. ' r.~Ji?~1 .~ N C-. 'c.,. ~ ~J,.::?:::..: ._. ::0 ~~ *~ '.~J ../",'. " ~~r:.-' , .;"~ '.; ~c ~~';f, ~l to. 'J 07 ;:;~;. "COlJNTY OF "hr~ I'nslrumsnlReconfed ~'-,I 9 1992 Shallin K. G!~; lie.crd'3I. Hami1lan COtllllyjlnllialla .Before me, a Notary Public in and for said County and State. personally appeared Jos~ph B. 03/31/96 ignatur \."~ ~... g" '.. ""'.. "".- Jif' ':'" ';NDi~Y "'>:':,qy/li;t\ll~'.' ,e, 190/1 f\. \-u---' U ...J~ Usa A. Taylor Notary Public County of Residence: Hamilton Common Address: 11261 Wood creek Drive '. j' ;. -'.' ::pJ.. .Wioo:rs '. " ~ .. .I.i 1--- ,'I.'...l,~_ ,. u u u Hamilton Co., IN - Online Reports Page 1 of 1 Online SE General Parcel Information Select A Different Report; I New Searc:h forCurrent RIl~ [l isda I mer. Thelnformatioh available through thls:prog.ram Is current as of 10/4/2004. This program allows you to view and print certain public records. Each report reflects information as of a specJf1c:: date; so the Inform3lior provIded by different reports may not matcl1. All infonnation has been derived from public remrds tI1at are constantly undergoing change and Is not warranted far content or acOJracy. It may not reflect the current information pertaining to the property of interest. Parcel No: 16-14-04-01-03"016.000 Property Address.: 11269 Woodaeek DR Carmel, IN 46033 Deeded Owner: Houser, Jeffrey L &. Karen J Owner Address: 11269 Woodcreek Or CARMEL, 11>146033 'On: WOOD CREEK 110.S1X 173.58 A 9/20/8410/26/84 180478""'180 ANNEX 7/20/878727244 FROM RYAN HOMES ENlERED hip/Range: 04/17/0'1 Subdivision Name: WOOD CREEK Black: 3 Deeded AO"es: () Politk81 Township; Clay Lot Number(s): 95 Most Recent Recorded Date: This application is .rJeveloped and maintained by the Information System SelV1ces Department If you have any questions or comments, please contact t @ 2002 Hamntcr. Co. Website SuggEstions or Issjg']. I kQill!iliQfis_t2L.l)g I PliVilPl Policy I Site Map I Technical Help I HOME @ ~003, H(lmllton County, Indiana - all.rlghts reserved. http://www.co.hamilton.in.us/apps/reports/rptparcelinfo.asp?parcelno= 1614040103016000 10112/2004 u 11II ~ =\\= u::O ~,u, lJ " ~ \) ~ ~ 872724(1 CORPORATE WARRANTY DEan TInS INDENTURI!: WITNESSE:~H, That RYAN HOMES, INC. ("Grantor") 1 a corl'oration organized and exist.ing Unoel: the laws of the State of Pennsyl vE.nia, CON-V'EYS AND WARRANTS to DAVID BlORRAS and KATHRYN 11. BllRMS, husband and Nife ("Grantee"}, of l~ar.ion Cou'nty, in the State of Ind'iana, for the sum of 1'en and 00/100 Dollars <$10.00) and other valuable consideration, the receipt of which is hereb~ acknowledged, the following described r.eal estate in l:Iamil!:"n County, in the State of Indiana: Lot Numbered 95 ill Wood Creek., Section Three, an addition in }jamilton county, Indianaras peL plat thereof recorded iri plat Book 11, page 75 in the Office of the Recorder of Hamtlton co..nty, Indiana. t0gethe r wi th all of the I:ights, pLtvi leges, easements and appurtenant ()wn~J:ship interest in alld to premises previously or subsequently conveyed by Grantoe to Wood Creek Recre~tional, Inc. by qeed recot'ded in Hamilton County, and GIS more fully defined in the Declaration of Covenants' and Re;,;trictions reco.tded in Hamilton county as sho,.n in Miscellaneous Record 159 pages 247-265. Grantee covenants and agrees to be bour.' by and to comply witb the aforesaid D!!cl<lration of Covenants and Restrictions incl~din9 the personal Obligation to pay asSessments pursuant: to said DeClaration and Grantee heH:by el!'ecutes and acknowledges this deed l:o.r; such purpoee, Gl:antee agrees that the property herE>in f:onveyed shall be SUbject to such assessments in such amouni:.s as shall bedetermineo by Wood creek Recreational, Inc., its successors ana assigns. " n i ; ; t " i i Also SUbject to: r' r:C 1. Taxes for 1986 due and payable in May and NovembEr Wk' ~.& 00 1987 and taxes ~or all subse'il~ent year.::;. ~,J..... 2. possible futur:e assessment for repair and m<lintenance ..., <"' -' of Moffitt-Williamson Prain. ~ ~t'" 0 3. Possible municipal assessments and/or Sal.er use ~ . ~~ :0 charges levied, bb'l} Ci ..., of camef!. a' d' hand ~ =0. 4. Po~s~ e e~sements or ra.nage ~tc.es tile drains. , 5. Ee.3elllen~ for drainage, public ut ili ties, sewer: and , " q : incidental purpossOl oller a 15 foot strip along the , - ,southeasterly side of lut, easement for drainage, public til 0 'utilitiea, sewer an':: incidental purpoGE!.s over a 7.5 foot strip . along Northerly and and Southerly sides of lot, easement for i- ;~.'~' ," i, publio utilttie', ."'Mge, sewe, ..d <.dde.tal ""'PO'" "e, ~: ~.~ 25 footst:ripalong Northwesterly end of lot as sho\~n on plat. ~~~~: 6. Thirty foot front building line shqwn on plat. t: 0, ~ 7. covenants, conditlons and restrictions set QuI: in plat. ~" B. Covenants, conditione and restrictions set out in Declaration of covenants and Restrictions For Wood ~reek l:eGol."decl November 15, 1979 in Miscell~neous Record 15~. pages 24t\265. r-:) 7, ,:,... (--, .'" ',J I . ,~'"t",>~IDBAR. .' Icl'lh"I,. ~, ~~~~COlf~~E O~ INDIANA .,.- r:. ~",;.I.." .\.... (" <"-;.. .::r:,"''\J 40c()\1~;f OF MARION -,. c:. ~ rl. '. . ~ ~, O."t, ":1 } ;c~~bscribed and ", '"r; ?t!~.r.~a~d county and " 0 . <:, "",1 ~:~''''''M~~,commission El(pires: .'. .'. ,,",,~'- ," r f I j, !, t f \' ~ /JI' ", k',~ r.l1)!U4.C) T R~/A. BARRAS, Grantee , " 5S: J) '1/;~L-:"/..,,",.l public, ....(,,-,<'10:...:,. ~County ; ~~i3G~ ~ro'~~ 'al;1lma ~.~ on S3!e 01 Rim! Lilall! : :~,~.~~ ~,:-",,''':L''.l -"."(;;::.';'C,'.-- . r:.:lt ;'~:.; ~::k2';::.;;.i'J...._... __no : AOloan\ r.i~ $--2.1p.2.!ti~_._~ f ff~~rar Retl!ipt l'J~L___ t ., ~ Hamilloll liPunly , .. 41_ t:\JaHC tl J.aClZ-U1 I1OTI.~\"~~I,IC H41( (:f' ;1l(lIAUA JiJ~..~or; C!1. IIf (~_rS!""rxPIRUO!t 7O,Uo; J~l> fha, IIJg1lM. ..~,.., .~~. ". -""'1/ - :2 (/' 1!127 f~I'. r~:.~~;Ji::~~;; ij)~::i"'.. ..-_.~~---:....- . (' _" If " ~h"fj R~-r:.iti~:. !i;;~.LiH:'1! ~~tl~~W. hul. ";ll~:ot I r.. ':'!t,~i" t. .,.....- ..,1~lI'Iw--'r'Pr~II"""l"P""" liflil&fM1\f_.I\'WiJ.5~~If'etlimlGi~~'" .- ---I -l.-..-,-".;-,;, ~ _"~,,..r"""'..~_m'" u u u -2- Tf'.l~ undersigned persons exeouting thl.s deed on behalf of Grautor r:e~rese!lt and certify that they are duly slecled officers 01: Grani;.O[ and l1ave been r...11y empowered, oy proper re>solutt9n. of the Board of Directors of Grantor, to exe{":.lte and tleli,ver this deed; tllat Grantor has full. corporate capacity to convey the zeal estate described herein; and th.t all n~cessary corporat.. actio". for the making of sucn conveyance has Deen taken aco done., IN WITNESS WHER!WF, Grantor has cause 'I this de~,d ':0 be executed this ~_ day of J~ly , 1987. 'RYAN HONES, INC. ,'" ....---.-.... .... ~ ~: / .- ) _/~~/~ ~. By'~XV>:-:M; ...'. -ti-::Z.c.,..-/ Mar~ Sfi.ure~~ . . Vice Pr.el:lident STATE DE' rNDIANA SS: COONT~ OF MARlON Before me', ::lNotary Public in and for said county and Stat@r persona1.1y apEJ~1\reCi Mark Shallrette and Adrian N. Rand, the Vice ~'I"esident.. and Assistant Se('cetar:i "f Ryan Bomes, Inc., I~ho aCknowle15ged execution of the foregQiJ'!9 Deea tor and on behalf of sai.d Grant.or, and WhO, having been dUly sworn, stated that the representations ther~in cOlltai'ned aJ;e trill?" WI'I'NESS AND NOTARIAL , 1987. SEAL, thk. 6tn dilY MY HAND of lllly ~Cfi-L Sharon K. Bruhn Notary Public - ~ohnson county ,'::(':1;~-;;~~.f!1&.commiSSion Expires' ~j';1f.~J%1fi!f 13, 1990 ; . i d.-~~ < ,is:in : ~J' ,.I ~\".;~;;,.'~-~..-:f~l ~ ,. l...:.\~..~~I:. ~ .AID \' - This instrument wae. !;)re~a.red by Law, 400 Union Federa! 8uil:3ing, 632-3030. .James F'. Beatty. Atr.orney at Indianapolis; IN 46204, {317} .\: ~:' ~ ~... :~.,. ~:~"~ ?-.';. .Or':?! !.I~,:':; :;.:: r.:~I::~: /. j1,':1 ~ Cf> c:.- = r ......, ~. .:=> .......... ~ " . - rrt '0, n - " r-1 " ; -:-i e, N -< ." f ',' =~ '.- n'~ .. ~.;: -- 0;;; b -- l.:;,;.. ;::oJ """ -< -.1 :,. l~~- ;!;:.~:.:::;,;i': r;;',: :;. . '"-...... '~.' i-... I..::,: '.~ ~'. ~~~':..:.d2~, '. ? J:J 7:;./tj ..1..........."..".1......,,,.....,..,.. ..1 u u u Hamilton Co., IN - Online Reports Page 1 of 1 Online SE General Parcel Information Select A Different Report I New Search fOT Current ReRort Disclaimer: The informatiDn availablethraugh this program is current as of 1{)/4/2004. ThIs program allows you to view and print certa,in' public records. Each report reflects information as of a specific date; so tl1e Informatlor provided by diffBfent reports may not matdl. All .Information has been derived from public: remrdslhat are oonstantly undergoing d1ange and is not warranted for content or accuracy. It may not refl ect the current informatJon pertaining to the propert,' of interest. Parcel No: 16-14-04-01-03-015.000 Property Address: Deeded Owner: Voith,....wrence J '" Susan R &. Ma." Lynn 11277 Woodtreek DR AnderSi)n Jt/Rs Cannel, IN 46033 Owner Address: 11277 Woodcreek Dr CARMEL I IN46033 al Description: WOOD CREEK 4-15-87 FROM ~YAN HOMES INCA 108.9 X 173.588/12/88 FROM BARR 8816856 7/3/% FR PERETlCH 7455 SectionjTownship/Range: 04/17/04 SubdMsJon Name: WOOD CREEK Bloc~: 3 Deeded Acres; 0 Political Township: Day Lot Number(s): 9'1 Most Recent Recorded Dale: This application is developed and maintained by the rnformatlon System Serlllces Department If you have any questions or comments, please contact 1 @ 2002 Hamilton Co. Webslte SUQQestlons or Issues I Conditions of Use , Priva~Q.Iky J Site Map I Technical Helo I HOME @ 2003, Hamilton county, Indiana' all rights reserved. http://www.co.hamilton.in.us/app/reports/rptparcelinfo.asp?parcelno= 1614040 103015000 10/12/2004 u u u 8i~ ~-:'.J ~. ~ 1= ~~ I , I i i I I I I " :1 ,.,I, I! " ,] i ~ 1,1 ~. 4l M ,:,~~ ;'~J.~ "~ . :, ~ .......:. i , -... :"9- :1 :~ :~ f' J I i i f \ , l t ~. ~I'J ' .';' . ,.~. ' . ,.'.<::.:': ~~'~.." ;;:. ;,-' :.....-. . .. .",1..... m.1i~..'" 'y, ". , ,.' .oj....,,'~,';;:,j;#,,;~;;;,.~:.:~i!:,'iIi;;:~;J;:;:;:cJ.;;,i;~;J}~E]~[t~:,~~~~~~~~ 870853B CORl?ORATE WARRMlTlC DEED THIS INDE~'"TI!RE WITNESSETH, That RYAN HOMES, INC. ("G::antor") , a ccr.poration organized and existing under th-a laws of the State of P~nnsylvania, CONVEYS AND WARRANTS to DANIEL C. BARR and P~ULA C. EARR, husband and wife ("Grantee"), of Nadon County, in the State of I ncliana, for the sura of Ten and Oq/100 Dollars' ($10.00) and other valuable consideration, t.he l?~'Geipt of wM:;:h is hereby aCknowledged, the following descr~b~d' real estate in Hamilton County. in the State of Ine.lanCl,':" Lot Numbl!;red 94 in Wood Creek, Section Three, an addition in ffCilllilton 'county, Indiana, as per pIaL thereof recorded in Plat Book 11, page 75 in the Office o~ the Recorder of Hamilton County, lru;iiana. lG.g "C: - -. c Sid ..."", ~~ "" AO e= c'-" 1'l~ - Q ~~ =-= ..- ~ DAN I -t:ogethe:c with all of the rights, privileges, easements ar:cl appurtenant ownerShip interest in and to premises pre\Tiously .:lr subsequently co;nveYe.d by Grantor to Wood Creek Recreationd, Inc. :by deed 1"":~or.ded in Herni lton county, and as marl:! fully defined in t~~ Declaration of Covenant6 and Restrictions recorded ill Har_:! ton County as shown in Mi scellaneoul'.: Record 159 pagss 247-255. Guntss coven;;t!ts and agrees to be hound by and to comply with the aforesaid Declaration of Covenants and Restrictions includ~ng the person~l obligatioll cO pay assessmellts purlj~ant to said Declaration and .G-cr.ntee hereby executes and acknowledges. this deed fol:' such purpose. Grantee agrees that the property herein conveyad shall be subject to sucb 8~5eBBmentg in ~uch amounts as shall be determined by' Wood f ~t.; ~creel' Rec,;eDtional, Inc.., its ~uccessors and assiS-fIS. :: ~ '~lSO subject to: ':-...."'=> iO( 1. TaxeS for 1986 rJue and payable in ~!llY and Novelllber ~ ~~987 and t~~es for all sub~~quent years. _I~" ',' 2. p015sible future a&S6Ssment for :r:epai rand maintenanoe ,~-l t::\. . . 'f Moff:lttl?l:lll iamson DH,11'l.. ''f, ~\{) ,": 3. possible municipa:J. I3ssessments imd/or sewer 1156 : ~ '. 'l"':~' ha.r..ges levied by Cit'Y' of Carn:el. , -:-.. .:, :,;~ 4. possible easements for draina.;re ditches and. i;i1e : ~J' . .: "~'t., rains.. I ~ ' ..: .' .$. lSasementfor pUl11ic utilities, d~ain",ge and incidl':lutal '.' : I .iI:"., '>'..rp(lses over 7.5 foot stt'ip along SonthW. esterly .Bide anO . ~p]~:: ~ :':~(),[~h~ElsterIY side o~ .lot. easement for publiC utilitie~. ; PI P W,:~' ',.>:!::\6.['i! 1mlgEl,. sewer and. .1n.C1dent8l purpose. B . over ,7.5 foot st:l::P , ~ '- ,.,2:alony'NortbMGsterly end of lot and easement for f'ubhc , ,'. utilities" seHer, drninage, ana incidental p:u~pvses over '15 , ~ . foot strip along Southeasterly end of lot 85 l'h:own on plat:. 6. Tbirty foot front building lille sh.own on plat. .,. Covenants. conditions and resh:ictionsse.t out' in plat. d. Cov.;;,nants. cOlldi tions and restrictions sel,; out in Decla'!:ation of Coven..nts lwd Restrictions FOle Wood Cr~ek . recorded November 15. 1979 in Miscellaneous Record 15,9. pages 24'1-2155. 9. Annual ana special assessment.s as provided for in Declaratior. of Covenants. and Restrictions set out in Item < B) .J\];lQve. whicll sa id assessments shall become alien Or! the p~ope t . bUt bo~dinate to. the lien of a mor-tgage as provide~ lor' 6 ain., /J. <- /1. ... )i1~:'MG(Os.;.'''inc.Dm~',1;''';;-'~-1 ~ ~~ C. ~u.ful [s.ll. PAULil c': ~~~~~.I , ,;"", i< " 2'-L~..-:.fZ. ......... .-- I ~ ;:::;et:"'~:~I~ .;1~~i~~-1 me, ~ No.~az:tl~~!?'!.:~~~e..J c , ........g1" STATE OF INDIANA ) ) ) 53: COUNTY OF MARION Subscribed and sworn t~~.k{Q.re for said County and st8t:,e~~h.1:~;?,:i;St':: ,.....'jAC~ ., . ,\I,. r,', My_Commlss.!9J).; ~,JtPJ.r~.s,:- ~..~,-:'~'~;~i; "::. : ,~.. ,,' !lOrAn ~;~~s~,~~:~m'~f~1ir/"~~i,~:~ubl irIlJll.Ii;;'_!J..,.I;.C>~y~''''''''~k:~-,~: . 4_ '~a.~~ ',.1" ""', . II'l,Cf)lI,1J(;S101 ~ffi'P'~'1_0,"l.Wg;:;;:~' \v~t-::.. , 'mOl IlIRti IIIlIIA~^~!~~f':P.~:'PP:\J ~ \0 -:::.::l"'::";',., ~~~~~~\~f .;~..... ......~.~:~:.~,~, /~:: '" ......1" t ~,! \ g , ~ :;.~'~'~,"f~~ :\,.;~:;l"':';~'~~;:';;;' ;;,o,,~~ ...:.;::~:~. '-.c,.o t -.:r'.,:;.'O" ~ ...:~..~I.;'.' .'.r~:,". ,';....,:.r;~ jlj.;::.;.o;~~'I'..~". ':"T,' 0 t f I,' f I: [, t t r I i L t ,,' r I.. .. .. .. . t i l . I i i' u -~- The unders;igneli pe'csons et:acut.ing this deed on behalf of Gra~ltor reprEl81;11t and ~ertify th<?t I:be7 are duly elected ofhcC'lrs 0.. Grantor and have been ,[ullyempowG~ed. .by proper resolution of the Board, of Directors of Grantor, to execute .and deliver this deed; that Grantor has full corporats capacity to convey theI€'ul estate dl::scribed herein; and tbat all necessGlry corporate action tor the making of such conveytmce has be~n taken and done. IN Wl'!NESS l'lHEREO:e', Grantor has caused this deed to be: eKEiculed this ~ (j~yof March 1987. RYAN HOMES. J:NC. 7 7) '''~= ::TE~QIJ~ Adrian N. ~81'ld Assistant Secretary S'IATE OF INDIANA >COUNT:i OF l"JARION ss: Before me, a Not~I}- Public in and for sahi County and State, persbnally 8Ppetll:'ed Nark Sh<l'Uretta and J\o.::~:;;!n ,q. Rand. the Vice President and, Assistant Secretary of Ryan Homes. Inc., who acknowle:1geti eX>o:cution of the foregoing Deed for 'wd on behalf of said 'Grantor, and l'lho, having been duly sworn, 5tated that the repIesentaHons, thet'Jain conta ined are true. 31st u . '" "WITNESS MY HA.ND AND NOTARIAL SEAL, this ,,'~~~'bf~ 'i~~;:March , 1987. , ,,~;"',$)~.&~;f{.<IS ......U\'m'\" .: ",~ "7r",,:~,;cb~1 sion E:lI:pites; . .1,,"i-1",,~,.. Z~'.' J~~I.......... ., " ",:, '.~^'J~; ~~"i: ~... " \:13<," : .' o} '~'~~'~7t... :23lr'~ 1990 l""\(~ 'K~:" '" . \1'~'r:~~'j"".~J:? ..t~~i.r~I.~:' y.~,:.,. ~ ,,;..1~:..:.~":~ .,..;t '" "r."',~~ IV ()'\ ~._.' .... \ . ~~ ~J :';.,"'~'~' 'on;, ~: , ,;': ',..'T~~Si~stru:nent:waa prep~re~ by James F. Beatty, Attorney at 'r.,a\ili '.400 Un10n FeClel:'al BUlId1ng, Indianapolis, IN 46Z04, (317) .632-3:030. day ~~ S~laxon K. Bruhn Notary Public - Joh~son County , . 4- (~tOOl rlli~ In5Imm~n~ RKllOldWd UamiltUll t:ount~.llUl. Sharon K.Cl1~rr~.RewI ~I. l :;c (n' l' ::i:' :S:a~ C;~.~ 00_ :;: ;c~. g~~, ~ ;;Om H ~ ;;;.:' ~ :!:" '~ -'tic O";:I:l ~'m ;:>:7<:;) mf'"l"l 0<:' C,rn ::JJ:'t:!:l o .,- , " '-"" ; ,-L, .t>.,', t..> .... ~ =r <:0 -.J u ifrl~0,b~i~:; .':':'~:1t~/84~~&~tr~r:~.:".)~:';e";"':~"';',;,'''''' ,. ;!~~.:~~..",." .. ."~):'r:,~,~?#;ti'f,:~.1~~hH~~i ....""1.....1,.......:"..1..:,._:,, ('..-;.;'~.-: ~,' . ~ ' . -'.? -.':. u u u ....-, ,".;. fj~K;4~ ,. ~I~rt' J fk' 1 I I ) )'; " ! . I' .l . ~. ~ ), r rt. r l I "- , I I ... .".., .~ "~~-:.' UB& gJ U,i. form CODtsfJhJlft'prQr:tir:e 01 Jow anel i:J limited 10 pmr:lir:ioplcwy...". <CCoprzjgbt, 1986; hy In.dioliopcJi. &,z Maodo/ion.. Form No.3 Rev. 10/66 (n :t::D ,- :..-: g; :;".:: ".' ~: .7~:~.::-~ ~ Pa.rcel No. 16-14-04-01--03-015.000 8816856 . L WARRANTY DEElP 1 .';;:-- ".~ ~. .t <.; TillSINDEN'l'URE WITNf:SSBTH. Tbllt Daniel C, I!a.rr .md I;ll1d Wife. of I-kz;."FIjr,~/ County, In Ih.. Slale of "D;OI.t!J.AI/J.- AND WMliANT_ 10, Cary Peretic:h ., ~ ~ lla=. _fnJs~d . Q;:> (Grantor) ,CONVEY _ _. o. irJ '.~'f~ Paula C. (Grantee} Q' Hamilton County. in the State of Indiana _, for the sum of --------------,-----TEN-------_____ DonlLn ($ 10.00 } ,'Jnd oth~ v.:lluable consideration, th.-. receiplalld aufficl.mcy oFwhlchis bllrebyaolu1.Dwl9d<lEld. thefollowiu9 dBocribed real eslale In F/wnilton County, Stale 01 Indiana: Lot Numbered 94 in Wood Creek. Section Thre~ an add1eion in Ban,ilton County, Indiana, as pBI plat thereof reco~ded in Plat 'Dook 11, pages 75-18 in ~he Office of the Rec.ord~r of Hamilton County, Indiana. Subject .1':0 the Fall Installment of Real Esta.ce raxes due and p....yable in November 1988 and all taxes payable thareafter. rhis IlIslrUIII~nl ~tllrded . g --I IR.- 1988 Sharon K. Ch~rr~. Recorum, Hamil/pn CUI/Illy. IN ENTERE'"....l?ORTAX.P,~f.)N .=to finllol a~:l1'lCf:':O"- "':'I'...nJ;l:I!l.' /:J.. iDliv tk- aQ.C;r w$ 'r.'lnO.. <P~n~~~ V"~ HtiWJ""'" I /Lj-04-0J'''{) 3,..015'_ JII:to'i1" _ Subjact loan)' "nd all easement$, "greements ano;l reslricticnsoh(!Qord.The addre8t;l ol'such relll El<llaw is commonly known as 11277 Wood Creek Or.. C"mt.> 1 , Indiana r"x billa should be sent 10 Grant1:laat such addrell.!l unless othenvlne- ifldicsled below. Hth nt WITNESS 'WHEItEOr. Gran.tor has executed thie d"d lhiB .)ul'.)?, '~ , 19~, G~~io'? " " ." .. ".- S'~l}alit:f) -t'";. , r" . P'i::i'a 0.... O'l.r:f-el C. Barr '0:' \ - t ';rJIr J:~i~lla .,~...,( "i"'~"Z-~-vJ -t+/,,') " "'t.''''.~H''' Before ine, a Notary'Public in and for said Coun.1y and St",te, personally appeared Daniel c. Barr and Paula C. EaTr. husband and ~ite who ad;nowJedqe<l the,e:lle~ulion 01 tt.,; loregoing WaniilntY Deed, and who, h,o,~hl9 bean rfttlll' Ilworn, etated !hilt. any rep:i-e6GnlatloDs therei"'.1l01;11slned "ra au.... ~. .' . Wiln"9lImy hlind and Notarial Seal tbill . /~ ~ ~ . My commIBSiOj;Piros: Slgnalure ~ // 3 .~ Printed 1Z12.m€L# R..)CT:Pmf.eG, NOlwyPubl1c ,. --1'~ ResJdenl of Col.Ult,-, Jnd1l1ua. James J. tlel'son. ., Attorney at Law. St. , Suite 220. Indianapolis, IN ~ . , -<.u~ <'....~4-.L1h. , ~ eLf.. ~ 1 ~ Grantor: Signature Prll:lled }ss: ACKNOWLEDGMENT ---.' 'J:his InotrumeDlpreparad hy 301.'21 E.98t.h Return deald to '-(..;;.. 7 7 ( . Send lax bills to _ Ryan Financial Services. Il;!c.. PO Box Ql)g. P1 r1"mhrJVI-. ;>A l~')~n '1 -:'::.'';;:; ~~ :-Tl ..... -:,. . '"':t"71 '- ~-: ...~ 4~ ~:: 4.~ ~... r f I r ~ I / I i .1 .1 - " .~ . ,. l ,..l ". '__" ~.... ~.. _'Jl. ~ "I u u u \"u ' ot) e B.f7C!D 116 0% 27455 Filed for RecDrd in HAMILTON COUNTY, ]NDI~N~ MARY L CLARK On 07-03-19'16 At 11140 alJ,. WD 10.Q(I Vol. (I Pag! 0 W ARRAN'fY DEED TRIS INDEl\'TURE WITNESSETlI, That Gary Pt!mkh ("Grantor") of IilmilWtoD Count'. iii. fbe State of Indiad8, C(P'I<oJVEYSAND WARR.&\,llffS to Jerry L. W"'~ aDd Lee AJI..D mwams. IfIlll8iwlllll!lDd WD'e ("Grllntee") ofllJamiD8vP County, in (be State of lodjana., for the sum of One DoDar (St.OO) and otber valuable consideration, tbe receipt of which is hereby ac'Jmowledged, the following described real ti5tate IDeated in IIallIWteD i:ounty, jJl the State of IndianaL Lot 94 in Wood Cree~, oSllctloD Tbree, an Addition in Hamilton Cu.unt,', IndiHna, as per plat fbe:reof, recorded in Pillt Book 11, pllga 75-78, in the Office of the Recorder of Hamilton Counly, l.-diana. This conveyaNce is subject to: A. B. C. All eas,;mems,right$ olway mid restrict;tms ofTecoTd. 0"'"7 All tfJJ>es due and pO}JOljle inm~ . . 19....:I..L-, and thereafter. Mortgage for $lOO,OOa.Oo from Gary eretich, to NBD Bank, NA, recorded as IDstrument No. %1870S. Gnmtor herein warrants that tne unpaid bl;1JaDtOO due under Ss.id mortgage shall be paill in full .from the Grantu" proeeeds of sale at' 1im~ of final eJ6sing. I'J n IN WIlTNES.'" WHEREOF, Grantor has executed tbis Warranty Deed tbi1l .d...L day of ~ ' 1996. tJUI.YBt,ITEREDflOkTAXA-rn;;:.j. 'V- ~e.".~~~ ".. '~':~IF . ~ ~ t ~ ~ .lhmil;UlJGt!lInl~ . 1I11J' !'~retiieb i'nrcelli H~ -I tj ~ tJ.t -Q .te; -O~ C(J) STATE OF IndiD/lIa) )8S: Marion) COUNTY OF Before me, II NotaryPublie In and for said County ane Sta.te, personally appeared Gary Perefic;h, who ;u:knovvledged. theexctotioD of the foregoing'Warranty Deed,and wbo, being duly sworn. stated {(hat any repl'e'lentatilms then:in 4::ontained are irue. Witness wy band and Notarial Seal tbis p day of ~~ Slgn:llture r~ (). ,1996. J1~ County 0 Printed , Notary pubJie 9N~I^ fl. r(i,i~rE::J R1.~eslde~191 Mal!o:;Co:Jn:y,iN "'J' o;nlT\lSSfon EJlpir;os 12.19-99 .' CommOD Addres.s: H217 Wood Cr,*k Drive Pl>rcel No.: 16-14-~4-01-03-015.000 This documentwa.s pnpared by THOMAS .I. MCNULIT. ....f10rlley at Law _. 39SO.,Priorit)'_Way_S.,J)nv.e"SuitdJ1:tt,Jndi;tnapolis.]N 46240 St:Dd ta.x statements to Grantee af the roI~owing ",ddress: IlL 77 (,,-000 J tAIIQL ('r. ~~, ~ ~~3 BEST POSSIBLE iMAGE I.".l..""..,..1 .,1....,.,..;..,,1. LJ LIST OF LOTS. ADDRESSES. BUILDER. PERMIT DATES AND DATES OF DEEDS TO CONSUMERS IN WOOD CREEK SUBDIVISION WITHIN ONE-QUARTER MILE SQUARE OF CARMEL SAND AND GRAVEL PLANT SITE as of -November 11.1987 Wood Creek Lot No. Address Builder ] 08 5245 Westwood Dr. Ryan Homes 107 5257 Westwood Dr. Ryan Homes LJ 106 5260 Westwood Dr. Ryan Homes 99 5243 Wood Creek Ct. Ryan Homes 98 5251 Wood Creek Ct. Ryan Homes 97 5254 Wood Creek Ct. Ryan Homes 96 ] 1261 Wood Creek Dr. Ryan Homes 95 11269 Wood Creek Dr. Ryan Homes 94 11277 Wood Creek Dr. Ryan Homes Permit date of the eighth home: Permit date of the ninth home: Sale date of the eighth home: Sale date of the ninth home: U Date of Deed Permit Date to Consumer 6/12/87 3/31/88 1/14/87 5/12/87 11/1187 2/29/88 5/19/86 9/26/86 6/26/86 9/26/86 5/2/86 9/05/86 10/30/86 3/27/87 2/20/87 7/14/87 11/1 0/86 3/31/87 6/12/87 11/1187 2/29/88 3/31/88 Illegal Sand and Gravel Pit (Non-Confonning Use) Aenal photograph taken Spring 200 I for Clay Township -----. ~ square mile from middle of sand pit N t seAL E o _... 200 400 "~L1IIlli'r-aa.wi:ll~~_~~""UH 1 Inch .. 200 Feet 800 l LJ STATE OF INDIANA CARMEl/CLAY ADVISORY BOARD OF ZONrNG APPEALS DOCKET NO. 04070020 A COUNTY OF HAMJLTON Thomas Yedlick, APPELLANT William D. McEvoy) Gregory M.. Policka, Susan Becker, Rex A. Weipert Rene Pimentel, and Donald K. Craft AFFIDAVIT OF REX A. WEIPER Personally appeared before the undersign~cf notary public, duly authorized to administer oaths, Rex A. Weiper (the "AffiantP), who, under oath, deposes and states as follO\Ns: 1. My name is Rex A Weiper, and I am over the age of 21 years. f have personal knowledge of the facts recited herein. 2. u I am a professional home builder and I am well acquainted with lot sales, home building, home 5sles,and land use in the Carmel area and, in particular, the Kingswood subdivision area. 3. My wife and I moved into our home at 11179 Westminster Ct., Carmel, IN 46033 in July 1988. 4. In July 1988, the Carmel Sand and Gravel Plant, now accessed from Hazel Dell Parkway, was not in operation in its present location, and, to the best of my knowledge and belief, did not exist. 5. In July 1 gSS, the lake that prQsGntly surrounds the Carmel Sand and Gravel Plant did not exi;;t and no one was working on it to the best of my knowledge and belief. 6. In July 1988, a substantial part of Kingswood subdivision was planned and a substantial pert of the Wood Greek subdivision was complete, with homes located on most tots. 7. In July HiSS, the Oal< Hill Mansion was in its original location adjacent to the Kindswood subdivision. 8. To the best of my knOWledge and belief the Carmel Sand and Gravel Plant did not commence operation until after the Oak Hill Mansion was moved. u 1 u u -u 9. To the best of my knowledge and belief, there was no public notice of the commencement of the dredging of the lake east of KingsWOod or the commencement of operation of the Carmel Sand and Gravel Plant in its present location. 10. To the best of my knowledge and belief, the Carmer Sand and Gravel Plant is operating without any license or permit from the State of Indiana or the City of Carmel. Further, Affiant saith not. 1L~)br Rex A Weiper STATE OF INDIANA ) ) Ss: COUNTY OF JJc~~ ) Subscribed and sworn to before me this I !-..d.c... day Of October 2004. Signature= ~-!~/ ~~ Notary Public 4eoL S' N~~D ~I..~ Printed: My commission expires: /( (~ [~00~ My county of residence is: ~ L: \WPFILES\021330\AppeaILENCU2004\A.ffidRe.xWeiper.doc 2 I I I IlJ I I ! I I I I I IU I I I I I I 'U I I SPECIAL USE APPLICATION BY: AMERICAN AGGREGATES CORPORATION CARMEL BOARD OF ZONING APPEALS AUGUST 28, 1989 I I, I I I I I I I I I I I I I I I I f I I I I I I ' I I I I I I I I I I I I r , I' . -- -- .- ~ ...-"" ~ I. ORTHERN .' BEACH ~ Q ~ ~ "BLUE WOODS~EK' / ~ C'9 \: ____- ------ ""8z 5- I ~ > .. -5 - l o I.} ~ KINGSWOOD o a: ?1: a: - . TREET (.!J 96 th .... ._~,. II AREA MAP -2- --...-. 1\ <C 'J -. '" r. ~u u -u- Special Use Type Application CITY OF CARMEL/CLAY TOWNSHIP HAMILTON COUNTY, INDIANA APPLICATION FOR BOARD OF ZONING APPEALS ACTION DOCKET NO. S LA~ 60 ~ S q DATE RECEIVED: (1) Applicant: American Aggregates Corporation Address: 4700 East 96th StsLet, Indianapolis, IN 46240 Phone: 317/573-3700 (2) Project Name: Operating Plant 513 Engineer/Architect: Schneider Engineering Corp. Phone: 317/898-8282 Attorney: James J. Nelson, NELSON & FRANKENBERGER, 3021 East 98th Street, Suite 220, Indianapolis, IN . 46280 844-0106 (3) Applicant's Status: (Check the apprDpriate response) (a) The applicant's name is on the deed to the property (b) The applicant is the contract purchaser of the property XX (c) Other: 'rhe Applicant is the Lessee of the real estate. (4) If item (3) (c) is checked, please complete the following: Owner of the property involved: Parcel A - Charles P. Morgan, Parcel B - Judith L. Pope Owner1s A4dress: 1980 E. 116th St., Carmel, IN Phone: 848-4040 ( 5) Record of Ownership: Deed Book No. Parcel A: 337 Parcel B: 337 P ag e : Parcel A: 415-416 Parcel B: 413-414 Purchase Date: Parcel A: 06/27/83 Parcel B: 06/27/83 (6) Common Address of the Property Involved: None assigned Legal Description: Tax Map Parcel No.: Parcel A - See Exhibit A-1 attached hereto. Parcel B - See Exhibit A-2 attached hereto. Parcel A - 17-14-08-00-00-012.001 and 17-14-08-00-00-012.101 Parcel B - 17-14-08-00-00-012.002 and 17-14-08-QO-OQ-012.102 ~. I: U m, I: I I I I I IU I I I I I I I IU I PAGE 2 (7) Type of Appeal: (check appropriate response) (a) Request for a variance according to Section 30.4 Use Variance Develop~ental Standards Variance (b) Request for an Appeal from the Decision of the Director of the Department of Community Development according to Section 30.1 xx (c) Request for a Special Use according to Section 21.0 (8) State explanation of requested Appeal: (State what you want to so and cite the section number of the Zoning Ordinance which applied and/or created the need for this appeal. See Exhibit B attached hereto. (9) State reasons supporting the Appeal: (If filing for a variance, complete the attached form entitled "Findings of Fact-Variance") . See Exhibit C attached hereto. (10) Present Zoning of the property: (Give exact classification) Parcel A - 8-1 and 8-2 Parcel B - 8-1 and 8-2 (11) Present use of the property: undevelop~d land (12) Describe the Proposed Use of the Property: See Exhibit B attached hereto. (13) Is the property Owner occupied Renter occupied Other: xx xx (14) Are there any restriction, laws, covenants, variances, special uses, or appeals of affect its use for the specific purpose of this application? If yes, give date and docket number, decision rendered, and pertinent explanation. No. ~ il: r : 10 i Ii I: Ii I I I IU I I I I I I' 1- U I I PAGE 3 (15) Has work for which this application is being filed already started? If answer is "yes", give details. No. (Building Permit No. (Builder (16) If proposed appeal is granted, when will the work commence? Fall, 1989 (17) If the propos8d Appeal is granted, who 'di.ll operate and/or use the proposed improvement for which 'this application has been filed? The Applicant (18) Type of Notification (check the appropriate response). xx (a) LEGAL NOTICE in the Noblesville Daily Ledger and Carmel News Tribune (attach Publisher's Affidavit) xx (b) CERTIFIED MAIL RETURN RECEIPT REQUES'fED sent to adjoining property owners. (attach Proof of mailing and return. receipts). (c) HAND DELIVERED to adjoining property owners (attach Petitioner's Affidavit of Notice of Public Hearing for hand delivered notification. NEWSPAPER NOTIFICA'rIONAND ALL OTHER TYPES OF NO'rIFICATION 1>1UST BE DONE THIRTY (30) 'DAYS PRIOR TO PUBLIC BEARING DATE The Applicant understands that Docket numbers will not be , assigned until aLl supporting information has been submitted to the Department of Community Development The Applicant certifies by signing this application that he has been advised that all representations of the Department of Community Development are advisory only and that the applicant should rely on appropriate subdivision and zoning ordinance and/or the legal advice of his attorney. ~ ~ (~ I I I I ~ ~ I Ii ~ I. I I I, I' ~. I ,U I PAGE 4 I, Polly Pearce, Auditor of Hamilton County, Indiana, that the attached affidavit is a true and complete listing adjoining and adjacent property ownecs concerning Docket t . mmER See Exhibit 0 . See Exhibit 0-1 for Certification __~udU~~Lr of_ Hamilton County, Indiana certify of the ADDRESS I If . U I I I Ii Ii.' jl ~. ~ ~~ mii ~i m' ~. g: ~' illl 07 U I. I AFFIDAVIT I, James J. Nelson, Attorney for American Aggregates corporation, being duly sworn depose that American Aggregates Corporation is the Lessee of the property involved in this application and that the foregoing signatures, statements and answers herein contained and the information herewith submitted are in al~ respects true and correct to the best of my knowledge and belief. " .-/)-7 . /c~- J. Nelson, Attorney for erican Aggregates Corporation Subscribed and sworn to before me. this 29th day of June, 1989. My Commission Expires: March 2, 1993 Residing in Hamilton County. I I U I . ... I I I I I ! ~u I I I I I I L U I I EXHIBIT A-I PEl:rcel "A": P.or~ of the North Half of the SouthenRt QUllrt~r of Section 8, Township 17 North, Range 4 E"nt in HomLlton County. lnuiana, doscribed a8 folious: Beginning at th~ Northeast corner of tlta Southevst Qunrter of Section a, Township 17 NOl."th, Range 4 En9t; thenco South 00 degrees 00 m i nut e 8 00 0 e con d Ii (a 99 U m e d beat' i n g ) on the Ell n t 11 n ~ thereof 604.2~ feet: thence North 89 degreca 40 m{nuten 27 seconde West pornllel with the North lin~ of Dsid Quarter 1986.61 feet; thenCe No~th 00 degrceo 00 minutes 00 ncconde parollel with the Eaat line of said Qunrter 604.25 feet ~o the North line of anld Quarter: thenco South 89 degrees 40 minuteD 27 secondB EBst on nnid North 11 n e 1 9 86 . 6 1 f ce t tot he De gin n I n g Po! n t; con tal n i n g 2]. 5 5 7 D ere S I ~oro or leBG. . Subje~C to all leg~l eBs~mentc and right~-of-wny. I IU I I.~--. I I I I I IU I I I I , u EXHIBIT A-2 .Parcel "B": Part of ch~ North Half of the S.outhenut QuarCer of Section 8. TownGhlp 17 North. Rnnge 4 Ell!'Jt in lliJmilton County, lndi~na. dcscrlb~d a~ fallo~o~ Beginning on the E4~t 1ino of tho Southennt Quartet of Section 0, TO'o1nohip 17 North, Range 4 Eaot. 604.25 feet South 00 dc~reeo 00 minutes 00 sBconds (sDoumed bearlng) from tho Northr3~C corne: thereof; thence South 00 degr,ees 00 minuteo 00 geco~do on oald ~8St line ~l7.5Z feet to ~ point thot 10 193.17 feet North 00 deBre~s 00 m1nuteo~00 second~ of the Southeast corner of the North Half of ~nid Southe{ltJt Quarto!; th.enco North 69 degrecfl49 minuteB 28 (lecondl!) Went parallel uith the South line of the North Half of onid SoutheLJBC Quarto", 1124.00 feutj thence South 00 degrees 00 minutes 00 second9 parallel with the Engt line of D~id SQuth~3~t Qusrter 193.77 feet to the South line of the Noeth Half of aald South~det Quarter; thenco North 89 degrees 49 minutes 28 secondo We~t on 8ald South llne 862.58 feet to a point that ts 1986.61 feet North 89 degt~ea 40 minute' 27 seconds West of thu E8St lIne of Qsld Southesst Quarter; thence North 00 degrees 00 minutes 00 seconds parallel with Bald EB8tlln~ 716.49 f~ct to a point thnt is 604.25 feet South 00 degrees 00 minutes 00 necOndD of the North lin~ of Bald Southeast QuattcH"; thence South 89 degreal1 411 minuteD 27 eeconda East parallel withslJid North lint!!' rgg6.61 feet to the! Beginning Point; ton~~lning 27.557 a~raB. ~or~ or leon. SubjE:<:t to ~ll l~al 1lI0Dem~ot4 and rights-of-way. I I U I I I I I I I IU I I I EXHIBIT B Explanation of Special Use Requested The Applicant is the Lessee of the real estate located on the west side of North Gray Road between East 106th Street on the north ~nd East 96th Street on the south and more particularly described on Exhibit A. The real estate is zoned 8-1 Residence District and S-2 , Residence District and. the Applicant is desirious of obtaining a special use pursuant to Section 5.0 and 6.0 of the Zoning Ordinance of the City of Carmel, Indiana to extract sand and gravel from the real ~state and to construct thereon an artificial lake or pond pursuant to the plans and specifications filed simultaneously herewith. Respectfully submitted, James J. Nelson 1- . ~- ----- :u I IU r u u UJ~'1l:J, I3OI\I,n OF 2CNIH~; JlJ'P;::!ILL; ClJNi':L, INDL\N{I D;x:kct No: peti tion~l.~er ~can-~9Eeqates -CorpOtat.~on -- FJNUTNC..." CF F/,cl' - I'd)li (: I !u:,r il1~J Oil t:L': _.~_ nl,tic"\.! 1t"'Jllin.:m::llt" r'~o.:,t: SI'Wr.\L US.P. r~~(,[J'rIO~!:: -.-.----.......--~--~.-_.-~_ _.._~r______.__ 1. The Sic~ci~t u:.;(~ in Flcod PI.Ii.n Dbtrict, OL;ilJ:lnc,-' ~lGU, Sr,cUon :!l.G i.l:; arrcnck."d (doc:x) (db.:s not) il(Jply and all !,rc~Y~lui::;i t05 lLwl.' J:"::'C'fl n\:..:t by Petitioner .)g vcdficd by: Schneider Engineecing Corp. 'Ille Sp:dal t:sc Exccrtion will be OJrlsistcnt Hith the Chx:.:lc.:tcr .:\r.U P0rmittoj L"U'ld uSr'" of the, :OIJ,tn9 ill s triet Dnq C.:u'!r~l-c:J ay Con1pn"hcngi vc 1'1iJn fk'c.:J~l$e: App icantls use is a specIal use in the 8-1 and $-2 Resl.den tlarDlScr lcts an(rtne-i.iSeT$=~coosJ::SEent-wrIn---- adjoining properties. T~ Sp..."Cial U$C i!.i physj CL'llly suit.:Jblc for tJK: l.ifld in question IA'Cilllse: Applicnat's use is a special use in the 3-1 and $-2 Rps;npnt1rtl nic:;tr;rr and the u=e...is-COrlsic;t'pnt with __ Thaatlpi,2ts.iO~ ~'l?PrEt\~j~iouslY or Delvcr5cly u[fc."Ct the ill:ljilcent l.:md or proFCrty vc11ucs b2Ci'll15C; Applicant's use is a special use in tl}~~:-l and 8-2 RpsioentL"ll nistricts ;:;nn thp--L1Se..is-c.oosis.t.e:nt wit':h 'l'hc~?1i?}nio~ e\[1Pn8t~'tiVdl'SClY uffcct v0hic\.1.lil.t.' OJ.' p:.-dc;:;tli<ln triJ[fic [lad, nor tJJ.~ adCSlnJlt~ il'l.::Jil.1.bility of w.:Jtcr, SC""'.'1'.J':, cr ~;LO.llU c1r;lin:t,.'i'::: L,cilitim:;, OJ.' police or [ire protectjonboc~us~: Public utilities are not necessary for Applicant's proposed use anq mini mum traffic is pr:E"ni ~tpcL 6. Tre,B:xm::1 ha::: revic>..ed the rcquirCllWlts of Ordinance ZIGO, S<::,:tion 21.3 (1-25) ic::i they reliltc to this SfCcial Us~, an:'! docs not find that tJ'w)SQ crit~riL.l [ireYsmt tl1e gr'-tntin9 of the Exco::ption: :res. . 2. 3. .; . 5. l)n:l~;J eN IT IS TIlEF.EFOf,:r:: tho do:.i sinn of the Cml1cl (!Q:tnl of 7.onir,u t\!y,X:;ll~; tr.;:t S~cial Use ~cQPtions D:x:ket No. . i!l (nut) yri<!1\:Cu, subject to a.')y conditions stated in U~nutl..:s orUll:> l!D::tt"d, \-ihich ill"':: incorpor.:l.tC'd herein by refercncv Lu1d ll\c"1de i'l l:>.:Jrt !J2I:"L"OL Adopted this 28thduy of August , 1,)8~ ----.---------.--.--. -~""'"'"----------~--. A1TE$T: CllJl.II;:t,W~_;__Lb:U'd 0f :Zonin~J~~ .- ..' Sl2.,""R8J'ARY, QlT.lIlo.:l 1!o:Lrd of Zoning IIp~~l:> Conditions of tJ10 [X).:::n] c'n~ listl...~ an the bZlcK. IPctiticnGr or hi.s n:'prc:':81tiltive to si'.lnJ ...../ EXHIBIT C Oak HilI 0 History of The Mansion u u Page 1 of 1 The Mansion at Oak Hill was originally located on a 110 acre farm west of River Road on a kno overlooking Cool Creek south of 116th Street in Carmel, Indiana. Built in approximately 1940, house was'built for an Indianapolis entrepreneur, Gerald Canfield, who ovmed a local manufal business. The structure was designed by well known architect, Hugh Bremmerman. It exempli grand colonial style and has the graceful architectural features of many turn of the century sou homes with modern dimensions. The ground floor consisted of a formal living room, gum woo paneled library,formal dining room, a kitchen with a breakfast nook, three-car garage and a f( entry that ran directly through the center <ifthe house to a circular drive in the backyard with. fountain. The second floor consisted of four bedrooms and three bathrooms, in addition to the servants' living quarters above the garage. The home totaled 7,000 square feet of lhing space. In September 1990, 5,500 square feet of The Mansion was.moved to its present location. This. included pulling and winching down a hill, crossing a specially-made bridge across Cool Creek going through.a corn field, across River Road and under a power line. Once the home was set, renovations and 10,000 square feet were added to the south end ohhe home. The Mansion fir: reopened in April of 1992. about us I history 1l!j1el1lS I wedding.. I f,;o[PQraleeYlilnt:o-1 OYldo9Lel[l;lnll !1JEUIYJ> I flQ9r-p.lans 1_"'WYaLtQJ.~( I LQ.f,;i\\jQol contactY5. I home I \olietm u Oak Hill . 5801 E. 116th St., Carmel, IN 46033 . 317.843.9850 http://www .oakhillmansion.comJpages/gen _history .html 10/13/2004 .. SETTLEMENT AND RELEASE AGREElVIENT u THIS SETTLEMENT AND RELEASE AGREE:MENT is entered into as of the 17th day of May, 2002 by and among Kingswood Homeowners Association, Inc., an Indiana not-for- profit corporation (HKingswood"); Martin Marietta Materials, Inc., a North Carolina corporation, ("Martin M.arietta"); Hughey, Inc., an.Inmana corporation ("Hughey"); the City of Carmel, Indiana, an Indiana municipal corporation (the "City"); and the City of Cannel and Clay Township Board of Zoning Appeals (the "BZA"). This Agreement is effective when executed by all parties and is premised on the following recitals which are incorporated into the Agreement . . RECrT ALS u A. Martin Marietta and the Helen M. Mueller Conservatorship ("Mueller") are parties to a certain lease dated. January 1, 2000 with respect to certain real estate located in Hamilton County, Inmana, comprising 237 acres, more or less, and more particularly described on Exhibit A attached hereto and made a part hereof(the "Mueller Property"). B. Martin Marietta is the owner of certain real estate located in Hamilton County, Indiana, located north of 96th Street and south of 106th Street, depicted on Exlribit B attached. hereto and made a part hereof (the "Martin Property"). C. Martin Marietta and Hughey are parties to a certain agreement and lease dated August 8, 1998 withrespect toa portion of the Martin Property comprising 8.18 acres, more or less, and more particularly described on Exhibit C attached hereto. and made a . part hereof (the lIHughey Premises"). Martin Marietta leased the Hughey Premises to Hughey for the purpose of operating a ready mix concr.ete plant and related activities (the "Hughey Operatio~s"). D. In an agreement with . American Aggregates. Corporation, the predecessor in interest to Martin Marietta dated November 5, 1997 with respect to construction of Hazel Dell Parkway (the "Hazel Dell Agreement"), the City agreed that the operations on the Martin Property (i) were outside an "urban area" as defmed by I~C. ~ 36-7~4-1103; and (ii) constitute existing, legal non-conforming uses pursuant to case law and as defined in Cannel's current zoning ordinance. E. On .May 30, 2000, Kingswood brought suit against (i) the City; (ii) Steven Engleking as Director of the Department of Community Services of the City of Carmel; (ui) the BZA, consisting of members Charles Weinkauf, Pat Rice, Leo Dierckrnan, Michael Mohr and Earlene Plavchak ("Board Members"); (ivy Martin Marietta; and (v) Hughey in the Hamilton Superior Court, docketed as Cause No. 29D05-0110-CP-2169 (the "Lawsuit"). The Lawsuit sought declaratory and mandatory- relief, and alleged, inter alia, that the mining of the Mueller Property by Martin Marietta and the Hughey Operations were undertaken without obtaining appropriate land use approval from the City. F. The City, the BZA, Martin Marietta, and Hughey (together, the "Defendants") denied and continue to deny the claims of Kingswood in the Lawsuit, and are entering into this Agreement to avoid the expense and uncertainty of further litigat~on.. Neither u u u u this Agreement, nor the consideration for it, shall be construed as an admission of fact or of any liability by the Defendants. .' G. The Defendants and Kingswood have participated in lengthy consultation and negotiations through their respective counsel to resolve the issues in the Lawsuit and have concluded it would be in their best interests to settle and compromise their disputes on ther terms and in the manner .provided in this Agreement. Steven Engelking and the Board Members were joined in their official capacity, not individually, and are not necessary to resolution of the. Lawsuit and the agreements contained herein. AGREEMENTS NOW, THEREFORE, Kingswoad, the City, the BZA,Martin Marietta, and Hughey, in consideration of the mutual covenants in this Agreement and the acts to be performed . pursuant to this Agreement, hereby agree as follows: . A. Agreements' of the City 1. Subject to Section A.3 below, the City shall not object to Martin Marietta's application to the BZA for special use approval for" sand and gravel extraction on the Mueller Property, including a variance of setback requirements to reduce the required buffer to 150 feet where abutting Kingswood subdivision and to 100 feet where abutting other property not o'NIled by or subject to mining rights in favor of Martin Marietta (the "Special Use and Variance"), subject to the Commitments (as hereinafter defmed). 2. Subject to Section A.3 below, the City shall not object to Martin Marietta's application to the BZA for a variance of use to permit the processing plant presently located west of Hazel Dell Parkway and north of 106th Street to be relocated to the east side of Hazel Dell Parkway, at a location farther :fra~ any home in Kingswood than at present (the "Use Variance"). 3. The City has retained Spectra Environmental Group ("Spectra") to review Martin Marietta's Special Use and Variance and Use Variance applications (together,.the "Applications") and advise the City whether they meet the Indiana Mineral Aggregates Association's guidelines for reclamation and the City's standards for buffer area landscaping. The City's Department of Community Services (the "'Department") shall recommend that the applications be approved only if they meet those guidelines and standards and Martin Marietta makes the Commitm~nts as part of its applications. The City shall also review and consider the Applications in accordance with its ordinances and procedures. 4. The City, with the assistance of Spectra, shall conduct a study, of the southeastern part of Clay Township, including specifically the Mueller Property as well as all existing Martin Marietta parcels in Clay Township. The study shall describe in detail all existing land uses and suggest.appropriate development standards for those uses and, if appropriate, new regulations covering noise and blasting in the vicinity. The study, which should be considered for incorporation into tbe Carmel Clay Comprehensive Plan, shall include a policy, subject to Paragrapb's A.8 and C.3 below, on the suitability 2 ," u , of allowing mining uses on property in Carmel and Clay TO'\iV11ship. 5. The City shall work with Martin Marietta to draft and submit to the Plan Commission for consideration and recommendation to the City Council a Mineral Resource Overlay Zone Ordinance (the "Overlay Ordinance") and a change in the official zoning maps pursuant to which the Mueller Property would be rezoned to the MR Mineral Resource Overlay Zone, with Martin Marietta making the Commitments, The Commitments- shall, be consistent with, and no less restrictive than, the commitments that Martin Marietta has made in connection with any mining pe:rmit application in any other jurisdiction in Indiana. The City shall be specifically authorized to enforce the Commitments. ,6. - The City shall expedite the' Overlay Ordinance adoption process so' that' all required public bearings are held by the Plan Commission and City Council within 4 ' months of the Effective Date (as hereafter defined), with the intent that the Overlay Ordinance and the ordinance rezoning the Mueller Property to the :MR Mineral Resource Overlay Zone become effective within 6 months of the Effective Date, However, failure to accomplish these goals by the specified dates shall not affect any other provision of this Settlement Agreement. 7. The City shall not prejudge, during the ordinance-adoption process, the issue of whether mining uses, other than sand and gravel extraction by dredging if the Applications are approved, should be allowed on all or any part of the Mueller Property. 8. The 'City recognizes that the uses now established on the Martin Property, including but not limited to the Hughey Operations, constitute legal, non~onfQrming uses. However, the' City also recognizes that existing non-conforming uses may not be substantially modified, expanded, or added to without a change of zoning classification or BZA approval of a special use or variance. The City also recognizes that upon approval of the Applications, Martin Marietta shall have a vested right to commence and complete sand and gravel extraction on the Mueller Property as requested in such Applications, 9. The City shall pay reasonable. attorney's fees that have been incurred" by 'Kingswoodiri connection 'With the Lawsuit in the amount of $7,500.00. B. Agreements of Martin Marietta 1. Martin Marietta shall not assert that the Mueller Property is outside an urban u area. u 2. Martin Marietta shall seek approval of the Applications to conduct sand and gravel extraction, subject to the Commitments, on the Mueller Property; and shall not conduct any mining or related operation on the Mueller Property, other than sand and gravel extraction by means of a dredge if the Applications are approved, without obtaining a change in zoning classification or other zoning approval. 3. Martin Marietta shall not permit Hughey or any other related industry to expand its operations beyond the Hughey Premises Of add uses not existing on the Martin Property as of the Effective Date without appropriate governmental approvals, except Hughey may, provided it has entered into va1id lease or other agreements with Martin 3- u Marietta, (i) continue to utilize the area bernreen the Hughey Premises and the existing berm along the south right-of-way line of 106th Street, as depicted on Exhibit C attached hereto and made a part' hereof for outside product storage and (ii) expand the ground floor square footage of the existing structure on the Hughey Premises by up to twenty percent (20%). 4. Upon approval of the Applications, Martin Marietta shall execute written commitments providing that its sand and gravel extraction on the Mueller Property north of 106th Street shall be. subject to the fallowing conditions and restrictions (the "Commitments"): (a) If Martin Marietta is permitted to commence sand and gravel extraction on the Mueller Property by June 1, 2002 and is not precluded from continuing such extraction, Martin Marietta shall, subject to approval by the BZA and the Indiana Department of Natural Resources, move. the processing plant located north of 106th Street west of Hazel Dell Parkway and adjacent to the Kingswood Subdivision t~ a new location just east of Hazel Dell Parkway and north of 106th Street. Such new location shall be farther from any home in the Kingswood . Subdivision than at present. Subject to obtaining the required governmental approvals, Martin Marietta shall start the plant relocation no later than January 31, 2004 with completion of such move to occur no later than March 31 j 2004. Martin Manetta shaU~erminate all processmg operations at the current site of the processing plant as soon as the relocation of the plant is completed. Martin Marietta shall install and maintain noise abatement features at the relocated plant which are no less effective than tbose now utilized, including the use of on- . site berms and aggregate piles as buffers, and the use of strobe light signals at night instead of audible signals, for aU equipment as permitted by applicable legal requirements. The existing tree buffer on Hazel Dell Parkway shall be maintained and shall not be disturbed.. Subject to obtaining any required permits and approvals from applicable govenunental authorities, Martin Marietta shall recycle waste water from the relocated processing plant from the east side of Hazel Dell Parkway to the lake(s) on the Mueller Property and Martin . Property west of Hazel Dell Parbvay and north of 106th Street. (b) All overburden removal on the Mueller Property north of . I06th Street shall be completed during daylight hours (between one balf bour after sunrise and one half hour before sunset), during the months of November through March, and only on days other than Saturday or Sunday. Martin Marietta shall also cause any operations under its control to be u u 4 u undertaken and conducted in a manner so as to minimize noise, dust, light or smoke impa9t on surrounding properties. (c) No surface operations shall be undertaken on the wooded portion of the Mueller Property north of 106th Street located directly south of the existing park at the northeast corner of Gray Road and 1 06th Street. (d) All trucks entering public streets from operations conducted by Martin Marietta in Clay Township north of 96th Street shall have covered beds. " " (e) Martin Marietta" shall. reclaim the Mueller Property north of 106th Street (except the wooded portion of the Mueller Property north of l06th Street "located directly south of the existing park at the northwest corner of Gray Road and I06th Street) and. the Martin Marietta property between 106th and 1 1 6th Streets abutting the Kingswood Subdivision and west of Hazel Dell Parkway as a lake with (i) slopes no steeper than 3 to 1, (ii) a waterline not less than 150 feet from the nearest property line in the Kingswciod Subdivision, assuming that the nonnal pool elevation, sub}ect to seasonal variations, is 722 above mean sea level, and (iii) domestic grass coverage of not less than eighty percent per square yard. Martin Marietta shall submit a reclamation plan to the City's consultap.t before the City makes "any 'recommendation for approval" or" the Applications.' Reclamation shall begin on the northern portion of the Mueller Property and move in a southerly direction. (f) Subject to approval of the co-conservators of Mueller and the court overseeing it) Martin Marietta shall cause to be conveyed to Hamilton County or the City, as the case may be, a forty-five foot half right of way along the northern edge of 106th Street measured ~om the existing center line of 106th Street. (g) All reclamation shall comply generally with the reclamation guidelines adopted by the Indiana Mineral Aggregates Association, a current copy of which shall be provided to the Director annually, and shall be done in accordan"ce with the Mining and Reclamation Plan" submitted by Martin Marietta in connection with the Applications, as last revised and approved in .connection with the Applicatons (the "Plan"). (h) Martin Marietta agrees that it as part of sand and gravel extraction it shall not pump water from the Mueller Property, except as necessary to convey sand and gravel through a pipe u u 5" u u u '. to the processing plant, and 'Will utilize a closed loop system pursuant to which water pumped from the Mueller Property to the processing plant is returned to the Mueller Property (except as may be lost naturally through evaporation or in the processing activity. Upon completion of the sand and gravel extraction, Martin -Marietta shall take no actions to drain the lake created, or to reduce the water level below 722 above mean sea level, subject to seasonal variations and natural fluctuations. - (i) From the overbtrrden removed during sand and gravel extraction, Martin Marietta shall construct an earthen <landscape berm six (6) feet in height on the north side of 106th Street on the :t-.1ueller Property (except the wooded portion of the Mueller Property located directly south of the existing park at the northwest comer of Gray Road and 106th Street). G) Martin Marietta shall be r~sponsible for all environmental matters arising from its operations and shall indemnify and hold harmless the adjacent landowners in the Kingswobd~ubdiVision with respect to any losses, claims or costs arising therefrom. (k) Sand and gravel shall be extracted only through the use of_ a- floating dredge. : Such extT3:ction will be done in the - sequence depicted in the Plan submitted by.Martin Marietta in '_ connection with the AppIication.s. Martin Marietta agrees that once it has commenced sand and gravel. extraction an the Mueller Property, no sand and gravel from any source other than Mueller property north of 106th Street will be processed through the Processing Plant until extraction on the Mueller property north of 106th St:reet is complete. (1) Any other commitments required by the BZA in its approval of the Applications including, but not limited to, a perimeter buffering landscape plan approved by the Department. 5. Martin Marietta shall pay the City's reasonable attorney's fees incurred in connection with the Lawsuit, and the fees for its qualified mining engineer, geologist or consultant, to an aggregate maximum of $25,000.00. 6. Martin Marietta shall pay Kingswood's reasonable attorney's and experts fees incurred in C01111ection with the Lawsuit, upon receipt of documentary evidence of the work performed and time expended, to a maximum of $21,750.00. Such amount will be due thirty (30) days after the Effective Date. 7. For each calendar year or part thereof that Martin Marietta is extracting sand 6 u u. u and gravel from the' Mueller Property north of l06th Street, it shall pay th~ City $5,000.00 to monitor Martin Marietta's compliance with the Commitments. Such payment shall be due on the first day of the second month following approval of the Applications and on each anniversary thereof. . 8. For each calendar year or part thereof that Martin Marietta is extracting sand and gravel from the Mueller Property north of 106th Street, it shall pay the Kingswood an amount to be used for publication of a Kingswood directory, maintenance of common areas in Kingswood or social events for the entire Kingswood neighborhood. The first such payment sha1lin the amount of $26,750.00 and shall be due on the first day of the second month. fonowing' approval.of the Applications. Each subsequent payment shall be in the' amount of $5,000 and shall be. due on each anniversary of the flIst day of the second month following approval of the Applications. " ' 9. Once a year, at the invitation of Kingswood, and for so long as Martin Marietta is conducting sand and gravel extraction or performing reclamation on the Mueller Property, Martin Marietta will send a representative to a meeting of Kingswood to report on Martin Marietta's activities on the Mueller Property. C. Agreements of Kings wood 1. Kingswood shall cause the Lawsuit to be dismissed with prejudice. Kingswood shall and does hereby RELEASE AND FOREVER DISCHARGE the Defendants and their respective corporate parents and affiliates, all of their present or former. officers or elected officials, employees, represent,atives, agents and directors, frOf!1any and all claiIns, demands,- losses, daniages? injuries, actions orcatises of action. willi respect to, on account of, arising out of or in 3:llY way connected with the allegations of Kingswoodin the Lawsuit. 2. Kingswood recognizes that the uses now established on the Martin Marietta parcels property, including but not limited to the Hughey Operations, constitute legal, nonconformlng uses. However, Kingswood also recognizes that, except as provided in Section D below, existing non-conforming uses .may not be substantially modified, expanded, or added to without a change of zoning classification or BZA approval of a special use or variance. Kingswood also recognizes that upon approval of the Applications, Martin Marietta shall have a vested right to commence and complete sand and gravel extraction on the Mueller Property as requested in such Applications. 3. Kingswood shall not oppose ,the enactment of an Overlay Ordinance permitting sand and gravel extraction on the Mueller Property. D. Agreements of Hughey 1. Hughey shall not expand its operations at or beyond the Hughey Premises without appropriate governmental approvals, except the parties agree that Hughey may, provided it has entered into valid lease or other agreements with Martin Marietta, (i) continue to utilize the area between the Hughey Premises and the existing berm along the south right-of-way line of l06th Street, as depicited on Exhibit C attached hereto and made a part hereof for outside product storage and (ii) expand the ground floor square footage 7- u u u of the existing structure on the Hughey Premises by up to twenty percent (20%). 2. Hughey shall pay reasonable attorney's fees that have been incurred by Kingswood in connection with the Lawsuit in the amount of $7,500.06. E. General Agreements of the Parties 1. Neither the Lawsuit nor anything contained in this Agreement shall be deemed to have determined that the Mueller Property is in an "urban area" as that term is defined by I.C. g 36-7-4-1103. 2. In making this Agreement,. each party hereto has relied solely on its O'W11 . judgment, belief and knowledge o~the nature ofthe matters described herein. 3. This Agreement constitutes the parties' entire agreement with respect to. this. matter, and it supersedes all prior negotiations, representations or agreements, either VIlitten or oral between the parties. 4. This Agreement shall become effective and binding upon the parties upon the date (the "Effective Date") upon which the last party hereto executes this Agreement, provided that if this Agreement is not fully executed by all the parties on or before May 17, 2002, it shall tenninate and shall not bind any parties that have executed this Agreement prior to such date. 5. Notwithstanding anything herein to the contrary, the provisions of paragraphs B. 7 and B. 8 of this Agreement shall become effective and binding upon the parties only upon approval by the BZi\. of the Applicatio~s provided, howev~r, that . such . approvals are granted not later than June 1, 2002. . .. .. 6. Each of Kingswood, Martin Marietta and Hughey represents that it has taken all necessary and appropriate corporate action to make this Agreement its legal, valid and binding obligation. The City represents that it has taken all necessary and appropriate municipal action to make. this Agreement the legal, valid and binding obligation of the City. Kingswood. Martin Marietta, Hughey and the City recognize that this agreement is for the .purpose of settlement of the .Lawsuit and is not binding on the BZA, the Cannel Clay Plan Commission or the Common Council of the City in the exercise of their responsibilities for land use and zoning of Clay Township and the City of Carmel. 7. This Agreement shall be governed by the laws of the State of Indiana. 8. This Agreement may be modified only by a written agreement executed by Kingswood and Defendants, provided that nothing herein shall be deemed a restraint upon the police power of the City. 9. Each of the covenants contained in this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors, and assigns. 10. This Agreement may be executed in any number of" counterparts, each of which shall be an original but all of which. together shall constitute one and the same instrument. g. '.. . to, u 'U u IN \VITNESS WHEREOF, this Agreement has been executed as of the date fIrst set forth above. :GHE:;;p~ (sigiiature) . ~CJ7t" f). IJJ^cy (printed mime) Its tJre-l/~1 Cj~-r I INDS01 DRW 490B41v10 KrnGSWOOD HO:MEOWNERS ASSOCIATION, INC. By: ~~ ~~ ~--d~_..A . (signature) V --(ffo.A.-ttl-5 C YtEoLlC(r- (printed name) Its: ~ IP ~ 5 (D tE".u( . OF CARMEL, INDIAN?} By: . ~/1L~"VU"~ ames A.' Brainard, Mayor 9 . (printed name ,Its: ~ ~.A.A II........... (title) - u u' u EXHfBIT A Legal Description of Mueller Property " PARCEL A: Part of the North Half of Section 9, and part of the South Half of Section 4, all in Township 17 North, Range 4 East, of the Second Principal Meridian in Clay TO'Mlship, Hamilton County, Indiana, described as follows: Beginning at the Northwest comer of Section 9, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence South 89 degrees 55 minutes 56 seconds East (assumed bearing) on the North line of said Section 9, a distance of 1336.18 feet to the Northwest comer of the East half of~e Northwest quarter of said Section 9; thence South. 00 degrees 11 minutes 12 seconds Weston the West line of said East half 1716.00 feet; thence South 89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a distance of 1336.01 feet to the West line of the East half of said Section 9; thence South 00 degrees 11 minutes 33 seconds West on the West line of said East half 156.75 feet; thence South 89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a distance of919.68 feet to the Westerly line of real estate conveyed to the City of Cannel, Indiana, by a document titled "Certificate of Clerk" recorded in the Office ofthe Recorder of Hamilton County, Indiana, as Instrument Number 9709754848; (the following fifteen courses being on the Westerly line of said real estate) 1.) thence North. 08 degrees 36 minutes 31 seconds East 885.22 feet; 2.) thence North 02 degrees 53 minutes 53 secondS East 201.00 feet; 3.) thence North 08 degrees 36 minutes 31 seconds East660.61 feet; 4.) thence North 29 degrees 48 minutes 29 seconds West 55.59 feet; .5.) thence North 80 degrees 51 minutes 37 seconds West 303,34 feet; 6.) thence North 89. degrees 51 minutes 37 seconds West 148.00 f~et; 7.) thence North 60 degrees 14 minutes 56 seconds West 57.55 feet; 8.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet to the North line of said Section 9, being also the South line of Section 4, Township 17 North, Range 4 East, said point being 3302.24 feet South 89 degrees 55 minutes 56 seconds East of the Southwest corner of said Section 4; 9.) thence continuing North 00 degrees 04 minutes 04 seconds East 16.50 feet; 10.) thence North 60 degrees 23 minutes 05 seconds East 57.55 feet; 11.) thence North 89 degrees 50 minutes 43 seconds East 254.47 feet; 12.) thence South 81 degrees 22 minutes 39 s'econds East 198.24 feet; 13.) thence North 25 degrees 45 minutes 13 seconds East 826.18 feet; 14.) thence North 21 degrees 15rninutes 23 seconds East 576.29 feet; 15.) thence North 01 degrees 37 minutes 09 seconds East 180.00 feet to a point on a line that is parallel with the South line of said Section 4, and extends Easterly from a point on the East line of the Southwest Quarter of said Section 4 that is 154.1 0 feet North of the Southeast comer oftbe North Half of said Southwest Quarter; thence North 89 degrees 55 minutes 56 seconds West on said line 1718.86 feet to the aforesa~d point on the East line of said Southwest Quarter, being also the East line ofKlNGSWOOD SUBDIVISION, SECTION THREE, a subdivision in Hamilton County, Indiana the Secondary Plat of which, as amended December 22, 1988, is recorded in said Recorder's Office as Instru~ent Number 8900204 on pages 111 and 112 cifPlat Book 15; thence 'South 00 degrees 07 nunutes 43 seconds West on the East line of said Southwest Quarter 154.1 0 feet to the Southeast comer of the North Half of said Southwest Quarter; thence North 89 degrees 51 minutes 18 seconds West on the South line of the North Half of said Southwest Quarter 1521.03 feet to the Northeast comer of real estate conveyed to the City of Carmel, Indiana, per a Deed recorded in the Office of the Recorder of Hamilton County, In~i.ana on page 86~ of Deed Rec.ord 329, u U' u '. \. ". said corner being 1146.65 feet East of the Northwest comer of the South Half of said Southwest Quarter; thence Soutb 00 degrees 27 minutes 42 seconds West on the East line of said real estate 918.75 feet, per the aforesaid deed, (919.89 feet by measurement) to the Southeast comer of said real estate, said comer lying on a line that extends South 89 degrees 51 minutes 29 seconds East, measured parallel with the N artb line of South Half of said Southwest Quarter from a point on the West line of said Southwest Quarter that is 406.45 feet North of the Southwest corner of said Section 9; thence North 89 degrees 51 minutes 29 seconds West on said line and the Westerly prolongation thereof, a total distance of 1145.58 feet, per the aforesaid deed, (1144.55 feet, by measurement) to the aforesaid point on the West line of said Southwest Quarter, said point being also the Southwesterly comer of real estate conveyed to' the City of Carinel, Indiana, by a Warranty Deed recorded in said Recorder's Office as InstI1.ln1ent Number 8726638; thence South 00 degrees 19 minutes 51 seconds West on the West line of the Southwest Quarter of said Section 9, a distance of 406.45 feet to the place ofbeginning, containing 202.902 acres, more or less. (105.981 in Section 9, and 96.921 in Section 4). Subject tQ all legal easements and rights-of-way. PARCEL B: Part of the Northeast Quarter of Section 9, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana, described as follows: Beginning at the Northeast comer of the Northeast Quarter of Section 9, Township 17 North, Range 4 East of the Second Principa.l Meridian in Clay Township, Hamilton County, Indiana; thence'North_89 degrees 55 minutes 56 secondsWest (assumed bearing) on the North line of said Section-9, a distance of 1189.27 feet to the Easterly line of real estate conveyed to the , City of Carmel, Indiana, .by a document titled "Certification of Clerk" recorded in the Office of the Recorder of Hamilton County, Indiana, as Instrument Number 9709754848; (the following five courses being on the Easterly line of said real estate) 1.) thence-South 11 degrees 50 minutes 53 'seconds West 131.07 feet; 2.) thence South 86 degrees 32 minutes 20 seconds West 102.72 feet; 3.) thence South 01 degrees 00 minutes 13 seconds West 348.81- feet; 4.) thence South 12 degrees 02 minutes 32 seconds West 250.45 feet; 5.) thence South 08 degrees 36 minutes 31 seconds West 1159.69 feet to a point on a line that is parallel with the North line of said Section 9, at a point that is 1872.75 feet South 00 degrees 11 minutes 33 seconds West measured parallel with the West line of said Northeast Quarter; thence South 89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a distance of284 feet, more or less to the Westerly edge of water of White River; thence Northeasterly with the meandering of said edge of water to the East line of said Section 9; thence Northerly on said East line 107 feet, more or less, to the place ofbegiDning. containing 29.628 acres, more or less. . Subject to all legal easements and rights-of-way .< ,- u EXHIBIT 8 Depiction of Martin Property - . .w. u . . u u u EXHIBfT C Description and D~piction of Hughey Premises .!,.E".;uU. ~~:?'Il~ roE r.asa " .'.. .: " ':,' " ~..~. ", ," '. . i. , I d "'! .[JoI.. oJ. --, ... '- EXHIBIT 8 . f Martin Property Depiction 0 ~ '-5:::1 . -! 5. ~ f ! .- ~ --- --- i - i I i . MI_ u N' o .CJ c:c o ~ .(.;~ -~d~~. ~ R c i . 1'V1I1'I1'I"I I U... I i '{~ . , - 1 .I ... ~:" ~I" T., T i , -,' M....I\.TQPf:~..!!Y.. 1 "' .."'7.....:.0-. _ ~ ' .... ~... - - .. ... ""' .: ~~;- j lif.,. __, :, '~.}.. I '~~~'.. f ! I I , j .l . I /- U 1 I I , ~1"..J..... x'~>wl.-r i ..744.7 ,t r ~ ~ a -~ ',; ~ ~ ~, ~ & F ~ ~ t u ~~ City of Cannel June 24, 2004 Mr. Thomas Yedlick 5053 St Charles Place Carme~ IN 46033 Re: Your Letter of December 16, 2003 Dear :Mr. Yedlick: u After the pre-hearing conference held on Tuesday, J1ine 22, 2004, I reviewed the arguments submitted by Mr. Weiss and Mr. TIirasher (m their respectiVe documents submi~ed to this department on June 18, , 2004), in consultation withlegal counsel. M, a result oftbis review, Ihave reconsidered my earlier determination that the issue raised in your letter,should be presented to the Board of Zoning Appeals for resolution under Section 28;06 of the Carmel Clay Zoning Ordinance, and I have withdrawn the petition 'that I previously filed with the Board which called, for a public hearing on this matter to be held on June 2~200~ ' MoreoVer, I have now made the following deterlninations under the Zoning Ordinance: 1. The Board of Zoning Appeals le.cksjurisdictionto hear the question of nonconforming use 1.II1less and until ~s department makes a decision or determination regarding 'such' question and an appeal of such decision, or determination is filed with the Board.; 2. The land uses that were established on Martin Marietta I s properties on or about May 17, 2002, constituted legal, nonconforming uses; , . 3. Those uses do not appear to have been"substantially modified, expanded, or added to sinc~ May ~~~ ' . 4. Therefore, those uses remain legal, nonconfonning uses under the Cannel Clay Zoning Ordinance which may not be substantially moditiedJexpanded, or a.dded to without a ,change of zoning classification or Board approY3l of a special use or variance. Should you wish to appeal. any or all of the above d,etenninations to the Board, please contact the department and we wiUproyid~ you with the appropriate fonns and hearing schedules. If you have any questions~ or wish to discuss this matter further, please do not hesitate to contact me at S71~2422. Very truly yours, .~ u :M1chael Holhoaugh Copy: ZeffWeiss Philip Thrasher Brian Tuohy John Molitor Douglas C. Haney ONE CIVIC SQUARE CARMEL, INDIANA 4li032 ~17/571-2417 CITY OF EAST CHIOAGO, IND. v. SINCLAIB. REFINING CO, Cite al Ul N .JIl.2d '1\9 5. Munlnlpal Corp~ratlon$ €=>621.17 The application of doctrine that citY board of zoning appeals may authe;rize variance from zoning ordinance to avoid unnecessary.hardship is not governed solely by size of area or particular piece of prop- erty on which such hardship is imposed and no single factor determines what consti- tuteS unnecessary hardship, but all reievant factors, taken together, must indicate such special conditions that property cannot rea- sonably be put to a conforming use because of limitation imposed by its classification under ordinance to warrant variance on such ground. Burns' Ann.Sl ~ 53--778. u CITY OF EAST CHICAGO, IND. Y. SIN- CLAIR REFINING CO. No. 28794. Supreme Court of Indiana. March 27, 1953. Action tor a dellhl.Tatory judgment deter- mining the torce and efl'e<:t of a city zoning ordinance as to plaintlff's rights In and to the use of two parcelS of land. From B judg. ment of the Superior Court, .l.ake County, de. elaring the ordin.anee voId 'llnd ineffeetlve so fllr as it affected use of the parcels for oth- er than heavy industrial purposes, the city ap- ~aled. The Supreme Court, Bobbitt, J., held tl1at plaintiff corporation, seeking a variance from the ordinance to prevent unnecessalj' hardship, should have exhausted Its statutory administrative remedieS by applying to the city b....ildlng. commissioner for a perm It, ap. pealing to the Board of Zmllng ApPeals from the Commissioner's denial thereof and peti. tloning for writ of certiorari to the Circuit or Superior Coort, if dissatlsiled with the Board'B decisIon, or have sought amendment of. the ordinance In the manner provided thereby. before resorting to the courts for declaratory relief. Judgment reversed with instructions. u I. Municipal CorpDratlons ~21.53 A court will not review exercise of discretionary powers of a city board of :.:oning appeals, unless there is dear abuse of discretion. 2. Municipal Corporations cS=>621.49 An appeal to circuit court by way of certiorari to review order of city board of zoning appeals is authorized when board has acted illegally, though illegality arises from violation of certiorari petitioner's constitutional rights, if entire zoning ordi- nance is not claimed to be invalid, but where entire ordinance is Claimed to be void, rem- edy is not by resort to' certiorari, but may be asserted by direct action. 3. Ad'l1Ilnlstratlve Law and Procedure (i;;00229 An administrative remedy provided by statute must be exhausted before judicial review of administrative body's order may be requested. 4. Municipal Ol)rporatlons ~6DI Each zoning case must be decided on its own factual situation. u Ind. 45~ 6. Municipal Carporatlons~621.17 To authorize city board of zoning ap- peals to grant variance from zoning ordi- nance on ground of unnecessary hardship, record must show that land involved ean- not yield reasonable return. if used only for purpose allowed in zone wherein it is located, because of unique circumstances rather than general conditions reflecting un- reasonableness of ordinance itself, and that use authorized by variance wilt not alter essential cha.racter of iocality. Burns' Ann. St. ~ 53-778. 7. Munlnlpal CorporatlollS €=>621.54 Courts cannot rezone property nOf lay down any general rule defining area or size of particular piece of property which city board of zoning appeals may consider sub- ject to variance from zoning ordinance on ground of unnecessary hardship, but ea.ch case must be determined on its own merits. . Burns' Ann.St. ~ 53-778. U. Municipal Corporations €=>>621.45 Whether unn~cessary hardship, au- thorizing city board of zoning appeals to grant variance from zoning ordinance exists, is fact question to be determined by such board. Burns' Ann.St. ~ 53-778. 9. Municipal Corporations l@;;:>621.2. 621.8 A city board of zoning appeals, in granting variance from zoning ordinance, merely varies use to whkh particular piece of property may be put and does not rezone land covered by variance; power to reZone being vested in common council. Burns' Ann.St. ~ 53-778. 460 Ind. III NORTH !lASTERN R~PORTER, 2d SERIES u 10. Declaratory Judgme1lt ~129 . . BOBBITT, Judge. A petroleunuepning c;,ompany, seeking Appellee has continuously; since the year variance from city zoning ordinance for 1916, owned and operated, within the limits erection of storage tanks on two parcels of of appellant city an industrial plant for the land in residential zone should have ex- manufacture and refining of petroleum hausted its administrative remedies by l7lp- products. In' Septemoer of 1919 appellee plying to city building commissioner for pun:hased additional. land adjacent ,to :ts permit, appealing to City board of zoning plant and referred to in the complaint here. appeals from deniai thereof, and petition. in as .Parcel No.1 containing 8.1l8a~res, ing for writ of certio:rad to Circuit or and Parcel No. 2 containing 24.244 acres, Superior Court to review board's decision, . for the sole and only purpose of industria! if unsatisfactory, or sought amendment of use in connection with the development and -ordinance, before bringing action in Su* expansion of Its industrial plant. The ex- perior Court. for declaratory" judgment de- ,act location of said Parcels 1 and 2 in re- termining force and effect of ordinance as lation to surrounding property is best to 'compaity's rights in and to use of such shown by appellee's (plaintiff's) Exhibit 21, parcels. Bllrns' Ann.St. ~ 53c-778, which is an aerial photogJ:aph of the two fl. MunIcipal Corporatlons €:r621.47 parcels of land a~d abutting .and surround- A City board' of zonillgappeals is not ing lands and buildings, limited to affirmance or reversal of action On December 26, 1929 aPPellant city of city building commissioner or ~ther ad- adopted a zoning ordinance which,by its minist'rative officer charged with' enforce- provisions, classified appellee's Parcel No, ment of zoning ordinance on appeal there- 1 for light industrial use and Parcel' No.2 . from, but may use its judgment and discre- for single-family dwellings. This ordi. tion in modifying official's order and attaeh nance was amended II!- November of ]946 such conditions and restrictions to granting and by this amendment the I.lseclassifica- of variance from ordinance as shQuld be tion oiPatce1 No; 2 was;changeQ. from one- made in board's opinion so that spirit there- family dwellings to two. family dwellings. of shall be o~served and substantial justice . Appellee made no effort to use sa'id land done. Burns Ann.St. ~ 53c-778. . until 1945 when it requested of appellant 12. Appeal and Error <t->1176(3) that the restrictions on Parcel No.2 be . Where 1:orporation seeking variance changed so as to permit the construction from city zoning ordinance failed to ex- of laboratory buildings, which. request was haust its statutory administrative remedies denied, Appellee now desires to erect and or to seek amendment of ordinance before construct tanks' for the ~torage of ~etro- bringing adion ior declaratory judgment . leum products ()n Parcel"No. 2, and either determining force and effect of ordinance such tanks or a railway car and equipment fls to corporation's rights in 'and to use of repair shop on Parcel No.1. its !ands. ~uperior C:ourt's j~dgme~t, de- It instituted this action. for declaratory c1arm~ ordmance VOId and meffectlve as judgment to determine the force and effect, affectl1~g use .of such lands for other than if any; of. said amendatory zoning ordi- heavy mdustrla! purp?se~, must ~ereversed nance as" it relates to the rights 6f appellee . by: SUfl.reme ~urt, WIth mstru~tlOns to sus- ih Rnd to the use of said two parcels of tam CIty'S motiOn to find. for It at close of land . corporation's evidence, where sole error as- ',. . . signed on appeal was overruling of city's . TrIa! was by the cou~t. SpeCial find. motiem for new trial on ground of error in mgs or fact and conclUSIons of. law were overruling motion for such finding. Rules reques~ed.. Upon the facts speclallr foun,d of Practice and Procedure in Supreme and the tn~! court cO~c!tlded. that sald.~rdl- Appellate Courts rule Z-6 nance IOsofar as It restrIcts the use of ,. the two parcels described.in the complaint .1 wa.s void because it violated "Art. 1 of -Sec. John F. Haller, City Atty., East Chicago,. 21 of the Constitution of Indiana, and See, David Cohe'n, Present City Attorney. East 1 of the Fourteenth Amendment to the Chicago, Loyd J. Cohen. East Chicago, Constitution of the United States; that it Winslow Van Horne, Auburn, Willard B. was witho'ut'regard to public health, safety, Van Horne, Jr., East Chicago, of coul1sel, morals and general welfare' ins'ofar as it {or appellant. restricted the USe of appellee's two parcels joseph J. Wasko and' Allen P. Twyman, of land,and that said ordinance was not East Chicago, Eugene lI-L Hines, Chicago, enacted for auf of the purposl::S set out in Ill., Donald K. McIntosh, Chicago; IlL, and the statute and was unreasonable insofar as Hays & Hays, Indianapolis, of counsel, for it restricted the use of the two parcels of appellee. land to the uses therein defined because u u OITY or EAST CHIOAGO, IND. v. sm-OLAIR &EFINmG 00. Cite as 111 N.E.2d 459 ' lnd. 461 u u "said lands are best suited for heavy in-' dustril'lJ use". Judgment was' enter,ed de- claring the ordinance "void and of nO force and effect insofar as. the same a.ffects the use for other than heavy' industrial purposes of the plaintiff's tappellee's) land," as described in the complaint. , The sole error 'here assigned is the o'\'er- ruling of appellant's motion for a new trial. This motion contains thirty-two separate speciiications, the first Df Wl1icb is as fQlIows: "1.' The court erred in overruling the defendant's motion for a finding filed at the close of the plaintiff's evi- dence, which 'motion was in words and figures, as follows, to-wit.: .. 'At the close of plaintiff's cas'e, and without prejudice to the right of the defendant to offer a:cd introduce u 462 Ind. 111 NORTH EASTERN lLEFORTEIt, 2d SERIES' u evidence in defense thereof, the de- fendant moves that the court make and enter a finding for the defendant for . each of the following reasons, to-wit: . " 'I. The plaintiff nas' not offered any evidence sufficient to 'sustain a right to a declaratory. judgment; " '2. The plaintiff has not' offered any evidence sufficient to establish the .authority of this court.to entertain this cause; .' ".'3: The plaintiff, .by its chief ex- ecutive officer app.eadng: in th,is cause has admitted that plaintlff seeks only a re-c1assification of the zoning of its property - and has not. proved that any petition for relict" froin the terms of Ordinance nurriber'2449J as set forth in the complaint herein ~as f?led with or prcsentedto the Board of. Zoning Ap- peals of the defendant city; . " ,. '4. The plaintiff has not . offered " sufficient evidence to sustain any al- legation of gen.eral invalidity of said ordinance"2449 and has not proved that . any.petii.ion for relief from the cl!l5si~ lication, zonin'g, and/or restridions of said Qrdinance in regard to the. I'rop- erty described in ,plairitiff's complaint . was prese'l1ted to or filed with the Board of Zoning Appeals of the de~ fendant city; ". '" "'.''' This motion raised a question of the jurisdiction of ~he . subject matter of the particular case, which was not .waived by the subsequent presentation of evidence by appellant (defendant). Twelve other reasons are stated in sup- port of the. motion, but in view. of the con- clusion which we have reached we s~l. confine ourselves to a consideration. only of the ones quoted above. Appellant contends that since' appellee sought only to have said ordinance declared unconstitutional and void as it affected and applied to its two parcels of land,- it should have pursued and exhausted the administra- tive remedy provided by statute and the Or- u I. Civil City I)f Indi(lnapoJie v. Ostrom Realty, etc.,' Co., 1932, 95 .rDd..App. S?6, 176 N.E. 246: 2. O'Connor v. Overall Laundry, Inc.. 1934. 98 Ind.App. 29, 183 N.E. 134; u dinance before seeking a determination' of its rights in the..courts. . Appelke contends that where the factual situationdisc1oses thll:t.th~re'has been a vio- lation of constitutional rights, or that the exercise of the police power is clearly un- reasonable, .or where. it' is clearly' shown that there is .no real relation between the ordimmce and its" professed Object, resort may be had to the. courts to test the validity of the. ordinance as it applies to One or more parcels of land, without first exhaust- 'ing any administrative remedies which may be available and adequate. [1, 2J Appellant relies upon City of South Bendv. Marckle; i939, 215 Ind. 74, 18 N.E2d 764, to support i"ts position. That was also an action 'for a declaratory judgment seeking to declare a zoning ordi- nance of the city of .South Bend, Indiana, unconstitutional insofar as it restricted or related to appellee~ real estate. Appellees there sought to use.certain real estate which WaS zoned for, residenqal use for the pur- pose of building a 1iIling station thereon or, . in the alternative, to sell said property to a purchaser to be u;sed for commercial pur- poses. The complaint inter alia alleged that the real estate .was not suited for residential purposes and that its. value for commercial tlse would be :four to SIX times.greater than for residentiah%se: and that the ordinance . constituted a taking of appellees' property without just compensation in violation of section 21 of article 1 of the'Indiana Con- stitution, andfue Fourteenth Am~ndment to the Constitution of the United States. . The o'\rerruling .of appellants' demurrer in . the Marckle case was assigned as. an i"de~ pendent error. The memorandum aCCOm- panying the demurrer asserted that the Com- plaint was had becaltse 'it failed to show that any appeal was taken to the Board of Zoning Appeals Or that certiorari '''!is re- quested of the Circuit Court. .. This court, at pages 82, 83 .of 215 Ind., at page 767 of 18 N.E.2d,said; . "Summarizing the opinions of the Appellate Court in the Ostrom 1 and O'Connor 2 cases and in the Waintrnp 3 case, as herein distinguished,. supra, we 3. Board of Zoning Appeale,of the City .~f IndhlD!lpolill v. Waintrup; 1985, 00 Ind.' ,APP." ~76, 193 N.E. 701. IDd: 463 CJITY or EAST CmCAGO, IND. v. SINOLAIR REFINniG 00. CIte 1111111 N.E.2d (Gll u , nndthat they are authority for the fol- lowing rules; (1) A court will not re- view an exercise ,of the discretionary powers of a board of zoning appeals , unless, of course, there is a clear abUse of discretion; (Z) an appeal to thecir- cuit court by way of certiorari is au- thorized when the board has acted ille- gally, and this is tru'e even though the illegality arises out of a violation of the petitioner's constitutional rights, so long as it IS not claimed.that the entire , zoning ordinance is invalid; and (3) where it is claimed that the entire zon- ing ordinance is void the remedy is not 'by resort to certk.rari, but may be as- serted by direct action. Applying the rules stated, itisapparent that the ap- pellees have misconceived their remedy. They are not concerned with a modif1- , cation of the terms of the ordinance as , they apply to the district in which their properties are situated, so there was no occasion for them to ask an amendment thereof by the common council. They claim only that the ordina.nce, in its ap- plicatipn to them, is; unreasonable, in that the classification ot their real es- tate for residential rather than com- mercial uses, deprives them of valuable property rights without due process or j~st. compensation. Their properties a're shown to be located at the bounda.ry of a zone district. Their case comes within the terms ofthat part of section 48-2304 .Burns 1933, ~ n657 Baldwin's 1934,' which authorizeS th~ board of ;l:oning appeals- to adjust conditions so as to prevent unnecessary hardships.. Their complaint ,should have been di- rected, in the first instance, t~ the board of zoning appeals, and if that did not avail, they should have asked a review in the circuit court by way of certio- rari." u We think the rules asserted by this court in City of South Bend ~.,Marck1e, 1939, 215 , Ind. 74, 18 N.E.2d 764, supra, are sound and in keeping with the recognized orderly pro- cedure in the law of zoning. Acts 1947, ch. 174, ~, 77, p. 571, ~ 53-778, Burns' 19B1 Replacement, provides: u I'The board of zoning appeals shall: "I. Heal' and determine appeals from and review any order,require- ment, decision or determination made by an administrative official OT board charged with the enforcement of any ordinance or regulation adopted pursu- ant to sections 56 through 6S (U .!l3- 756-53-766) of this act. "2. Permit and authorize exceptions to the district regulations only in the classes of cases or in particular situa- tions as speCified in the ordinance. "3. Hear and decide special excep- tions to the terms of the ordinance upon which the board is required to act un- der the ordinance. "4. Authorize upon ap.peaJ in spe- cific cases such variance from the terms of the ordinance 'as wfn not be contra.ry to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in WI'necessary hardship, ,and so that the spirit of the ordinance shall be o.bserved and substantial justice d9ne." Ordinance No. 2449 of the qty of East Chicago, adopted December 26, 1929, pro- vides: "Artic1e XIV "Boam of Zoning Appeals . . $ * . . "Section 3. The Board of Zoning Appeals shall have the following pow- ers and it shall be its duty: "1. To hear and decide appeals where it is alleged there is error of law in any order, requi~e!nent, decision or determination lIlade by the Building Commissioner' in the enforcement' of this Ordinance. . . . . * . "4. To grant Ii. variation in the reg- ulations when a .property owner can show that his property was acquired , in good faith and where by reason of. exceptional narrowness, sha.llowness, or shape, of a specific piece of property at the time of the effective date of this Ordinance, 01' where by reason of ex- ceptional topographical conditions or other extraordinary or exceptional sit- 464 Ind. 111 NORTH EASTEltN RIlPOltTElt, 2dSEltIES u "uations, the strict application. or the terms of ~his Ordinance actually pro- hibits or unreasonably restricts tlm'use. of his property, and where the ~oard is satisfied, under the evidence. heard before it, that the granting of such variation will alleviate a c1ear-ly demon- strable hardship .approaching confisca- tion~ as distinguished from. a 'special p,rivileg.e .!:Ir convenience sought by the owner: provided,however,; that. all v~riations granted under t~is clause shall be in harmony with. the intended spirit and purpose of said Qrdinance and shall not constitute a direct and ob. vlous'amendment of any district reg~ ulations' or district ho~~dai'i~s. . . . * * * * . '''Section 5. Any person or persons, firm or corporation, dissatisfied with the decision a~d' action of the Board of ZonIng Appea.ls may pre.sent to the. Circuit or Superior Court of Lake County a petition fo'r a writ cd cer- tiorari. 'The procedure fori making such appeal shalf conform to the re- quirements of the laws of the State of Indiana authorj~ing cities to adopt zoning regulations." Both the statute and the qrdinance 'here involved provide an' administrative remedy for persons whose property is unreasonably restricted by the terms of the Grdinance or where, owing to special conditions, a literal en forcernent.. of the ordimince will result in unnecessary :hardship. [3] Where, as here, an administrative remedy is provided, it must be exhausted bef~re judicia! review may be requested. Marion Trucking Co. v. McDanfel Freight Lines, 1952, I!ld.Sup., 108 N.E.2-d 884, ,885 ; State ex reI. Evansville, etc. Lines v. Raw- lings, 1951, 229 Ind. 552; 559, 99 N.E.2d 597;' Myers v. Bethlehem Shipb1<lg. Corp., 1938,303 U.S. 41, 82 L.Ed. 638,644, 58 S.Ct. 459; Stark v. Christie, 1941, 179: Md. 276, 19 A.2d 716, 7J9; Sacer Realty Corpora- tion v. Archer, 1946, 68 N.Y.S.2d 277, 279; Glencoe Lime & Cement Co. v; City Of 51. Louis, 1937, 341 Mo. 689,1(18 S.W.2d 143, 144; Davis--Ad'ministrative Law, Pri- mary JuriSdiction, ~ 197, p. 664; Conclit- sions, ~ 198, p. 673. u u Appellee' asse;:rts that the bolding,af the Appellate Court in Civil City of Indian- apolis v. Ostrom: Realty, etc., Co., 1932, 9S Ind.App. 376, 176 N.E. 246, supra, pre- cludes its use of the administrative remedy in the case at bar, because of the area of the parcels of ground involved. In that case the 'Board of Zoning Appeals attempted, upon it,S' own motion, when no petition for variance or a.ny apPeal from any officer Or board, was pending before it, to reclassify. a.nd rezone six separate lots, comprising an 'entire dtyblock. The Appellate Court there correctly held that the Board had no authority" to act in the ab- sence of an appeal from an administrative officer or board ,charged with theenforce-, ment of the ordinance. The court furtner held that an attempt to amend or change a whole city 'block without an 'ordinance by the common council was not contemplated by the act then in force, and such action was, therefore, void. We a'pprove the rule that a 'Board of Zoning Appeals has no authority to act un. less its autho.rity to do so has'been legally invoked. However, vie do not b'elieve that the language used by Judge Kime in the Ostiom caSe to the etfectthat a Board of Zoning Appeals cannot, under the guise of a variance, reclassi:l'y an el1tir.e. city block, can be adopted 'and used aSa general rule or measuring stick, to be arhitrarily applied in every case. a.nd under all cir<:umstances arid conditions, for the purpose of deter- mining what size tract or parcel of land ~ay be considered by the Board of Zoning .Ap- peals under the hardship provisions 'of the ordinance, or to determine at what par- ticular point it becomes a matter for amend- ment of the ordinance by the common coun- cil. ' (4] En.ch zoning case must be decided upon its own factual situation. Potts v. Board oi Adjustment, 1945, 133 N.].L. 230. 43 A.Zd 850, 854: Smith v. Board of Ap- peals of Fall River, 1946,319 Mass. 341, 6S N.E.2d 547; Al>plication of' Devereux Foundation, 1945, 3'51 Pa. 478, 41 A.2d 744, 746; Arditj Realty Co. v. Murdock, 1'946, Sup., 67 N.Y.S.2d 809. . [5] The' 'appiic~tion 'of the' unnecessary hardShip doctrin~ is not governed solely CITY OF EAST CBICAGO,IND, v. SINOLAI'R RIlFINING co. Cite lIS 111 N.1ll.2d 459 by the size of the area or the particular rule 'defining the area. or size of a partie- piece of property upon which the unneces- u1arpiece of property which a Board of sary hardship is imposed. No single factor. Zoning Appeals may consider under the determines what constitutes unnecessarY' unnecessary hardship r\lle., Each case must hardship, but an relevant fa\:'tors, when be determined on its own merits., 'taken together, must indicate that the spe- cial conditions are such that the property affected cannot reasonably be put to' a con- forming use because of the limitation im- posed upon ,it by reason of the dassification in which it is placed by the terms of the ordinance. Brackett v. Board of Appeal ,of Building Department, 1942, 311 Mass. 52, 39 N.E.2d 956; St. Ongev. City of Con- cord, 1949, 95 N.H. 306, 63 A2d 221, 223; Heffernan v. Zoning Board of Review, 1929, 50 R.I. 26, 144 A. 674, 676. [6] The conditions necessary to estab- lish "unnecessary hardship" were concisely stated in Otto v. Steinhilber, 1939,282 N.Y. 71, 24 N.E.2d 851, at page 853: , "Before the Board may exercise its discretion and gra.nt a variance upon the ground of unnecessary hardship, the record must show that (I) the land in question cannot yield a reasonable return if used only for a purpose al- lowed in that ;r:one: {2) that the plight of the owner is due to unique circum- stances and not to the general condi- tions in the neighborhood which may reRect the'unreasonableness of the zon- ing ordinance itself; and (.1) that the use to be authorized by the variance will not alter the essential character of the locality." See also: Calcagno v. Town Board, 1943, 265 App.Div. 687, 41 N.Y.S.2d 14(l, affirmed 291 N.Y. 701, 52 N.E.2d 592; Court aoule- vard v. Board of Standards & Appeals, Sup.; 1947, 72 N.Y.S.2d 753. We approve the rules above stated. In view of appellee's position that the land here in question cannot be made the sub- ject of a variance because of its area, it may be pointed out that the above rules make no reference 'to the area or size of the property which may be considered in a va- riation of the ordinance on the ground of unnecessary hardship. u u [7] Courts cannot rezone property. Neither can they Ja,y down any generaJ 111 N.E.2d-aO u Ind. 465 (8) The Board of Zoning Appeals is a.uthori:>'ed by statute to grant variances from the terms of the ordinance where, owing to special conditions, a literal en~ forcement of the provisions of. the ordi-' nance, win result in unnecessary hardship, ,sp long as such action is not contrary to the public interest and the spirit of the or- dinance is preserved and stlbst'antial justice' is done. Whether or' not' an unnecessary hardship exists is a question of fact to be determined by the Board of Zoning Ap- peals. Board of Zoning Appeals v. Moyer 1940, 108 Ind.App. 198, 27 N.E.2d 90S; Keeling v. Board of Zoning Appeals, 1947, 117 Ind.App. 314,69 N;E2d 613. [9] When a aoard of Zoning Appea!s grants a variance from the provisions of an ordinance, it. merely varies the use to which a certain particular" piece of property may be put-it does not re:>,onc the land coyered by ,the variance. In "Indiana the power to reZone is vested in the Common Council. Appellee asserts that City of South Bend v. Ma.rckle, 19,39, 215 Ind. 74, 18 N .E.2d 764. supra, is in conflict with the hOlding of the United States Supreme Court in Euclid, Ohio v. Ambler Realty Co., 1926, 272 U.S. 365, 47 S.Ct. 114, 7L LEd. 303, 54 A.L.R. 1016, upon which it relies, because the overruling by the trial court of a motion to dismiss on the ground that appellee had made nO effort to obtain a building permit or apply to the Board of Zoning Appeals for relief and, therefore, the suit was premature, was sustained. That was a suit to enjoin the enforcement of a zoning ordinance and all attempts to impose allY of the restrictions, limitations or conditions thereof as to appellee's prop- erty. The attack there was directed "not against any specific provision or provi- sions" but against the ordinance a"s an en- tirety." While in the Marckle case ap- pt:lIees sought, in an action for declaratory 466 Ind. 111 NORm EASTERN REPORTER, lid SEItIES u judgment, to have the ordinance declared unconstitutional only lnsofar as it reo - .strictedor related to the use of their real estate, and it was not claimed tha.t the entire ordinance was invalid: - These caSes are clearly - distinguishable. The Marckle case falls within rule 2 as stated by this- court in City of South Bend v. Marckle, 1939, 215 Ind. 74-, 82, 18 N.R. 2d 764, supra, while the Euclid case clearly faIls within rule 3. Appellee further relies upon Nectow v. City of Cambridge, 19Z8, 48 S.Ct. 447, 277 U.S. 183,72 LEd. 842, where an ordinance of the City of Cambridge, Massachusetts, was directly attacked under circumstan<:es and for the same reasons as are present in the case at ibar. However, in that case _th~ question of the failure of tbe appeilant to exhaust the administrative remedy pro- vided, it any, (namention of such is made in the opinion) before resorting to (:ourt aetion, was not raised. Hence _ it is not authority for declining' to pursue and exhaust the administrative remedy avail. . able to appellee herein. Appellee cites a number of cases in support of its alIeg'edright to follow the method of procedure which it has elected :to pursue herein. Without unne<:essarily extending this opinion by a discussion of these a.uthorities, we believe it sufficient to note that in some of them the question of remedy was not an issue, in others the at- tack was upon the ordinance - as a whole, while others arc distinguishable because of the factual situations upon which the de- cision rests. u In some jurisdictions resort may,. under certain circumstances, be had to the courts for a direct 'attack upon a Zoning Ordi- nance because of its effect on a particular I?icce of property witbout first exhausting any available administrative remedy. How- ever, the factual situation here does not prescnt such a set of .::ircumstances. The case at bar falls clearly within City of South Bend v. Marc;:kle, 1939,215 .Ind. 74, 18 N.E.2d 764, supra. As we- have said, that was an action for a declaratory judg- ment to declare the South Bend Zoning Or- dinance unconstitutional and void insofar u as it restricted or related td the use of three contiguous lots owned by appellees. There, -as here, appellees sought only to Use their property for a purpose different from the use cIassification imposed upon it - by the ordinance. They alleged, as dOcS appellee herein, that their real estate was not suit- able for residential purposes, and that it wQuld 'be worth several times as much for business purposes; and that the ordinance constituted a taking of their property with- outjust compensation. The prayer for relief in the Marclde case was that the ordihance be. declared. uncon- stitutional in5(1fa~ as oft restricted or -re- lated to appellees' (Marckte and otlters) real estate, while in the case 'at bar appellee seeks a determination of the force and effect of the ordinance and. if any, its effect upon the use of said parcels 1 and 2 as described- in tbe complaint. The end result sought is the satnein both cases. The fact that one ease .invo1ved three con- tiguQUS lots, the dimensions of which. are nett mentioned in 'the opinion, and the other involves two undeveloped parcels of land containing 8.118 and 24.244 acrcs,respec- tively, does not, under the issues -here in- volved, distinguish one case from the other as a. matter of principle.- Insofar as City' or Indianapolis v. Ostrom Realty; etc., Co., 1932, 95 Ind.App. 376, 176 N.E. 246, supra, proposes to restrict the area which may-be considered by a Board of Zoning Appeals under ,the ,unnecessary hardship rule, it is limited to the particular circumstances of that case. [10] The' factual s,ituation here brings appellee's case within the prOVIsions of ~ 77, of ch. 174, Acts 1947, being ~ 53-778, Burns' 1951 ~eplacement,supra, which au- thorizes the Board of Zoning Appeals to vary a zoning ordinance too prevent unneces- sary hardships which, by the provision of the ordinance, may be imposed upon a particular property. In seeking a variance, under the circum- stances herein, <lppellee should have applied to .the building commissioner for a permit and, if denied, then an appeal trom the order of denial should have been prose~uted to the Board of Zoning Appeals_ and, if Ind. 467 SECOND REAL ESTATE INVESTMENTS v. JOHANN Cite a~.111 N.E.M W7 u dissatisfied with the decision of this Board, then it should have pursued the administra- tive remedy further by petition for writ of certiorari to the Circuit or Superior Court setting forth, as provided by statute, that the decision of the board was illegal, in whole or in part, and specifying the ground of the illegality. Ii the order complained of amounted to an invasion of appellee's constitutional rights this question could have been detennined by the, court on the petition for eertiurari, so long as it was,not claimed that the entire ordinance was void. City of South Rend'v. Marckle, 1939, 215 -Ind. 74, 18 N.E,2d 764, supra; People v. CalvaI' Corp., 1941, 286 N.Y. 419, 36 N. E.2d 6#, 136 A.L.R 1376, Id., Co.Ct., 69 N.Y.S.2d 272; Goodwin v. City of Louis- ville, 1948, 309 Ky. 11, 215 S.W2d 557; City of Little Rock v. Hunter, 1950, 2]6 Ark. 916, 228 S.W.2d 58; Applestein v. City of Baltimore, 1928, 156 Md. 40, 143 A. 666; Park Ridge Fuel & Material Co. v. City of Park Ridge, 1929. 335 Ill. 509, 167' N.E. 119; State v. RobetSOIl, 1929, 198 N.C. 70, 1'50 S.E. 674; Caulwal Canst. Co. v. Burwell, 1930, 136 Misc. 259, 240 N.Y.S. 456; Towers Management Corporation v. Thatehcr, 1936, Z71N.Y. 94, 2 N.E.2d 273~ Payne v. Borough of Sea Bright, 1936, 14 N.],Misc. 756, ]87 A. 627; Provo City v. Claudin, 1936, 91 Utah 60, 63 P.2d570; Home Fuel Oil Co. v.Borough of Glen Rock, 1937, 118 N.].L. .340, 192 A. 516; Glencoe Lime & Cement Co. v. City of St. Louis, 1937, 341 Mo. 689, 108 SW.2d 143, supra i Washington v. City of Dallas,. 1942, Tex.Civ.App., 159 S.W,zd 579; Kahl v. Consolidated Gas, Electric Light & Power Co., 191 Md. 249,60 A,2d 754; S. S. Kresge Co.v. City of New York, 1949, 194 Misc. 645, 87 N.Y.S,Zd 313, affirmed 275 App.Div. 1036, 92 N.Y.S.2d 414; Cleveland Trust Co. v. Village of Brooklyn, 1952, 92 Ohio App. 351, 110 N.E.2d 440,448. [11] The administrative procedure pro- vided by the zoning statute and which must be followed before recourse to the courts may be had, insures the benefit of trained and experienced opinion and judg- ment in zoning matters applied to the facts of each particular case. The Board of u 1. Rulo 2-6 as lImoudcd Nov. 30, 19<19. u Zoning Appeals is not limited to an affirm~ ance or reversal of ' the action of the build, ing commissioner or other administrative officer charged with the enforcement of the ordinance, but may use its judgment and discretion in making such modification of the officiars order and attach such condi- tions and restrictions to the granting of a varianc.e as in its opinion should be made, so that the spirit of the ordinance shall be observed and substantial justice done. Appellee might also have had relief from its aUeged unnecessary hardship by seek- ing an amendment to the zoning ordinance in the manner provided by Art. 14 thereof. Either of these remedies might have fur- nished appellee, without resort to the courts, the reliei which it is seeking. [12] For the foregoing reasons the judgment of the trial court is reversed with instructions to sustain appellant's motion for a finding for the defendant at the close of plaintiff's evidence, and for further pro- ceedings not inconsistent with this opinion.1 Judgment reversed. SECOND REAL ESTATE INVESTMENTS, 1M. .". JOHANN et al. No. 28891. Supreme Court of lndiana. March 30, 1953. AeUon by administrator debonls non against corporatfon in WhiCh. decedent owned . stock for an accounting and appointment of receiver. The Probate Court, Vanderburgh County, entered intel"loeut1ry order appoint- Ing a receiver. and eorporlitionappealed. Tha Supreme COurt, }'immert, C. J., held that a receIver will not be appointed witbout notice to the advel'se Plirty where a restraining or- der will afford -ample protecUonuntil notice can 'be gl ven. o.rder reversed, with instructIons. I. Receivers (i;::;>35( I) Statutory requirement with reference to appointment of receivers is' declaratory of the equitahle practice to require mov~ u 912 Ind. 7Q1 NORTH EASTERN REPORTER, 2d SERIES u the older person, with intent to arouse or satisfy the sexual desires of either the child or the older person, commits sexual misconduct with a minor, a CIl1sS D felony. However, the offense is a Class B felony if it is committed by using or threatening the use of deadly force or while armed with a deadly weapon. (c) It is a defense that the accused per- son reasonably believed that the child was at least si..'I.'teen (16) years of age at the time of the conduct. (d) It is a defense that the child is or has ever been married. IC g 35-42-4-9 (West Supp.1995). Thus, a review of the history of the child molesting statute, including the changes made which resulted in the enactment of the sexual mis- conduct with a minor statute, convinces us that the Legislature did not intend to exempt perpetrators on the basis of age. [9] As a final matter, we note again that the trial court dismissed all but one of the allegations of delinquency .based upon J.D.'s lack of consenl Consent is neither an ele- ment to be proved in a child molestation case nor a defense to such a charge, Thompson v. State, 555 N.E.2d 1301 (Ind.Ct.App.1990), trans. denied, and there is nothing in the statute that correlates age with a perpetra- tor's ability to consent. Nonetheless, even if the perpetrator's consent were an element of the offense, such "consent" could be estab- lished by showing the required element of criminal intenl Based on the foregoing, we conclude that the trial court erred in interpreting the child molestation statute to exempt perpetrators who are younger than fourteen years of age at the time they commit. the molestation. We reinstate the six allegations of delinquen- cy against J.D. which were dismissed by the trial court. Judgment reversed and remanded. NAJ,AM and MATTINGLY, JJ., concur. u CITY OF NEW HAYEN, Indiana, Appellant, v. CHEMICAL WASTE MANAGEMENT OF INDIANA, L.L.C., Chemical Waste Man. agement, Inc., and WMX Technologies, Inc., Appellees. No. 02A03-9606-CY-203. Court of Appeals of Indiana. Nov. 18, 1998. Yarious zoning actions were brought in- volving county board of zoning appeals (BZA), county zoning administrator, landfill owner, and city, which had permissively in- tervened. The Allen Circuit Court, Paul R. Cherry, Special Judge, denied city's motion for summary judgment, partially granted and partially denied landfill owner's motion for summary judgment, partially granted and partially denied o,^,lIer'smotion to vacate or- der, and partially reversed decision of BZA, and afterwards entered agreed judgment based on settlement between BZA, zoning administrator, and landfill owner. Appeals were taken, and the Court of Appeals, Riley, J., held that: (1) BZA violated due process rights of owner when it placed burden of proof, and burden of going forward, on owner during appeal of stop work orders issued by zoning administrator; (2) stop work order issued by zoning administrator was imper- missibly vague; (3) prior determination that city had right to appeal acted as law of the case; (4) closing of landfill did not require dismissal of appeal; (5) fact issue existed as to whether there had been impermissible bias against landfill owner; (6) city was prop- erly allowed to intervene; and (6) fact issue had existed as to whether landfill was "build- ing" or "structure" for purposes of county zoning ordinance. Affirmed. See also, 685 N.E.2d 97, and 694 N.E.2d 306. u Ind. 913 NEW HAVEN v. CHEMICAL WASTE MANAGEMENT Cite as 701 N.E.2d 912 (Ind.App. 1998) 7. Courts <;:;:::>99(1) 1. Constitutional Law <;:;:::>278.2(2) Zoning and Planning <;:;:::>786 County board of zoning appeals (BZA) violated due process rights of 1~lIldfill o'wner when it placed burden of proof, and burden of going forward, on owner during o\vner's appeal to BZA of stop work orders issued by county zoning administrator; burdens should instead have been placed on zoning adminis- trator to establish that he did not act arbi- trarily, capriciously, or illegally. V.8.G.A. Gonst.Amend. 14. 2. Zoning and Planning <:Fo771 In order to sustain suit for injunctive relief concerning violation of zoning ordi- nance against landowners, moving party must fIrst prove existence of an applicable ordinance, and a violation of that ordinance. u 3. Constitutional Law <;:;:::>278.2(1) Zoning and Planning <.p771 Stop work order issued by county zoning administrator which ordered that all opera- tions on property of landfill O\\'Der which did not conform to provisions Of its improvement location permit and restrictive covenants be stayed failed to specify what conduct or con- dition on land was in violation of county zoning ordinance, and thus was impermissi- bly vague and thereby unenforceable. U.8.G.A. Const.Amend. 14. 4. Constitutional Law <:Fo278.2(1) Basic constitutional due process consid- erations about fair notice require that stop work order issued by county zoning adminis- trator be reasonably specmc and concrete, so as to fairly apprise "'TOngdoer of specific violation of zoning ordinance. U.S.C.A. ConsLAmend. 14. 5. Appeal and Error <:Fo1097(I) Under law of the case doctrine, appellate court's determination of a legal issue is bind- ing in subsequent appeals, given the same case and substantially the same facts. u 6. Courts <.p99(1) Under law of the case doctrine, all issues decided directly or implicitly in prior decision are binding in all subsequent portions of same case. Doctrine of law of the case is based upon policy that once an issue is litigated and decided, that should be the end of the mat- ter. 8. Courts <;:;:::>99(1) Unlike rule of res judicata, doctrine of law of the case is not a uniform rule of law, but rather a discretionary rule expressing practice of courts to refuse to reopen what has previously been decided. 9. Courts <;:;:::>90(1) Although co'ilrt has power to revisit pri- or decisions of its own or of a coordinate court, as a rule, courts should be loathe to do so in absence of eA"traordinary circumstances. Hl. Zoning and Planning <;:;:::>727 Prior determination by Court of Appeals that city, which had been allowed to inter- vene in zoning action, had right to appeal agreed judgment entered into by landfill op- erator, county zoning administrator, and county board of zoning, to extent to judg- ment was adverse to those interests which initially made intervention possible, con- tained implicit determination that appeal was not moot, and thus acted as law of the case.in later appeal by' city from separate rulings in zoning action; prior ruling involved same case and substantially same facts, and Court of Appeals would not reopen what it had previ- ously decided. 11. Zoning and Planning <;:;:::>593 Fact that landfill whose operation had given rise to zoning actions had closed did not deprive city, which had been allowed to intervene, of remedy, and thus did not re- quire dismissal of city's appeal following en- try of agreed judgment by landfill operator, county zoning administrator, and county board of zoning appeals (BZA); city was enti- tled to petition for review of board of zoning appeals, and city had right to obtain injunc- tion against landfill owner for alleged viola- tions of covenants and zoning ordinance pro- visions. West's A.Le. 36-7-4-1005(b). u 914 Ind. 701 NORTH EASTERN REPORTER, 2d SERIES 12. Constitutional Law e->278.2(2) Zoning and Planning e->790 County board of zoning appeals (BZA) acted within its discretion,and did not de- prive landowner of due process of law, when it made decision to limit exercise of its power to review orders of county zoning administra- tor, in which found zoning violations were found, by applying arbitrary, capricious, or illegal standard of review, rather than broad- ening its power by affording landowner de novo hearing. U.S.C.A. Const.Amend. 14; West's A.I.C. 36-7~-918.1, 36-7~-919(d). 13. Constitutional Law ~318(1) Due process in administrative hearings requires that all hearings be orderly, judi- cious, fundamentally fair,. and conducted be- fore an impartial body. U.S.C.A. Canst. Amend. 14. u 14. Constitutional Law e->318(l) Due process requirement that adminis- trative hearings must be fundamentally fair and conducted before an impartial body means that agency members' decisions may not be swayed by preconceived biases and prejudices. . U.8.C.A. ConstAmend. 14. 15. Administrative Law and Procedure ~314 When biased board member participates in administrative decision, decision will be vacated. U.S.C.A. Const.Amend. 14. 16. Zoning and Planning e->358.l Because a zoning board is a body usually composed of persons without legal training, courts are relucl:.ant to impose strict technical requirements upon procedure of board. 17. Administrative Law and Procedure e->314 In absence of demonstration of actual bias, reviewing court will not interfere with administrative process. u 18. Judgment .p178 Purpose of summary judgment is to ter- minate litigation for which there can be no factual dispute, and which can be determined as matter of law. Trial Procedure Rule 56(C). 19. Appeal and Error .p863 When reviewing grant or denial of mo- tion for summary judgment, appellate court's standard of review is the same as that used by trial court. Trial Procedure Rule 56(C). 20. Appeal and Error ce=863 On review of grant or denial of summary judgment, appellate court may not search entire record to support judgment, but may only consider. that evidence which has been specifically designated to trial court. Trial Procedure Rwe 56(C). 21. Appeal and Error e->901 Party appealing trial court's grant or denial of summary judgment has burden of persuading reviewing court that trial court's decision was erroneous. Trial Procedure Rule 56(C). 22. Judgment ~181(l5.1) Genuine issue of material fact as to whether alleged institutional and personal bias of county board of zoning appeals (BZA) had resulted in impermissible bias against landfill owner, in violation of O\"l1er's due process rights, in cOlmection with owner's appeal from BZj\'s affirmance of stop work orders issued by county zoning administra- tor, precluded summary judgment. U.S.C.A. Const.Amend.14. 23. Appeal and Error ~949 Trial court's determination on motion to intervene is only reviewable for an abuse of discretion. Trial Procedure Rule 24(B)(2). 24. Appeal and Error~913 In revieVling trial court's exercise of dis- cretion in ruling on motion to intervene, facts alleged in motion must be taken as true. Trial Procedure Rule 24(B)(Zi. 25. Parties e->38 To constitute an abuse of discretion, trial court's decision on motion to intervene must be clearly against logic and effect of facts and circumstances before court, or reason- able and probable inferences to be drawn therefrom. Trial Procedure Rule 24(B)(Z). 26. Parties e->38 Where effect of granting motion to inter- vene would open up new areas of inquiry or u raise unrelated issues, motion should be de- nied. Trial Procedure Rule 24(B)(2). NEW HAVEN v. CHEMICAL WASTE MANAGEMENT Cite as 701 N.E.2d 912 (Jnd.App. 1998) Ind. 915 27. Zoning and Planning <S=783 Trial court did not abuse its discretion in allov.wg city to intervene in action in which county board of zoning appeals (BZA) sought injunctive relief to rectify zoning violations found by BZA to exist when it affIrmed certain stop work orders issued by county zoning administl'ator with respect to opera- tion of landfill; city asserted in support of its motion to intervene that it had direct interest in enforcement of local zoning regulations against landfill owner. Trial Procedure Rule 24(B)(2). u 28. Zoning and Planning '*"790 Trial court properly made conditional finding that landfill operator was in violation of . stop work orders issued by county zoning administrator, based on condition of ultimate validity of stop work order which had been appealed; county zoning ordinance required property owners to obey stop work orders until judicial determination of its legality wa.'! made on appeal. 29. Judgment '*"564(2) Denial of preliminary injunction is in the nature of an interlocutory order, which can- not be given preclusive effect under doctrine of res judicata. Rules App.Proc., Rule 4(B)(3). 30. Judgment '*"564(2) Very nature of interlocutory orders is that case is not fully developed before case proceeds to final hearing on merits, and as result, such orders are not entitled to preclu- sive effect under doctrine of res judicata. u 31. Judgment e=>564(2) Tria] court's denial of request for tempo- rary restraining order, in which county board of zoning appeals (BZA), county, zoning ad- ministrator, and city sought injunctive relief for landfill owner's refusal to adhere to stop work order issued by zoning administrator, was entered before matter was fully litigated, and thus was not entitled to preclusive effect under doctrine of res judicata in connection v.ith further zoning proceedings. 32. Judgment <S=181(l5.1) Genuine issue of material fact as to whether landfill was "building" or "structure" within meaning of county zoning ordinance, and thus was subject to 75-foot height limit established for buildings and structures un- der ordinance, precluded summary judgment in landfill owner's appeal from decision of county board of zoning appeals (BZA) which affirmed stop-work order issued by county zoning administrator. Trial Procedure Rule 56(C). 33. Judgment <S=181(l5,1) Genuine issue of material fact as to whether former owner of land on which land, fill was located had voluntarily agreed to restrictive covenants which had been en- tered, so that covenants were not ultra vires, void ab initio, or otherwise unenforceable, precluded summal"y judgment in appeal by present landfill owner of decision by county board of zoning appeals (BZA) which af- firmed stop-work orders issued by county zoning administrator. James P. Fenton, Alan Verplanck, Eilbach- er Scott, P.C., Fort Wayne, Cathleen M. Shrader, Barrett & McNagny, Fort Wayne, for Appellant. George M. Plews, Timothy J. Paris, Flews Shadley Rachel' & Braun, Indianapolis, for Appellees. OPINION RILEY, Judge. S1'ATBMENT OF THE CASE Appellant~Intervening Plaintiff, the City of New Haven, Indiana ("City"), brings this consolidated appeal of four trial court deci- sions pursuant to two lower court cause num- bers (02COl-9506-CP'-M2 & 02COl-9506- CP-764) concerning the operation and exis- tence of a landfill, owned and operated by Chemical Waste Management of Indiana, L.L.C. ("CWMI"). The four trial court deci- sions at issue in this case are: 1) the denial of City's motion for summary judgment on six counts alleging CWMJ's violation of sev- eral stop work orders and notices of violation (CP-642); 2) the court decision partially u 916 Ind. 701 NORTH EASTERN REPORTER, 2d SERIES granting and partially denying CWMI's mo- tion for summary judgment (CP-642); 3) the court decision partially granting and partially denying CWMI's motion to vacate the Allen County Superior Court's November 27, 1995 order (CP-764); 4) the court decision partial- ly reversing the Allen County Board of Zon- ing Appeals ("BZA") decision (CP-764). As cross-appellants, Chemical Waste Manage- ment of Indiana, L.L.C., Chemical Waste Management, Inc., Waste Management, Inc., and WMX Technologies, Inc. (collectively "CWMI") raise several procedural errors committed by the BZA and not corrected by the trial court as well as several procedural and substantive errors made by the trial court. We affirm. ISSUES u The City raises several issues for our re- view which we consolidate and restate as follows: 1. Whether the trial court erred in rul- ing that the BZA offended CWMI's consti- tutional due process rights by imposing the burden of proof on CWMI to disprove the Zoning Administrator's allegations con- tained in the stop work orders and notices of violation. 2. Whether the trial court erred in finding that a stop work order issued against CWMI was invalid and unenforceac ble based On vagueness. grounds. CWMI raises several issues on cross-ap- peal, which we consolidate and restate as: 1. Whether the City's appeal is moot and should be dismissed because this court has already ruled that the trial court did not err in the entry of the agreed judg- ment.1 2. Whether the BZA applied the cor- rect standard .to review CWMI's appeal of the Zoning Administrator's orders. 3. Whether the trial court erred in de- nying CWMI summary judgment on the issues of institutional bias of the BZA and personal bias of a BZA member. 4. Whether the trial court abused its discretion in pennitting the City to inter- vene permissively in CP-642 and in hold- ing that CWMI Was "conditionally" in vio- lation of the stop work orders. 5. Whether the trial court erred in fail- ing to give res judicata or collateral estop- pel effect to the judgment in CP-308 deny- ing the City's application for a temporary restraining 'order against CWMI. 6. "\-I.'hether the trial court erred in fail- ing to enter summary judgment for CWMI fmding that there was nbt sufficient factual information to determine whether the landfill constituted a "structure" as a mat- ter of law pursuant to the Allen County Zoning Ordinance ("ACZO"), and in failing to enter summary judgment for CWMI that the 1974 covenants were ultra vires, void ab initio, or otherwise unenforceable as a matter of law. FACTS AND PROCEDURAL HISTORY On June 22, 1974, the ACZO was amended to include sanitaJ.'y landfills as a permitted use in the district of the original site of CWMI's landfIll. CWMI's predecessor in in- terest and then owner of the original site, Amon Brooks (Brooks), applied fOl' a landfill permit. The Allen County Zoning Adminis- trator refused to issue the permit and Brooks appealed at a BZA hearing. On September 17, 1974, the BZA reversed the Zoning Ad- ministrator's decision and ordered the Zon- ing Administrator to issue the permits to Brooks. Together with the BZA decision, Brooks agreed to a set of restrictions on his use of the property, recorded as restrictive covenants. CWMI acqillred ovmership of the original site on .July.2, 1981. A simplified version of the ensuing com- plex procedural background was set forth in City of New Haven v. Chemical Waste Man- agement of Indiana, LLG., 685 N.E.2d 97 (Ind.CtApp.1997), tran:s. dismissed: CP-308 The parties' relevant .involvement with one another began on February 23, 1993, I. See City of New Hal'en v. Allen. County Board of 1998). Zoning Appeals, 694 N.E.2d 306 (Ind.Ct.App. u u NEW HAVEN v. CHEMICAL WASTE MANAGEMENT CUeD' 701 N.E.2d 912 (Ind.App. 1998) Ind, 917 u when the City filed its 'Complaint to En- force Zoning Ordinance and for Declarato- ry Relief naming the Allen County Board of Zoning Appeals ("BZA") and CWMI as defendants. The City alleged that CWMI was operating its landfill facility in viola- tion of the Allen County Zoning Ordinance and sought a court order for CWMI to cease operations. During the pendency of the City's zoning enforcement proceedings ('CP-308') [Allen Superior Court Cause No. 02DOl-9302-CP-308J, and in response to the trial court's initial orders in CP--308, the Allen County Zoning Administrator served several 'stop work orders' on CWMl, after which time CWMI [ftled a cross-claim against the BZA and] moved'to join the Zoning Administrator as a party [defendant] to the City's zoning enforce- ment case. In addition to issuing several stop work orders, the Zoning Administra- tormed its counterclaim and an applica- tion for injunctive relief against CWMI. All parties moved for summary judgment in CP-308. The trial court issued its find- ings, conclusions, and order granting in part and denying in part CWMI's motion for summary judgment. The'relevant por- tion of the trial court's order stayed all further proceedings 'pemling CWMI's ex- haustion of administrative remedies before any administrative agenc.ies having pri- mary jurisdiction over CWMI's land use: CP-764 u Accordingly, CWMI initiated an appeal to the BZA challenging, among other things, the Zoning Administrator's stop work orders. During the pendency of the BZA appeal, the Zoning Administrator is- sued additional stop work orders, as well as two notices of "iolation. On April 12 and 24, 1995, the EZA heard CWMJ'sap- peal of the Zoning Administrator's stop work orders and notices of violation. The City appeared at the EZA hearings and urged the EZA to affirm all of the Zoning Administrator's orders. The BZA issued its decisions on May 10, 1995, affIrming some of the Zoning Administrator's orders and reversing others. On June 1, 1995, CWMI filed a petition for writ of certiorari in the trial court challenging those BZA determinations which were adverse to CWMI ('CP-764') [Allen Circuit Court Cause No. 02C01- 9506-CP-764]. The City ftled its appear- ance in the certiorari case as a remon- strator. On February 6, 1996, the trial court issued numerous orders which af- firmed in part and reversed in pll1t the findings of the EZA. The' trial court certi- fied its decision as a final appealable order pursuant to Trial Rule 54(E). Thereafter, the BZA, the Zoning Administrator, and the City initiated [this] appeal of CP-764. CP-642 During the pendency of the CP~764 cer- tiorari case before the trial court, the BZA fIled a verified complaint for injunctive re- lief, damages, and attorney fees, seeking to enforce those orders of the Zoning Admin- istrator which the BZA had affirmed and which were adverse to CWMI ('CP-642') [Allen Circuit Court Cause No. 02C01- 9506--CP-642J. The BZA also sought pen- alties against CWMI under the Allen County Zoning Ordinance. The City fIled a petition to intervene as a plaintiff in the EZA's enforcement action. The trial court granted the City's' petition and joined the City as a permissive intervening party in CP-642. The parties moved for summary judg- ment in CP-642. On February 6, 1996, at the same time the trial court issued its ruling in CP-764, the trial court [Paul R. Chen'Y, Special Judge] also issued its rul- ing in CP-642, ,granting in part and deny- ing in part CWMI's motion for summary judgment. The BZA, the Zoning Adminis- trator, and the City ftled a joint praecipe for appeal of CP-642, [which is this ap- peal]. llgreed Judgment On July 19, 1996, the EZA, the Zoning Administrator, and CWMI reached a set- tlement agreement and subsequently filed motions in CP--308, CP-764 and CP-642 requesting the trial court to enter an agreed judgment in each case. The trial u 918 Ind. 701 NORTH EASTERN REPORTER, 2d SERIES court entered an agreed judgment in each case dismissing all claims with prejudice. The City was not a party to the agreed judgment. Id. at 99-100. As a result of the agreement reached be- tween those parties, the BZA <lend the Zoning Administrator dismissed their appeal of CP- 642 and CP-764. The City, now the sole appellant, brings this consolidated appeal of the trial court's rulings in CP-642 and CP- 764 while CWMI also brings several issues on appeal as cross-appellant. DISCUSSION AND DECISION u We will address the City's issues first. 1. Burden oj ProoJ The City argues that. the trial court erred in ruling that the BZA violated constitutional due process when it imposed upon CWMI the burden of proof and the burden of going forward on CWMI's appeal to the BZA of stop work orders issued by the Zoning Ad- ministrator. Specifically, the City contends that given the informal nature of BZA hear- ings, the strict rules as to burden of proof which are imposed in Judicia] proceedings have no application. We disagree. [1,2J The various stop work orders and notices of violation issued by the Zoning Ad- ministrator were allegations of violations by QWMI of the ACZO rather than a matter of CWMI seeking a permit, variance, or a spe- cia] exception. In order to sustain a suit for injunctive relief concerning a violation of a zoning ordinance against the landowners, the moving party must :f"Irst prove the existence of an applicable ordinance and a violation of that ordinance. Hannon v. Metmpolitan Development Comm'n oj Marion County, 685 N.E.2d 1075, 1078 (lnd.Ct.App.1997). The BZA failed to carry this initial burden of proof. We must agree \vith the trial court's finding that at the April 24, 1995 BZA hear- ing session, CWMI was improperly required to go forward frrst and bear the burden of proving that it was not in violation of the zoning ordinance. Instead, the burden of proof and the burden of going forward should have been on the Zoning Administrator to establish that he did not act arbitrarily, ca- u priciously, or illegally. See Saurer v. Board oj Zoning Appeals, 629 N.E.2d 893 (Ind. Ct. App.1994). We find no error. II. Void for Vagueness The City argues that the trial court erred in holding that the September 2, 1994 stop work order issued by the Zoning Administra- tor was invalid on due process and vagueness grounds. SpecificaUy, the City asserts that neither CWMI nor the trial court cited au- thority holding that a stop work order must meet a constitutionally imposed standard of specificity. In response, CWMI contends that the burden was on the Zoning Adminis- trator to apprise CWMI as to the precise facts that violate the zoning ordinance. [3] On February 6, 1996, in the "Court decision partially granting and partially de- nying CWMI's motion for summary judg- ment," the trial court refused to afford the City injunctive enforcement of the stop work order affirmed by the BZAbecause the order was "too vague and general to be enforceable because it fails' to specify what conduct or condition on the land is in violation." (R. 3846). We agree. The September 2, 1994 stop work order issued by the Zoning Administrator to CWMI states: I do hereby order stayed all operations 011 your original 151 acres which do not con- form to the provisions of improvement lo- cation permit No. 12964 (dated 25 Septem- ber 1975) and the restrictive covenants. (R. 785). [4J Although our research of Indiana law has revealed no cases holding that a stop work order must meet some constitutionally imposed standard of specificity, we find Yater v. Hancock County Planning Commission instructive. 614 N.E.2d 568 (Ind.Ct.App. 1993). In that case, we held that the Plan Commissioner had a duty to furnish specific and concrete reasons so that developers could comply with applicable ordinances. Al- though that case stands for the rule that zoning ordinances must be specillc and cer- tain so as to apprise the property owner, we apply that rule to violations of zoning ordi- nances. Thus, basic constitutional due pro- NEW HAVEN v. CHEMICAL WASTE MANAGEMENT Cite as 701 N.E.2d 912 (Ind.App. 1998) cess considerations about fair notice require the power to revisit prior decisions of its own that a stop work oreler issued by a Zoning or of a coordinate court, as a rule, court<; Administrator be reasonably specific and should be loathe to do so in the absence of concrete so as to fairly apprise the wrong- extraordinary circumstances. Id. doer of the specific violation. u u I. Mootness [5-9] First, we must address CWMI's contentJon that the City's appeal is moot because closure of its landfill has deprived the City of any remedy on remand, and the agreed judgment entered into by CWMI, the Zoning Administrator and the BZA renders moot the City's claims in this appeal. In response, the City argues that its appeal is not moot because this court has already ruled on the mootness issue in City of New Haven v. Chern'ical Waste Management of indiana, a prior decision in this same case. We found that: The City's status asa. party to the lawsuit and the judgment rendered therein does not end merely because the original parties decided to settle their claims and to forego the pursuit of an appeal. Dismissal of the suit as between the original parties does not render moot the City's claims. 685 N.E.2d 97, 102 (Ind.Ct.App.1997). Spe- cifically, the City contends that this ruling is the law of the case as to the issue of moot- ness, and effectively precludes this court from ruling that the present appeal is moot. Under the law of the case doctrine, an appel- late court's determination of a legal issue is binding in subsequent appeals given the same case and substantially the. same facts. State v. Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989). All issues decided directly or implicit- ly in a prior decision are binding in all subse- quent portions of the same case. Indiana Farm Gas Prodttclion Co. v. Southern Indiana Gas & Elect?-ic Co., 662 N.E.2d 977, 981 (Ind.Ct.App.1996), trans. denied. The doctrine is based upon the policy that once an issue is litigated and decided, "that should be the end of the matter." Lewis, 543 N.E.2d at 1118. However, unlike the rule of res judicata, the law of the case doctrine is not a uniform rule of law, but rather a discre- tionary rule expressing the practice of the courts to refuse to reopen what has previous- ly been decided. ld. Mthough a comi has u Ind. 919 [10J ]n City of New Haven, this court affirmed the trial court's ruling that the City had satisfied the conditions of permissive intervention because its claims against CWMI had questions of law or fact in com- mon with those of the BZA. Specifically, we held that the City met the procedural re- quirements to bring an appeal to this court even in light of the Agreed Judgment. City of New Haven, 685 N.E.2d at 102. However, CWMI argues that it is free to raise the issue of mootness in its present appeal be- cause that issue was not previously resolved or addressed by this court. Furthermore, CWMI contends that the law of the case doctrine does not apply in this case because the doctrine only precludes subsequent litiga- tion on the precise legal issue previously determined. We disagree vtith CWMTs rea- soning. Although we did not specifically address the issue of the mootne'ssof the City's claim in City of New Haven, we nevertheless ruled that the City had the right to appeal a prior judgment "to the extent that it is adverse to those interests which made intervention pos- sible in the fIrst place." ld. Thus, the law of the case doctrine does apply because we implicitly ruled on the mootness issue in a prior decision in this same case with substan- tially the same facts and we will not reopen what we have previously decided. [11] CWM] next contends that the City has no remedy available on remand because CWMI received its last shipment of waste at the facility in May 1998, the facility is effec- tively closed, and therefore CWMI can no longer violate. or continue to violate the ACZO provisions. Specifically, CWMI ar- gues that the City has no available remedy for an alleged violation under the ACZO, and therefore this appeal should be dismissed. We disagree. First, in City of New Haven, we found that the City, as a remonstrator, had a right to petition for review by writ of certiorari pur- suant to Ind.Code SS 36-7-4-1000, et seq., u 920 Ind. 701 NORTH EASTERN REPORTER, 2d SERIES u which provides. for remedies and enforcement of BZA decisions by aggrieved parties. City of New Haven, 685 N.E.2d at 102. In partic- ular, we held that pursuant to Ind.Code S 36-7-4-1005(b) the City satisfied the defi- nition of an adverse party as "any property owner whose interests are opposed to the petitioner. . . ." Id. at 103. Thus, we have already determined in this case that the City is entitled to petition for review of the BZA decisions as an adverse party. Second, ACZO S 3-13-4-4 does provide the City as "any property O\~l1er" with the right to ob- tain an injunction against CWMI. This ordi- nance states that: any property ovmer who may be especially damaged by any such violation of this Or- dinance may initiate an actiDn for injunc- tion ... to restrain arty person or govern- mental unit from violating or continuing to violate any provision of this Ordinance and to cause such violation to be prevented or abated. (R. 3080). Finally, CWMI contends that the City is not entitled to a negative injunction under ACZO S 3-13-4-3 because the words "restrain," "prevent," and "abate" all refer to actions of present or future violations that cannot occur because the facility is closed. However, the City seeks to enforce the underlying cove- nants prohibiting visibility of the landfill from any existing residence as well as the ACZO provisions limiting the existing landfill height and requirement of permits and Spe- cial Exceptions for landfill construction. Therefore, the City c.an initiate an injunction action against CWMl for alleged continued violations of the covenants and ACZO provi- sions. The City's appeal is not moot. n. BZA Standat'd of Review Next, CWMI contends that the trial court eITed by not invalidating the BZA's decisions because the EZA did not afford CWMI a de novo review of the evidence supporting the Zoning Administrator's claims of ACZO vio- lations in the stOp work orders and notices of violation. CWMI argues that due process was violated because the BZA instead used an arbitrary, capricious, illegal or contrary to state law standard of review in hearing CWMI's appeal of the Zoning Administra- tor's orders. In response, the City asserts u that due process does not require that the EZA provide CWMI a de novo hearing; Specifically, the City argues that due process of law was not contravened where the BZA applied the standard of the ACZO Rule of Procedure 4.01, which provides that an ap- peal to the BZA of the Zoning Administra- tor's decision be "on the basis of such deci- sion being arbitrary, capricious, illegal or contrary to state law or the provisions of the Ordinance or the Rules." (R. 1274). We agree. [12] Ind.Code ~ 36-7-4-918.1 authorizes BZA review of any order or decision made by a zoning administrator. Furthermore, Ind. Code S 36-7-4-919(d) prOvides: "Upon ap- peal, the board may reverse, affirm, or modi- fy the order, requirement, decision, or deter- mination appealed from. For this purpose, the board has all the powers of the official, officer, board, or body from which the appeal is taken." Thus, we affIrm the trial court's finding that the BZA's decision to limit the exercise of its power by applying an arbi- trary, capricious, or illegal standard rather than broadening its power by affording CWMI a de novo hearing with the BZA standing in the shoes of the Zoning Adminis- trator was well within the BZA's discretion. We find no error in the trial court's failure to vacate the BZA decisions of CWMI's appeal for not applying a de novo review standard. III. Bias Next, we consider the trial court's denial of CWMI's motion for summary judgment find- ing that CWMI was not denied due process of law on the basis of institutional and per- sonal bias of the EZA. CWMI argues that the trial court eITed in failing to vacate all BZA decisions on the ground that a single member of the BZA, George W. Pond (Pond), was biased against CWMI as well as the bias of the entire BZA. The trial court denied CWMI's motion for summary judgment and found that by necessarily knowing of the bias hut failing to timely raise the issue at three different hearings, CWMI waived it.<; asser- tion that the EZA was biased against it. Furthermore, the trial court was unable to determine whether as a matter of law Pond's LJ NEW HAVEN v. CHEMICAL WASTE MANAGEMENT Cite as 701 N.E.2d 912 (Ind.App. 1998) Ind. 921 u participation with the Allen County Dump Stoppers, Inc., an organization actively and publicly opposed to CWMI's operations at the landfill, created a reasonable basis for doubting his impartiality. On February 23, 1993, the City filed a complaint against CWMI and the BZA in the Allen County Superior Court, alleging viola- tions of the ACZO by CWML On September 8, 1994 CWMI flied a counterclaim against the BZA, joining the Zoning Administrator as a party defendant. On September 13, 1994 the Zoning Administrator filed a coun- terclaim against CWMI but the BZA contin- ued to defend itself against CWMI's claim rather than affirmatively filing a complaint, cross-complaint, or counterclaim against CWML CWMI now claims that the BZA was biased because it was in litigation against CWMI at the same time it was ruling on CWMI's appeal of the Zoning Administra- tor's allegations of ACZO violations. Howev- er, as the trial court pointed out, CWMI failed to raise the issue of bias with the BZA due to its litigation with CWMI at any of the BZA hearings on April 12 and 24 and May 10, 1995. Thus, the trial court ruled that CWMI waived its claim that the BZA was biased against it at the April 12 and 24 and May 10, 1995 hearings because CWMI "can- not initiate a legal claim in a lawsuit against the BZA (September 8, 1994) then later pur- sue zoning appeals and requests before the BZA (April 12 and 24 and May 10, 1995) and then later (on Odoberll, 19(5) fIrst raise an allegation of bias by the BZA yet having at all times necessarily known of these circum- stances of which it fIrst complains in late 1995." (R. 3833). CWMl's second claim of bias is that the trial conrt erred in failing to invalidate all of the EZA proceedings because a biased BZA member participated in any of them. In 1995, Pond was a board member of the Allen County BZA and also a member of the Allen County Dump Stoppers, Inc. Prior to the initial BZA hearing on April 12, 1995, CWMI registered three written objections to Pond's participation in the BZA hearing. However, Pond still participated as a member of the BZA in the April 12 hearing and then re- cused himself prior to the next BZA hearing LJ on April 24, 1995. CWMI now argues that the trial court should have concluderl that Pond was biased against it, thereby tainting all BZA proceedings, and therefore the COluot should have invalidated all of the BZA pro- ceerlings relating to CWMI. The trial court was "unable to determine whether as a mat- ter of law Pond had a conflict of interest and whether as a matter of law a reasonably objective person would have a reasonable basis for doubting [Pond's] impartiality and therefore CWMI's motion for summary judg- ment is denied as to this issue." (R. 3835). [13-17] Due process in administrative hem"ings requires that all hearings be order- ly, judicious, fundamentally fair, and conduct- ed before an impartial body. McBride v. Board of Zoning Appeals of Evansville-Van- derburgh .4rea Plan Commis.~ion, 579 N.E.2d 1312, 1315 (Ind.Ct.App.1991). This requirement means that agency members' decisions may not be swayed by preconceived biases and prejudices. R-ipley County Board of Zoning Appeal;.; v. Rumpke of Indiana, Inc., 663 N.E.2d 198, 209 (Hld.Ct.App.1996), reh 'g. denied, tran;.;. denied. 'When a biased board member participates in a decision, the decision "vill be vacated. ld. Nevertheless, because a zoning board is a body usuaJIy composed of persons without legal training, courts are reluctant to impose strict technical requirements upon their procedure. McB?ide, 579 N:E.2ci at 1315. Furthermore, in the absence of a demonstration of actual bias, we will not interfere with the adminis- trative process. Ripley Cty., 663 N.E.2d at 209. In the case at hand, we are reviewing decisions by the trial court that CWMI waived its assertion of institutional bias by falling to timely raise the issue and the exis- tence of genuine issues of material fact as to Pond's impartiality. The issue on appeal is whether denial of summary judgment against CWMI on the issue of hias was in error. [18-21] The purpose of summary judg- ment is to terminate litigation for which there can be no factual dispute and which can be determined as a matte!' of law. Brown v. LoweU Mining Co., Inc., 636 N.E.2d 154, 155 (Ind.Ct.App.1994). When reviewing the grant or denial of a motion for summary LJ 922 Ind. 701 NORTH EASTERN REPORTER, 2d SERIES judgment our standard of review is the same as that used by the trial court: whether there is a genuine issue of material fact and whether the moving party is entitled to judg- ment as a matter of law. Webb 'V. Jarvis, 575 N.E.2d 992, 994 (Ind.1991). On review, we may not search the entire record to support the judgment, but may only consider that evidence which has been specifically desig- nated to the trial court. Irvine v. Rare Fel'ine Breeding Center, Inc., 685 N.E.2d 120, 123 (Ind.Ct.App.1997), trans. denied. The party appealing the trial court's grant or denial of summary judgment has the burden of persuading this court that the trial court's decision was erroneous. Id. A summary judgment determination shall be made from any theory or basis found in the evidentiary matter designated to the trial court. Ind.Trial Rule 56(C). Thus,!Jur standard of review is limited to determining whether the trial court's decision to deny summary judg- ment to CWMI is erroneous, and we must affmn on any theory supported by the judg- ment. u [22] In the case at hand, because of the existence of genuine issues of material fact before the court, the trial court was unable to find as a matter of law that either the entire BZA or Pond, as a member of the BZA, was biased against CWMI. Specifically, the court found that the record was silent as to what extent Pond was a member of the Dump Stoppers organization and whether his asso- ciation ",,>jth the Dump Stoppers affected the BZA proceedings. Additionally, the court found that CWMI waived its assertion of institutional bias because it necessarily knew of the circumstances of bias but continued litigation mthout raising the issue. Thus, on the basis of the lack of designated evidence and our deferential standard, we cannot say the trial cow.t's denial of summary judgment against CWMI on the issue of bias was erro- neous. u IV. Abuse oj Discretion A. Intervention First, CWMI argues that the trial court abused its discretion in allowing the City to intervene permissively in, CP-642, the en- forcement action of the stop work orders and notices of violation, Specifically, CWMI. con- tends that the City failed to show any issues of fael or law in common with the main action because the City merely duplicated the BZA's and the Zoning Administrator's complaint. [23-26] Pursuant to Ind.Trial Rule 24(B)(2), an applicant may be permitted to intervene in an action when the applicant's claim or defense have a question of law or fact in common with the proceeding and in- tervention will not prejudice or unduly delay the adjudication of the rights of the original parties. On appeal, the trial court's determi- nation on a motion to intervene is only re- viewable for an abuse of discretion. Heri- tage House of Salem, Inc. v. Bailey, 652 N.E.2d 69,73 (lnd.Ct.AppJ995). In review- ing the trial court's exercise of discretion, the facts alleged in the motion must be taken as true. Id. To constitute an abuse of discre- tion, the trial court's decision must be clearly against the logic and effect of the facts and circumstances before the court or reasonable and probable inferences to be drawn there- from. Developmental Disabilities Residen- tial Facilities Council v. Metropolitan Dev. Comm'n of Marion County, Ind., 455 N.E.2d 960, 965 (Ind.Ct.App.1983). Further, it is well settled that where the effect of granting a motion to intervene would open up new areas of inquiry or raise unrelated issues, the motion should be denied. Heritage House, 652 N.E.2d at 74. [27] On June 26, 1995, the City filed a petition to intervene in the action of the Allen County BZA seeking injunctive relief to rectify zoning violations found by the BZA to exist in its affirmance of certain stop work orders issued by the Allen County Zoning Administrator. In support of its motion, the City asserted that it had a direct interest in the enforcement of local zoning against CWMI and it must be permitted to intervene to protect its interests. On October 16, 1995, the trial court granted the City's motion to intervene, finding that the City's claims have questions of law and fact in common mth the BZA and intervention will not unduly delay or prejudice the rights of the original parties. We must agree v.>jth the trial coru"t in permit- u NEW HAYEN v. CHEMICAL WASTE MANAGEMENT Ind. 923 Cileas 701 N.E.2d 912 (Ind.App. 1998) ting the City to intervene permissively in this order based upon the condition of the ulti- case. We find no abuse of discretion. mate validity of the stop work order on ap- peal. We find no error. u B. Conditional Violation Next, CWMl argues that the trial court abused it.s discretion in conditionally fmding that CWMI was in violation of the stop work orders between February 6 and August 30, 1995. Specifically, CWMI contends that the w-ial court could not find CWMI in violation of the stop work orders because the trial court already concluded that the stop work orders and notices of violation issued during this period were unenforceable because of the BZA's improper placement of the burden of proof on CWMI. However, pursuant to ACZO 3-13-3-3, the trial court conditionally found that between February 6, 1995 and August. 30, 1995, CWMI was in violation of the February 6, 1995 stop work orders. Further, the trial court denied the Zoning Administrator's motions for summary judg- ment on four' counts "because CWMI's ap- peal of the February 6, 1995 stop work or- ders and notices of violation has not yet been legally determined by the BZA and presently the appeals pending before the BZA and the stop work order mayor may not ultimately be upheld as valid and enforceable by the BZA." (R. 3882). Therefore, CWMI's argu- ment is misplaced because the trial court had not yet ruled upon the validity of the Febru- ary 6, 1995 stop work order and CWMl is arguing about the validity of the September 2 and 9, 1994 stop work orders that were already determined to be invalid and unen- forceable. [28] Pursuant to ACZO 3-13--3-3, a deci- sion by the Zoning Administrator to issue a stop work order may be appealed to the BZA. "However, the decision of the Zoning Administrator to issue a stay order shall remain in effect during the pendency of the appeal, and thereafter unless modified or revoked by the Board.... A violation of such an order issued by the Zoning Adminis- trator .. shall be considered a violation of this ordinance." Thus, CWMI was required to obey the stop work order until there was a judicial determination of its legality on ap- peal. The trial court properly found that CWMI was in violation of the stop work u V. Res Judicata/Collateral Estoppel CWMI contends that the trial court eITed in refusing to give res judicata or collateral estoppel effect to rulings on preliminary in- junction in the Allen Superior Court case CP-308. Specifically, CWMl argues that the requests by the BZA and the City for injunc- tive relief for GWM:I's refusal to adhere to a stop work order were barred by res judicata because t.he Zoning Administrator and the City had alre<idy sought. injunctive relief in CP-308 on several occasions with the judge denying those requests. In CP-308, the BZA, Zoning Administrator and the City pursued claims against CWMl seeking judi- cial injunctive enforcement of the September 2 and 9, 1994 stop work orders by seeking the issuance of a TRO. Further, in the Allen Circuit Court case CP--642, the BZA, Zoning Administrator and the City sought judicial injunctive enforcement of the February 6, 1995 stop work order. However, the trial court judge rejected CWMl's res judicata and collateral estoppel arguments, finding that in CP-308, the judge "denied an applica- tion for a t.emporary restraining order against CWMI ,for no sUited reason other than to maintain the status quo that existed prior to the filing of the applicat.ion which decision was not a decision on the merits of the case." (R. 3859). Further, the court concluded: that the issues of whether non-compliance with an Allen County Zoning Administra- tor stop work order constitutes a violation of the Allen County Zoning ordinance ... have not been fully litigated on the merits in [CP-308] and therefore [the BZA, Zon- ing Administrator and the City] can raise and argue these issues in this case because the doctrines of res judicata and collateral estoppel do not. bar them from doing so. (R. 3860). [29,30] The law of res judicata is well- established in Indiana. It operates to "pre- clude litigation regarding matters which have already been litigated. . .. [A] judgment on the merits is an absolute bar to a subsequent u 924 Ind. 701 NORTH EASTERN REPORTER, 2d SERIES action between the same parties on the same claim." Mutchman v. Consolidated Coal Co., 666 N.E.2d 461, 464 (InrI.Ct.App.1996), reh:q. denied, trans. denied, The denial of a pre- liminary injunction is in the nature of an interlocutory order. Ind.Appellate Rule 4(B)(3); see Hollingswm1.h v. Key Benefit Adm'rs, Inc, , 658 N.E.2d 653, 655 (Ind.Ct. App.1995). Further, the very nature of in- terlocutory orders is that the case is not fully developed before the case proceeds to a final hearing on the merits. Id. [31] In this case, the trial court properly found that res judicata or collateral estoppel did not apply because the trial on the merits in CP-308 had not yet been held when the Superior Court judge denied the TRO and ordered "all pending requests for injunctive relief consolidated with the trial on the mer- its in this cause of action." (R. 3859). u VI. Summary Judgment A. The Landfill: A Stmcture as a Matter of Law? [32] Next, CWMI argues that the trial court erred in denying it summary judgment on the "height" stop work order, since as a matter of law, the landfill is not a "building" or a "structure" under the ACZO. Specifical- ly, CWMI contends that no reference to facts was necessary and the court needed only to examine the language of the ACZO to deter- mine that CWMI's landfill was not a struc- ture. However; the trial court'found that it was without sufficient factual information to make a determination whether CWMI's land- f"ill units in fact exceeded 75 feet in height and constituted structures. Further, no- where does the record of proceedings estab- lish that the landfIll operations exceeded 75 feet in height other than the Zoning Adminis- trator's stop work order. Thus, because gen- uine issues of material fact existed, the trial court denied CWMl's motion for summary judgment on the height limit stop work or- der. On February 6, 1995, the Zoning Adminis- trator issued a stop work order against u 2. The 75 foot height issue concerns landfill oper. ations called "residual management units" or "cells" which are multiple ,layers of waste inter- CWMI alleging that the Adams Center Landfill Phase III operations exceeded 75 feet in height, thereby violating the ACZO.2 ACZO ~ 3-8-1-1 provides; No building or structure shall be erected, altered, enlarged, or reconstructed to ex- ceed the height limit established for the District where such building or structure is' located, as follows .., I-I, 1-2, 1-3, 1-4 . , 75 feet. (R. 3850). ACZO ~ 3-2-2-2 defines "building" as: a structure having a roof supported by columns or walls designed, built or used for the enclosure, shelter or protection of persons, animals, chatlels or property. (R. 3850). We must agree with the trial conrt that the Phase III landfill operations do not fit this definition. ACZO ~ 3-2-2-2 defines "structure" as: Anything ,~_onstructed or erected with a fixed location on the ground, or attached to something having a fIxed location on the ground. Among other things, structures include buildings, mobile homes, walls, fences, billboards and poster panels, and pools. (R. 3850). CWMI argues that as a matter of law, ACZO S 3-8--1-1 does not apply to its landfill operations because it is not a building or a structure. Specifically, CWMI asserts that ACZO S 3-2-2-2 defines a sanitary landfill as "a method of disposing of refuse on land .... ," and thus the landfill is not constructed with a fixed location on the ground, rather it is the ground. Summary judgment IS appropriate when the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). The purpose of summary judgment is to determine litigation about which there can be no factual dispute and which can be deter- mined as a matter of law. Ho'Well v. Indiana-American Water Co., Inc., 668 N.E.2rl 1272, 1274 (Ind.Ct.App.1996), trans, den'ied. The u'ial court's determination of spersed among multiple liners and using a leach- ate collector and drainage piping system. u NI<;W HAVEN v. CHEMICAL WASTE MANAGEMENT Cite as 701 N.E.2d 912 (I nd,App. 199B) Ind. 925 u summary judgment is clothed with a pre- sumption of validity and the losing party bears the burden of proving that the trial court erred in its deternrination of summary judgment. ld. When revie\ving a motion for summary judgment, we stand in the shoes of the trial court, applying the same standard utilized by the trial court, and we resolve any doubt as to a fact, or an inference to be drawn therefrom, in favor of the party oppos- ing summary judgment. Id. Summary judgment is inappropriate if we must weigh conflicting evidence to reach a decision, or if there are conilicting inferences which may be drawn from undisputed facts. National City Bank, Indiana v. Sh01iridge, 689 N.E.2d 1248, 1250 (Ind.Ct.App.1997). In this case, the City argues that the trial court did not err in denying CWMI's motion for summary judgment since, as a matter of law, the landfill cells are "structures." In the designation of materials upon which it relied in opposition to CWMI's lllotion for summary judgment, the City cited evidence supporting the conclusion that the landfill cells were structures. In particular, the City designated: CWMI plans, diagrams, and bro- chures showing landfill cells as structures, CWMI's testimony at a BZA hearing de- scribing the landfill cells as structures, and CWMJ's description of the cells as elaborate- ly engineered and constructed. On the other hand, CWMI argues that its attorney consis- tently maintained \Jefqre the BZA that its landfill was not a "structure" as defined un- der the ACZO, even submitting a brief to the BZA urging dismissal of the height stop work order because the landfill was not a structure. Further, CWMI argues that CWMI's reference to aspects of the landfill as "constructed" is not an admission that any part of the landfill is a "structure." Thus, the trial court properly denied CWMI's sum- mary judgment because there were genuine issues of material fact and conflicting evi- dence. We agree 'Nith the trial court that summary judgment was inappropriate. B. 1974 Covenants [33] CWMI next contends that the trial court erred in failing to enter summary judgment in its favor that the 1974 cove- nants were ultra vires, void ab initio or oth- u erwise unenforceable. Specifically, CWMI argues that the trial court erroneously decid- ed that CWMI's predecessor in interest him- self proposed the 1974 covenants, therefore equitably estopping CWMI from challenging them. Further, CWMI argues that the trial court erred in concluding that CWMI was judicially estopped from challenging the 1974 covenants because. CWMI had previously ac- knowledged the validity of the 1974 cove- nants. The foIlowing is the factual background of the 1974 covenants. On July 19, 1974, Amon Brooks (Brooks), then the owner of the origi- nal site, flied an application with the Allen County Plan Commission for the construc- tion, operation and occupancy of a landfill on the original site. On ,Iuly 22, 1974, the Allen County Zoning Administrator refused to is- sue a permit for the use proposed by Brooks, and Brooks appealed this decision to the EZA. On September 18, 1974, the BZA re- versed the Zoning Administrator's denial and ordered the Zoning Administrator to issue the permits sanctioning construction and op- eration of a sanitary landfi.ll on the original site. This reversal and order to issue per- mits to the landfill was contained in a pub- lished and recorded document agreed to by the EZA and Brooks, and included several requirements to be included in the deed of conveyance from Brooks to his successor as covenants running with the land. On Sep- tember 18, 1974, the BZA granted to the Zoning Administrator the power to enforce the 1974 covenants. On Febl"Uary 6, 1995, the Zoning Administrator issued against CWMI a stop work order alleging several violations of the 1974 covenants. On May 10, 1995 the BZA affirmed and upheld certain of the alleged violations of the 1974 covenants. On February 6, 1996, the trial court denied CWMI's motion for summary judgment on the February 6, 1995 stop work order and the BZA's affIrmance of notices of violation regarding the 1974 restrictive covenants, finding that there. existed no genuine issue of material fact regarding the validity of the 1974 covenants running with the land. In particular, the court found that CWMI's op- erations on the original 151 acre site re- mained subject to the site-specific 1974 cove- u 926 Ind. 701 NORTH EASTERN REPORTER, 2d SERIES u nants as well as the ACZO in effect an July 19, 1974 when Brooks. suhmitted his permit application to the BZA Further, the court found that CWMI was precluded from chal- lenging the vaUdity of the 1974 covenants because it failed to timely pursue a certiorari action within thirty days of September 18, 1974, and that CWMI had previously ac- knowledged in court proceedings the validity of the 1974 covenants and the right of the Zoning Administrator to enforce them. We must agree 'With the trial court in denying CWMl's motion for summary judg- ment regarding the stop work orders and notices .of vialation in connection ;vith the 1974 cavenants. The covenants were not ultra vires or unenfarceable as a matter of Jaw. In fact, there is substantial evidence in the record to support the finding that CWMI's 151 acre site remained under the 1974 cavenants voluntarily entered into by Brooks. As we stated above, when reviewing a motion for summary judgment, we stand in the shoes of the trial caurt, applying the same standard utilized by the trial court, and we will resolve any conflicting inferences from undisputed facts in favor of the non- moving party. In this case, the undisputed facts reveal a conflicting 'inference of whether Brooks voluntarily agreed to the restrictive covenants. However, there is substantial ev- idence in the record to support the conclu- sion that Brooks agreed to the covenants and that they ran with the land to remain in effect upan CWML CONCLUSION In conclusion, we find that the trial court did not err or abuse its discretian in its ruUngs of CP--642 and CP-764, the City's appeal is not moot, and the BZA did apply the correct standard to review CWMI's ap- peal .of the Zoning Administrator's stop work orders. Affirmed. RUCKER and GARRARD, JJ., cancur. u Tom SMITH, individually and as class representative of all others similarly situated, Appellants-Plaintiffs, v. The STATE LOTTERY COMMISSION OF INDIANA, Appellee- Defendant. No. 49AO~9802-CV-59. Court of Appeals of Indiana. Nov. 20, 1998. Opinion Clarifying Decision on Rehearing Feb. 8, 1999. Plaintiff, a holder of winning scrateh-off lottery ticket, sued state lottery commission for breach of contract seeking damages for himself and class .of all persans whose \vin- ning tickets were rejected by lattery as hav- ing been untimely presented. The Marion Superior Court, Anthony J. Metz, J., dis- missed camplaint for lack of subject matter jurisdictian. Plaintiff appealed. The Court .of Appeals, Baker, J., held that: (1) action was not contract claim, but rather was appeal from agency order that fell under Adminis- trative Orders and Procedures Act (AOPA), and (2) there was grave doubt that any ad- ministrative remedy was available at lottery, such that action was not barred by failure to exhaust administrative remedies. Reversed and remanded. 1. Lotteries CP15 Action against state lattery commission seeking damages for winning scratch-off lot- tery tickets that were rejected by lottery as having been untimely presented was not a contract claim, but rather fell. under the Ad- ministrative Orders and Procedures Act (AOPA). West's A.I.C. 4-21.~1~1 et seq., 4- 21.5--5-4,4-30-7-1. 2. Administrative Law and Procedure CP498 Administrative order operates retrospec- tively upon elients that have already oc- curred. West's A.I.e. 4-21.5-]-9. u u u More Information Page 10f2 Indiana Secretary of State Todd Rokita Home ="~~~T_~"~~___~__~_~'_..~~_.''''''~__~",,~,~,,_.,~_,_,>, ,..,...."'''''~''"',.."y,..~''''..,...,:~~~~~r'~'y.n..~__~~......,.'--........~~"g.~,..,.,.>~~,,cg"~~,.~~::u~,,,'_.~~" Name Searched On: American Aggregates (Legal) Current Information Entitv Legal Name: AMERICAN AGGREGATES CORPORATION Entil;j! FictitLQuS Name: E.atjt:Y-Arjqres~: TWO MARKET SQUARE CENTER SUITE 500 251 EAST OHIO STREET, INDIANAPOLIS, IN 46204 General Entity Information: Control Number: 192384-014 Status: Merged Entity Type: For-Profit Foreign Corporation Entit'jl Creation Date: 11/30/1925 .fo!LIY_pa te_tQnRlrfj : fn~lty Inactive Date: 7/1/1988 Origln~1-.Cleation Date: 9J.:j9j.o.Q..U;~.9J.i.Q_[l_s..ta~.: OH There are no other names on file for this Entitv. Additional Services Available: :Th i~ EI (J sines!:! En.tlt,,_ ts_.l101J;:!iaJpl.e_tJJ r~c;:-,,~ ive . ace rt iJi_~ateof E:~J~t~_n c;eL~ ytb.!uj~~ttO!1.. ~ View additional information for the entity, including transaction history, merger information, registere9 agent, principals and corporate report information (years paid and years due). There is a fee of $1.00 for accesslndiana subscribers and a fee of $2.04 for credit card users for this additional information. NOTE: Amendments filed prior to 1987 DO NOT appear in the transaction history. ~ Place orders for copies of Business Entity documents with the Secretary of State's Business Services Division. There is no fee to place an order; however, you will be billed for any statutory fees associated with your order. View fee sc_hedule (lfJ!~.l~iL-jif0 If you encounter technical difficulties while using these services, please contact the https://secure.in.gov/sos/bus_service/online_ corps/Detail_ Info.asp?packet=packetI & sear.. . 10/11/2004 u l) u More Infonnation Page 10f2 Indiana Secretary of State Todd Rokita Home Name Searched On: American Aggregates (Legal) Current Information Entif:x. Legal Name; AMERICAN AGGREGATES CORPORATION. en tLtYJJj;litJQI,!~t1~L@;!; {;J]JitY-jJ.QQ[es_s..: 2710 WYCLIFF RD , RALEIGH, NC 27607 General Entity Information: Control Number: 1988070044 Status: Active Entitv Type: For-Profit Foreign Corporation Entity Creation Date: 7/1/1988 Entity Date to Expire: !;.o.tj.!;Y-!_D_q~_tj.Y-,;_D._~te. : QJ:19jJl~.L..c;r e a.t.i.QJ1._Q.gJg: 4/25/1988 QIi.ginal Creation SJQJ;e.: DE , This entity is current with Business Entity Report(s). QJher Name~ for,jbi.$_Entmr: Date 7/1/1988 7/1/1988 7/1/1988 Name (Type) MARTIN MARIETTA AGGREGATES (Assumed / Putnam County) MARTIN MARIETTA AGGREGATES (Assumed I Hamilton County) MARTIN MARIETTA AGGREGATES (Assumed / Marion County) Additional Services Available: ~ View additional information for the entity, including transaction history, merger information, registered agent, principals and corporate report information (years paid and years due). There is a fee of $1.00 for accesslndiana subscribers and a fee of $2.04 for credit card users for this additional information. NOTE: Amendments filed prior to 1987 DO NOT appear in the transaction history. ~ Generate an official Certificate of Existence/ Authorization. There is a total fee of $20.00 for accesslndiana subscribers and a fee of $21.42 for credit card users. Example Certificate https://secure.in.gov/soslbus_service/online_ corpslDetail_ Info .asp?packet=packet2&sear.., 10/11/2004 u u u More Information Page 1 of2 Indiana Secretary of State Todd Rokita Home Name Searched On: Martin Marietta Materials (Legal) Current Information Entity- Legal Name: MARTIN MARIETTA MATERIALS, INC. En titrfictilio ~fla rTJ...e..:.. EnJLty~_dQfg~~: 2710 Wycliff Road, RALEIGH, NC 27607 General Entity Information: Control Number: 1994010325 Status: Active Entity Type: For-Profit Foreign Corporation Entity Creation Date: 1/5/1994 Entity Date to Expire: EntjtY-lmuJivlLQg!~ : O.Ilgj.ni;!U::Le_a_tloIlD_aJi!: 11/ 12/1993 Original Creation StaJg: NC This entity is current with Business Entity Report(s). There are no other names on file for this Entity. Additional Services Available: ~ View additional information for the entity, including transaction history, merger information, registered agent, principals and corporate report information (years paid and years due). There is a fee of $1.00 for accesslndiana subscribers and a fee of $2.04 for credit card users for this additional information. NOTE: Amendments filed prior to 1987 DO NOT appear in the transaction history. . ~ Generate an official Certificate of Existencel Authorization. There is a total fee of $20.00 for accesslndiana subscribers and a fee of $21.42 for credit card users. f.~i'lmRLe. Certificate ~ Place orders for c9pies of Business Entity documents with the Secretary of State's Business Services Division. There is no fee to place an order; however, you will be billed for any statutory fees associated with your order. View fee schedule https://secure;in.gov/soslbus_service/online_ corps/DetaiI_ Info.asp?packet=packetl &sear... 10111/2004 u 8T ATE OF INDIANA CARMEL/CLAY ADVISORY BOARD OF ZONI NG APPEALS DOCKET NO. 04070020 A COUNTY OF HAMILTON Thomas Yedlick, APPELLANT William D. McEvoy, Gregory M. POlicka, Susan Becker, Rex AWeiper, Rene Pimentel, and Donald K. Craft AFFIDA vir OF LAURA CONWAY Personally appeared before the undersigned notary public, duly authorized to administer oaths, Laura Conway (the "Affiant"), who, under oath, deposes and states as follows: 1. My name is Laura Conway, and I am over the age of 21 years. have personal knowledge of the facts recited herein. 2. I am employed as a part-time law clerk in the law firm of Thrasher Buschmann Griffith & Voelkel, P.C., 151 N. Delaware St., Suite 1900, Indianapolis, IN 46204-2505. u 3. As such law clerk, I was assigned the duties of obtaining various aerial photographs from the Hamilton County Surveyor, obtaining assessment records from the Clay Township Assessor, obtaining information from the Corporations Division of the Indiana Secretary of State on American Aggregates Corporation and Martin Marietta Materials, Inc., obtaining building permit information from the Carmel/Clay Department of Community Services, plotting the information obtained on certain pho.tographic exhibits for presentation ata hearing on the captioned matter, and obtaining information concerning uses of the land east of the Kingswood subdivision in Carmel prior to 1992. 4. Pursuant to the above duties, I did the following: a. Visited the Hamilton County Surveyor, obtained prints and digital copies of various historic aerial photographs of the Carmel Sand and Gravel Plant and its surrounding area, including Kingswood and Wood Creek subdivisions, consisting of photographs of Section ~, Township Lt. North, Range ~ East, in Clay Township, Hamilton County, Indiana ("Section ~"). These photographs , were then printed at (~d ~ nZ ((\\)\\ ' a commercial copier U located at 151 N. Delaware St., Indianapolis, IN. Some of the 1 u photos were mounted by Q.s..C'A C6Q~1 on large boards and one is included as Exhibit G by the Intervenors in this case on behalf of Appellant ("1985 Print"). Smaller versions of the same information is included in the binders prepared for and presented at the Hearing on the captioned matter to be held October 13, 2004 (the "Evidence Binders"). b. Visited the Clay Township Assessor and obtained a 2001 photograph of Section L showing the tax assessment property lines thereon as of ('C\Q..n:':\\. Q..Cf.:'::l ("Exhibit A") and copies of various tax assessment record cards, including the property record card for Parcel No. 1714040000018000, which is the tax parcel upon which the Plant is located ("Exhibit B"). Exhibit A was mounted on a large board by ~\ L..!... c.~ ( and smaller versions are included in the Evidence Binders. u c. Visited the Department of Community Services in the Carmel Town Hall and obtained copies of the building permits issued for Wood Creek subdivision and some in Kingswood subdivision ("Exhibit En in the Evidence Binders); confirmed the accuracy of the List of Addresses and Permits ("Exhibit F" in the Evidence Binders); located the lots described in the building permits and the List of Addresses and Permits on the large photograph of Section _ described above as Exhibit A; and, created Exhibit H in the Evidence Binders, depicting the location and dates of the building permits that are within a one-quarter mile square of the Plant. d. Visited the Department of Community Services and obtained copies of the 1997 Agreement ("Exhibit R" in the Evidence Binders) and 2002 Settlement Agreement ("Exhibit S" in the Evidence Binders) between the City of Carmel and Martin Marietta Materials, Inc., among others. e. Visited the Department of Community Services and obtained copies of the various Applications for Special Use and Petitions for Variance that have been filed by American Aggregates Corporation or Martin Marietta Materials. Inc. with said Department, including the 1989 Special Use Application, Docket No. SU-60-89, from which Exhibit I in the Evidence Binders was copied. f. Visited the Department of Community Services and obtained copies of their Complaint file on American Aggregates Corporation and Martin Marietta Aggregates, from which the complaints included in the Evidence Binders as Exhibit Q were taken. u g. Found or confirmed the information on the corporate status and assumed names for American Aggregates Corporation and Martin 2 lJ . Marietta Aggregates in the Corporations Division of the Indiana Secretary of State, using its web site, which information is included in the Evidence Binders as Exhibit C. h. Found or confirmed the copies of the various sections of the Carmel City Code that are included as Exhibits M and 0 in the Evidence Binders. i. Visited Oak Hill Mansion, found its web site, and printed the Home Page thereof, which is included as Exhibit J in the Evidence Binders. 5. To the best of my knowledge and belief, all such information described above is accurate, reflects true and correct copies of public records, or was created by me from s h accurate information. u COUNTY OF ) ) S8: ) Further, Affiant saith not. STATE OF INDIANA Subscribed and sworn to before me this 12.. day of October 2004. Signature:~j2.O--~ ~ Notary Public Printed: .~ (>..[\V\..CL Cu~-L.. My county of residence is: My commission expires: 1'1 / 1\ f. 101 D { Mllhb N U L:\WPFILES\021330\AppeaILENCU2004\AffidLauraConway.doc 3 .. u l.) u STATE OF INDIANA CARMEUCLA Y ADVISORY BOARD OF ZONING APPEALS DOCKET NO. 04070020 A COUNTY OF HAMILTON Thomas Yedlick, APPELLANT William D. McEvoy, Gregory M. Policka, Susan Becker, Rex A. Weiper, Rene Pimentel, and Donald K. Craft AFFIDAVIT OFTHOMAS YEDlICK Personally appeared before the undersigned notary public, duly authorized to administer oaths, Thomas Yedlick (the "Affiant") , who, under oath, deposes and states as follows: 1. My name is Thomas Yedlick, and I am over the age of 21 years. have personal knowledge of the facts recited herein. 2. My wife and I moved into our home at 5053 8t Charles Place, Carmel, IN 46033 in September 1993. 3. In September 1993, the Carmel Sand and Gravel Plant (the "Plant"), now accessed from Hazel Dell Parkway, was already in operation in its present location, and, to the best of my knowledge and belief, processed raw aggregate sand and gravel that was delivered to it pursuant to a dredge that was working in the quarry now surrounding the Plant. 4. In the Fall of 2002, the dredge that had operated in the quarry surrounding the Plant was parked on the lake shore and the tubes that connected it to the Plant were disconnected. 5. To the best of my knowledge and belief, no more sand and gravel aggregate has been taken from the quarry east of Kingswood and processed at the Plant since the Fall of 2002. 6. During the spring of 2003, I was informed by John Tiberi of Martin Marietta that the plant was being used to process sand and gravel from their Noblesville site in order to have material to keep it running. 7. The truck traffic has continued since 2003 and the amount of sand and gravel being processed at the Plant since that time has been J . u u u 8. such as to keep the Plant open and operating late into the evening most evenings during the warmer months of the year. To the best of my knowledge and belief, there was no public notice of the termination of the dredging of the lake east of Kingswood or the commencement of the importation of raw sand and gravel aggregate to the Plant. To the best of my knowledge and belief, the Carmel Sand and Gravel Plant is operating without any license or permit from the State of Indiana or the City of Carmel. 9. Further, Affiant saith not. ":;; ~~= Thomas Yedli. STATE OF INDIANA COUNTY OF 11#1./(lfV ) ) SS: ) Subscribed and sworn to before me this / Ji4. day of October 2004. Signature: 1::i0~L?/ Nota ublic PHIUP C. THRASHER Notary Public, State 01 Indiana County of Marion My Commission Expires 07/27/2006 Printed: My commission expires: My county of residence is: L:\WPFI LES\021330\AppeaILENCU2004 \AffidT om Yedlick.doc 2 . ~. u u u ,- ICE~~LLEiR LEGAl. fI ~U5IHI!S& AllV'$.OK~ June 18, 2004 Wl'lJTII\!S DlIU!C'r NtJMBl!IC (! 17) l3 s.:u 19 D1IU!CTrM: (31 '/') Sg;l.4l7ll1 1N'\'lI1IN~1 Zea:Wci5s@iccnu1\o'.coll'l VIA FACSXMD..E: (317) 571*Z426 :Mr. Michael Hollibatlgh Department of Ccnnmunity Semces City of Carnlel One Civic Square Cannel, IN 46032 RE: J.etter from Thomas C. Yedlick Dear Mike: This is in response to :Mr. Yedlick's letter to you of December 16, Z003. in which- he asserts that certain activities carried on by Martin Marietta Materials, Inc. (''Martin ~etta") 'on its Cmmel S and and Gravel site do not comply with the Carmel/Clay Zoning Ordinance. Your letter of June 11, 2004,' asks Martin Marietta to address questions "regarding the processing elf' outside materials a:nd whether that importation constitutes an lmIawful expansion of use." The short answer is that there is an Indiana Court of Appeals case on point that is contrary to :M:r. Yedlick's "S01.1rCe" of materials analysis. It rej eots a. change in source as a change in or expansion of a nonoonfomrlng 'Use. In light of this case and the other matters set forth her~ we do not believe there is anything for the .Board of Appeals to address. Thus, we respectfully ask that Mr. Yedlick's inquiry be dismissed. . We lire also compelled. to comment on. why Martin Marietta. must currently import material from its Noblesville site. The original plan, of COU11ie~ was for Martin. Marietta to mine Mueller North and relocate its plant to the east side of Hazel Dell Parkway. It thought it had Kingswood's support in that endeavor~ As you know, however, that support evaporated and Martin Maril~tta's application was turned down. Had it been approved, Martin Marietta's plant would have been moved. it would be mining the Mueller North property, and this issue would neverbave arisen. Indeed, Martin Marletta would probably be within five years or so of being through with mining, sand and gravel on the Mueller North property and would be moving the dredge and implementing some plan to make the resulting lake an amenity for all concerned. Likewise. if local circumstances bad not interfered with the consideration of Martin Marietta's other applications, including its subsequent application for e,. special use permit on Mueller North, the plant would have been moved and:Mr. Yedlick's issue would never have arisen. Instead, Martin Marietta now must bring this material in from Noblesville, at a cost of several dollars per to~ solely so that it can preserve an area east of H~el Dell Parkway for the One AmeriaJn Squall: I Sex 82001 I Indianapolis. IN 4-G2112..o002 I P 317&2se.2tOO I F 311-236~2219 I www.leernJUc:r.eom In~iilnllpor,s ( Cllicaga I ~as111n!ltan, D.C. . I' u June 18,2004 Page 2 of6 relocation 0 f its plant site, as the Kingswood neighborhood has requested. I think you know the effort Martin Marietta haz made to preserve that plant sitet but it could end up all being for nothing iftbfl YedlickfKingswood position were to prevail. In that event, Martin Marietta wOllld have little choice but to miDc the plant site east of Hazel Dell Parkway. John Tiberi has said on many occasi.ons that he does not want to do th~ and his decision to bring material in 'at great cost to Martin Marietta shows his desire to presexve the plant relocation option despite actions by Kingswood neighbors that make mining that area its only realistic option. We hope that aU involved 'With this, especially the Kingswood community, Ullderstandthe implications of Mr. Yedlick's position. If the Kingswood neighbors now move to keep Martin Marietta from bringing in material to continue its aggrega.te business on this siteJ that will make it'c]ear that IdngswClod places little value on preserving the plant site east of liazel Dell and its real intention aU along bas been to put tbis comp~y out of business. lithe neighborhood no longer values that optio~ there is little reason for :Martin Marletta to do so~especially as it costs several million doUars for Martin Marietta to implement iL Martin Marietta will continue to do all in its power to preserve the option of relocating the: J)lant, but at some point there win simply be no other reasonable option. That will be an unfortunate result. u Mr. Yedllck's Claim According to Mr. Yedlick's letter, the Carmel/Clay Zoning Ordinance allows Martin Marietta to process sand and gravel taken from its site under what Mr. Yedlick describes as the "alienation otmineral resoUrces:" . Specifically, when Carmel Sand is completing th.e alienation of mineral resources from its property. i.e. from' the Cannel Sand location, then clearly this is alienation of mineral resources. However when existing plant facilities are converted. to processing sand and gravel from other loca.tions, it fails the source test. Thusiprocessmg sand and gravel from other locations cannot be considered alienation of mineral resources. Mr. Yedlick further statcsJ nit is clear that when the processing of sand and gravel follows the extraction of these mineral resouxces, the processing can be considered as an intragal (sic) part of the 'complete use of ali~tion of my mineraI resourees.11I Thus, to paraphrase:Mr. Yedlick, JY!artin Marietta is entitled to process sand and gravel extractea from the Carmcl site. but cannot bring materials in from my other location and process them there. u Mr. Yedlick is correct that processing is an integral 'Part of the business of extracting and selling sand and gravel at. the Carmel Sand and Gravel location. He is incorrect, however, that processing is limited tomateriaI obtained on site. We also note that :Mr. Yedlick's premise that Carmel Sa:nd and Gravel is a non- comoIlIling use is incorrect. Section 28.1.6 of the Carmel Clay Zoning Ordinance expressly . . \. .' June 18,2004 Page 3 of6 u provides that uexisting \1ses eligi.ble for special use approval shall not be considered legal non- confonnmg uses nor require special use approval fur continuance. . . ." Martin Marietta's uses are th.us correctly analyzed as existing, pei:mitted uses, and not as nOIl-conforming uses. That alone is tfason to dismiss Mr. Yedlick's complaint, premised as it is on an inconect understanding of the ordinance. u Furt:ler, even if MI. Yedlick were correct and this matter presented a nonconforming use question, be would mn be WIong as to his conclusion. Mr. Yedlick's .premisf; albeit an incorrect one, is that processing and extraction are separate uses. Irthat were'so, Section 28.1.2 sayS that :Martin Marl etta could change to a110ther legal nonconforming use Dithe same restriction. Ertraetion and Sale of -Sand and Gravel Indndes PrOCesSh12 The Cannel zoning' ordinance does not cOntain a definition of mineral extraction, or mining and quarrying. However, Section 20B.2 contains the following special use: "Mineral extraction operations including san~ grave~ soil, aggregate and all related processing operations." We als9 note that the mining regulation ordinance previously adopted by the City of Carmel expressly defined mining to include pIOcessing~ as does the new ordinance currently under considetation. These proposed and present ordinances recognize that the use of the property is for mining puryoses and that processing is simply one of the activities that make up the use. It is not a separately defined use itself. Indeed, the Carmel Zoning Or(HnA"~e does not contain a listing for processing as a separate "use" in any district. We thus agree with Mr. Y edlick's cO:J.c1usion that processing is a part oithe use conducted on the site. " ' The Source of the Material Is Irrelev3bt .Mr. Yedlick's letter is grounded on the assumptiOll that a Imvfu1 use of land can ~omehow become unlawful because the materials processed and sold on it are ,not sourced from the land itse~ but rather come from elsewhere. Mr. Yedlick cites no Indiana. authority for this proposition End Indiana law is. in fact, to the contrary. . In Day v. Ryan. 560 N.E.2d 77 (Ind. App.~ 1990). the landowners were engaged in fanning activities. Among other things, they dealt in livestock, and at some point began bringing in livestock that were not raised on their propeny. Later, the activities expanded yet again to the point that the landowners were effectively operating a stockyard.business. Some neighbors then complained, arguing that both the operation of the stockyard business and the sale of RTliTnAlc: that had not been-raiSed on site, were unlawful. As:Mr. Yedlic:k does here. they complained 1hat the sale of livestock raised elsewhere cbangedthe underlying, use to something other than its pennitted agricultural use. The Court of Appeals explicitly rejected that contention, holding that the .'trading ot livestock raised elsewhere. . . . did not wor~ a tranSformation of the basic agricultural nature ofllie Ryans' use of the property." . .' u Likewise~ in another case,' Cooper v. Calandro. 581 N.E.2d 443 (Ind. App., 1991), an owner of a septic tank company wanted to put waste from his business on his farm. rather than having to P~~{ to dispose of it. He argued that the spreading of this waste as fertilizer was an u June 18~ 2004 Page 4 of6 agriculmral use, but bis neighbors argued that it wasn't because the waste came from off site. Once again; the Court of Appeals held that the source of me :material was irrel.ev8Dt~ and that the use was agrIcultural. In this eas~ the use of Martin Marietta's Cannel Sand and Gravel property is for the extraction. processing and sale of sand and. gravel. Each of those is a component of the use known as mining and is, therefore, a.part of the use. There is no requirement that each and every component I)f a use be carned on in order for other components of the use to be allowed. Indeed, were this a !:i.te where blasting had been done to extract materials, one can envision the neiShbors '" being thrilled that extraction (blasting) was no longer being done. The elimina.tion of one aspect of a use do~s not change tbe use. Martin Marietta Has Acquired Statuto"" and Contra.ct Ri2hts that Entitle It to Continue Its Uses Mr. Yedlick's letter fails to take into accmmI tho I;onsiderable rights Martin Marietta acquired by virtue of its status as a lawful use under Ie 36...7~4--1103, the agreement entered into between the:: City and Martin Marietta in connection with Hue! Dell Parkway. and the subsequent Kingswood agreement. U1 You will recall that, prior to 20001 the Carmel Sand and Gravel operation was located entirely outside of Carmel.s municipal boundaries. During some or all of that time it was outside an Ulban area. It was subsequently annexed into the City of Cmnel. The predecessor to 10.36-7-4-1103 was Ie 18...7MS-61) which prohibited a local government from interfering ''by Jaw. rule .or regulation. . .outside of urban area!!, [with] the complete use and alienation of any m.in:eral resources. . . . by the owner or alienee thereof." The Indiana Court of Appeals made it - plain in UhI v. Liter's QUarry oflndi,g Inc., 384 N.E.2d 1099 (Ind. App. 1979), that when a quarry is outside an urban area it has the right to engage in any activity furthering the Ilcomp lete use and alienation of any mineral resourcesl1 on its property. There is 110 requirement that its uses be broken down into princi~a1 or. accessory, as nothing related to the complete use and '. alienation of the mineral resources can be prohibited, no matter how characterized. The f.actthat local gcrvermnents have subsequently beell authorized by statute to regulate quarries i:n flood plains does not affect this result Hamilton County did not enact any regulation applicable to the quarry, flood plain or otherwise, that would have divested it of any riglrtg prior to the annex&ion of the Carmel Sand and Gravel property by the City of Cannel. Hence, when Carmel tooi that Fmperty into its j1.IIisdiction it was with aU of the. rights that had acaued to Martin Marietta prior to annexation under I.e. 36,:,7-4-1103. Thoserlghts~ by definition, included everything re]atingto "complete use and alienation" ofminera1 resources, including the processing ofmatenaI. As Day v. Ryan makes clear, the source oftbat material is irrelevant. ~ '.~ I u MarLin Marietta was careful to protect its rights in its various agreements with the City _ and with the Kingswood neighborhood. For example, in the 1997 Hazel Dell agrccrn.ent, the City 'racknowledge[d] that [M:artin Marietta] ~1 continue to conduct mining operations on all of its remaining real estate in Clay Township. . . _II Furthert the City undertook a broad obligation ...... .. ...- , u June 183 2004 Page 5 of 6 not to "initl ate any proceeding or take any action, or participate in any proceeding or action to limit, prohibit or restrict (Martin Mariena's] mining opern.tions or the operations of the related industries on [MartinM:n1etta's] real estate whatsoever3 includin& but not limited to nuisance or . trespass. n The tCl'I'It proceeding was defined to include "civiI~ GIiminals $Inm1T1;strative or inveSti.gativ.~" proceedings and "formal or iniormaP' matters. Importantly, these undertakings by the City we:-e covenants that expressly ran with the land imd a breach of them may thus have far- reaching consequences. . . The Hazel Dell agreement also acknowledges the City's desire to annex certain teal estate then owned by American Aggregates. The City expressly agreed., however, that such "annexation shall not divest American of its mining rights. . . . n In the subsequent May 2002 agreement betWeen Martin Marletta, the City and Kingswood, among others, the City expressly "recogrrlze[d] ~ha.t the uses now established 011 the Martin property. . . constimte legal non-confo:rmmg uses." There is no question that aU of the activities in which Martin Marietta is currently engaged on this property, including sand md gravel extraction, processing,. stock piling, sa1~ and alIrclated Operations. were being conducted on the property at the time. It is also worth noting that Kingswood made the same representation. u ill li,ght of the above referenced )ndiana code provision and the various agreements between MfIl1:in Manetta, the City and Kingswood, the only question that can be raised is whether the importation of material to the site is somehow a change m use. The decision in Day v. RYan makes it plain that processing and sale of materials is not made a different use or activity simply because the roate:r.ial comes from a different location. This is consistent with the general role that a change in the way a particular non-conforming use is carried out does not alter i~ statuS unless the change is so ftmdamental as tQ alter the underlying nature of the use. CONCLUSION Martin Marietta acquired broad rights while it was operating in a rural area before annexation. Those broad rights include all operations relatin,g to the complete use and alienation ofits minera.lresource8D including processing of those resources. Martin Marietta was careful to . pr~serve those rights in. its various agreements with the City of Cannel and to make some of them run with the conveyanc~ ofits property to the City. Indiana case law makes it clear that its . rights are no11ost because it importS some material to its site tor processing. We trust that the foregoing responds adequately to :Mr. Yedlick's letter. u Lastly, as we have conveyed many times to yo~ as well as to representatives of the Kingswood Neighborhood Association, Martin Marietta remains committed to working towards a mutually acceptable resolution of all pending issues. !hat resolution would, by its very nature; acknowledge the concerns of the KinGSWood NeighboThco~ as well as legitimate rights and interests of Iv.!artin Marietta. Our aliempts to meet with representatives of the Kin,gswood Homeowners Association have been rebuffed on several occasions. Nonetheless, we will u June 1 8:r 2004 Page 6 of6 continue to work with you and members of your staff in order to pursue tbis goal of finding a reasonable resolution to tb.e issues tha.t confront us. We look forward to continuing to work with you toward~J Ibis goal. Please d.o not hesitate to contact me if you desire furlher information. Very truly yours, ZA W/sd cc: John Tiberi (via e-mail) Yvonne Bailey (via e-mail) Way.o.e Phears (via e-mail) u INDY 1384487v2 u u u u FAX TRANSMISSION THRASHER BUSCHMANN GRIFFITH & VOELKEL, r.c. 151 N. DELAWARE STREET, STE. 1900 INDIANAPOLIS, IN 46204 (317) 686-4773 FAX: (3 I 7) 686-4777 To: Michael Hollibaugh, Director Department of Community Services, City of Cannel Date: June 29, 2004 Fax #: 571-2426 Pages: 6, including this cover sheet. From: Philip C. Thrasher, Esq. Re: Freedom of Inforrnation ****************************************************************************** COMMENTS: Dear Mike: Please find following four requests for information on your form, with one attachment for clarity. I would be happy to have them picked up as soon as they are ready, and if some are ready before others, please feel free to let me know so I can be working on them pending receipt of the others. As you know, we have a short deadline, so anything you can do to expedite this request will be greatly appreciated. Please let me know if you have any questions. Thanks. ****************************************************************************** WARNING CONFIDENTIALITY NOTICE: This cover sheet and the materials enclosed with this transmission are the private confidential property of the sender, and the material are privileged communications intended solely for the receipt, use, benefit, and infoll11ation of the intended recipient indicated above. If you are not the intended recipient, you are hereby notified that .any review, disclosure, copying, distribution, or the taking of any other action in reliance on the contents of this transmission is strictly prohibited, and may result in legal liability on your part. If you have received this transmission in error, please notify us immediately at the above telephone number and arrange for return of this transmission to us. cc: William McEvoy 818-1626 JU~-28-2?04 MON 09:01 AM CARMEL COMMUNITY svds FAX NO, 317 571 2426 P. 02 -#/ u CiTY OF CARMEL, INDIANA Request For Records l'ursuont To Indiana Access to l'ublic Records Act (I:C,. 5-1 4~3~ 1, ,m~, as amended) L. Pit 1L-( r "c-- "--rHrf.. rrsttr:-Pv "'" " (nome optional] Indiana. the right to inspect and copy the following records: ~ herebY request of the City of C;drmeL ftt-l.- JNF()Rf1AT!orJ J:j{ ,ftb. rlLPS Of--OPPld DF mE 1 f:/nrtT/?f3:tvT 0 F 07 fit/aN'I T'( .lei. v la-siTlltT w.k5 1#1 eJ; ~:. ;; ~~fJ: b:'RYf1~t/Y 10 RPtvff mj:}ifistd1ItfkT(o{l/~ . c.fL p]> . iV-']: /-0~ ~b cJ7ilv'e Z-<-f; .?<'??~ /t-'rI/fr:ItF;b U tJ:i*JO.W - ';fJ, Dated thiS&? doy of -r:Jt1 nC?" - - f4~;kd<</ ,200~, The City may provide me with its response to this request: = ~ - ~.JOf O~ Recelved by: at . -,' m. on ,200 . - Signature: , 'Pfll'ited Name and City Department: - U Sent to Legol Deportment for response on: ~ by - Received by Legal Deportment on: by Exhibit 8. 11 \L~\V,E aoD'My C~~~",",,\o\R=...r.ult~V,.~FOl\M :~~I.daCllf{}OIl ...--- . City of Carmel June 24, 2004 Mr. Thomas Yedlick 5053 St. Charles Place Carmel, IN 46033 Re: Your Letter of December 16,2003 Dear Mr. Yedlick: u After the pre-hearing conference held on Tuesday, June 22, 2004, I reviewed the arguments submitted by Mr. Weiss and Mr. Thrasher (in their respective documents submitted to this department on June 18, 2004), in consultation with legal counsel. As a result of this review, I have reconsidered my earlier detennination that the issue raised in your letter should be presented to the Board of Zoning Appeals for resolution under Section 28.06 of the Carmel Clay Zoning Ordinance, and I have withdrawn the petition that I previously filed with the Board which called for a public hearing on this matter to be held on June 28, 2004. Moreover, I have now made the following determinations under the Zoning Ordinance: 1. The Board of Zoning Appeals lacks jurisdiction to hear the question of nonconforming use unless and until this department makes a decision or detennination regarding such question and an appeal of such decision or determination is filed with the Board; 2. The land uses that were establi~hed on,M:artin Marietta's properties on or about May 17,2002, constituted legal, nonconforril:ifug9ses;( . . p', .... .' 3. Those uses do not appear to have beet s'ubs.tanually m~difieH: expandedj' or added to since May 2002; and 4. Therefore,.those uses remain legal, nonconforming uses under the Carmel Clay Zoning Ordinance which may not be substantially modified, expanded, or added to without a change of zoning classification or Board approval of a special use or variance. Should you wish to appeal any or all of the above determinations to the Board, please contact the department and we will provide you with the appropriate forms and hearing schedules. If you have any questions, or wish to discuss this matter further, please do not hesitate to contact me at 571-2422. Very truly yours, ~ ~ {) if. u Michael Hollibaugh Copy: Zeff Weiss Philip Thrasher Brian Tuohy John Molitor Douglas C. Haney ONE eMe SQUARE CAR1v.lEL, INDIANA 46032 317 /571-2417 JUN-28-2004 MON 09:01 AM CARMEL COMMUNITY SVCS -" ...- -- . FAX NO. 317 571 2426 P. 02 4-2- u ~ITY OF CARMEL, INDIAN.A ReCluest For Re<:ords pursuant To Indlona Access To public Records Act (I:C,' 5-14.3~ 1 I.m~, os emended) L P(7/tr-1 r Cr. Tffo<lJ7}t-,?P,,- (name optionol1 . , , herebY request of the City of Gorme!. l) Indiana, the right to inspect ar.d copy the following records: .4/1 ff{!J1 C/P5 0 F CD Pi" VJoM-T r.e,0/5, ~fJcTl(Jtl5, f'ltt J 9'J/I/?t - . " (4lfi f /.-1'rfW"T5 1i#J> '5 rM ( I-- MK C-o,fi.i~.,ts:'Sf>o N 't>~ . TO JIr#. n N 11 ,b77l11111T13f!-Hl'U J:r./UI W.l> oi?-- 1Jf1e:~I(}. rV - .-b- .~ ~b, BEr-ulf?etJ 'F,fWk1fi-Y I, M2J--- IMVP OI/J~ "4-'-{,a.vf; ) &,1) Au.- PoWt1 EfVTS. fJ.&bfTJ IV b '--t1J15fAEiTO \ -J:lVU-Ut> /!II G_ ~5d?-IATlnN o~, JO(~H f11/f}7/~ . '7fb "offi- !~a-JI4f~~ Dot..d this~ day of rfit# · 200* _ The City may provide me wlth its response to this request: "'--U> rJrf- Received by: at . ,m. on ~ -- .200_, Signature: . 'PrInted Nome and City Department: It \!.~,~ 1l~1 co~",..\o\R:...rd<~""~'J..Il'CAM ~gQ,..!llc41wll JUN~28-2004 MON 09:01 AM CARMEL COMMUNITY SVCS .-.. --~- FAX NO. 317 571 2426 p, 02 -#-'3 u CITY OF CARMEt lNDIANA Request For Records pursuant To lndlano Access To Public Records Act (I:C. 5-14-3.1, m ~; as amended) \ ' l, ~ H I L-- J r C- r THfK~itf~J<~, [nome optional] . ~ I hereby request of the City of C;ormeL Indiana, the rIght to Inspect and copy the following records: /}~t- PUf1/rS >5'-:?/jtn> 10 .17/ff-TlA/ I1ML~ 1t~//t&~ -. -O~ .dN?-, Iltflf lfffR./clJ!J/ /}d7bf. i""b~-<5r ):Iv? f5ETf.A/PffI!/ :;;;;;;[41'*- y_ J \ jdf7""---- A-d -dt1(/:{e ? '-I, UP I-/- .. u -"");/rk --r Doted this@.... doy of -""- V uv't V ,200!/. . /!4r:Lp~ " . The City may provide me w)th its. response to' fhis'requ"e'st:.."., O~ Received by: ot " .m.on -- , 200_. Signature: 'Printed Nome and City Deportment: --' u Sent to Legal Department for response on: by Received by Legal Department on: ~ by Exhibit A It \l~w\E llm'M, DOl!\Im"'U\R=...rdJl~V..to\I'OII.M :gOI.da<'ll4lO11 JUN~~8-2~04 MON 09:01 AM CARMEL COMM~NITY sVCS FAX NU 317 571 2426 P. 02 ~y u CITY OF CARMEL, INDIANA Request For Records pursuant To Indiana Access To Public Records Act (I:C. 5-14~3-1, m~, as amended) , . L 1t}/~1 r C. THRM./iff:,. tnorne optionall ~I hereby request of the City of ~drmeC Indianal the right to inspect and copy the following records: @ ,p ~ h A!T 5 t41177!. tkA5 {; /1/'1/ T. . E'lYr15. C4 /W/JI'I :s flP/J> !It N'O fiR fT !t;J l> N b 7 Sn-IdE" pAl 7'i C C ((U 0 - C,.4.t, :Fe -- . oil- . ~flf3 R 1~f!!J frf/ i/# t?{J.p:~1 ll()t~ TlAlI1i?!.JFTTA 118 7Jl./If? 5 ,W? tJ..;-'- (/iJeJ ll.[Va.'7, (ks.7r;J/'/! (1/651 Sd! bC/6/r WF:1, 11 p:!p D1HR<.. U ~O(j367)(rJhS, JM;/J/1>lA!h b/i/fD;2r:ffl15Nf ~71f2I!1J', J~iVb ~ :2 ,it ,c/ (rli(" . "t' ,,/ LC, .~' 'Ej, ''Jft;:S' fJ~ lfi-r-IIJ M-f-tgj.;7111/J TF/2(./f?-#. t/~ Doted this ~ ;Voy of _ ~ "e"" . ,200..f,' jilf4: t:.(ji~ The City may provide me with its response to this request: o By telephone at ~ o 6y facsimile transmission at - . il1 By maTI ot ..L~ II< ~3ft0'Z ;Pi . ~ ifd""~' J:;:ffdf"o/dlf?IW '1&:: 'f - 'OR.... otner;;r fI _ 7 - ~ '" _ -'- _, u/c ~ ,_T ~!!,,,,,- -_.:.. n 1Pr. ?-s.9-' .,... II Received by: ot . .m.on ~ - ,200 . - Slgnoture: . 'Printed Nome and City Department: ~ u Sent to Legal Department for response on: by Received by Legal Department on: ~ by Exhibit A 12. \L_E Ilml,'.\1 Oco:."""U\f(~='d3R<<i~"I.I\rof\M ~OQ.I.~""'<VOII u MESSRGE CONFIRMRTION OS/29/2004 09:21 ID=THRRSHER BUSCHMANN GR I FF lTH \JOEL DATE S,R~TIME DISTRNT STATION JD MODE PAGES RESULT 06/29 01'45" 317 571 2426 CALLING 05 OK 0000 06/29/2004 09'19 TH _ _ ..' RRSHER BUSCHMANN GRIFFITH \JOEL ~ 5712425 U JU~ _28 ~04 HO~ 09.01 AM CARMEL COHH~ITY SVCS FAX NO. 317 57\ 2426 NO. 870 [;101 P. 02 $/ gD' OF CAW~L, iNCl~NA ReQLJest for Records Furmcnt To Il'\dlcnCl Access To Public Records ACt (I:C. 5.14-3.. L stl ~~ as amended) , . I. Pltll.,( t. ~~ f1I~/15~~ (nome opttcnoij Indiana. the right to inspect and COpy the following records: ..... hereby request of the City of ~brmer. u .1J~P()IU1hT10N:eN yfttf. Plw5 Of- 0 FfLa 1> F THE }. . """ 71~!IT 0 F U /1ha t! IT'( J'tSlt V la;s 'TfIfTi ~ tf/.El..-I ~ f.: ~: ..VJ; b~tm:f1f;iN'C /0 Rf;Avtt ]7ti:)~R (11NfrTIo{IL.S A. P-~ -,v. . ',t:;~ )'>ffrP 1) 7j1rrJl5 ?c.f.~~1 /t-'7r~ ~ff.-I(2 u MESSAGE CONFIRMATION 06/29/2004 09;22 ID=THRRSHER BUSCHMRNN GRIFFITH UOEL DRTE S,R-TIME DISTRNT STRTION ID MODE PRGES RESULT 06/29 00'28" 317 571 2426 CRLLING 01 OK 0000 06/29/2004 09;20 THRASHER BUSCHMANN GRIFFITH UOEL ~ 5712426 t'IO.871 (;101 u u FAX TRANSMISSION THRASUERBUSCHMANN GRlFFTTH & VOELKiL, P.C. I ei IN. DeL.AWARE STREE"l' l S~. I gOO INDIANAPOLIS. IN 462.04 (3 I 7l 666-4773 F....X: (~I 7) 686-4777 To: Michael Hollibaugh, Director Department of Community Services, City of Carmel June 29, 2004 Date: Fax #: 571~2426 Pages: 6, including this cover sheet. From: Philip C. Thrasher, Esq. He: Freedom of Infonnarion ..*......****...**.*.~**.*..~.*..~~~*.***..**.*..$.~..*............**.....**.. COMMENTS: Dear Mike: Please find following four requests for infonnation On your fann. with one attachment fnl' f',hn;.n, Jul 21 04 01:29p p. 1 u City of Carmel FACSIMILE TRANS~lISSJON ONLY TO (317) 686-4777 July 20, 2004 Laura Conway Thrasher Bushmann Griffith Voelkel, P.c. 151 North Delaware Street, Suite 1900 Indianapolis, Indiana 46204-2505 RE: Your Written Document Request Dear Ms. Conway: I represent the City of Carmel, Indiana. This letter serves as the City's response to your fonowing request. Request: U "Any building permit for Martin Marietta and .American Aggregates for Thrasher, Busrunann, Griffith & Voelkel.'" Response: Your request is denied to the extent it does not identify with reasonable particularity the documents you seek. Moreover, the. City's records, especially prior to 1996, are not such that I am confident that copies of all building permits issued by the City from its creation forward were kept. Subject to the above, your request is granted to the extent it seeks building permits issued between January 1, 1975 and July 12, 2004. These records, if any exist, should be available for your review and copying (at SO.05 per page) in my office during nomla] business hours on and after 1 :00 p.m. on July 28,2004. Very truly yours, Douglas C. Haney Cam1el City Attorney DCH/cb Cc: Michael Hollibaugh, Director of Department of Community Services Karen Davis, Public Access Counselor, via facsimile transmission to (317) 233-3091 u !,.".,.~,,,,,..,,,,",,,,,,,"_,",",.,m....."n.,,.~._v_-.,~r'.i1,,,,,1......,Jc~,(:l\.'lc: SQUARE CARMGL, lNDl/\Nf\ 4bO.lZ .117/57 J -240\.; Jul 20 04 04:50p p. 1 u City of Carmel FACSIMJLE TRANSl\1JSSION ONLY TO (317) 686-4777 July 20, 2004 Laura Consay Thrasher Bushl11alID Griffith Voelkel, P.C. 151 North Delaware Street, Suite 1900 Indianapolis, Indiana 46204-2505 RE: Your Written Document Request Dear 1\1 s. Consay: I represent the City of Carmel, Indiana. This letter serves as the City's response to your following request. Request: "Any pernlit issued to Martin Manetta and any permit issued to American Aggregates for anything." (....)esponse: Your request does not identify with reasonable particularity the documents you seek. Moreover, the City's record-keeping, especially prior to 1996, was not such that I am confident that copies of all permits issued by the City "to anyone" were retained. Finally, the City has already granted your law firm's following requests regarding permits: 1. "All permits issued to Martin Marictta Materials, Inc. andlor American Aggregates, Inc. between January 1,1975 and June 24,2004" 2. "Any building pennits for Martin Marietta and American Aggregates" 3. "The building permits of the enclosed (57) addresses" For these reasons, your request is denied. The city reserves all rights and defenses that may exist under IC 5-14-3 or otherwise as regards this request. Very truly yours, Douglas C. Haney Cannel City Attorney '"""'CHleb . U: Michael Hollibaugh, Director of Department of Community Services Karen Davis, Public Access Counselor, via facsimile transmission to (317) 233-3091 IZ""',"m"R_~".".""..,,e"'"'''''~'''I1''''..v'''''';'''M''''''W''~''''',l.)N>i,.;;;I',iIC SQU,ARE CARMEL. [NO/AN.A. 4<50,}2 317f~71,2';'L10 I Jul 22 04 01:31p p.l u City of CaJmel FACSIMILE TRL\.NSMJSSION ONLY TO (317) 686-4777 July 21, 2004 Philip C Thrasher and Laura Conway Thrasher Bushmann Griffith Voelkel, P.C. ] 51 North Delaware Street, Suite 1900 Indianapolis, Indiana 46204-2505 Dear Mr. Thrasher and Ms. Conway: RE: Status of our Record Requests I Your law firm has recently filed nine (9) records requests with the City of Carmel pursuant to the Indiana Access To Public Records Act. The status of your requests 'Is summarized below: 6/29/04 - "All informalion relied "pon": Records ready fO~ eview 6/29/04 - "Code.vi~lations, infrac~ions":. Re~ords ready fo~ r~vie~ 6/29/04 - "Peml1ts Issued to Martm Manetta': ~ecords proYlded m othe.r responses U 6/29/04 "All agreements, contracts, covenants': Records ~eadY for revIew , . 6/29/04 - "All v ari ances, rezonings, speci al nses": Record, ,eady for revi ew 7/12/04 - "Any permits for anything": Request denied 7/12/04 - "Building Penn its - 57 addresses"; Records readj:f for review 7/12/04 - "Any building Permits": Records available 7/27/04 7/]2/04 "Building Pelmits -16 addresses": Records availkble 7/27/04. Please be advised that the records already identified and maije available to you fill an entire banker's box and probably total in excess of 2,000 pages. You may revie~ these documents in my office during normal business hours and may copy any or all of them at a cost of Five Cents ($.05) per page. My office only accepts cash payment for copies, in any denomination of curr~hcy except pennies and bills greater than $20.0~. If you call my. office before .you arrive, I will make sure t~at the copy machine is available so that you will not need to walt to make copies. I Very truly youli' DCH/eb . II Douglas C. Haney Cannel City Attbrney I i Michael Hollibaugh, Director of Department of Community Services I Karen Davis, Public Access Counst:lor, via facsimile transmission to (317) 233-309 I I: Cc: u ",........"'.,~_".<"".","..".III..'''''....."W.''''.h...,,~...,m"~)NE CIVIC SQUARE CA RlvlEL. INfllANA 4liO\1 j 17/5 71.24'-"0 !. JLJn 30 04 04:27p F. 1 u City of Carmel FACSIMILE TRANSMISSION ONLY TO (317) 686-4777 June 30, 2004 Philip C. Thrasher Thrasher Buslunarm Griffith Voelkel, P.c. 151 North Delaware Street, Suite 1900 Indianapolis, Indiana 46204-2505 RE: Your Written Document Request of June 29, 2004 Dear Mr. Thrasher: I represent the City ofCanne1, Indiana. This letter serves as the City's response to your following request. Request: "ALL INFORMATION 11\T THE FILES OR OFFICE OF THE DEPARTMENT OF COMMUNITY SERVICES THAT WAS RELIED UPON BY SAID DEPARTMENT TO REACH THE DETER.l\1INA TIONS DESCRIBED IN THE LETTER DATED JUNE 24, 2004, A IT ACHED HERETO." G\esponse: As written, your request may encompass attorney work product, personal notes, internal memoranda or deliberative material generated for decision-making purposes that are exempt from mandatory disclosure under Indiana Code 5-14-3-4. Your request is denied to that extent only. Subject to the above, your request is granted and copies of any relevant and disclosable documents will be made available to you for your review and copying (at $.05 per page). I anticipate that it will take three (3) working days to identify the discJosable documents that are relevant to your request. Therefore, the same should be available for your review in my office during regular business hours on and after 1 :00 p.m. on Tuesday, July 6, 2004. Please bring cash, in denominations of $20.00 or less, to pay for any copies you wish to make. Pennies cannot be used to pay for copies. If you have any questions, please contact me directly. ~~J' Very truly yours, Douglas C. Haney Cannel City Attorney DCH/eb u Cc: Michael Hollibaugh, Director of Department of Community Services Karen Davis, Public Access Counselor, via facsimile transmission to (3J 7) 233-3091 'Z"~-".~."'~"",R""'""""''''''I'lI"^,,IUU''''''''''''''''''''''''''''''J ONE C1VIC SQUARE CARMEL. INDIANA 460.)2 J 17/'371-2400 Jun 30 04 04:14p p. 1 u City of Carmel q FACSIMJI~E TRANSMISSION ONLY~TO (3]7) 686-4777 June 30. 2004 Philip C. Thrasher ThTash~r Bushmann Griffith Voelkel, P.e. 151 North Delaware Street. Suite 1900 Indianapolis, Indiana 46204-2505 RE: Your \Vritten Document Requests of June 29, 2004 Dear Mr. Thrasher: Urepresent the City of Carmel. Indiana. This letter serves as the City's response to your following requests. Request #1: "ALL AGREEMEl\TTS, CONTRACTS, COMMITMENTS, COVENANTS, AND UNDERSTANDINGS BETWEEN THE CITY OF CARlV1EL and AMERICAN AGGREGATES or MARTIN MARIETTA MATERIALS, INC" Response: As written, your request contains no tlme limits. However. since it refers to the "City of Carmel," I will limit your request to relevant documents dated between January 1, 1976 (that date on which the first City of Carolel elected oftkjals took office) and the date of your request. If your request seeks earlier documents, please advise. Subject to the above. your request is granted and copies of any executed documents relevant thereto will be made available to you for your review and copying (at $.05 per page). I anticipate that the City's various departments will be able to review the thirty (30) yeats of records identified in your request and identify any relevant documents contained therein within ten (10) working days. Therefore, the same should be available for your review in my office during normal business hours on and after 1 :00 p.m. on Wednesday, July 14,2004. u IZ"~...bd<d"''''''''''R,q"''''\:'()['''on''W;fl[RM'''i.'''ori"",^"",c,QNl>;d@8i.lC SQUARE CARMEL, IND1ANA 46032 :J] 7/571 ~2400 Jun 30 04 04:14p p.2 (.{hiliP C. Thrasher JlU1e 30, 2004 Page Two Request #2: "ALL VARIANCES, REZONINGS, SPECIAL USES, AND OTHER PROCEEDINGS, INCLUDING ENFORCEMENT ACTIONS, INVOL VlNG THE Dept. of Community Services and .AMERICAN AGGREGATES OR MARTIN MARIETTA MATERIALS." Response: u This request, as written, does not contain a time frame. As with your previous request, however, I will presume for purposes of this response that you are requesting any relevant Department of Community Services or Department of Community Development documents dated between January 1, 1976 and the date of your request. The City denies your request as it pertains to "other proceedings," as this language is too vague and does not identify with particularity the document(s) you seek. Subject to the above, your request is granted and copies of such documents will be made available for your review and copying (at $.05 per page). I anticipate that the City will be able to review the thirty (30) years of documents identified in your request and identify any relevant documents contained therein within five (5) working days. Therefore, the same will be made available for your review on and after 1 :00 p.m. on Wednesday, July 7,2004. Please bring cash, in denominations of $20.00 or less, to pay for any copies you wish to make. Pennies cannot be used to pay for copies. Ifyau have any questions, please contact me directly. Very truly yours, Douglas C. Haney Carmel City Attorney DCH/eb Cc: Michael Hollibaugh, Director of Department of Community Services Karen Davis, Public Access Counselor, via facsimile transmission to (317) 233-3091 u 17.~\l.......-..h:ltt"'\R".i"nhRA.l'u.,.<<....',;!OO-'l\nIJ',.l'.jIn:.R: MlU1iJl;-..tfl.ri.-thl "'w= l'.~1 doc:::~}I'..r2~n-l.l --.. -- "-' I ........,..U.;;::Jt" p. 1 u City of Carmel FACSIMILE TRANSMISSION ONLY TO (317) 686-4777 June 30, 2004 Philip C. Thrasher Thrasber Bushmann Griffith Voelkel, P.c. 15 1 North Delaware Street, Suite 1900 Indianapolis, Indiana 46204-2505 RE: Your Written Document Request of June 29, 2004 Dear Mr. Thrasher: I represent the City of Carmel, Indiana. This letter serves as the City's response to your following request. Request: "ALL PERMITS ISSUED TO MARTIN MARIETTA MATERIALS, INe. AND/OR U AMERICAN AGGREGATES, INC. BETWEEN JANUARY 1,1975 AND JUNE 24, 2004." Response: r asscme for purposes of this response that your request refers exclusively to permits issued by the City of Carmel's Depaliment of Conununity Services (previously known as the Department of Community Development) and not to permits (such as private alarm permits) that may have been issued by other City departments. If this assumption is not correct, please advise. Based on the above assumption, your request is granted and copies of such documents will be made available for your review and COpying (at $.05) per page). r anticipate that the City will be able to review the thirty (30) years of permit records identified in your request and locate any relevant documents contained therein within seven (7) working days. Therefore, such records should be available for your review in my office during regular business hours on or after 1 :00 p.m. on Friday, July 9,2004. Please bring cash, in denominations of $20,00 or less, to pay for any copies you wish to make. Pe1U1ies cmIDot be used to pay for copies. If you have any questions, please contact me directly. Very truly yours, DCH/eb Vu( \ Michael Hollibaugh, Director of Department of Community Services Karen Davis, Pub lic Access Counselor, via facsimile transmission to (317) 233-3091 17..~ftW"~""-'.<"'~m'Ol>o."'tIV.."IC"M~;''''''';'''.J,~,"""",JhI&fi.UJVIC SQUARE CARMEL, IND1.A.NA 46032 .317f'; 71 .2400 Douglas C. Haney Carmel City Attorney Jun 30 04 04: C.?p 'r j!!J .. p. 1 .,. u City of Carmel FACSIMILE TRA.NSMISSJON ONLY TO (317) 686-4777 June 30, 2004 Philip C. Thrasher Thrasher Bushmann Griffith Voelkel, P.C. 151 North Delaware Street, Suite 1900 Indianapolis, Indiana 46204-2505 RE: Your Written Document Request of June 29, 2004 Dear Mr. Thrasher: I represent theCity of Carmel, Indiana. This Jetter serves as the City's response to your following request. Request: "ALL NOTICES OF CODE VIOLA nONS, INFRACTIONS, NUISANCE COMPLAINTS AND SIMILAR CORRESPONDENCE TO MARTIN MARIETTA MATERIALS, INC. AND/OR AMERICAN AGGREGATES we. BETWEEN JANUARY 1, 1975 AND JUNE 24, 2004; AND ALL DOCUMENTS RELATING THERETO, U INCLUDING RESOLUTION OF SUCH MATTERS" Response: Your request, to the extent it asks for "similar correspondence" and all documents "relating thereto," is too vague and do not identify with reasonable particularity the records you seek. This portion of your request is denied. The "documents relating thereto" portion of your request may also encompass attorney work product, personal notes, internal memoranda or deliberative material generated for decision-making purposes that are exempt from mandatory disclosure under Indiana Code 5-14-3-4 but nonetheless "related to" other documents you seek. Your request is denied as regards these exempt documents also. Subject to the above, your request is granted and copies of disclosable documents relevant to your request will be made available for your review and copying (at $.05 per page). I anticipate that it will take a minimum of ten (10) working days to review the thirty (30) years of documents at issue and to identify therein any disclosable documents relevant to your request. Therefore, I anticipate that such documents should be available for your review in my office during regular business hours on and after 1 :00 p.m. on Wednesday, July 14, 2004. Please bring cash, in denominations of $20.00 or less, to pay for any copies you wish to make. Pennies cannot be used to pay for copies. If you have any questions, please contact me directly.. Douglas C. Haney Carmel City Attomey .' DCH/eb Uc: Michael Hollibaugh, Director of Department of Community Services Public Access Counselor, via facsimile transmission to (317) 233-3091 1T.,...~"",........."~~"^,,,,nm,"''''' ....".M."~"""..m.<<"~.k.hJE CIVIC SQUi\RE CARMEL. INDIANA 46012 .117/571.2400 Ju~ 30~4 .04: rl p 06/29/2004 09:19 THRASHER : JUN-?8-2004' NON 09: 0 I AM CARME~~~;;~ ;~;;~ TH IJDELF:V Sl:012426 _n _. . _ . . _ .- nil I~, 311 67\ 2426 :1 L p(i/t"./r 0" T~-f{. ~ [n<lmS opf.onoll !! ~ tndlcmc, the right to {nspect ond capy thefollowtng re~~~s: p~ A1J MJ:t1uP5 of" CO}ft YJoV/fTi',(IflA;, ~770NS, 1'I'~/5IJ///(;-E .f I ::;-&1J'Ii2- ftN'~ $(fl1Il--1HR Uod!if,s-fOpJ1>~ fl;J ~nP/ !; 1L~77/1" :;:713&fJUl.P!J;-I~~ /Ol!- IJt1.!5fG1ett(l/ ;9&b~~ "f .nv-...L! f5 _" fPf3etJ ~ /}P- y 1. fdI?.r /tffi/P crY! (1/$ ;;~./-f, .~. L+'f ;;; A i-<-- ~gZetlFf(T3, P-ISl-ATJ IV t? Y1'J13fA~I~. ..rtvu-uP W G. .."if ~~ ~.s.?t-ull nJV' .or-. -Sa~Jf'-._~ . #i' :fiJ '. I ~' ~ Oaled ttis ~ 01 -;fi;.J:/E- ' 200 If.. . ,,~.. T' . :}? ~ The CIty mO}' provIde me with ffs re,",onse 10 this re<:tLl...t: ~'..3 ~ ,..}-" J >;.;. ..>' , "ii:."'"Y 'I c-Y ~ V t9~~ I ~ Recel",ed by~ ~ ~:..._ r~/ Slgnoture~. - ~ '~ 'Pri"ted Nome and City Departrne"t: - ~ ~. ,,-,"1' Sent to Legal Deportment for response on: - II ... .,* \j b=' \ T~ I u, p.2 NO. 87(1 Qa3 P. 02 -=IF~ ~IT'" O~ CARMELJ~DIArfA Re~uest For ~ecords pursuant To Il1diana ACc;S5S To Public Records Act {I:C, 5-14-3-1,.m: ~, O:i omended} . , ~, hereby request of the ctty of ~Clrmef. .!4~ . 0 Eiy teJepl1o~ ot - ' '.' ~ :~:lli:~;~S~- ffi. - .. ~ ~~ . ~ (/~ ,. Other ~~Y1 . Z::: .we.~' .~~ ~. ~~ ~ at . _, m. on ... 200__- by_ ReceIved bY LegoI Deportment on: by ~~Ib[t A 1l\L~'am\M}ll~>ll:~~fLM ;!l\l1~1! THRASHER LIST OF DOCUMENTS u. /1. Mueller Property South, Sand and Gravel Operation, Erosion & Sediment Control Report, Prepared by Skelly & Lay, Inc., Engineers - Consultants, June 2004 City of Cannel/Clay Twp., Application for Board of Zoning Appeals ActionUse Variance, Applicant: Martin Marietta Materials Inc., Rec'd by DOCS 4-4-02 mining &.Reclamation Plan, Sand and Gravel Extraction by Martin Marietta Materials, Inc., Mueller Property, 106 and Hazel Dell, Rec' d by DOCS 4-4-02 Cannel Clay Board of Zoning Appeals, Docket No. UV-23-02 Commitment for Use of Real Estate Incident to Special Use and Variance City of Cannel/Clay Twp., Application for Board of Zoning Appeals Action, Special Use Approval Request. Letter of Grant dated 29 May 2002 to Robert Furling, VP, Martin Marietta from Lawrence M. Lillig, Jr. Special Use Application By: American Aggregates Corp., Carmel Board of Zoning Appeals, August 28, 1989 9. hnprovement Location Permits ./Ryan Homes Inc. Permit No. ~: A. A.. A. ./6. /T. A. v221~87 ---724-87 .....125-87 r87~88 ~72-87 ~ 12-88 ...rt>55-87 --{~6-89 .452-87 ~9-91 484-89 ...tSO-89 443-88 42-90 --508-75 ...162-90 .....-4$2.89 -158.89 -1-88 495~88 v230-88 -132-88 v291.~92 ~ .r729-86 ~00-90 3-12-87 8-28-87 4-24-87 2-19-88 6-12-87 4-25-89 12-22-87 3-14-89 11-11-87 3-18~91 4-21-89 8-17-89 10-28-88 1-24-90 6-9-95 5-4-90 6-21-89 3-23-89 12-30-87 9-14-88 4~4-88 3-31-88 5-1-92 10-13-S6 11-26-90 Gi Ralph Akard Const. Inc. Dennis Collins Whitaker Construction Corp. Marshall Kitwell Builders Inc. Douglas Lynch ~ Robert Shaffer Swank & Sons Dennis Collins Inc. RD Taylor Canst. James D. Close Inc. Gary Sumner Douglas Lynch Jim Caito Builders Ridgewood Residential Ryan Homes A & J Builders u '. u Shamrock Builders Charles Tavel Building Inc. Shamrock Builders Sawyer Building Corp. R.D. Bussell Inc. A & J Builders Mavolin Construction Shamrock Charles Tavel Bldg. Burkett Builders Phil Randall Husky Builders Inc. Paul Lipps Steve Hoss Builders Shamrock Builders Paul E. Shea tilO-91 -i2-91 /!jJ9-91 -1fi5-90 ~12-89 .II 9-90 305- VJO, J ~8-90 "f~ /878-90 ...t3-90 v12-88 Al2-88 ----231-88 479-88 008-88 .....{035-87 10-29-91 2-12-91 10-27-91 3 - 7 - 90 11-1-89 2-20-90 4-17-90 10-10-90 11-9-90 2-7-90 7-17-88 3-1-88 4-4-88 7-5-88 8-8-88 12-14-87 . 10. Fax Transmission 7-27-04 Freedom of Information Requests 11. Correspondence from Haney to Laura Conway 7-20-04 (two), 7-21-04 12. Correspondence from Haney to Thrasher 6-30-04 (five) 13. Fax to Mike Hollibaugh from Thrasher dated 6-29-04 !.4. Two Records Requests from Thrasher dated 6-28-04 /15. West's Annotated Indiana Code 5-14-3-1 Public Policy; construction; burden of proof for nondisclosure \716,' Insp~ction Histqrr, ~itx of C~I,.. Case 20C/f.0299, date,d ~2i":;e04 \, (complamts) Ad.J'1"l.{rV>"JJ ~--o~ cW...o )I1(jJvcAJ2d/ ~ ) dJ. 7. Settlement and Release Agreerhent 5-17-02 ~.' /18. Hazel Dell Parkway, American Aggregates Corp. Agreement 11-5-97 vi9." ,~ . '" " iii- , (Note says this copy may be incomplete, compare to other copy) via. Agreement for Vacatin ofRight~of- Way to Dedicate Additional Right-of- Way and to Construct Road Improvements , 21. Resolution No. CC-09-17.01-02 L unS1jrJ) ~ . \ n_1JJ~~ ~1 P /lAVPd "r;, Am9 11 t1~wt rV:]l.:~ '1~" ~ VC:rJ f~ ... r-:'~ -ch Gi; 1 '.j)~ r ,1 ~D / ) o~./ JlhjG, p~-,jA~/ ~~. ~ b'~/ " ,~ c;/z--;IOY lJ u