HomeMy WebLinkAboutPost-Hearing Brief 10-20-04
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STATE OF INDIANA
CARMELlCLA Y ADVISORY SOARI::)
OF ZONJNG' APPEALS
CITY OF CARMEL
Docket No. 04070020 A
APPELLANT
Thomas YedJick,
William D. McEvoy, Gregory M. Policka,
Susan Becker, Rex A. Weiper,
Rebe Pimentel, and Donald K. Craft
APPELLANT INTERV.ENORS
v.
Qepartment of Community Services
for the City of Carmel, Indiana
RESPGNDENT
Martin Marietta Materials, Inc.
.",,- --" - - . ,'- .- .,
RESPONDENT iNTERVENOR
POST-HEABING BRIEF
Dated October 20,2004
prepared bY
P.ppellant Intervenors
\filiUiarh D. ,McEvoy
Gregory M. Policka
Susan Be.cker
Rex A. W~ipQr
Rene Pimentel
Donald K. Craft
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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. Policka,
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
Martin Marietta Materials, Inc.
RESPONDENT INTERVENOR
POST-HEARING BRIEf
Dated October 20.2004
Prepared by
Appellant Intervenors
William D. McEvoy
Gregory M. Policka
Susan Becker
Rex A. Weiper
Rene Pimentel
Donald K. Craft
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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. Policka,
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
Martin Marietta Materials, Inc.
RESPONDENT INTERVENOR
POST-HEARING BRIEF
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 Post-hearing Brief
for the purpose of analyzing the evidence that was presented at the October 13, 2004
hearing on the captioned matter before the Carmel/Clay Advisory Board of Zoning
Appeals (the "BZA"), amending and clarifying the arguments of the Appellant
Intervenors based on the submitted and/or admitted evidence, and amending the
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Findings of Fact and Conclusions of Law submitted by the Appellant Intervenors based
on the evidence.
Summary of Evidentiary Hearinq on October 13. 2004.
On October 13, 2004, the parties to the captioned matter presented evidence
and brief arguments on the captioned matter, being whether or not the determination by
the Director of the Carmel Department of Community Services that all of the activities of
Martin Marietta Materials, Inc. ("Respondent Intervenor"). on all land owned by the
Respondent Intervenor in Clay Township, Indiana, constituted legal.nonconforming uses
under the Carmel Zoning Ordinance.
Prior to the hearing, counsel for the BZA distributed to the parties a proposed
Temporary Rule to govern the proceedings at the meeting. After many responses
thereto, the Temporary Rule was essentially withdrawn and the DOCS proposed and
distributed a much briefer rule. At the hearing, the BZA decided to suspend its normal
rules of procedure in some respects and adopted a version of the DOCS proposal but
with shorter times for presentation and with the right of cross-examination of witnesses
following the presentations.
The first presenter was Thomas Yedlick, the Appellant. Mr. Yedlick presented
some exhibits and verbal testimony regarding the importation of sand and gravel
aggregate from Noblesville and whether or not that was illegal under the Carmel Zoning
Ordinance. His exhibits are in the record of the meeting.
The second presenter Philip C. Thrasher, attorney for the Appellant Intervenors,
who submitted a binder entitled "Written Presentation for October 13, 2004 Hearing,"
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referred to hereinbelow as the "Written Presentation." In the Written Presentation are
requests for administrative notice of certain materials that were too bulky to include in
the Written Presentation, being (1) the 2002 Annexation Ordinance wherein the Land,
as defined in the Written Presentation, being the land upon which the existing Carmel
Sand and Gravel Plant (the "Plant") is located; (2) Indiana Code Chapter 36-7-4; and (3)
all provisions of the Carmel/Clay Zoning Ordinances. In addition, the Written
Presentation included many exhibits, all of which were admitted without objection
except for an objection by the Respondent Intervenor to the Affidavit of Rex A. Weiper,
apparently on the basis that Mr. Weiper was not present, and to the use of the Oak Hill
Mansion web site.
Following the Appellant Intervenors' presentation, the Respondent Intervenor
made a presentation in which it introduced the following documents: (1) a copy of a
Warranty Deed ("Deed") from Donald K. Marburger and Emma B. Marburger to
American Aggregates Corporation (UAAC") for approximately 227 acres of land south of
116th Street, east of the centerline of Section 4, Township 17 North, Range 4 East (now
the east lines of Wood Creek and Kingswood subdivisions) and west of White River,
including the 71.72 acres of the Land. The Respondent Intervenor introduced copies of
several snap. shots (the "Snap Shots") allegedly taken by employees of AAC between
1971 and 1989. The Appellant Intervenors objected to all such photographs to the
extent they were not introduced by live witnesses, at which point the Respondent
Intervenor asked a Mr. William R. Karns to testify.
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Mr. Karns verified the Snap Shots taken during 1971 and prior to the end of his
employment in 1981. Mr. Karns had no knowledge of the Snap Shots taken after 1981.
Mr. Karns further stated that there had been a sand processing plant at the northeast
corner of 116th and River Road, which is not a part of the land described in the Deed,
and which was apparently acquired from someone other than the Marburgers. This
plant was later described as Plant 512. Mr. Karns stated that the plant had since been
dismantled and was no longer there. Respondent Intervenors later stated that this
location was the future Founders Park and had been donated to the City of Carmel. Mr.
Karns identified the Marburger House as being on the south side of Cool Creek in the
wooded area, west of River Road. He further stated that he did not know what the bare
ground was in the 1986 aerial photograph introduced by the Appellant Intervenors.
The Respondent Intervenor delivered an Affidavit of William Karns. The
Appellant Intervenors object to this Affidavit of William Karns on the following bases:
a. In section 4 of the Affidavit, Mr. Karns offers opinions as to the meaning of
the 1964 letter from the Carmel Plan Commission attorney, Leroy K. New (the "New
Letter"). Such opinion, being the last 14 words of this section, should be struck because
Mr. Karns is not an expert on the law.
b. In section 10 of the Affidavit, Mr. Karns refers to "the Carmel Sand mine,"
but there is no definition thereof, so it is impossible to understand what is being
intended.
The Respondent Intervenor then called Mr. John Tiberi, General Manager of the
Respondent Intervenor in Indianapolis, to testify as to the authenticity of the balance of
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the Snap Shots; however, because Mr. Tiberi had only been with the Respondent
Intervenor since 2002, he was unable to do so. Further, although he could not be
certain, Mr. Tiberi testified that he believed the Plant had been placed in its current
location in "about 1990 to 1992"). Thus, Appellant Intervenors' objections to the Snap
Shots apply to all Snap Shots dated after 1981. For ease of analysis by the BZA, the
Appellant Intervenors attach hereto an Appendix C, discussing the Snap Shots.
The Respondent Intervenor introduced a copy of a 1964 letter written by Leroy K.
New, then attorney for the Carmel Plan Commission, defined above as the "New Letter."
In the New Letter, Mr. New states that all of Clay Township is under the jurisdiction of
the Carmel Plan Commission. He further states that there is a zoning law that applies
to the land and activities of MC in Clay Township., known as the Master Plan Zoning
Ordinance, and that this ordinance would require a Special Exception for operation of
the mining of MC except for the existence and effect of "Planning Act, Sec. 58-1/2,"
[which is the predecessor of Ind. Code ~ 36-7-4-1103], quoted in the Written
Presentation and referred to as the "nonurban area" exception. Taking into account the
effect of the Planning Act, Mr. New concludes that "mineral extraction would not be
subject to the zoning authority of this Plan Commission."
The Respondent Intervenor then introduced a copy of the 2002 Settlement and
Release Agreement, included in the Written Presentation as Exhibit N.
The Respondent Intervenor then distributed copies of the 1997 Agreement
between the City of Carmel and MC, an aerial photograph dated November 13,1981,
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a line drawing of the area the Respondent Intervenor wanted to discuss, and the
Schedule of Uses from the current version of the Carmel Zoning Ordinance.
The Director of the DOCS, Michael Hollibaugh, spoke briefly but did not introduce
any documentary evidence. Mr. Hollibaugh wa,s clear that he based his determination
found in the letter of Determination dated June 24, 2004 upon the 2002 Settlement and
Release Agreement. Mr. Hollibaugh stated: in response to a question from Mr. Yedlick,
that he used the 2002 Settlement and Release Agreement as the basis for his
understanding of the uses of the Respondent Intervenor property at that date, May 17,
2002.
Analysis of the Respondent Intervenor's Evidence
The Deed. The Deed establishes that Respondent Intervenor Gould not have
owned the land, being tax parcel number 1714040000018.00" prior to 1964. It also
makes clear that the land, consisting of 71.72 acres, is not the only property acquired
on that date and referred to generally as the "Marburger tract," being 277 acres as
described in the Deed.
The New Letter. The New Letter, introduced by the Respondent Intervenor,
establishes that there was zoninq applicable to the land in 1964, known as the "Master
Plan Zoning Ordinance," and that the Carmel Plan Commission could exercise its
authority over the land but for the exclusionary effect of the state law then found in
Burns Annot. Stat. Sec. 53-759, now I. C. S 36-7-4-1103, adopted originally in 1947.
The New letter does not say that mining is permitted, or that mining would be in
compliance with the Master Plan Zoning Ordinance, or that when the land became an
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"urban area" the uses at that time would still be considered legal. In fact, the New Letter
is forward-looking in nature and implies that no mining had commenced as of April 6,
1964; therefore, no application or petition had been brought before the Carmel Plan
Commission, including any application for variance, special exception, or rezoning. The
attorney for the Carmel Plan Commission does not, and did not then, have the authority
to change zoning status; therefore, the New Letter can only be deemed advisory in
nature, not as a waiver or disclaimer of rights and duties under the law. It does,
however, establish the authority of the Carmel Plan Commission over all of Clay
Township and the existence of a zoning ordinance that would restrict mining uses
unless a Special Exception approval is first obtained. The New Letter i~ supported by
the Master Plan Zoning Ordinance of 1959, relevant sections of which are included
herewith as Appendix 0 to clarify the intent of the New Letter.
The Snap Shots. Attached hereto as Appendix C is the Appellant Intervenors'
analysis of the Snap Shots. In summary, they demonstrate that there was no serious
mining of the Land until the mid-1970's at the earliest, and that there was no Plant
erected on the Land until after 1989. The Respondent Intervenors ag:ree with these
dates. Otherwise, the Snap Shots are mostly of historic Interest.
The 1997 Agreement. The Respondent Intervenor distributed this document
without specifically introducing it. (a) The Respondent Intervenor's purpose for this
exhibit is to demonstrate a waiver of rights on the part of the City or an estoppel of the
City's power to enforce the law against the Respondent Intervenor, based on an agreed
"acknowledgment" that the uses being made by the Respondent Intervelilor on all of its
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lands in Clay Township were legal nonconforming uses. The description of those uses
and the location of those lands were not included in the 1997 Agreement. (b) In
addition, it was introduced to suggest that upon annexation of the Land into the City of
Carmel, which did not occur until 2002, there would be an understanding that the Land
would not thereby be deemed to be in an "urban area," being an obvious attempt to
circumvent state law to the detriment of the citizens of Carmel. This did not occur, of
course, as set forth in Ordinance No. C-214, included herewith as Appendix E for
clarification of the 1997 Agreement. (c) As discussed in the Written Presentation,
pursuant to I.C. SS 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 ("CCC"), the Carmel/Clay Advisory Plan
Commission ("APC"), and the Carmel/Clay Board of Zoning Appeals ("BZAH), not in the
Mayor or the Board of Public Works. None of these boards, or commissions, or
councils signed the Settlement Agreement or, as discussed below, the 2002 Settlement
and Release 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. Further, there are no petitions or
applications on file with the DOCS to indicate that any such approvals were sought
through the proper agencies or departments for the modification of a zoning
classification or use. (d) Finally, a governmental entity may not be estopped from
enforcing compllance with law. Therefore, whatever waivers or estoppels might appear
to exist in the 1997 Agreement are actually no more than mere suggestions to the City,
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not binding in any way on the City or any of its citizens. Not being binding, the 1997
Agreement does not create any reason to provide notice to citizens or any duty on
citizens to seek a determination by the DOCS of whether or not the Land is a legal
nonconforming use. Therefore, none of the citizens of Carmel are estopped from
pursuing the claims of this Appeal.
The 2002 Settlement and Release Agreement. This 2002 Agreement was
introduced by the Respondent Intervenor for the purpose of creating another waiver or
estoppel on the City, and this time including the Kingswood Homeowners Association,
Inc. ("KWHOA"). At the time of this 2002 Agreement, Mr. Yedlick was the President of
the KWHOA, but did not sign the 2002 Agreement personally. Further, none of the
Appellant Intervenors were parties to the 2002 Agreement and when it was signed none
had actual knowledge of its contents. The 2002 Agreement was later partially
abrogated by the failure of the Respondent Intervenor to obtain approval of its Special
Use Application on the Land in a 2002 BZA case. That case is now pending in Hamilton
Superior Court on appeal by the Respondent Intervenor. As with the 1997 Agreement,
the City may have executed the 2002 Agreement, but it did not do so with the persons
who have and had the authority to amend zoning classifications, the BZA, the APC, and
the cee. Further, this 2002 Agreement states in unequivocal terms on page 8 thereof
that it is not intended to be binding on the BZA, the APe, or the eee. Therefore, by its
own terms, it does not purport to change the zoning classification or permitted use of
the Land to "legal nonconforming." That being the case, it therefore did not create any
need to provide notice to citizens or any need for citizens to file any appeals. Further,
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for the same reasons, it could not form a reasonable basis for the issuance of the Letter
of Determination by the Director of the DOCS.
The 1981 Aerial, Mr. Karns' Affidavit, and Mr. Tiberi's Affidavit. These
exhibits are introduced by the Respondent Intervenor for the purpose of attempting to
tie together several non-contiguous tracts of land, constituting hundreds of acres
acquired from different owners at unknown times in the past, so that the BZA will allow
the Respondent Intervenor to claim legal nonconforming use on the Land, south of
116th Street, by virtue of conducting mining north of 116th Street. The Appellant had
the opportunity to appeal the Director's determination with respect to all of the land in
Clay Township but did not do so. The only uses in dispute are those being conducted
on the Land, which lies due east of Kingswood subdivision and not adjacent to 116th
Street. Indiana law does not permit the tying together of non-contiguous tracts for
purposes of expanding nonconforming uses when such uses did not exist at the time
the ordinance was changed. In fact, Indiana law does not allow the tying together of
contiguous tracts if the uses of each were not clearly legal nonconforming uses at the
time in question. Such tying together is actually an enlargement or expansion of the
nonconforming use, and thus is illegal. See, Stuckman v. Kosciusko County Board of
Zoning Appeals, 506 N.E.2d 1079 (Ind.1987). Thus, even if AAC had been mining on a
contiguous tract to the Land, it would not be able legally to expand that use to the Land.
Clearly, the use at the time of adoption of the Master Plan Zoning Ordinance, prior to
1964, was agricultural and the zoning was for residential use, not mining. What Me
might have been doing on land north of 116th Street, more than one-half mile north from
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the Land, and across Cool Creek and 116th Street from the Land. is irrelevant for
purposes of determining the use of the Land in 1964.
What was the intent of the General Assembly in enacting the predecessor
statute to I.e. ~ 36-7-4.11 03? As mentioned by every presenter, there is a statute
that prevents the full exercise of zoning authority over mining activities in Indiana so
long as the land in question is not located in an "urban area," as defined in the statute.
Originally adopted as the Planning Act" in 1947, it has since been recodified as I.e. S
36-7-4-1103 and provides in pertinent part:
(b) ADVISORY-AREA. For purposes of this section, urban areas
include all 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.
(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).
As set forth in subsection 1103(b) , there are three ways in which land
becomes "urban area" for purposes of lifting the state's prohibition against regulation of
mineral extraction: (i) becoming a part of the municipality itself, i.e., through annexation;
(ii) being so close to eight or more residences that the land in question is contained
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within a square one-quarter mile on each side; and (iii) being part of land that is
included in a municipal plan for residential use contiguous to the municipality.
The proposition being asserted by the Respondent Intervenor is that. once an
area is nonurban, any uses therein that would otherwise be prohibited but for I.C. S 36-
7-4-1103 may continue in existence regardless of the fact that the land might thereafter
become an urban area. The Respondent Intervenor calls these rights "vested rights" or
claims that they are "grandfathered." What the Respondent Intervenor is really saying is
that S 1103 creates a legal nonconforming use out of an illegal nonconforming use. The
Appellant Intervenors believe that such proposition is wrong.
To reach a clear answer on this question, it is necessary to first determine the
intent of the Indiana General Assembly in adopting said statute. According to the
Indiana Court of Appeals,
[T]he Legislature expressly intended to enhance the orderly planning and
expansion of communities by the enactment of IC 18-7-5-1 et seq. [now I.C. S
36-7-4-1, et seq.]. To achieve this end, it would not be arbitrary for the
Legislature to delegate to local governments the authority to impose reasonable
restrictions on private enterprise in an urban area so as to further the interests of
the community as a whole. On lands not within an urban area, however, the
interests of the community in orderly growth and expansion are of decreasing
importance and the interests of private land owners commensurately greater.
Uhl v. Liter's Quarry oflndiana, Inc., 179 Ind.App. 178 at 183, 384 N.E.2d 1099 at 1103
(Ind.App. 1979.
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It follows that when an othervvise nonurban area is annexed into a municipality.
the area becomes "urban" and subiect to the restrictions of the municipality. reqardless
of its use at the time of the annexation. There is no pre-existing "use" test in the statute,
only an "urban area" test. According to the Uhl court, as quoted above, it would be
,
perfectly correct for a local planning authority to create a nonconforming use exception
for situations such as this or, conversely, to impose immediate sanctions upon
nonconforming uses the moment they become part of an urban area. In the case of the
Carmel Zoning Ordinances, there is no specifIc or implied exemption for prohibited uses
that are no longer in a nonurban area, but there definitely are sanctions for
noncompliance with the Carmel Zoning Ordinance. Therefore, it is clear that no
"qrandfathering," as suggested by the Respondent Intervenor in its Findings of Fact and
Conclusions of Law, is intended by the Indiana General Assembly or the Carmel
Common Council at the time that land is annexed into Carmel.
Therefore, unless the Land was being mined prior to the adoption of the Master
Plan Zoning Ordinance, as of not later than the adoption of the 2002 Annexation
,
Ordinance the Land was in violation of the Carmel Zoning Ordinance. No Indiana cases
were found that even discussed the possibility that the nonurban area exemption from
regulation would continue after the property in question became part of an urban area.
Rather, many of the cases were enforcement cases seeking to end nonconforming
uses, which cases could only have been brought after the uses became located in
. urban areas. See, City of Huntingburg v. Phoenix Natural Resources, Inc., 625 N.E.2d
472 (App. 1993); Uhf v. Liter's Quarry of Indiana, Inc., 179 Ind.App. 178, 384 N.E.2d
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1099 (Ind.App. 1979); Board of Zoning Appeals of the City of Plymouth v. Heyde, 160
Ind.App. 165, 310 N.E.2d 908 (Ind.App. 1974). There is also no suggestion that
because the Carmel Zoning Ordinance requires regulation of mining in all of Clay
Township such Ordinance is void. Instead, the ordinance prohibited by the statute is
deemed to merely be "subordinated," Berry v. Peoples Broadcasting Corp., 547 N.E.2d
231 (Ind. 1990), leaving it alive and well and enforceable once the land in question
becomes part of the urban area.
Further, it is unlikely that the Indiana General Assembly intended the boundaries
of nonurban areas to be fixed and never changing. If boundaries were intended to be
fixed, then on what date did the General Assembly fix the boundaries? There is no
guidance in the statute, leading to the conclusion that there is no fixed date. If there is
no fixed date for fixing unchanging boundaries of nonurban areas, then the boundaries
of nonurban and urban areas are evidently allowed to fluctuate based on the three
definitions above: annexation, changes in housing, and changes in planning areas.
With changing boundarjes, it is inevitable that uses that were once in nonurban areas
would find themselves in urban areas, sometimes with little notice (changes in planning
areas) and sometimes with direct notice (annexation). The reverse could also be true.
Whatever the cause of the change to urban area, the user of the urban area land will
then be subject to the planning and zoning authority of the local municipality, if any, with
no excuses for noncompliance with the then applicable zoning ordinance. By the same
token, if land becomes non urban, such as through disannexation, removal of housing,
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or termination of planning efforts by the local municipality, formerly urban area land
could be returned to nonurban status and mining could commence or continue.
In the case of the land, Appellant Intervenors have demonstrated that by
February 29, 1988 the land was includable as urban area by virtue of the number of
homes that were located within a square measuring one-quarter mile on each side. See
Exhibit J of the Written Presentation. In addition, because I.e. S 36-7-4-601 (a) requires
that a comprehensive plan be adopted before a zoning ordinance, it follows that the
land has been part of a planned portion of Clay Township since adoption of the Master
Plan Zoning Ordinance in 1959 and the Joinder Agreement in 1961. Therefore, it has
been "urban area" since 1961 and subject to control by the BZA and the APC,
notwithstanding the suggestion found in the New letter to the contrary. Mr. New was
offering his opinion and the unadjudicated opinion of members of the Carmel Plan
Commission with whom he claims to have spoken, but his opinion does not change the
law and since no permit was obtained by AAC for mining, there can no defense of
estoppel based on the New letter. AAC simply did not get good legal advice and relied
on a non-binding letter. The time for such reliance IS now ended.
In summary, the intent of the Indiana General Assembly in enacting the Planning
Act in 1947 was the same as it is now, the protection of the public health a nd safety. To
do this, and to balance those interests with the need for mineral and forest extraction,
the General Assembly created certain classes of land areas in which mineral and forest
extraction would be permitted without interference from meddlesome municipalities
seeking to assert their power outside their boundaries. However, once the municipal
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boundaries, or actual housing, or organized municipal planning efforts, came too close,
the mineral and forest activities were no longer to be protected and were to yield to the
authority of the muniCipalities. Such is the case here.
legal nonconforming use exception does not apply. The Respondent
Intervenor has demonstrated that it was not in business on the Land prior to the
adoption of the Master Plan Zoning Ordinance in 1959 and its being made applicable to
the Land by the Joinder Agreement of 1961, and, in fact, that active mining did not
occur until the mid-1970's. See the Deed and the Snap Shots. The Respondent
Intervenor has not demonstrated that it was in conformity with the Master Plan Zoning
Ordinance or any other applicable zoning ordinance in effect with respect to the Land
since 1964 and the DOCS does not suggest to the contrary. By introducing the New
Letter, the Respondent Intervenor acknowledged and aqreed that it needed to receive a
Special Exception under the Master Plan Zoning Ordinance in order to comply with such
ordinance, thus waivinq all of their leoal nonconforminq use arquments. The
Respondent Intervenor has not proven that it applied for or received a Special
Exception, Special Use, Variance, or Rezoning on the land that would permit its
continued use thereof for mining, sand and gravel extraction, mineral processing, or any
other use other than single-family residential housing. Likewise, the files of the DOCS
contain no such applications, approvals, or permits. Therefore, the Respondent
Intervenor has proven that it commenced operations on the Land several years after the
Land became subject to Carmel/Clay zoning regulation, has not proven any compliance
with the zoning regulations since the commencement of ownership, and, therefore. has
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proven that it is now maintaining an illegal nonconforming use. Likewise, the DOCS has
not demonstrated that it reviewed the Master Plan Zoning Ordinance in effect in 1964 or
made any comparison of uses with the restrictions of said ordinance prior to issuing its
Letter of Determination. Therefore, the Letter of Determination was not based on a
proper gathering of the facts or analysis of the facts and law and should be rescinded.
What other information is needed for the DOCS and the Respondent
Intervenor to prove their case?
A. In their presentation, the Respondent Intervenor demonstrated through its
own privately-controlled Snap Shots that work had indeed been done prior to 1988 at
the Marburger property adjacent to the Wood Creek and Kingswood subdivisions. This
new evidence, which was previously unknown to DOCS, the public, or the Appellant
Intervenors, means that in order to prove their claim of legal nonconforming use status,
the Respondent Intervenor must prove that the ordinance with which they complied, if
any, existed on or after the commencement of commercial mining on the Land. They
have not done so and, in fact, have never complied with the Master Plan Zoning
Ordinance of 1959 or any other Carmel Zoning Ordinance. The Appellant Intervenors
requested that the BZA take administrative notice of the content of the Carmel Zoning
Ordinances, which would include all historic ordinances, but it is left to the Respondent
Intervenor to prove that the Land complied with an ordinance after it commenced its
mining operations.
B. In addition, the Respondent Intervenor suggested that the 1997
Agreement somehow created a legal nonconforming use status for the Land. This
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might be true only if such waivers or estoppels were included in a valid Annexation
Ordinance after due consideration by the APC. The 2002 Annexation Ordinance
included herewith conclusively shows that the Common Council of the City of Carmel
did not agree with the nonconforming use representations, waivers, estoppels, or
suggestions, and did not include any reference to nonconforming use in the body of the
Ordinance. Therefore, having proven the absence of waivers or estoppels in the
Annexation Ordinance, the requests in the 1997 Agreement toinc1ude them were not
satisfied and the Land was not legislatively made into a legal nonconforming use.
There was no contractual right given to MC to require the City to adopt a particular
Annexation Ordinance; rather, per the 1997 Agreement, the only remedy available to
AAC was to remonstrate against the annexation at the time of its adoption. Therefore,
the Respondent Intervenors may not use the 1997 Agreement offensively to try to
create a change of land use from illegal to legal.
Actions AAe could have taken to avoid this probiem. At all times from
1964 to the present, MC has had the opportunity to cure their noncompliance with the
Carmel Zoning Ordinance and has refused to do so. For instance, AAC could have:
1. Applied for Special Use Approval in the current S1/Residence District
zone; and/or
2. Applied for a Variance of Use in the current S1/Residence District Zone;
and/or
3. Applied to rezone the land to M1/Manufacturing District and then applied
for Special Use Approval in that zone; and/or
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4. Lobbied for a change in the Carmel Zoning Ordinance to allow mineral
extraction in an S1/Residence District zone without need of a Special Use Approval;
and/or
5. Lobbied for a change in the Carmel Zoning Ordinance to allow mineral
extraction in an M1/Manufacturing District zone without need of a Special Use Approval
and then applied for a rezoning to M1/Manufacturing District; and/or
6. Lobbied the Indiana General Assembly for an amendment to I.C. S 36-7-4-
1103 to eliminate the loss of exemption from local government controls based on a
change of the applicable "urban area."
The records of the DOCS reveal no such applications by AAC. Further, although
I.C. S 36-7-4-1103 appears to have beeh modified many times since its original
adoption in 1947, no one has been able to convince the Indiana General Assembly to
create a "grandfathering" effect when an urban area is created.
Note that even if the 1997 Agreement or the 2002 Settlement and Release
Agreement had been actually approved by the Carmel Common Council (which they
were not), they would still be ineffective to change the zoning status of the Land
because such changes must originate either with the APC as a rezoning or the BZA as
a variance, special use approval, or review of a determination by the DOCS. Thus,
because of this case, for the first time the question of the legality of the Plant is properly
before the correct public officials, the BZA.
All of the above opportunities for relief are still available to AAC; however, each
involves a public hearing and, in some cases, compliance with or satisfaction of certain
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statutory criteria that be a cause of concern for MC and the Respondent Intervenor.
Notwithstanding such concern, it is simply contrary to law to permit AAC to continue an
illegal operation in an S1/Residence District zone without a public hearing and an
administrative approval of such uses. The BZA should confirm its authority over mining
by ruling that (a) Use of the premises by AAC has for mining has never conformed to
any applicable zoning ordinance; (b) I.C. S 36-7-4-1103 cannot by itself create a legal
nonconforming use, (c) the 1997 Agreement and the 2002 Settlement and Release
Agreement did not create a legal nonconforming use, (d) Subsection 28.01.06 of the
Carmel Zoning Ordinance did not create a permitted use; (e) MC is required, just as all
other applicants for change in zoning status, to apply for approvals through the correct
channels within the City _of Carmel in order to continue operations; (f) AAC has not
received any administrative approvals, such as Special Use Approval, Variance of Use,
or rezoning, that would permit the current use of the Land; (g) AAe's use of the Land is
illegal; (h) the Letter of Determination from the Director of the DOCS was inappropriate;
(i) the Letter of Determination is rescinded; and U) the Director of the DOCS is directed
to issue a new letter determining that the Land is currently being used for an illegal
nonconforming use.
Why the Respondent Intervenor's Propounded Findings of Fact and
Conclusions of Law should not be adopted by the BZA. Attached hereto as Exhibit
B is the argument by the Appellant Intervenors against the small number of propounded
findings of fact and conclusions of lawfrom the Respondent Intervenors.
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Request for Relief.
The Appellant Intervenors attach hereto as Appendix
A their Amended Findings of Fact and Conclusions of Law, incorporating the facts
adduced at the October 13, 2004 hearing and applying the law to such facts. Although
the Amended Findings of Fact and Conclusions of Law are much more detailed and
specific than those submitted as. a part of the Written Presentation, the quality and
quantity of the evidence adduced at the October 13, 2004 hearing requires and allows
for a more detailed and carefully considered answer to the question raised in this
appeal. However, the result is the same: the Land is being used illegally. Therefore,
the request for relief found in the Written Presentation is the same: rescind the Letter of
Determination and order the Director of the DOCS to do whatever is necessary to bring
the Land into conformity with the Carmel Zoning Ordinance.
Respectfully submitted,
Thrasher Buschmann Griffith & Voelkel, P.C.
Attorneys for the Appellant Intervenors:
William D. McEvoy, Gregory M. Policka,
Susan Becker, Rex A. Weiper,
Rene Pimentel, and Donald K. Craft
B:
Amended Findings of Fact and Conclusions of Law
By the Appellant Intervenors
Arguments Against the Findings of Fact and Conclusions
Of Law Propounded by Martin Marietta Materials, Inc.
Analysis of Snap Shots Provided by Martin Marietta
Materials, Inc. on October 13, 2004 to the BZA
Master Plan Zoning Ordinance of 1959, selections
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Append ices:
A:
C:
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E. Ordinance No. C-314 of the Common Council of the City
Of Carmel, adopted June 17, 2002.
Distribution:
Mr. Zeft A. Weiss, Esq., Ice Miller, One American Square, Box 82001, Indianapolis, IN
46282-0002
Mr. Michael Hollibaugh, Director, Department of Community Services, Carmel Town
Hall, Carmel, IN (
Mr. Thomas Yedlick, 5053 S1. Charles Place, Carmel, IN 46033
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APPENDIX A
STATE OF INDIANA
CARMEL/CLAY ADVISORY f?OARD
OF ZONING APPEALS
CITY OF CARMEL
Docket No. 04070020 A
Thomas Yedlick,
APPELLANT
William D. McEvoy, 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 Carmel, Indiana
RESPONDENT
Martin Marietta Materials, Inc.
RESPONDENT INTERVENOR
AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
BV the
APPELLANT INTERVENORS
This matter is before the Carmel/Clay Advisory Board of Zoning Appeals (the
"BZA") on an appeal by Thomas Yedlick (the "Appellant"), joined in by William D.
McEvoy, Gregory M. POlicka, Susan Becker, Rex A. Weiper, Rene Pimentel, and
Donald K. Craft (the "Appellant Intervenors"), of a certain determination ("Letter
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of Determination") issued by the Director of the Carmel Department of
Community Services (the "DOCS") on June 24, 2004 stating the following, in
pertinent part:
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.
Martin Marietta Materials, Inc. ("Respondent Intervenor") intervened in this matter
to support the determination by the DOCS and the owner of the land in question,
American Aggregates Corporation ("AAG"). Following a hearing on October 13,
2004, continued to October 25, 2004, in which the BZA heard eVidence and
argument from all parties and intervenors in this matter, as well as having given
an opportunity to the general public to comment hereon, the Board decided in
favor of the Appellant and Appellant Intervenors and hereby adopts the following
findings of fact and conclusions of law with respect to this matter:
findings of Fact:
1. The Land, as described in the Appeal filed by Thomas Yedlick, is
located along the east lines of Wood Creek and Kingswood
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subdivisions, west of Hazel Dell Parkway, and north of land owned
by the Mueller family limited liability company, and is als.o the same
land as described in Hamilton County tax parcel number
1714040000018.00, containing approximately 70 acres. See the
Yedlick appeal, as amended.
2. In 1947 the Indiana General Assembly adopted the Planning Act,
which included a provision substantially similar to that now found in
Ind. Code 9 36-7-4-1103 ("9 1103"), which remains in full force and
effect as of this date. See I.C. 9 36-7-4-1103, West's Annotated
Indiana Code, Historical and Statutory Notes.
3. The land is owned by AAC, which acquired the land on January
21, 1964 pursuant to a Warranty Deed from Donald K. Marburger
and Emma 8. Marburger. See the Warranty Deed, introduced by
Respondent Intervenor, and Exhibits A and R included with the
Written Presentation.
4. On January 21, 1964 the land was under the planning and zoning
jurisdiction of the Carmel Plan Commission. See the New Letter,
introduced by Respondent Intervenor.
5. On January 21, 1964 the. zoning applicable to the land was
described in the Master Plan Zoning Ordinance of the City of
Carmel and Clay Township. See the New Letter.
6. On January 21, 1964 the Master Plan Zoning Ordinance provided
that mineral extraction is prohibited on the land unless the owner
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first shall have received a Special Exception from the BZA. See the
New Letter, introduced by the Respondent Intervenor, and the
Master Plan Zoning Ordinance, incorporated by administrative
notice in the Written Presentation of the Appellant Remonstrators
filed October 13, 2004 in this case (the "Written Presenta~ion").
7. The Master Plan Zoning Ordinance constituted the first instance of
the Land being planned by a municipality, and, all of the land in
Clay Township was included in such Ordinance. See Joinder
Agreement of May 2, 1961, incorporated by administrative notice.
8. In 1971, AACfirst commenced annual removal of small amounts of
sand and gravel from the Land. See. Snap Shots, introduced by
Respondent Intervenor.
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9. In 1980 the Carmel Common Council adopted Ordinance No. Z-160
as an amendment to the Master Plan Zoning Ordinance and
adopted a revised zoning map. On the new map the Land is shown
as "S1/Reside:nce District" and mineral extraction IS prohibited
thereon unless the owner first shall have received a Special Use
Approval. See Carmel Zoning Ordinances, incorporated by
administrative notice in the Written Presentation by the Appellant
Intervenors.
10. By not later than 1981 AAC had commenced mineral extraction,
consisting of commercial sand and gravel mining, on the Land.
See Snap Shots.
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11. On November 5, 1997 the City of Carmel and Me entered into a
certain Agreement (the "1997 Agreement"). See Agreement dated
November 5, 1997, distributed by Respondent Intervenor at the
hearing on October 13, 2004.
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12. On February 29, 1988 the eighth home within a one-quarter mile
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square area that includes the Plant was sold to a consumer for
occupancy. See Deeds to Consumers in Wood Creek included as
Exhibit H to the Written Presentation, as analyzed in Exhibits I and
J of the Written Presentation.
13. AAC erected a sand and gravel processing plant (the "Plant") on
the Land not earlier than 1990. See Snap Shots, testimony of John
J. Tiberi, and aerial photograph included in the 1989 Special Use
Application by American Aggregates Corporation, included as
Exhibit L in the Written Presentation.
14. On May 17, 2002 Kingswood Homeowners Association, Inc., the
Respondent Intervenor, Hughey, Inc., and the City of Carmel
entered into a certain Settlement and Release Agreement (the
"2002 Agreement"). See Settlement and Release Agreement
included as Exhibit N in the Written Presentation, also introduced
by the Respondent Intervenor.
15. In 2002 the Carmel Common Council adopted an ordinance
annexing the Land into the municipal boundaries of the City of
Carmel (the "Annexation Ordinance"). See the Annexation
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Ordinance incorporated by administrative notice into the Written
Presentation.
16. In 2002 the dredge used to extract sand and gravel from the Land
and deliver it to the Plant was parked on the bank of the lake
formed by the mineral extraction on the Land and is not presently
being actively used for mining on the Land. See Affidavit of
Thomas Yedlick, included as Exhibit T in the Written Presentation,
and the testimony of John J. Tiberi.
17. In 2003 AAC began transporting large amounts of raw sand and
gravel aggregate to the Plant from Noblesville for processing into
marketable sand and gravel. See the Letter from 2eM A. Weiss
included as Exhibit U in the Written Presentation, Affidavit of
Thomas Yedlick, and the testimony of John J. Tiberi.
18. The Land is presently used as the site of the Plant. See Exhibit J
included with the Written Presentation.
19. The Plant is presently being used to process sand and gravel that
is extracted from locations other than the Land, transported to the
Plant, stockpiled, and then sold to customers of AAC. See Affidavit
of Thomas Yedlick and the testimony of John J. Tiberi.
20. AAC has neither sought nor received a Special Exception, Special
Use Approval, Variance of Use, or rezoning of the Land to a use
that would permit mineral extraction. See records of DOCS and
testimony of Philip C. Thrasher.
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21. On June 24, 2004, the Director of the DOCS issued his letter
determining that the land uses of the Martin Marietta' properties
were legal nonconforming uses, which Letter of Determination is
the cause of this appeal. See letter dated June 24, 2004 from the
DOCS, introduced by the Respondent Intervenor.
22. On June 24, 2004, the records of the DOCS did not contain any
detailed information concerning the uses of the land on January
21, 1964, 1981, 1990, 1997, or 2002. See records of the DOCS,
the testimony of Philip C. Thrasher, and the testimony of Michael
Hollibaugh.
23. On June 24, 2004, the Director of DOCS based his Letter of
Determination on the contents of the 2002 Agreement and based
his understanding of the uses of the land on the description thereof
in the 2002 Agreement. See testimony of Michael Hollibaugh.
24. The Director of DOCS based his understanding of the existing uses
described in his Letter of Determination on the uses described in
the 2002 Agreement, which includes only the following references
to the Land: (a) "Martin Marietta shall, . . . move the processing
plant located north of 106th Street west of Hazel Dell Parkway and
adjacent to the Kingswood Subdivision to a new location just east
of Hazel Dell Parkway and north of 106th Street," see Section 4(a)
of the 2002 Agreement; and, (b) "once it has commenced sand and
gravel extraction on the Mueller Property, no sand and gravel from
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any source other than Mueller property north of 106th Street will be
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processed through the Processing Plant until extraction on the
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Mueller property north of 106th Street is complete." See Section
4(k) of the 2002 Agreement. See testimony of Michael Hollibaugh.
25. The Appellant and the Appellant Intervenors timely filed their
Appeal and Notice of Intervention, respectively. See the record of
these proceedings.
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Conclusions of law.
1. The Land became subject to the planning and zoning jurisdiction of
the City of Carmel upon adoption of the Master Plan Zoning
Ordinance in 1961, which Ordinance included all of Clay Township.
As such, the Land was included within an area that was "planned
for residential areas contiguous to the municipality" and was
includable as "urban area" for purposes of ~ 1103.
2. Even if the Land was not included in the planning of the City of
Carmel as of 1964, as of February 29, 1988 it became part of an
urban area for purposes of ~ 1103 when the eighth home within a
one-quarter mile square that included the Plant was sold to a
consumer for personal residency.
3. Even if the Land was not included as urban area on February 29,
1988 by virtue of the location of housing close to the Plant, it
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4.
became urban area upon the adoption of the 2002 Annexation
Ordinance adding the Land to the City of Carmel.
The boundaries of "urban area," as described in S 1103, may
change, depending on changing facts relating to the land in
question.
When the boundaries of "urban area" change, the rights and duties
with respect thereto also change.
When the boundaries of nonurban area change so that the land is
urban area, the zoning ordinances applicable to the land that had
been subordinated immediately become enforceable in accordance
with their terms.
As of June 24, 2004, the applicable sections of the Carmel Zoning
Ordinance for 8/1 Residence District land include the following
pertinent parts:
5.01 Permitted Uses:
5.
6.
7.
See Appendix A: Schedule of Uses.
5.01.01 Minimum Area Requirements:
Residential subdivision, located east of Spring Mill Road:
0.35 acres, times number of lots in subdivision [being
equivalent to] 2.8 lots, times number of acres in subdivision.
Carmel Zoninq Ordinance, ~ 5.01.
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The Appendix A referred to in Section 5.01, includes the following
pertinent parts:
Primary Zoning Districts: S-1.
Type of Use Permitted: Single Family Dwelling
Model Home
Public Service Facility
General Agriculture
Park, Public
Collocated Antenna
Type of Use as Accessory: Home Occupation
Residential Kennel
Guest House
Bona Fide Servants Quarters
Private Swimming Pool, etc.
Appendix A: Schedule of Uses, Carmel Zoninq Ordinance.
As of June 24, 2002, the applicable definitions of conforming and
nonconforming uses found in the Carmel Zoning Ordinance are as
follows:
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
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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, NONCONFORMIN'G 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
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applicable provisions of any ordinance superseded by this
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ordinance.
Carmel/Clay Zoninq Ordinance, Chapter 3: Definitions.
9.
The present use of the Land, including the Plant, for mineral
extraction, processing, and/or sale of goods, is not a permitted use
under the current Carmel Zoning Ordinance and has not been a
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by the current Carmel Zoning Ordinance.
10. The p,rovisions of S 1103 do not prevent enforcement by the DOCS
of the terms of the Carmel Zoning Ordinance on the use of the
Land because the Land is "urban area," as defined in S 1103(b).
11. The 1997 Agreement did not confer legal nonconforming use status
upon the Land because the officials who executed the 1997
Agreement lacked the authority to change the zoning status of real
property under Indiana law without approval by the Carmel/Clay
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Advisory Plan Commission or the Carmel/Clay Advisory Board of
Zoning Appeals, which approval was not received.
12. The 1997 Agreement does not create a "non urban areq" status on
the Land contrary to Indiana law because the City of Carmel does
not have the authority to circumvent Indiana law by private
agreement.
13. The 2002 Annexation Ordinance brought the Land within the
corporate boundaries of the City of Carmel but did not include any
provisions that would confer any special use rights or nonurban
area status on the Land.
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14. The 2002 Agreement did not confer legal nonconforming use status
upon the Land because the officials who executed the 2002
Agreement on behalf of the City did not have the authority to
change the zoning status of real property under Indiana law without
approval by the Carmel/Clay Advisory Plan Commission or the
Carmel/Clay Advisory Board of Zoning Appeals, which approval
was not received.
15. The 2002 Agreement did not confer any special use rights on the
Land because, by its own terms, it was "not binding on the BZA, the
Carmel 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."
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16. Thomas Yedlick did not waive any of his individual rights to bring
his Appeal of the Letter of Determination because (a) he is not a
personal signatory to the 2002 Agreement, (2) the Letter of
Determination had not been issued as of the date of the 2002
Agreement, (3) by the terms of the 2002 Agreement, it applies only
to the issued raised in the litigation it was intended to settle, (4)
there is no waiver of his right to allege future violations of land use
laws, and (5) the violations alleged by Mr. Yedlick in his appeal,
being the importation of sand and gravel from off-site mines for
processing at the Plant, did not exist on the date of the 2002
Agreement. Klngswood is not a party to this case, so its execution
of the 2002 Agreement is irrelevant to the resolution of this matter.
17. There is no statement or representation in the 2002 Agreement that
indicates that on May 17, 2002 the use of the Land included the
processing of imported raw sand and gravel aggregate. Rather, the
2002 Agreement called for the relocation of the processing plant
from the land to another site that is not the subject of this appeal.
18. Subsection 28.01.06 of the Carmel Zoning Ordinance does not
confer any special "permitted" status on the Land because in order
for this subsection to be applicable the Land must first have been
legal nonconforming, and it is not. See, the first paragraph of
Section 28.01, which reads: "A legal nonconforming use may be
continued, although such use does not conform to all the provisions
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of this Ordinance, as hereInafter provided: . . .," followed by a list of
subsections, including Subsection 28.01.06. Therefore, if the use
of the Land is not a legal nonconforming use, all of Section 28.01
does not apply to the Land. Since the court concludes that the
uses of the Land are not legal nonconforming uses, none of Section
28.01 applies to the Land.
19. Even if Section 28.01 of the Carmel Zoning Ordinance did apply to
the Land, Subsection 28.01.06 thereof does not confer any special
"permitted" status on the Land because such subsection applies
only within Section 28.01 and does not purport to modify other
sections of the Carmel Zoning Ordinance, such as Chapter 5,
relating to the S1/Residence District. Likewise, Chapter 5 of the
Carmel Zoning Ordinance does not include an exception for
subsection 28.01.06 uses from the application of its terms.
Therefore, Subsection 28.01.06 is to be read as referring only to
the other subsections in Section 28.01, all of which are inapplicable
to this case.
20. The current use of the Land for mineral extraction, processing,
stockpiling, and sale of goods is an illegal nonconforming use.
21. Having found that the current use of the Land is an illegal
nonconforming use that violates the express provisions of the
Carmel Zoning Ordinance, the court finds that the Director of the
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DOCS did not have sufficient justification to issue his Letter of
Determination to the contrary.
22. The BZA has the power to approve, disapprove, or modify any
decision of the DOCS when such decision is properly appealed to
the BZA.
WHEREfORE, it is ordered that:
1. The Letter of Determination is hereby rescinded and is null and void
as of the date it was issued.
2. The Director of the DOCS shall issue a letter determining that the
use of the Land by AAC is an illegal nonconforming use and
instructing AAC to take all necessary and reasonable actions to
cause such use to conform to the Carmel Zoning Ordinance at the
earliest practicable time.
3. The Director of the DOCS shall take all reasonable steps to enforce
the provisions of such determination letter and the provisions of the
Carmel Zoning Ordinance with respect to the Land.
SO ORDERED, this _ day of 2004.
CARMEL/CLAY ADVISORY BOARD OF ZONING .APPEALS
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STATE OF INDIANA
APPENDIX B
CARMELlCLA Y ADVISORY BOARD
OF ZONING APPEALS
CITY OF CARMEL
Docket No. 04070020 A
ARGUMENTS AGAINST THE FINDINGS OF FACT AND CONCLUSIONS OF
LAW PROPOUNDED BY MARTIN MARIETTA MATERIALS, I,NC.
By the
APPELLANT INTERVENORS
The Appellant Intervenors, having received the Proposed Findings of Fact
and Conclusions of Law ("Respondent Intervenor Findings") offered by the
Respondent Intervenor at the hearing on this matter held on October 13, 2004,
hereby offers their arguments to the Carmel/Clay Advisory Board of Zoning
Appeals (the "BZA") against the adoption of such Respondent Intervenor
Findings. Paragraph numbering corresponds to that in the Respondent
Intervenor Findings.
Findings Propounded by Respondent Intervenor:
2. The evidence does not establish active mining in 1971. A
commercial mine is not clearly evident on the Land until 1981.
3. There is no evidence regarding acquisition or ownership of the
"Kellers" property, so this Finding should be deleted. Further, ownership of the
Keller property is irrelevant.
4. There is no evidence of a "Carmel sand mine" or its limits, so this
Finding should be deleted.
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5. Mr. Karns' testimony and photographs do not confirm when
processing of material occurred on the Keller property, so this Finding should be
deleted.
6. This Finding calls for a legal conclusion, rather than a factual
determination, so it is inappropriate and should be deleted.
7. Although it is admitted that an agreement was entered into in 1997,
there is no evidence that the land transferred to the City was the site of a
processing plant. Further, such fact, if established, is irrelevant to this case. All
text after "agreement" should be deleted.
8. This Finding includes an obvious misquotation of the Agreement
and should be deleted. The City made no agreement to recognize American
Aggregates Corporation's existing operations as "existing, legal non-con'forming
uses." See section 8(d) on page 11 of the Agreement for the correct quotation.
10. This section is irrelevant inasmuch as the Kingswood Homeowners
Association, Inc. is not a party to these proceedings.
11 . This section is irrelevant inasmuch as the Kingswood Homeowners
Association, Inc. is not a party to these proceedings.
Conclusions of Law Propounded by Respondent Intervenor:
1. This is an incorrect conclusion. The evidence shows that the Land
was already included as urban area in 1964 when it was purchased by American
Aggregates Corporation because it was included in the planning area for
residential use; further, on February 2, 1988 the eighth home within a one-
quarter mile square area that included the Plant site was sold to a consumer for
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the first time; and, in 2002 the Land was annexed to the City of Carmel. Even if
the representation in the New Letter is correct as of 1964, as of February 2,
1988, the Land became "urban area" for purposes of I.C. S 36-7-4-1103 at that
time.
2. This is an incorrect conclusion. Respondent Intervenor does not
specify when the Land became "urban area." Secondly, the conversion of the
Land from nonurban to urban meant that the users of the Land then had to
comply with the local zoning ordinances; they could no longer continue operating
as though the Land were still nonurban. The Respondent Intervenor cites to no
authority for their proposition and none is available.
3. This is an incorrect conclusion. Respondent Intervenor
misconstrues the meaning of Subsection 28.01.06 of the Carmel Zoning
Ordinance by attempting to make it apply to the entire Ordinance. First, in order
for Subsection 28.01.06 to apply at all, according to the preamble for Section
28.01, the use must first be a legal nonconforming use. The Respondent
Intervenor, however, has not established that it is a legal nonconforming use.
Secondly, if it is a legal nonconforming use that is eligible for Special Use
approval, then the meaning of Subsection 28.01.06 is simply that the other
subsections of Section 28.01 do not apply to the Land. None of those
subsections leads to the conClusion that the Land is suddenly converted from a
legal nonconforming use to a "permitted use." If that were the true intent, the
ordinance would simply have said so. If the Respondent Intervenor were correct,
then all uses that are legal nonconforming uses but described as Spedal Uses if
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approval is granted would never need to apply for Special Use approval because
they would be "permitted" uses. Courts will not construe a statute or ordinance in
an absurd manner or to reach an illogical result, so the BZA should not do so
either.
4. This is not a conclusion of law but mere argument, and should be
deleted.
5. This is an incorrect conclusion. First, it assumes that the Plant
already enjoys a "status as a legal use." That, however, is the. question for the
BZA to answer. If the BZA determines that the Plant is in violation of the Carmel
Zoning Ordinance by virtue of the Respondent Intervenor's arguments, then the
importation of material will be terminated by virtue of suspension of operations.
Secondly, the Carmel Zoning Ordinance allows for mineral extraction in four
classes of zone, S, R, B, and M-1, but only after Special Use Approval has been
received. When mineral extraction is allowed in the Sand R zones, there are no
performance standards and the setbacks are enlarged to a 30Q-foot that is a
Natural Open Space buffer. In the B-1 zone there c;lre no special restrictions
placed upon a mineral extraction use. In the B-2 through B-5 zones, the setback
is enlarged to 300 feet but no Natural Open Space buffer is required. However,
in the M-1 zone, the setbacks are reduced, there is a minimum area of 50 acres.
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the landscaping requirements are increased, and there are numerous
performance standards Imposed, such as to prevent fire hazards, noise,
vibration, air pollution, glare, erosion, and water pollution from leaving the site. In
the case of the Land, the site is greater than 50 acres, the setbacks have in
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many cases not been made large enough to conform to any zone requirements,
and, instead of merely extracting minerals, the Plant now processes material that
has not been extracted from the Land. The BZA should conclude that once the
mineral resources on a site are exhausted, the continued operation of a
processing plant on the site becomes a manufacturing use, not a mineral
extraction use. Therefore, even if the mineral processinQ use is permitted as an
extension of a mineral extraction use (whether by virtue of legal nonconforming
use, Special Use approval, Variance, or rezoning), when the minerals on the site
are exhausted the mineral processing use of off-site material becomes illegal
unless it is permitted under the M-1 zone pursuant to a Special Use approval. To
hold to the contrary would allow a mining operation to construct manufacturing
facilities on its lands in $-1 zones under the guise of "processing" minerals and
then, without rezoning them, leave them in place and in operation long after the
original excuse for permitting such facilities had expired.
7. This conclusion is, of course, incorrect. If the BZA decides in favor
of the Respondent Intervenor andlor Mr. Yedlick, then the use of tli1e Land is
illegal, not lawful, and the decision of the Director of the DOCS must be
overturned, not ratified.
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APPENDIX C
STATE OF INDIANA
CARMEL/CLAY ADVISORY BOARD
OF ZONING AP'PEAlS
Docket No. 04070020 A
CITY OF CARMEL
ANALYSIS OF SNAP SHOTS PROVIDED BY MARTIN MARIETTA
MATERIALS, INC. on OCTOBER 13.2004 to the BZA
~
Appellant Intervenors
The Appellant Intervenors, as described in the Post-Hearing Brief to' which this
Appendix is attached, hereby submit their summa!)' of the snap shots submitted
by the Respondent Intervenors at the October 13 evidentiary hearing' before the
Carmel/Clay Advisory Board of Zoning Appeals. This summary is being provided
to aid the BZA in analyzing the snap shots and determining their validity,
reliability, and relevance to the proceedings.
Year Comment and Analvsis
1971 Taken in the Summer of 1971. The photos show work on the nwth side of
Cool Creek, across from the "Rushmore Rental," which is really the, old
Marburger estate home. Aerial photos today indicate this area is again
overgrown.
1972 Several black. and white photos of work involving a "Green Belt" drag line
earthmoving machine in operation and a large hole. This hole is located
on the east side of River Road, not on the Land at issue. The hole
remains as a small lake in the 1985 aerial photo.
1974 Shows Baker unloading a dozer for the ,purpose of taking the picture.
Then the load is dumped at the 116th and River Road plant. Does not
show much of a mine. No roadway into the site. Still crops in the field.
1975. No dates on the photos. No orientation of the shots. Appears to be
another initial dig because there is no big hole, crops are all around, and
the truck is driving across a field without a road.
1976. By William Karns. Shows an early dig within rows of crops, not a large
hole.
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1977 .By William Karns. Shows loading sand at Marburger, probably near Wood
Creek.
1978 By William Karns. Shows loading at Marburger, but no orientation; driving
south along River Road.
1979 Shows a loader, dragline, and dump truck. No orientation. Could be east
of River Road. Includes several test sheets of the aggregate.
1980 Shows only one dozer and one truck. No orientation of the photos.
Includes some test sheets of the Marburger material.
1981 Shows one truck being loaded with sand and one loader. Truck drives
through fields on a dirt road to get to River Road, then unloads at the
116th Street operation.
1982 No photos, just sales sheets from Marburger east of River Road and
Marburger west of River Road.
1983 Photos indicating that the houses at Wood Creek are getting close to the
dig.
1984 Shows mining activity very close to Wood Creek. Indicates that
processing takes place at the Carmel Plant.
1985 Locations not discernible.
1986 Shows activity at the site that is probably the bare ground next to
Kingswood in the 1986 aerial photo provided by the Appellant Intervenors.
1987 Shows essentially the same activity as in 1986. The hole is not very big.
1988. The hole is getting deeper. No orientation, however, but the hole is
starting to yield gravel.
1989 Shows that the hole is filling with water and is very near the houses,
probably Kingswood houses. All work is still by front loaders, so the
dredge has not yet been installed. No Carmel Sand Plant appears in
these photos.
Respondent Intervenor's conclusions: The Marburger property acquired in
1964 was first scraped in 1971 at a site that is north of Cool Creek and that is
now at the edge of a lake north of Cool Creek. This appeal does not involve that
site. The second dig appears to be in 1972 on a small tract on the east side of
River Road. This appeal does not involve that site, either. Finally, the photos
begin to show miscellaneous annual small digs with equipment brought onto the
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site for that purpose, hardly a commercial mining operation. By the early 1980's,
however, it is clear that the Land is being mined commercially. At no time,
though, does the current Carmel Sand and Gravel Plant appear in any of these
photos. In fact, even in 1989 all of the material was being truck.ed away,
indicating that the Carmel Sand and Gravel Plant had not yet been erected in its
present location.
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MASTER PLAN ORDINANCE
A PART OF THE MASTER PLAN
FOR THE
TOWN OF CARMEL, INDIANA
ORDINANCE NO. Z5
AN ORDINANCE ESTABLISHING A MASTER PLAN FOR THE TERRITORY WITHIN THE
JURISDICTION OF THE TOWN OF CARMEL TOWN PLAN COMMISSION, CONSISTING
OF A PLAN FOR THE PHYSICAL DEVELOPMENT OF THE TOWN FOR THE PURPOSE OF
GUIDING AND ACCOMPLISHING THE COORDINATED, ADJUSTED, HARtv\'ONIOUS
DEVELOPMENT OF THE TOWN OF CAR/v\EL, AND ITS ENVIRONS.
WHEREAS1 the Town Plan Commission of the Town of Carmel has prepared~"a Master Plan
for the Town of Carmel and it-s environs, including ordinances for its enforcem~nti has held
public hearings on the Proposed Master Plan and Ordinances; and has by resolution adopted
the Master Plan and recommended thereon to the Town Board that such plan and ordinances
be adopted, all in accordance with Section 37 through 39 of the Chapter 174, Acts of 19470
os amended, General Assembly, State of Indiana.
WHEREAS, the Carmel Town Plan Commission of the Town of Carmel, Indiana, under the
date of October 6, 1959, determined the environs of said Town to be an area two miles
distant at all points from the corporate limits of Carmel; delineated such area upon a map.
entitled, "Jurisdictional Area, Carmel i Indiana, 1959", adopted a resoluHonthereon and
filed a copy of said map and resolution with the Recorder of Hamilton County, all in
accordance with Chapter 174, Acts of 1947, as amended, General Assembly, State of Indiana.
NOW THEREFORE, BE IT ORDAINED by the Town Board of Trustees of the Town of Carmel,
Indiana~
Secti an 1 .
DESIGNATION. This ordinance shall be known and may be cited as the "Master Plan of
Carmel, Indiana, 1959".
Section 2.
PURPOSE. The purpose of this ordinance "is to establ ish a single unified code consisting of
all plans, reports, and ordinances plus supplemental details as contained in the report of the
Carmel Town Plan Commission .entitled "Master Plan of the Town of Carmel, Indiana", that
deal with the subject of planning and zoning, as a comprehensive guide to the future growth
and developmen~ of the Town.
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Section 3.
CONTENT. The.Master Plan consists of a report dated October, 1959, entitled .IIMaster
Plan of the Town of Carmel., Indiana", together with the provisions of ,the maps, charts,
plans at:'ld ordinances which have heretofore .or may hereafter he . enacted concerning the
following subjects: Zoning, Subdivision Control, Thoroughfares, Improvement Location
Permits" Schools, Pdrks, Recreation and Public Areas and a separate plan.entitled
"Comprehensive Development Plan. II
Section 4.
AUTHORITY OF THE MASTER PLAN. The layout, the location" relocation, .extension
or widening of thoroughfares; the general design of neighborhood~.and their street patterns;
th~ use of land; and the location of sites for schools, .porks, recreation..and other public
uses, shopping centers, and community facilities shall conform totheprinciples;r policies
and provisi:onsof the .Master Plan.
Section 5.
EFFECT OF THE.MASTER PLAN. The Town Board of Trustees of Carme.J, Indiana and the
Board of County Commissioners of Hamilton County, Indiana, shall be guided by and give
consideration to the general pol icy and pattern of development set out in the .MasterPlan
prior to the authari2:ation, construction:,. alteration or abandonment of any public installation,
required or necessitated in the interest of the physical development of the Town Clnd its environs.
Section 6:
CONTINUING AUTHORITY OF THE CARMEL TOWN PLAN COMMISSION. The Carmel
Town Pion Commission shall from time to time consider and revrew proposals -Mth respect to
changes and amendments in the Master Plan and., upon conclusion of such consideration
iricludinga pub I ic hearing thereon, shall certify to the Town Board of Trustees their report
on such matters.
Section 7.
.M"ASTER Pl:.ANON FI LE. The maps, charts, plans and ordinances which comprise the
MasterPlan are on file in the office of the Clerk-Treasurer in Carmel, Indiana, and are
. available for public inspection during "all regular office hours of the Clerk-Treasurer.
Secti on B.
RESPONSIBILITY OF THE CLERK-TREASURER. The Clerk-Treasurer of the Town of Carmel
is hereby ordered and directed to keep on fi Ie, for publ ic inspection during.all regular office
hours, two copies of the Master Plan including mops, charts, plans and ordinances referred
to herein.
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Secti on 9.
AMENDMENTS. The Moster Plan of Carmel, Indiana, may be amended from time to
time according to the procedure set forth in Sections 37 through 40) Chapter 174~ Acts
of 1947, as amended, except that, if the Town Bocird of Trustees desires an amendment
it may direct the Carrrrel1'own Plan Commission to prepare an amendment and submit it
to a public hearing within 60 days after fdrmal written request by the Town Board of
Trustees.
Section 10.
EFFECTIVE DATE. This ordinance shall be in full force and eFfect from and aFter its
f.
pasSage and approYal according to Jaw. .
Passed and approved this 27th day of October 1 1959.
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C ..,;(:: . fl~.:--~/-'-~..:'
E. K. Hinshaw
President, Town Board of Trustees
of the Town of Carmel, Indiana
ATTEST: . .
/J~:::/:~. J~~--';"
Mart he Ferri n
CI erk- Treasurer
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AN ORDINANCE A!v\ENDING THE
IMPROVEMENT LOCATION PERMIT ORDINANCE
A PART OF THE MASTER PLAN
FOR THE
TOWN OF CARN\EL, INDIANA
ORDINANCE NO. Z6
AN ORDINANCE M\ENDING THE IMPROVEMENT LOCATION PERMIT ORDINANCE
OF THE TOWN OF CAR/v\EL, INDIANA, ORDI NANCE NO. Z 2 , PASSED BY THE
TOWN BOARD OF TRUSTEES OF THE TOWN OF CARMEL, INDIANA, ON THE 3RD
DAY OF DECEMBER, 1957, TO READ AS FOLLOWS:
AN ORDINANCE PROVIDING FOR THE ISSUANCE OF IMPROVEMENT LOCATION
PERNllTS WITHIN THE JURISDICTION OF THE CARMEL TOWN PLAN COMMISSION,
AS A PART OF THE MASTER PLAN FOR THE TOWN OF CARMEL, INDI.;A.NA.
NOW BE IT ORDAINED BY THE TOWN BOARD OF TRUSTEES OF THE TOWN OF CARMEL,
INDIANA" UNDER AUTHORITY OF CHAPTER 174~ ACTS OF 1947, GENERAL ASSEMBLY
OF THE STATE OF INDIANA AND ALL ACTS Afv\ENDATORY OR SUPPLEMENT AL THERETO.
Section 1..
Within the Town of Carmel, Indiana, and its Jurisdictional Area, no structure v or improvement,
or use of land may be altered, changed, placedp erected, or located on platted or unplatted
lands~ unless the structure, improvement or use, and its location, conform with the Master Plan
and Ordinance of the Town of Carmel and an Improvement Location Permit for such structure,
improvement or use has been' issued. It is hereby declared that the intent of the permit require-
ments of this Ordinance shall not prevail with respect to a Farm.
Section 2.
The Building Commissioner of the Town of Carmel shall issue an Improvement Location Permit,
upon written applicationu when the proposed structure, improvement or use and its location
conform in all respects to the Master Plan of the Town of Carmel,.. Indiana,
Section 3.
Every application for an Improvement Location Permit shall be accompanied by a site plan,
drawn to scale, showing the location of the structure, improvement! or use to be altered..
changed] placed, erected or located, the dimensions of the lot to be improved, the size of
the yards and open spacesp existing and proposed streets and alleys adloining or within the
lot, and the manner in which the location is to be improved. Application for an Improvement
Location Permit shall be accompl ished by a fee of five (5) dollarsl provided that appl ication
for an Improvement Location Permit for an "Accessory Building and Use'" as defined in the
IlZoning Ordinanceu of Carmel:, Indiana-1959", shall be accompanied by a fee of two (2)
dollars and Fifty (50) centsp when not applied for coincidently for a IlUse'l other than an
. l'Accessory Building and Use". The fee shall be paid to and collected by the Building ComfJIissioner.
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Section 4.
Any decision of the Building Commissioner of the Town of Carmel concerning the
issuance of an Improvement location Permit may be appealed to the Board of Zoning
. Appeals when the decision in question involves a requirement of the lIZoning Ordinance
of 19591 Carmel. Indiana", or to the Town Plan Commission when the decision in
question involve~ the requirements of other parts of the Master Plan; by any person
claiming to be adversly affected by such decision.
Secti on 5.
A decision of the Town Plan Commission may be reviewed by certiorari procedure as
provided for the appeal of zoning cases from the Boord of Zonipg Appeals. .
Section 6.
AcHon on the violation of any provision of this Ordi.nance and the right of in[unction
against such violation sholl be as provided by Chopter 174, Acts of 1947 of the Indiana
General Assemblyu and all Acts amendatory thereto.
Secti on 7.
This Ordinance sholl be in force and effect from and after its passage,
Passed by the Town BOard of Trustees of the Town of Carmelu Indiana) on the 27th day
of October Q 1959.
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(..:;.:: . "-"L. ~~:.t4-~'/~"':'
E. K. Hinshaw
President; Town BOard of Trustees
of the T own of Carme I ~ I ndi ana .
ATTEST:
%,.Iillf---!.Z ~L:c, '~:'_)<' A.--\:.-~'V"
Martha Ferri n
Clerk-Treasurer
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RESIDENTIAL USES AND REQUIREMENTS
u
TYPE OF RESIDENTIAL USE
REQ UIREMENTS
Single-Family Dwelling Two-Family Dwelling Multi-Famiiy Dwelling
DiS[fict in which Llse is per- R1' R2, R3, R4. 81, 82 Rl, R3, R4, Bl, 82, & 83 R4. 81 & 82
mitted & 83
Minimum lot size in square Rl 15,000 Rl . 21,780 R4. 2,500
feet per dwelling unit in dis- R2 & 83 10,000 83 . 10,000 Bl & 82 1,500
tricts indicated R3 7,200 R3 & R4 3,600
R4, Bl & 82 6.500 81 & B2 . 3,250
Minimum lot width in feet in Rl 100 Rl . 200 R4.Bl&B2 50
districts indicated R2 & 83 70 83 . 100
R3 60 R3. 60
R4,Bl&B2 _t<
50 R4, Bl, & B2 50
Maximum Building height in Rl, R2 & 83 . 25 Rl & 83 25 R4. 35
feet in districts indicated R3, R4, 81, & 82 35 R3, R4, Bl&82. 35 Bl 45
B2 . 60
Minimum front yard in per
cent .of average depth of lots 20 20 20
in block
Minimum side ya.rd (one) 5 feet 5 feet 5 feet
Minimum side yards (bom or 20 20 20
two) in per cent of lot width
Minimum rear yard in feet 20 15 15
(Minimum gtound floor area ONE STORY Rl . 1,500 First twO units, same as
in square feet in districts in- RI, R2 & 83 900 R3, & 83 . 1,000 .. two-family dwelling, ..
dicated. ) R3, R4, 81, B2 & 83 672 R4,BI&B2 900 plus additional area per
TWO STORY unit:
RI, R2 &83 720 R4. 300
R3, R4, 8.1, B2 & 83 672 81 & 82 200
Number of vehicle parking
space to be provided on the One Two One for each dwelling unit
lot
Maximum lot coverage in per 35 35 40
cent of lot
Vision clearance on corner
lot Yes Yes Yes
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FIG URE 1
CARMEL
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BUSINESS USES AND REQUIREMENTS
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TYPE OF BUSINESS USE
REQUIREMENTS
Local Business General Business Roadside Business
District( s) in which use is B1, B2, S3, B4. & 11 82, B3 & 11 B3
permitted
Mini mum front yard in feet 81 & 11 ..,.......... . 15 82 . _ .. ..... . .. . .. . . None 8.3 ...... I.. t...... 60
in districts indicated 82 ......."....... . None B.3 .....,.......... . 60 (See Section 15. C. 9)
B3 & 84 . . . . . . , . . . . . . 60 I1 .......... '....... 15
Minimum side yard in feet
along the side street line of
a corner lot where block is 5 5 10
adjoined by a residential dis-
trict
Minimum side yard in feet
where a business district ad- 5 5 10
joins a residential district
withIn the block
Minimum side yard in blocks
not including a residential None None 5
district
Maximum bUildinl height in 81 , . . ... . . .. . .. .. .. .. .. .. .. .. 45 82 . I"" <1-.....,......... 60 B3 35
82 .. _. of"................ 60 ..................... .
feet in districts in icated 83 35 B3 .... ................. .. 35
........... ............... 'Il 60
II ........................ ... 60 .................. .
B4 .. '" I .. . .. . . . I . I ~ .. ... .. 50
Minimum rear YaId in feet 15 15 15
Maximum lot coverage in
per cent of lot 90 90 80
Vision clearance on corner"'
lots Yes Yes Yes
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*May be permitted or a Special Exception in accordance with the requirements specified in Section 19.
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BUSINESS USES - PARKING SPACES REQUIRED
TYPE OF USE
. '
PARKING SPACES REQUIRED
Local 8usines~ Uses
Ca tegory :2 listed under Paragraph A ,
Section 15
One for each 500 >1.juare feet of fioor area
Categories 3 through '7 and categories 8c and
Be unde~ Para.graph A, Section 15
Indoor theater
One for each 125 sq'uare feet of l100r area,
One for each 6 seats
Bow ling A Hey
Dancing Academy
Private club or Lodge
Three for each lane plus one for each 6 spectator sea t5
One for each 200 square feel 0 f Ooor area
Department Store
Space to accommodate 50 per cent of the active
membership at one space per each 3 members
One for each 200 square feet of Ooor area
General Business Uses:
!
Hotel
One for each J employees plus one for each 2 sleeping
rooms
Motel
One for each 3 employees plus one for each unit..
Stora ge Warehouse and Wholesale Establishment
One for each 3 employees or occupants. The maxi-
mum number of employees or occu'pams to be used hi.
determining spaces. '
Motor 8us or Railroad Passenger Sta.tion
One for each 3 employees plus one for each ten sealS
in waiting room. Other retail uses in connection
therew ith sha 11 provide one space for each 2 em-
ployees.
One for each 200 square feet of l100r area
Automobile and Truck Repair
Veterinary Hospilal for Small Animals or Kennel
One space for each 3 animals to be confined in tem-
porary or permanent pens or cages
As determined by the Board
Category 10 under Paragraph B, Section 15
FIGURE 3
BUSINESS USES - LOADING AND UNLOADING BERTHS REQUIRED
~ TYPE OF USE G ROSS FLOOR AREA (Sq, LOADING & UNLOADING BERTHS
Ft. ) REQUIRED
Retail Stores, 3,000 to 15,000 1
Department Stores, 15,001 to 40.000 2'
[ - Wholesale Establishments, Storage Each 25,000 Additional 1 Additional
Uses and Other Business Uses
Office Buildings 100 ,000 or Less 1
[ 100.001 to 336,000 2
Each 200,000 Additional 1 Additional
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CARMEL
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1. Automobile Service - inclLrding but not Irmited to the following:
a. Filling Station
b. Commercial Parking Structure
c. Commercia/. Perking Lot
d. Open Automobile or.Mobile Home Sales Area
e. Automobile or Mbbile Home Soles Room
2. Business Service - including but not limited to the following:
(J. Bank
b. Office Building
c. Postal Stoti"on
d. Telegrpph Office
e. Utility Company Business Office
3. Clothing Service - including but not Ihnitlld to the following:
a. Laundry Agency
b. Self-Service Laundry
c. Dry Cr"eaning Establishment using not more than two clothes-cleaning
unitsJ neither of which shall have a rat~d capacity of more than 40 I bs.
using cleaning fluid which is non-explOsive and non-flammable.
d~' Dressmaking
e..Millin~ty
f. Tailor cind Pressing Shop
g. Shoe Repa ir Shop
4. Eq6ipment SerVice - including but not I imited to the following:
a. Radio or T elevi:Sion Shop
b. Electric Appl ionce Shop
c. Record Shop
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5. Food Service - including but not limited to the following:
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a. Groeery
b. MedtMarket
c. Supermarket
d. ReStaurant
e. Del icatessen
f. Cold Storage Lockers) for individual use
gO' Bakery
h. Roodsi de So I es Stand
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6~ PersonClI Service - including but not limited to the following:
a. Barber Shop
b. Beauty Shop
c. Reducing Sa Ion
d. Photograph i c Stud i 0
7. Retail Service., Retail Stores Generally - including but not limited to the
following:
a. Drug Store
b. Hardware
c. Sfati'oner.
d. Newsdealer
e. ShowRoom', for articles to be sold at retail
L Comrnercial Greenhouse not.exceeding 1,000 square feetin.area
g. Apparel Shop
h. Hower Shop
i. Gift ot Antique Shop
8. ' ,Business Recreational Uses - including but not limited to. the following:
a. I ndoor Theater
b. Bowling Alley
c. BilUard'Room
d. Dancing Academy
e. Tavern or Night CluD.,. only in conformity with, requirements of lows or
" crdindnces governing such use.
9. Private Club or Ledge
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10. Department Store
11 . Sign
12. .Accessory Buildin.g or Use customarily incident to the above uses. Any
Building used primarily for accessory purposes 'may net have more than forty
(40) per cent of its toted floor area .devoted-,tb 'storage.purposes incidental
to-such'.pri"maryUse., and.provided that no more than five (5).persons are
ernpl'oyed at one time or on.cnyone shift in connection with such incidental
Use.
local Business.Uses, categories: 2 through 10 inc1usive-, and 12, shall be conducted
within Buildings so constructed that no noise of any kind produced therei'n shall.be
audible beyond the conHnes of the Building.
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,\ ,:':::;.;:h::rd :u:.:tlezs Use is.one \..f1ich includes retail, servicel wholesale ,-md
storage Uses, ono induoing Accessory cui iJings ond uses, includes the Uses,
specifically stated or implied, as Follows:
1. Local Business Uses
2. Aufomobileond Truck r~pairJ entirely wifhinenclosed Buildings
3. Hotel or Motel
4. . Storage Warehouse '
5. Wholesale Esfabl ishment
6. Newsp'aper Publ ishing
7. Motor Bus or Rcilrood Passenger Station
8. Radio''Ond Television Stud i 0$'
9. Veterinary Hospital For Small Animols and Kennel
10. Any'Busi'ne,S's Use not specifically stated or implied elsewhere in this
ordinance and complying with the ,above deHniti'on.
C. ,A Roadside Busi'ness Use i's a Business Use primarily of a retail or serviCe nature
C1nd incl udes the feU owing:
1. Local Business Uses
2. General Business Uses
D. Other Provisions and Requirements for Business Uses,are as fonows~
1. P~rkr~gspaces.shaII be provided on the lot,,:.as indrcated in Figure 3, or
within 300 feet thereof on.o siteapproved,by,the Boord~
2. Loading and Unloading Berths sholl be provided on the Lot as indicated in
Figyre 4.
3. Parking requirements shaH not,apply in.c Block where 50%, or more of the
area was occupied by Business or industrial Structures at the time of passage
of thi's Ordinance. '
;4. Groups of uses requiring Parking Space may join in establishing group.parking
area with capacity aggJ!egoting that required for each participating Use.
5. Public Parking Area and Loading and Unloading Berths shall be paved with
a dustproof or hard surface.
6. One-half of an Alley abutting the rear of a Lot may be rnCluded in the Rear
Yerd, but such Alley space sholl not be included for Loading and Unloading
Berths.
7. Where 25 per cent or more of the lots in a Block are occupied by Buildings
the setback of such Buildings shall determine the dimension of the Front Yard
in the Block.
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8. Loading end ,Unlooding Berths shell I not be required for' Business Uses
which'demonstrab'ly do not receive or transmit goods or wares in quantity
by truck delivery. '
9. Parking and Access,ory Uses are permitted in the required Front Yard in the
Business Di"stricts;'
10. The mrodmum Building Height requirement in Figure 2 may be increased if
Buildings are set back,'from front and rear property lines, one foot for,each
two fe'et oF.additional height above the maximum Building Height requirement.
11. Chimneys, cooling towers, elevator bulkheads., fire towers, penthouses, stacks,
tanks, water towers, trtlnsmissi on towers', or essential mechanTcal appurtenances
may be erecte~ha any he ight not, proh ibited, by other lci~s or ordi nances.
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12. Nobus-iness operati'on or.activity shall discharge, or cause to be discharged,
liquid or solid wastes into publ ic waters unless in conformance with the
provisions of the Stream Pollution Control Law of the Stete of Indiana (Chapfer
214:, Acts of 1943, os amended) and the regulations promulgated thereunder.
,Plans and specifications for proposed sewage and other waste treetmentand
disposal facilities shall be submitted to and approval obtained from the Stream
Poll uHon Control Boord of the State of Indiana.
13. I'n all Business Districts it is permissabie to erect more than one Principel
Burldi'ng on a Lot.
Section 16.
1JB4~1 SHOPPING CENTER DISTRICT REQUIREMENTS AND PROCEDURES. The Local Business
Uses numbers 1 to 12 inclusive in Section 15,arepermitted in the IIB4" Di'strict"aod subject to
compliance with the: foil owfng requirements and procedure:
A. Area requirements and location: uB4" Shopping Center District -- the tract of land
involved shall be of an erea of not less than five acres and Ire wholly or partly
within 1,400 feet of the exact center of a point represented by a "8411 District
symbol dimensioned on the Zone_Map.
B. The'owner or OW'ners of such tract of land shall have obtoined approval of the
Boord in accordance with the,procedure set forth in SecHon 19 and the requirement'
Standards rn Figure 9.
Section 17.
INDUSTRIAL USES AND REQUIREMENTS. The Industrial Uses defined below, including
Accessory Buildings and Uses, are permitted in the Districts indicated in Figure 5 in accordance
with the requirements of this Section.
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INDUSTRIAL USES AND REQUIREMENTS
I TYPE OF USE
REQUIREMENT
LIGHT INDUSTRIAL INDUSTRlAL
District( s) in which use is pe~rnitted 62, B3 & 11 U
Minimum from yard in feet 62 . None 11 15
63 . 60
Il 15
Side Yard required in feet 62 & U None II None
B3 . 20
Minimum side yard in feet. if pro- 62 & 11 5 n . 5
vided
Minimum rear yard in feet B2. E 3 & Il 15 Il 15
Maximum building height in feet B2 . 60 Il . 60
B3 . 35
II 60
Maximum lot coverage in per cem B2 & 11 90 II 90
of lot B3 . 80
Vision clearance on corner lo[S Yes Yes
FIGURE 5
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LOADING AND UNLOADING BERTH REQUIREMENTS
GROSS FLOOR AREA OF INDUSTRIAL USE IN SQUARE FEET NUMBER OF BERTHS REQUIRED
15 000 or Less 1
15 001 to 40 000 2
40,001 to 100 000 3
Each 40.000 Additional I Additional
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FIGURE 6
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A. A Light Industrial Use is one which creates.a minimum amount of nuisance outside
the planT; is. conducted entirely within enclosed Buildings, does not use the open
area around such Buildings for storage of raw materials or manufactured products
or For any other industrial purpose other than transporting goods between Bui Idings;
provides for enclosed Loading and Unloading berths; and which is not noxious or
offensive by reason of the emission of smoke, dust, fumes, gas, odors, noises or
vibrotions beyond the confines of the building. .
B. An Industrial Use. is one. which requires both buildings and open area for manufacturing,
fabricating processing, repairing, dismantl ing, st,orage or disposal of faw materials,
manufactured products, or wastes, which is not injurf'Ous to health or safety of humans
or animals, or injurious to vegat~tion; and which is not noxious or oFfensive by
reason. of the emissi on of smoke, dust, gas /umes, odors, or vibrati ons beyond the
(imits of the premises upon which such industry is conducted.
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Included in this classification are.all industrial uses fully complying with the above
d,efinition., plus:
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1. Automobile wrecki"ngor junk storage as 0 Special Exception, permitted in
accordance with the procedure specified in Sed ion 19.
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2. Poultry Slaughtering and Wholesaling.
3 . Truck Storage Y ord ~.):;.~.;,,~.;j;;i:: >;. .....
4. Bulk Storage of inflammable fluids in above ground tanks., but not oil
refinery tanks.
5. truck Terminal.
6~ Railroad Freight House.
7. Utilities Sf'ordge Yard.
8. Coal~Cokej or Wood Yard.
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9. Lumber Yard.
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10. Contractorl's Plant or Storage Yard.
11 . Bus Line Shops or Garage.
12. Building.Material Storage Yard~
] 3. Carting, Express, Heul ing or Storage Yard.
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C. Water Pollution - No industrial operaHon or activity shall discharge., or
cause to be .diScharged~ I iquid or sol id wastes rnto publ ic waters unless in
conformance with the provisions of the Stream Pollution Control Law of the
State of Indidno-(Chapter 214~ Acts of 1943', as amended) and the regulations
prOmulgated thereunder. _Plans and specifications for proposed sewage and
industricll waste treatment. and-di'sposal foci I ities sha II be submitted to and
a ppro"fa I obtained from the Stream Pollution Control Boord of the State of
I ndiarro.
D. Other-Provisions and Requirements for Light Industrial and Industrial Uses are
as fol rows~
1. Each Use shall provide Parking Space for each 3 employees thereof located
on the some Lot os the. Us'e, or within 300 feet on.a site approved by the
Boord .
2. Each Industrial Use shall provide Loading-and Unloading Berths I'ocated on
the some Lot.as the Use~.as speciHed rn Figure 6.
3~ Parking Space requirements may be waived by the Board where SOper cent
or more of the. area in.a Block was occupredby Busi"ness or fridustrial Structures
at the time of. passage of. this Ordrnance.
4. Groups of uses requiring Parking Space may join in establi'shing group public
or empl.oyee parkrng areas with capacity.aggregating that.required for.each
parti"cipating Use. -
5. One,-halfof ooAlley.abutHng the rear of.a Lot may be included in the Rear
Yc::!rd~ but such Alley space'shall not be included for Loading.and Unloading
Berths.-'
6. The Building Height requirement in Figure 5.may be increased if the Buildihgs
are set back:r fi-omfront.ond rear property lines, one foot for each two feet
of-additional height above the maximum Building Height requirements.
7. Chimneys, cooling towers,. elevator'buIkheads, fire towers', .p.enthouses~ tonks,
water:towers, transmission. towers, or essential mechanicalopputtenances may
be. erected to any hei ght not prohibited by other laws' or ordinances.
8. In all Industrial Districts it is permiSsoble to erect more than one Principal
Bvi I ding on a Lot.
Sectj on 18.
CONTINGENT USES AND REQUIREMENTS. Contingent Uses defined below; including
Accessory Buildings and Uses', are permitted in the Districts indicated in Figure 7, subject to
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CONTINGENT USES AND REQUIREMENTS
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TYPE OF USE DISTRlCT(S) IN WHICH USE NUMBER OF PARKING SPACES TO
IS PERMITTED BE PROVIDED
Boarding or Lodging House R4, Bl & B2 One for each three occupants
Church or Temple A n, except B4, &11 One for each 6 seats in main audi-
torium
College or university All, except 84 & 11 One for each 3 students and staff
Farm All Not applicable
Fraternity, sorority and student co- All except RI, R2, B3, 84 & I1 One for each 3 occupants
operatives
Home Occupation All One additional
Lodge Dr private club (which is of a R4, 81, ~2 & 83 One for each 125 square feet floor
non-commercial chara.cler) area of building(s)
Mortuary R4, B1, B2, B3 & 11 One for each 6 seats in main audi-
tarium
Municipal or govemmental building All One for each 125 square feet floor
area of buiiding(s)
Nursing home or homes far the aged R3, R4, Bl, 82, 83 & Il One for each 7 persoi15
Professional Office in residence of All Two additiona.l
practicing professional person
Plant Nursery All Non required
Public Library or museum All One far each 125 square feet floor
area of building(s)
School, public or parochial All, excepr 84, & II One for each 3 members of staff plus
one for each 8 seats in auditorium
Temporary Sign, pertaining to lease, All Not applicable
hire or sale of a building Or premises
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FIGURE 7
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CONTINGENT USES - MAXIMUM HEIGHT
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DISTRICT(S) IN WHICH USE MAXIMUM BUILDING
IS PERMITTED HEIGHT IN FEET
Rl, R2 & B3 25
R3. & R4 35
B1 45
84 50
82 & 11 60
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the provisions herein.
A. 'A ,Contingent Use i's one which i"s I ikelyor I iable., but not certain, to occur,
and which i~ not 'inappropriate to the principal, Use of the Di'strict in which it
may be located. When so located it shall conform to the requirements of the
District in which the Contingent Use i's, permitted, ,except that the number of
Parking Spaces to be provided shall 'confonn to the requirements of Figure 7.
The required number of Parking Spaces. shall be provided on the some,Lot with
the Us'e, or within 300 feet ttrnreofon o'site approved by the Boord.
B.' The 'Building Height for Contingent Uses shall be as. provided in Figure 8.
C. Other Pr6;visions and Excepti Oils for Contingent Uses are as follows:
1. The Building Height requirement ih Figure 8 may be increased if Buildings
are set back from fr6nt,~od rear property lines, one foot for each two feet
'of additional height,above the Building Height,requirement.
2. In all Districts} spires, church steeples, chimneys, cooling towers,
elevator bulkheads'tfire towers',.,scel'lery lofts,.. and essential mechaniCal
appurtencl1ces may be erected to any height not prohibited by other laws
or ordinances.
3. A church or temple requiring,parking.area at times when nearby uses.do
not need their parHng facilities'1 may by. agreement approved by the Board,
utilize such facilities in lieu of providing their own parki'ng Facilities..
4. Publrc Parking Area shall be paved with,a dustproof or hard surface.
D. An existing Use whkh is listed hereinas.a Contingent Use:rand which is located
in.c District in which such Contingent Use may be,pEmnitted is a conforming Use.
Any expansron of such Contingent Use involving the el1largement of the Buildings).
Structures and land area devoted to such Use., shall be subject to the. procedure
described in this Section.
,Sedion. 19 ~'.'
SPECIAL EXCEPTIONS} REQUIREMENTS AND PROCEDURE
. A. The Spedal Excepti-ons Iisted'rn Figure 9 and their Accessory Bui.ldings and Uses
may be permitted by the Board ih the Districts indicated therei"n,in accordance
with the procedure set'forth in thi's'Secti-onand the .reqw:rements listed in Figure 9.
B. Upon receipt of.anapplication for an Improvement Location Permit fora Special
Exception by the Building Commissioner it sholl be referred to the Commission for
investigation as to the manner in which the proposed location and character of
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DlSTiCCT(S) IN WHICH
SPECIAL EXCEPTIO~, USE M.".~' BE PERMITTED REQUIREMENT DESIGNATIOI\
A irpoTt or Helipor! RI, B3 &: II h6(HelipoTl). b12 (Ai~pof[), g, h2. il (Airpon). i2
(Heliport). n. kI,12,n2, p. rl. ~.I, u2, v, W
A rtificial Lake of 3 or more aere~ AU excepr B~ cl. iI. jI, p. rl, uI, v, w
Cemelery or Crematory All except 32. 84 &: Il h11, c2, p. q, fl, Y.... ,
Clinic or Medical Health Center R3, Ro!. Bl. B2. B3 &11 bI, c3. h4, jl, k3, 11, rl. v. w, y
Country Club or Golf Course All d, dS. jl. k,;" n, p. rl, v, W
Greenhome, Commercial A II excepi 6~ h4, c6. f2. hI, k7, m4, nl. rl, v, w, y
Hospital All b7. c6, g. hi), il. k9. 12, m5. nl. P_ Sit. V, Y
industrial Park All aI, blO. c7. dS. g. hS, j2, kID. 12. m6. n2, 0,
p. q, rI,~, I, v, ...... y
Junk Yard !l cl, e. hI, H, kll. 15" m2, n3, rl, v, \oJ, y
Kinderganen or Day Nursery All excepl R2 & 64 b3, c8, f3, hI, 13, jl~ kl2, p, 11, v, y
MineraJ Exuaction, Borrow Pil. Top Rl. & 11 c9. e, hI, is, jl, n3, rl, ~,I. u3, v, w
Soil Removal and theu Storage Area
Mobile Home Park 62, 63 & II b8, c6, d2, g. hI, jl, k13. 12. o. p, q. rl. s.
uI,v,w,y .t!,
Outdoor Thealer All excepl R2, R3, R4, B2 & 64 c6. i6. kll, p, rl, ~, t, v, W, y
Ourdoor Commercial Recrealional All c4, dl, g, ill, 11, i3. k14, 12, nl, p, r2, 5, t.
Enrerprise V, '^', y
Penal or correctional Institution 62 & 11 bl2, clD, e, K, k15, 15, n3, p, rl, y
Power Transmission Line All p
Practice Golf-Driving Range All except Rl, R2, R3, R4 & B4 e6, i7, j3, k16. 12, rl, v. y
Pri'o'ate Recreational Development All c4, g. hI, jS. k2, 12, 'rl, v, W, y
Produce Terminal, Whole~ale B2 & 11 blO, c7, d3, e, hI, 18, jl. kl1. 14, m3, n2. P.
rl, s, t, v, W, Y
Public Camp Rl.B2.BS&1l b7, c6. dl. g. hI, i3, k17, 12, rl, u1, v, 0",'. Y
Public or Commercial Sanitary Fill or Jl b7, cll. e, i9. j5, rl, ul, v, W
Refuse Dump
Public or Commercial Sewage or 11 bll, cll, e, kl9, rl, ul, v, w
Garbage Disposal Plant
public Or Employee Parking Areas A II excepl RI b2. p, r 1. s, t, v, x, y, z
Public Patk or Public Recreational All c4, g. hI, j2, k:21, 12. I, v, w
Facility
Public Utility Subslalion or Exchange All d, g, j4, kIa, rl, v, y
Radio or Television Tower All k19, p.rl, v
Railroad Righl-ol- W ay and Uses Essemial All hI, k2D, rl, v
ro Railroad Opera tion
Raising and Breeding of Non-Farm Fowl B2, B3 & II b7. clD. hI.. ~l. k7, 12, ml, n2. rl. v, W, y
and Animals. Commercially, excepl
Kennel
Riding Srable Rl, Bl, 62, 53 & 11 b5, clO, hI, jl. k21, ml, rl, v, w, y
Seasonal Fishing or Hunting Lodge All bl. el, f4, k22, v. w, y
Shopping Center B4 aZ, b7. g, jI, k23, i3, m:>, nl, 0, p, s, I, ul.
v, y
$Iadium or Coliseum All except RZ, R3, R4 & B3 b7, c2, jl. k24, 12, mZ, nl, p, r2. s, t, v, y
Tourin Home All excepl Rl, R2, R3, & 84 bl, cl, fl, hI, k26,rl,v, y
Truck Freighl Terminal B2. B3& lJ cl, e. iI, k25. 14,02, p, rl. s. I. v, w, Y
If Ihe natule of the Special Exception involves more than one of those lisred. rhe applicanr may apply for an Improvement wcarion Permit lor
the Special Excep,ion .....hich most closely relates (0 the prima.ry use; provided that the requirements 01 all ,he related uses will be met.
FIGURE 9. SPECIAL EXCEPTIONS AND REQUlREMENT;5.
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CARMEL
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NOTE.. Use of if Symbol in Ihe Figure indicales that tile requiremenls or
Ihe Diuricl a ppl y to lhe Special Excection where located
REQUI REMENT
a.
CLASSIFICA T10N OF USE PERMITTED
Lighl Industrial 3. Industrial
Loca I Business
l.
2.
b.
MINIMUM LOT AREA 8.
#
1500 sq. ft. 9.
110 sq. ft. per child 10.
25,000 sq. fl. 11.
20 .000 sq. ft. pi us :;.000 sq. f1. 12.
per horse over four {4} horses 13.
One acre 14.
5 acres
5 acres including 2500 sq. ft.
per mobile home stand
6 acres
20 acres
40 acres
80 acres
320 acres
Two times requitement for
Single-Family Dwelling
2 a ere,
1.
2.
3
4.
5.
6.
7.
15.
c.
1.
2.
3.
4.
5.
6.
d.
1.
2.
3.
e.
Mlt'IMUM YARDS {Feet]
front Side (each) Rear From Side (each) Real
II # II 7. 100 A butting Residenti;!! " 75
# 50 50 A butting Olher Use, =0 35
4! 10 30 8. # 20 #
# 40 40 9. 150 150 HiD
# -- .. 10. 100 100 100
100 40 40 11. 300 300 300
BUILDING SETBACK FROM CENTER LINE OF INTERIOR ROAD
(Feet)
40
50
85
USE PERMITTED NOT CLOSER THAN 300 FEET TO A RESIDENTIAL
USE
MINIMUM GROSS FLOOR AREA OF PRINCIPAL BUlLDING(S}
(Square Feet)
1.
2.
3.
4.
5.
6.
tI
Over 1000
Determined by Number of Children 10 be Accommodated
400
Two limes Single-Family Dwelling
672
PLAN OF LANDSCAPE DEVELOPMENT TO BE SUBMITTED WITH
APPLlCA TlON
MAXIMUM HEIGHT OF STRUCTURE (Feet)
#
As require~ by appropriate Slate or Federal Agency
Same as I.ighl Industrial ,,'
45 :>. 70 6. 25
1.
2.
3.
4.
1.
2.
3.
4.
5.
6.
7.
6.
9.
10.
FENCE
6-fool wIre mesh where accessible 10 the public
6- fOOl wire mesh when localed at ground level
4-fool wire mesh around play area
Solid wall or solid painted rence 8 feel high
4. fOOl wire mesh abutting Residential Use
Painted board (ence 8 feet high
Adequate to protect abuuing use
6- fOOl wire mesh
S-foot solid pa.lmed for Refuse Dump
S-fOOI wire mesh abulling Residential Use
SCREEN PLANTING WHERE ABUTTING RESIDENTIAL USE
(Tight screen. effective al all rimes)
6-fool he.ighroy 6.foo! width .
25 feer abutting Residential District or Use
8- foot height by 6.(001 width
Adequate to screen Power Substation flOmSrree.t View
6 feet high along sneels fOr Refuse. Dump
1.
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4.
5.
PARKING SPACES
1. 1 pel 2 employees plus 1 per 4 seat.! in waiting rOom
2. 1 per ~cunomers Or members
J. 1 per 2 employees plus 3 per doclor
4. 1 per 3 employees plus 1 per 6 students
S. 30
6. 1 per 3 employees per shift
? 1 per 3 employees plus 1 per 125 square feeI of sales area
S. 1 additional
9. .1 per 4 beds plus 1 per doctor plus 1 per 3 employees plus 1 per
hospital vehicle
10. 1 per 2 employees on largest shifl
11. 1 pef 2 employees
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
I.
1.
2.
3.
4.
5.
m.
1.
2.
3.
4.
5.
6.
n.
1.
2.
3.
o.
p.
q.
t.
1.
2.
s.
l.
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1.
2.
3.
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Y'
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Reqmt.
Desig_
REQUIREMENT
1 oer ~ employees plus 1 per 5 children 10 beaccomodaled
] per 2 employees plus 1 per mobile home stand
1 per 3 employees plus 1 per 500 square feel or use area
I flef 3 employees plus 1 per 10 inmates at estimated capacilY
1 per:; employees plus 1 per d!iving tee
1 per camp slle and 1 per cabin
TelephoneExchange - 1 per employee
1 per em ployee per shi fl
1 per 2 employees where headquartered
I pef 5000 square feel
One
1 per 60 square feel of sales area
3 per 4 employees plus I per 4 seats:
I per 2 employees plus 4 for CUSlomers
1 pel employee plus 1 per sleeping accommodation
Two
1 per employee plus 1 for each 6 seats in main auditorium
DISTANCE OF PARKING AREA FROM RESIDENTIAL USE
(Feet)
10
25
50
100
300
NUMBER OF LOADING AND UNLOADING BERTHS
(Shall Not Face on BOldering Highway)
1
2
Per Development Plan
15.000 square feel - 1;
Up to 200 beds - 1
200 10 500 beds - 2
over 500 beds - S
Per Figure 6
Over 15,000 feet. 2
DISTANCE OF LOADING AND UNLOADING BERTH FROM RESIDEN-
TIAL USE (Feel)
50
100
300
PLA T APPROVED BY THE COMMISSION TO BE SUBMITTED \'.'ITH
APPI.ICA TION
DEVELOPMENT PLAN TO 8E SUBMITTED WITH APPLICATlOi>:
COVENANT BY OWNERS TO PERPETUATE MAINTENANCE AND
APPROVE FUTURE IMPROVEMENTS
MAXIMUM NUMBER OF PRINCIPAL ENTMNCES FROM MAJOR
THOROUGHFARE
1
2
ACCEPTABLE RELA TIONSHIP TO MAJOR THOROUGHFARE
THOROUGHFARES MUST BE ADEQUA TE TO CARRY ADDIT10NAL
TMFFrC ENGENDERED BY USE
OTHER AUTHORITY APPROVAL REQUIRED
State Board of Health
A erOnautics Commission of Indiana
Planning ACI - Secrion 58-1/2
OUTDOOR ADVERTISING SIGNS AND OUTDOOR ARTIFICIAL
LIGHTING SHALL BE APPROVED BY THE COMMISSION
DISPOSAL OF WQUID AND OTHER WASTES SHALL MEET THE AP-
PROY AL OF THE STA TE BOARD OF HEALTH
NO SALES. DEAD STOM GE, REPAIR WORK OR DlSMA NTLING Ot'
THE LOT
NO PARKING IN THE FRONT YARD. EXCEPT A S PROVIDED IN
SECTION 15<
EXCEPT FOR APPROVED EXITS A ND ENTRANCES, A MASONRY
WAI.L 4.FEET IN HEIGHT AND 6-INCHES THICK ERECTED AT
REQUIRED FRONT LINE OF BUILDING AND MAYBE REQUIRED
ALONG BOUNDARIES OF PARKING AREA AS DETERMINED BY THE
COMM1SSION FOR THE PROTECTION OF RESIDENTIA LL Y Z.ONED
OR USED PROPERTY
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the Special Exception will affect the.Master Plan. The Commission shall
report the results of .its study to the Board within forty.;.five days following
receipt of the applieetion. Ifno such report has been filed with the Board
within this' time'pertod, the Board may proceed to. process the appl ication.
The Board shall thenprocee'd wirh a hearing on the. application in the manner
pre-scrHred'in'Section 22. Following the hearing, and upon.an affirmative
finding by the Boord that:
1. The proposed Special Exception is.to be located in.a Distrkt wherein
such Use may be. permitted, and
2. -The requirements set forth in Figure 9 for such Special Exception wi II be
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3. The Spetial ExcepHon is consistent with the spirit , purpose. and intent of
this Ordinance., will nat substantially.and,permanently injure the appropriate
Use of neighboring.property; and will serve the public conv.enience and welfare,
The Boord shall order the Building I'nspector.to issue.an l'mprovement location Permit
for the Special Exception.
C. An Existing Use which is listed herein as a Special Exception, and which is located
irf..a District in which such Special Exception may be. permitted~ is a Conforming
Use. Any expansion of such Special Exception involving the enl:argement of
Bvildings, Structures and land area devoted to. such Use shall be subject to the
procedure described in this S'ection.
. Section 20.'
NONCONFOf?Jv\ING USE SPECIFICATIONS. The lawful use of a Building or premises,
existing at the time of 'paSsage of this Ordinance, may be continued although such Use does
not conform to all the provisions of this Ordinance., except as herei'nafter.provided.
A. A Nonconforming Use may be. extended. throughout. a Building provided no
Structurel' Alterations ore made.therein, except those required by law.
B. A Nonconforming Use may be changed to. another Nonconforming Use of the
some or greater restrictions, provided no Structural Alterations are made in the
Building. Whenever a Nonconforming Use has been changed to.a Conforming
Use or to a Use permitted in a District of greater restrictions, it shall not
thereafter be changed to a Nonconf ormi ng Use of a less restri cted one.
C. No Building shall be erected upon any premise devoted to a Nonconforming Use,
except in conformance with regulations of this Ordinance.
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3. Width and length of all entrances and exits to and from said real estate.
4. All adjacent and adjoining roads or highways.
B. 5rte plans so furnished to the Building Commissioner shall be filed by the
Bui Idi ngCommissi oner and sholl become a permanent record.
c. The Building Commissioner shall issue an Improvement Location Permit for a
Special Exception only following receipt of notice from the Boord that the
application therefor has been approved by the Board.
D. Any Per~on, to whom is issued an Improvement Location Permit for a Shopping
Center pu'rsuant to Paragraph Df above, who fails to commence construction
within twenty.;.four (24) months after such permit is issued or who fails to corry
to completion thirty per cent (30%) of the total Developmetit Plan thereof
within three years after such permit is issued or within one yearaJter such con-
struction i:sbegun, whichever is later, or who fails to conform to the/provisions
of the Development Plan and supporting data finally approved by the Board and
upon the basis of which such Improvement Location Permit was issued, may be
re'quired by the Board upon its own motion, and sholl be required by the Board
upon written petition of any person deeming himself aggrieved., to show cause
why such approval should not be withdrawn and such.permitrevoked; provided,
however I that no such order to show cause shall be issued for failure to
commence construction within 24 months, after such cQnstruction has in fact
commenced E!ven though commenced after the expiration of such 24-hour period~
1. Upon the determination by I'he Board or petition by such Person to require
the holder of such permit to show cause pursuant to the provisions of this
paragraph, the Boord shall set the same for public hearing, and cause
written notice thereof to be sent by registered mai ,,, to the permit hol der
and to be published according to law. Such notice shall name a day not
Less than ten days after the dote such notice is mai I ed and after the publ i catj on
oF-notice of the dote when such hearing will be held.
2. If after such heari"ng, upon evidence publicly.presented to the Board by
members of the publ ic or officers or employees of the T own, including
members of the Board, present in person at such hearing, the Boord shall
find that the holder of the pemit in question has failed to commence con-
stroction of the Shopping Center within twenty-four months from the dote
the Improvement Location Permit was issued, has failed to corry to completion
thirty per cent (30%) of the total Development Plan within three years aFter
said date, or has failed materially to conform to the provisions of the
Developmentpron and supporting data finally approved by the Board and
upon the basis of which such Improvement Location Permit was issued, the
Board shall withdraw ii"s approval of such Development Plan and order such
permit revoked, provided, however, that the Boord may, jf it deems such
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failure correctible within 0 period of six (6) months, extend the
time within which such permit holder may purge himself of such
fei lure for nCit longer tha'n such period,' during which period such
hearing shall be continued to a day certein at the .end thereof.
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E. Not more than one Improvement location permit fer each IIB411 :Oi'strict
symbol on the Zone Map may be issued and outstanding at anyone time.
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F. In the event the Boord shall revoke an Improvement location Permit under the
authority of Paragraph D, hereof, it may thereafter grant approval for another
shopping center development i'n the same uB41l District subject to all of the
provisions and requirements of thi's Ordinance.
G. The holder-'afanlmprcvement Location Permit for Shopping Center may apply
to the Boord-tit anytime foran alteration, change, amendment or extension
of the Development Plan upon which such permit is based 0
1. . Upon receipt of'such application', the Board shall proeeedas in the case
ofoi-iginaLappl ications for..an Improvement Location Permit for,a Special
Except i'on.
2. In the event the Board shallapprt>ve and order such DevelopmentP'lan
changed,altered; amended or extended., it shall so notify the Building
Commissioner who shall issue an amended Improvement Location Permit
accordingly.
H. No land shell beoc'cupied or used and no Bui Iding hereafter erected; reconstructed
or'SfructurallyAltered shall be occupied or used, in whole or in part, for any
purposeiwhatsoever, unti I a Certifi cote of Occupancy sholl have been iSsued by
the'Building Commissioner stating that the Building and Use comply with all of
the provisions of this Ordinance applicable'to the Building or premises or' the Use
in the District in which it i's to be locoted.
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Upon completion'of the improvement covered by the Improvement Location Permit,
the Building Commissioner shall inspect the premises., _and, if his inspection.shall
reveal that the improvement has been completed in substantial conformity with the
site plan, and "Certificate of Compliance II when required, submittedp\Jrsuant to
Paragraphs A and C of this Sectioniand any approved. amendments thereto, shall
issue a Certificate of Occupancy.
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10 No'change shall be made in the use of land (except farm) or in the use oLany
Building or port there'of1 now or hereafter erected~ reconstructed or Structurally
Altered, without a Certificate of Occupancy having been issued by the BlJilding
Commissioner, and no such permit shall be issued.to make such change unless it
is in conformity with the provisions of this Ordinance.
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J. A Certificate of Occupancy shall be applied for coincidentally with the
application For on Improvement Location Permit and shall be issut;ld within
ten (10) days after the 'lawful erection, reconstrucHon or Structul"al Alteration
of such Building or other '1mprovement of the land shall have been completed..
K. A record of 011 Certificates of Occupancy shall be kept on File in the office of
the Building Commi'ssioner and copies shall be Furni'shed 'upon request to any
Person having a proprietary or tenancy interest in the Building or land affected.
L. No Improvement Location Permit shall be issued for excavation for or the erection,
reconstruction or Structural Alteration, of any Sui Iding, beFore application has
been made for 0 Cert i Ficate of Occupancy.
Sectj otl22.
.~
BOARD OF ZONING APPEALS. A Board of Zoning Appeals is hereby established with
membership and appbintment provided in accordance with ,Section 66 to 69 inclusive of
Chapter 174 of the Ads of Indiana General Assembly of 1947 and all acts now or hereafter
amendatory thereto.
A. At the first me:eting of each year, the Board shallelect.a chairman and a vice-
chairman Fi-om among its members, and it may appoint and fix the compensation
of a secretary.andsuch employees as are necessary for the discharge of its duties,
011 in conformity to and compl iance with salaries and compensation theretofore
fixed by the Town Board.
Bo The Board shall adopt rules and regulations as it may deem necessary to effectuate
the provisions of this Ordinance.
C. All meetings of the Boord :shall be open to the public. The Board sholl keep
minut~s of its proceedings~ keep records of all examinations and other official
actions" prepare findings, and record the vote of each member voting upon
each question. All minutes and records shall be filed in the office of the Board
and shall be of pub I ic record.
D. Any decision of the Building Commissioner in the enforcement of this Ordinance
may be appealed to the Boord by any Person claiming to be adversely affected
by such decision.
E. The Boord sholl hove the Following powers and it shall be its duty to':
1. Hear and determine appeals From and review any order, requirement, decision
or determination made by the Building Commissioner in the enforcement of
this Ord i nonce.
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SPONSORED BY:
COUNCILORS KOVEN, SNYDER
AND WILSON
ORDINANCE NO. C-214
AS AMENDED
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AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF
CA.RlVlEL, INDIANA, ANNEXING CERT Am TERRITORY TO
THE CITY OF CARMEL, INDIANA, PLACING THE SAl\tIE
WITHIN THE CORPORA nON BOUNDARIES THEREOF AND
MAKING THE SAME A PART OF THE CITY OF CARl\1EL
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WHEREAS, well defmed long term planning benefits the City of Carmel ("City") and the
community at large; and
WHEREAS I in recognizing the need and benefit of long term planning, the Common
Council of the City of Cannel, Indiana ("Council") is desirous of annexing a certain portion of
Clay Township into the City of Cannel (the "Annexation Territory"); and
WHEREAS, the Annexation Territory is contiguous to the existing city limits of the City ,
of Carmel; and
WHEREAS, a map describing the boundaries of the Annexation Territory is attached
hereto and incorporated herein as Exhibit A; and
WHEREAS, a legal description of the Annexation Territory IS attached hereto and
incorporated herein as Exhibit B; and ,
WHEREAS, the Annexation Territory consists of approximately 855 acres; and
WHEREAS, tbe Annexation Territory is needed and can be used by the City for its
development in the reasonably near further; and
WHEREAS, responsible planning and state law require adoption of a fiscal plan and a
defrnite policy for the provision of certain services to annexed areas; and
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WHEREAS, prior to the publication and issuance of notice of public hearing, this
Council, by resolution, will adopt a written fiscal plan and definite policy for the provision of
services of both a non-capital and capital nature to the Annexation Territory; and
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WHEREAS, the written fiscal plan and definite policy adopted by resolution will include
the provision of services of a noncapital nature to the Annexation Tenitory within one year after
the effective date of this annexation in a manner equivalent in standard and scope to those
noncapital services provided to areas within the current corporate boundaries, regardless of
similar topography, patterns ofland use, and population density; and
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SPONSORED BY:
COUNCILORS KOVEN, SNYDER
AND WlLSON
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WHEREAS, the written fiscal plan and definite policy adopted by resolution will include
the provision of services of a capital nature to the Annexation Territory within three years after
the effective date of this annexation in the same manner those services are provided to areas
within the current corporate boundaries,. regardless of similar topography, patterns of land use,
and population density and in a manner consistent with federal, state and local laws, procedures,
and planning criteria and consisted with the annexation policy previously adopted by this
Council; and
WHEREAS, prior to the final adoption of this Ordinance, the Council will have
conducted a public hearing pursuant to proper notice issued as required by law; and
WHEREAS, the Council finds that the annexation of the Annexation Territory pursuant
to the terms of this Ordinance is fair and equitable and should be accomplished.
NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of
Carmel, Indiana, as follows:
] . The above recitals are incorporated herein by reference as though fully set forth herein
below.
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2. In accordance with I.e. 36-4-3-4, the Annexation Territory is hereby annexed to'the City
of Cannel and thereby included within its corporate boundaries pursuant to the terms of
this Ordinance.
3. The Annexation Territory is assigned to Cannel Common Council District No.5.
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4. All prior Ordinances or parts thereof which may be inconsistent with any provision of
this Ordinance are hereby repealed. The paragraphs, sentences and words of this
Ordinance are separable, and if any portion hereof is declared unconstitutional, invalid or
unenforceable by a court of competent jurisdiction, such declaration shall not affect the
remaining portions of this Ordinance.
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5. This Ordinance shall be in full force and effect from and after the date of its passage and
signing by the Mayor and such publication and recordation as is required by law.
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SPONSORED BY:
COUNCILORS KOVEN, SNYDER
AND WILSON
~. SSED by the Common Council of the City of Carmel, Indiana, this /1~daY of
(; ~ J. . 2002, by a vole of UJ ayes and n. nays.
COMMON COUNCIL FOR THE CITY OF CARMEL
...
.lLh1surt
resident Pro Tempore
ATTEST:
UOf- f~
N.L..RundlexL~
~
Presented by me t9f~~~ !,-fayor of the City of Cannel, Indiana thi~day of
,2002,at~P.M.
Diana L. Cor, , Cle . Treasurer
A~ved by me, Mayo' of the City of Carme~ Indiana, this2/~ of. X /l t"" _
2002, at 7] P.M. ~ ~~ .
es Brainard, Mayor
ATTEST:
Prepared By: Sue A. Beesley
Bingham McHale LLP
] 100 Chamber of Commerce Bldg.
320 N. Meridian Street
Indianapolis, Indiana 46204
279413
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Annexaflo Area SA
Amut:JtlGn _ DSQ
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EXHIBIT B
LEGAL DESCRIPTION
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Begir.ning at the point of intersection of the west right of way limi! of Gray Road with thfl
southern boundary of parcd nlimber 17 I ~ Og 00 00 011 (which is currently coincident with the
corporate limits of the City of Carmel),
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thtm proceeding wesn\'ard along the southern bOill1dary of said p3fcd to thtl southw@st comer of
said parcel)
then proceeding westward along the southern boundary ofparc@ll? 14 OS 00 00012 002 to tho
soutlr,,,~t comer of said parQ€l,
then pr:Joeeding northward along th@ west@rn boundar)' of parcel 17 11 08 00 00 012 001 to the
northwest comer of said para@l, which is coincident with th@southwest comer of parcel 17 14
08 00 00 012 001,
then pro~eding northward along the ',,,estern bOW1daf)' of parcell? 14 08 00 00 012 001 to the
northv.'8st corner of said parcel,
then proceeding generally north'Nard, westv!ard, eastv./ard and northward, along the southern and
Vi@st@rn boundaries of parcel 17 1'1 08 00 00 011 001 and the western and northern boundaries
of parcel number 17 11 0& 00 00 011 to the southwest comer ofparce117 H OR 0000 008 (aJI
of which coincide with the current corporat@ boundaries of the City of Carmel)
then proceeding northward along the western boundary ofparcel number 17 14 OS 00 00 008 to
the point of intersection \\lith the southern right of way line of 1 06~ Stre€t ('Nhieh is also
coincident with the corporate boundaries of the City of Carmel),
then proceeding generally @ast\vard aJong the current corporate boundari05 of the City of Carmel
(coincident '''lith the south right of 'Nay line af 106th Street) to the point of intersection with the
eastern right of way line of Gray Road ('.1,'hich also c(jin~ides ',vith the corporate limits of the
~
then proceeding northward, along the eastern right of way line of Gray road, to !hill point of
intersection "lith the northern boundary of paFCel 17 1'1 04 00 00 0 19, .
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then proceeding easn'iard, north'Nard and eastward along the corporate limits of the Cit)' of
Cannel (which also coincides 'Nith the northern and \vestem bOlmdaries of parcel number 17 14
04 00 00 019 to the point ofintBrsection \\~th the southern boundary of parcel number 17 14 ()11
00 00 Q1S,
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then proceeding Eorthward, along the current corporate limits of the City of Carm@l (which
coinC1id~s '.vith the western boundaritls of parc@ls 17 1 tJ 04 00 00 0] g and 17 11 01 00 00 007 to
the point of ml@rs@ction with thB southern right of way linlll of 116tA Strl:'et (which is also
coincident with the corporate bOlmdmies of the city of Carm@l.
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then proceeding eastward, aloag-ilie corporate boundaries of th@ City of Canlll~1 (whi"h is
geDElrally coincident vAlli the southern right of 'Nay lim~ of 1161b 8trtl~t), to the point of
intersection '.,1th thtl Wtlsttlrn rigRt of way line of Hazel Dell ParkvlaY (which is also coincident
'}lith the corporate limits ofthe City of Carm@I),
then proceeding generally southward, along the western right of 'Na)' lin@ of Hazel D@ll Park'Nay
(v{IDch 0oincid0S with the corporat@ limits of th~ City), to the point of inters~ction with tlw
southern bOl:IDdory of Hamilton County ('Nhich gen@rally coincides with--ge~ Street),
th€H procHl0ding V,'@€tward, along th@ south€rE boundary of Hamilton County to the point of
mtersection "'1th the @astern right of \,,'ay line of Gray Road (which coincides with th€ corporato
boundaries ofilia City of Carmel),
then proceeding northward, aJong the corporate bcnmdarlils Qf the city 0f Carmel (generally
winciding '.vith the eastern right of way line of Gray Road) to a point dir@ctly east of th@
southeast comer of parcel number 17 14 08 00 00 014.000,
th~n weshvard to the point ofb.:lginning,
and induding aU adjacilnt public road right of 'Nay inside Hamilton County which has not been
previously ar.n@x~d by th~ City of Cam1@l.
R~y!~~p-LEGAL DESCRIPTION ~lj)
part of the East Half of Section 8: Part of Section 4: and part of the West Half of Section 9. all in
Township Section l7 North. Ralll!e 4 East. Clav Township. Hamilton County. Indiana. beine
more particularly described as follows:
BeginninlZ at the Doint of intersection of the west Ii I!ht of way line of Grav Road with the
southern boundary of Darcel number 17-14-08-00-00-0] 4 (which is currently coincident with the
comorate limits ofllie City ofCanneJ).
then oroceeding westward alan!! the southern boundary of said Darcel to the southwest corner of
said parcel.
then oroceeding westward along the. southern boundary of Darcel 17 -14-08-00-00-0 12~002 to the
southwest comer of said Darcel.
then proceeding northward along the western boundary of Darcel 17 ~ 14-08~OO-00-0 12-002 to the
northwest comer of said DarceL which is coincident with the southwest comer of Darcel 17-14-
08-00-00-0 I 2-00 1.
then Dfoceeding northward alonQ the western boundary of parcel 17-14-08-00-00-012-00 I to the
northwest corner of said parcel.
then oroceeding generally northward. westward. eastward and northward. along the southern and
western boundaries of Darcel 17-14-08-00-00-011-001 and the western and northern boundaries
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of parcel number 17-14-08-00-00-011 to the southwest comer of parcel 17~14-08-00-00-008 (all
of which cOIncide with the current comorate boundaries of the City of Carmen
/
then nroceedinl! northward alonQ the western boundary of Darcel number 17-14-08-00-00-008 to
the northwest comer of said parcel.
then oroceeding directly northward to the noint of intersection with the centerline of 1061n Street
(which is also coincident with the comorate boundaries of the City of Carmen.
then DToceeding generaH y eastward along the current coroornte boundaries of the City of Carmel
(coincident with the centerline of 106tIJ Street) to the point of intersection with the southward
extension of the eastern dEht of way line of Gray Road (which also coincides with the corporate
limits oftbe Citv),
then Dfoceedinl! northward. along the eastern right of way line of Gray road. to the point of
intersection with the northern boundary ofparceI17.14~04-00-00-019.
then proceeding eastward. northward and eastward along the comorate limits of the City of
Cannel {which also coincides with the northern and western boundaries of parcel number 17-14-
04-00-00-019 to the point of intersection with the southern boundary of parcel number 17-14-04-
00-00-018.
then oroceedinl! northward. alonQ the current comorate limits of the City of Carmel {which
coincides with the western boundaries of parcels 17-14-04-00-00-018 and 17-14-04-00-00-007 to
the point of intersection with the southern right of way line of 116m Street (which is also
coincident with the comorate boundaries of the city of Carmel,
then proceeding eastward, along the corporate boundaries of the City of Cannel (which is
lZenerallv coincident with the southern right of way line of 116m Street), to the point of
intersection with the western rit!ht of way line of Hazel Dell Parkway (which is also coincident
with the comorate limits of the City of Cannell.
then DroceedinK-generallv southward. alone: the western right ofwav line of Hazel DellParkwav
(which coincides with the comorate limits of the City). to the DOint of intersection with the
southern boundary of Hamilton Count V (which generally coincides with 96th Street),
then oroceedinrr westward. alan!! the southern boundary of Hamilton County to the wint of
intersection with the centerline of Gray Road (which coincides with the corporate boundaries of
the City of Carmen.
then proceeding northward. along the corporate boundaries of the city of Carmel (generallv
coincidin!! with the centerline of Grav Road) to a point directly east of the southeast corner of
parcel number] 7-14-08-00-00-014.000.
then westward to the point of beginning, containing 855 acres. more or Jess.
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and including all adiacent Dublic road right of way inside Hamilton Countv which has not been
oreviouslv annexed bv the City of Cannel.
279413
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