HomeMy WebLinkAboutCause No 29D05-0411-MI-2783
STATE OF INDIANA
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WilLIAM D, McEVOY, )
GREGORY M. POLlCKA, )
SUSAN BECKER, )
REX ,A WEIPER, )
RENE PIMENTEL, )
DONALD K. CRAFT, )
Petitioners, )
v. )
)
CARMEL/CLAY ADVISORY BOARD OF ZONING APPEALS, )
Respondent. )
TO DEFEN DANT:
Carmel/Clay Advisory Board of Zoning Appeals,
in care of the Department of Community Services
Carmel Town Hall
Carmel, IN 46032
You are hereby notified that you have been sued by the person named as plaintiff and in the Court
indicated above.
The nature of the suit against you is stated in the complaiht, which is attached to this Summons. It
also states the relief sought or the demand made against you by the Plaintiff.
An answer or other appropriate response in writing to the complaint must be filed either by you or
your attorney within twenty(20) days, commencing the day after you receive this Summons, (or twenty-
three(23) days if this Summons was received by mail), or a judgment by defaultmay be rendered against you
for the relief demanded by plaintiff.
If you have a claim for relief against the plaintiff arising from the same transaction or occurrence, you
must assert it in your written answer.
If you need the name of an attorney, you may contact the Indianapolis Bar Association lawyer
Referral Service (269-2222), or the HAMilTON County Bar Association lawyer Referral Service (634-3950).
The telephone number and address for this Court are 317.327.4222, City County-Building, Rm. W-406, 200
East Washington St., Indianapolls, IN 46204. ~ 5
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Dated: f 'A-.I( .. . 04 Clerk, HAMil T RiO~':J~bUR?
The following manner' of Service of Summons is hereby designated.
xx Registered or Certified Mail
Service on Individual
Service at Place of Employment, to wit: .,
Private Service .~~ 0'
Philip C. Thrasher, Esq, Atty N " 1075-49
THRASHER BUSCHMANN GRIFFITH & VOELKEL, P.C,
151 N, Delaware St., Ste. 1 900
Indianapolis, IN 46204, (317) 686-4773
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ST ATE OF INDIANA
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HAMILTON COUNTY SUPERlOR C
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COUNTY OF HAMIL19~, H!~',f"\'V:" ~,':::~Ii 1 ~:>kUS'E NO. .' -.. .' . . 1\ Ll.- 01. l
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William D. McEvoy, Gregory M. Policka, Susan
Becker, Rex A. Weiper, Rene Pimentel, and Donald
K. Craft
v.
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)
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Petitioners,
(Appellant Intervenors, below)
CARMEL/CLAY ADVISORY BOARD OF ZONING APPEALS,
Respondent.
NOTICE OF FILING PETITION FOR WRIT OF CERTIORARl TO REVIEW
DECISION OF CARMEL/CLAY ADVISORY BOARD OF
ZONING APPEALS AND SHOW CAUSE ORDER
TO: ALL ADVERSE PARTIES OF RECORD AND CARMELlCLA Y ADVISORY
BOARD OF ZONING APPEALS
You, and each of you, are hereby notified that the Petitioners! Appellant Intervenors in the
above and foregoing entitled action have filed their Petition for W fit of Certiorari on behalf of said
Petitioners! Appellant Intervenors herein, within thirty (30) days of and from the date and entry of
the decision and order by the Cam1ellClay Advisory Board of Zoning Appeals in Docket No.
04060001 A_, said decision and order being dated October 25, 2004, and affecting the premise'S
located at an commonly described as Martin Marietta Materials, Iuc.'s Cam1el Sand and Gravel
Plant located approximately at l06th Street and Hazel Dell Parkway, Cannel, Indiana, which
decision ratifying the Letter of Determination and allowing the Carmel Sand Plant to continue in
operation. The said Petition for Writ of Certiorari has been filed in the Superior Court of Hamilton
County, under the cause number and caption as set forth above and prays that a citation issue for
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respondent Cannel/Clay Advisory Board of Zoning Appeals to show cause why a Writ should not
issue herein, and further prays that the decision of the Carmel/Clay Advisory Board of Zoning
Appeals be reversed and declared illegal, unconstitutional and without force and effect.
You are further notified that the Respondent, Carmel/Clay Advisory Board of Zoning
Appeals, is hereby ordered pursuant to this notice that it is to show cause, if any it may have, on or
before the 91ft.... day of ,J!1u.P~.N2.--t, 2005 at ~,' / '1 o'clock -f2.m., why a Writ of
Certiorari to review said decision of said Carmel/Clay Advisory Board of Zoning Appeals should
not issue.
Date:
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Judge, Hamilton Superior Comi
SHERIFF: Please serve a copy to each of the following:
Martin Marietta Materials, Inc.
c/o CT Corporation System, Registered Agent
251 E. Ohio Street
Suite 1100
Indianapolis, Indiana 46204
Mr. Zeff 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 46032
Mr. Thomas Yedlick,
5053 St. Charles Place
Carmel, IN 46033
Carmel/Clay Advisory Board of Zoning Appeals,
in care of the Department of Community Services
Carmel Town Hall
Carmel, IN 46032
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ST A TE OF INDIANA
COUNTY OF HAMILTON ;u:r~f:,Hi\:ic{IL\ CQl\USECttllJOS
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William D. McEvoy, Gregory M.'polick~, Susan
Becker, Rex A. Weiper, Rene Pimentel, and Donald
K. Craft
Petitioners,
(Appellant Intervenors, below)
)
)
)
)
)
)
)
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)
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v.
CARMEL/CLAY ADVISORY BOARD OF ZONING APPEALS,
Respondent.
ORDER TO SHO\V CAUSE
Petitioners/Appellant Intervenors William D. McEvoy, Gregory M. Policka, Susan Becker,
Rex A. Weiper, Rene Pimentel, and Donald K. Craft (the "Petitioners"), having filed their Verified
Petition for Writ of Certiorari ("Petition") in this action, and the Court, having reviewed the Petition,
and being duly advised, NOW FINDS that the Cannel/Clay Advisory Board of Zoning Appeals
("BZA") should be directed to show cause why a Writ of Certiorari should not issue to the BZA.
IT IS THEREFORE ORDERED that the BZA shall show cause within twenty (20) days from
the date of the Petition why a Writ of Certiorari should not issue to the BZA, and the Sheriff of
Hamilton County, Indiana, is ordered to serve a coy of this Order, together with copies of the
Verified Petition for Writ of Certiorari and Notice (of the filing of the Petition) upon the the
members of the BZA, Martin Marietta Materials, Inc., ZeffWeiss, Thomas Yedlick, and upon the
D. irector of the Department of communit4Servi es of Cam)o/, Iia. n1~ . unty,
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Dated: /1-/ q -0,/ ~ t. ...rtA
J11 GE, HamIlton Supenor Court
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copies to:
Martin Marietta Materials, Inc.
c/o CT Corporation System, Registered Agent
251 E. Ohio Street
Suite 1100
Indianapolis, Indiana 46204
Mr. Zcff A. Weiss, Esq.,
Ice Miller
One American Square,
Box 82001, Indianapolis, IN 46282-0002
Mr. Michael Hollibaugh, Director,
Department of Community Services,
CalmcI Town HaU, Carmel, IN 46032
Mr. Thomas Yedlick,
5053 81. Charles Place
Carmel, IN 46033
Carmel/Clay Advisory Board of Zoning Appeals,
in care of the Department of Community Services
Carmel Town Hall
Carmel, IN 46032
Philip C. Thrasher, Esq.
Thrasher Buschmann Griffith & Voelkel, P.c.
151 N. Delaware Street
Suite 1900
Indianapolis, Indiana 46204
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STATE OF INDIANA10n~ WJ\~ \ 9 1~1<1~; \ 9
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COUNTY OF HAMJ~rJP~~,ti',il)n CL'rJ\ COUF!.TS
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WILLIAM D. MCEVOY,c-~(~"'-'--'l--:"'/<"-- J
GREGORY M. POLlCKA,
SUSAN BECKER,
REX A. WEIPER,
RENE PIMENTEL,
DONALD K. CRAFT,
CAUSE NO.
Petitioners,
v.
CARMEL/CLAY ADVISORY BOARD OF ZONING APPEALS,
Respondent.
APPEARANCE BY ATTORNEY IN CIVIL CASE
Party Classification: Initiating x
Responding
Intervening _
1. The undersigned attorney and all attorneys listed on this form now appear in this
case for the following party member(s):
WILLIAM D. MCEVOY, GREGORY M. POLlCKA,
SUSAN BECKER, REX A. WEIPER,
RENE PIMENTEL and DONALD K. CRAFT
2. Applicable attorney information for service as required by Trial Rule 5(B)(2) and
for case information as required by Trial Rules 3.1 and 77(B) is as follows:
Name: Philip C. Thrasher Atty Number: 1075-49
Address: Thrasher Buschmann Griffith & Voelkel, P.C. Phone: (317) 686-4773
151 N. Delaware St., Ste. 1900 FAX: (317) 686-4777
Indianapolis, IN 46204-2505 Computer Address: thrasher@indiana-attorneys.com
3.
There are other party members: Yes
No X
(If yes, list.)
4. If first initiating party filing this case, the Clerk is requested to assign this case the
following Case Type under Administrative Rule 8(b)(3):~
5.
I will accept service by FAX at the above noted number: Yes
No X
6. This case involves support issues. Yes
security numbers for all family members.)
No X
(If yes, supply social
;:J.
7.
There are related cases: Yes
No X
(If yes, list Caption and Case No.)
8. This form has been served on all other parties. Certificate of Service is attached:
Yes No X
9. Additional information required by local rule:
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Philip C. Thrasher ~
Attorney information shown above
Authority: Pursuant to Trial Rule 3.1 (B), this form shall be filed upon the first appearance in the case. In
emergencies, the requested information shalf be supplied when it becomes available. Parties shafl advise the
court of a change in information previously provided to the court. This format is approved by the Division of
State Court Administration.
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STATE OF INDIANA
ZDO~ ~!OV 19
COUNTY OF HAMIL T@NiK, Ii'!: l.:l'-:"~:"l 1,~.~uiDA:Q1.SIffiNO.
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William D. McEvoy, Gregory M. Policka, Suian )
Becker, Rex A. Weiper, Rene Pimentel, and Donald )
K. Craft )
)
Petitioners, )
(Appellant Intervenors, below) )
)
v. )
)
CARMEL/CLAY ADVISORY BOARD OF ZONING APPEALS, )
)
Respondent. )
VERIFIED PETITION FOR WRIT OF CERTIORARI
TO REVIEW DECISION OF BOARD OF ZONING APPEALS
William D. McEvoy, Gregory M. Policka, Susan Becker, Rex A. Welper, Rene
Pimentel, and Donald K. Craft (the "Petitioners"), by counsel, petition this Court
pursuant to Ind. Code 9 36-7-4-1003 for a writ of certiorari to review the action of the
Carmel/Clay Advisory Board of Zoning Appeals ("the BZA") taken October 25, 2004, in
which the BZA denied the Application for Board of Zoning Appeals Action-Appeal
Request, filed on July 15, 2004 by Thomas Yedlick (the "Appeal Application"), and
denied the requests of the Petitioners in their Notice of Intervention filed July 23, 2004
(the "Notice of Intervention"), both of which appealed the decision of the Director (the
"Director") of the Department of Community Services of the City of Carmel (the "DOCS")
that a certain use was a legal non-conforming use. The Appeal Application and Notice
of Intervention were combined and docketed before the BZA as No. 04070020 A (the
"Appeal").
~~...
In support of this petition, Petitioner states:
1. On December 16, 2003, Thomas Yedlick (HYedlick") filed a letter ("Complaint")
with the DOCS alleging that a certain sand and gravel processing plant located
north of 1 06th Street and west of Hazel Dell Parkway, Carmel, Indiana (the-
"Carmel Sand Plant") was being operated as an illegal nonconforming use by
Martin Marietta Materials, Inc. ("MM"), successor by merger to American
Aggregates Corporation, the nominal owner of the Land and the Carmel Sand
Plant. The basis for this allegation was that MM was importing raw sand and
gravel aggregate from off-site for processing, storage, and sale in violation of the
applicable zoning. Yedlick further alleged that such processing constituted a
commercial manufacturing activity not permitted by the current zoning.
2. The land in question contains approximately 70 acres, now covered mostly with a
lake but with the Carmel Sand Plant located in the middle of the tract. The tax
parcel number for the Land is 1714040000018.00, in the City of Carmel, Clay
Township, Hamilton County, Indiana (hereinafter, the "Land").
3. On or about June 11, 2004, the DOCS submitted to the BZA the question of
whether or not or not the use of the Carmel Sand Plant was a legal
nonconforming use to the BZA. The DOCS docketed the case as Docket No.
04060001 A. The Petitioners and MM intervened in such action.
4. Following a pre-hearing conference, the Director withdrew Docket No. 04060001
A and issued a letter dated June 24, 2004 (the "Letter of Determination"), stating
in pertinent part:
2
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.
Letter of Determination, page 1, a true and accurate copy of which is attached
hereto and incorporated herein.
5. On July 15, 2004, Yedlick filed his Appeal Application. The Appeal was docketed
for the BZA as Docket No. 04070020 A.
6. On July 23, 2004, the Petitioners, by counsel, filed their Notice of Intervention in
Docket No. 04070020 A. MM intervened in the matter on August 17, 2004.
7. At the October 13, 2004 hearing, despite requests from the Petitioners for
additional time, the BZA adopted a special rule limiting the time for presentation
of evidence to 15 minutes per party, permitting cross-examination of witnesses at
the end of each presentation, and allowing five minutes per party for rebuttal and
summation. Counsel for the Petitioners timely objected to these time constraints
on the grounds that it did not allow sufficient time for presentation of the large
amount of evidence that was available and necessary for a full and fair hearing of
the Appeal. Such objection was overruled.
3
8. At the conclusion of the presentation of evidence by all parties, the BZA
continued the hearing to October 25, 2004 for the purpose of analyzing the
testimony and written materials provided by the parties and to prepare questions
for the parties to be answered at the October 25, 2004 hearing.
9. Before 4:00 p.m. on October 21, 2004, the Petitioners filed their Post-hearin;J
Brief dated October 20, 2004 with the DOCS, which functions as the office of and
for the BZA, and requested that the Post-hearing Brief be forwarded to the
members of the BZA.
10. The DOCS, the Respondent in the Appeal, refused to forward the Petitioners)
Post-hearing Brief to the BZA, so the Post-hearing Brief was not received by any
member of the BZA prior to the October 25, 2004 hearing.
11. At the continued hearing on October 25, 2004, the Petitioners requested that the
DOCS provide to each BZA member a copy of the Petitioners' Post-hearing Brief.
Petitioners then filed an Objection to the withholding of the Post-hearing Brief.
.,
This request and Objection were denied and the BZA elected to proceed to a
conclusion on the Appeal without the benefit of reviewing the Petitioners' Post-
hearing Brief.
12. At the conclusion of the October 25, 2004 hearing on the Appeal, the BZA voted
three to one to deny the Appeal, thereby ratifying the Letter of Determination and
allowing the Carmel Sand Plant to continue in operation.
13. The Petitioners are aggrieved by the BZA's decision affirming the Letter of
Determination, allowing the continued operation of the Carmel Sand Plant on the
Land.
4
14. The actions of the BZA are illegal for the following reasons:
14.1. Violation of Procedural Due Process-Inadequate Time for Presentation
of Evidence at the Hearing: The limitation of presentations by the
BZA was arbitrary, capricious, and an abuse of discretion because it
effectively eliminated the presentation of most of the evidence available
from the PetitIoners. Having granted an evidentiary hearing, it was
arbitrary, capricious, an abuse of discretion, and a violation of the
constitutional rights of the Petitioners, for the BZA to restrict artificially the
presentation of relevant evidence by the Petitioners. Further, the BZA
permitted only five minutes for rebuttal and summation at the conclusion of
the October 13, 2004 hearing, thereby effectively limiting proper rebuttal,
summation, and legal argument by the Petitioners. The adoption of the
temporary rule limiting the time for presentation and analysis of evidence
by the BZA caused the BZA to be poorly informed concerning the facts
and issues in the Appeal, caused great prejudice to the Petitioners, and
resulted In an incorrect and illegal decision.
14.2. ViolatIon of Due Process-Withholding of Information from the BZA by the
DOCS: The BZA, by its administrative arm, the DOCS, arbitrarily, in
abuse of its discretion, illegally, in violation of the constitutional rights of
the Petitioners to a fair hearing, in excess of its statutory authority, and in
violation of BZA rules, withheld delivery of the Petitioners' Post-hearing
Brief on October 21, 2004 from the members of the BZA. The Post-.
hearing Brief was the Petitioners' response to the new issues raised for
5
the first time by MM at the October 13, 2004 hearing and would have
provided necessary analysis and information concerning such new issues
that the BZA otherwise did not receive. By illegally withholding such
information, the members of the BZA were unable to make proper
inquiries of the parties at the October 25, 2004 hearing, resulting in great
prejudice to the Petitioners and an arbitrary, capricious, and illegal
decision. By refusing to consider the Post-hearing Brief at the October 25,
2004 hearing, the BZA acted arbitrarily, capriciously, in abuse of its
discretion, and in violation of the Petitioners' constitutional rights to a fair
hearing.
14.3. The Upholding of the Decision by the DOCS Is Unreasonable and
Unsupported. The failure by the BZA to overturn the Letter of
Determination is arbitrary, capricious, an abuse of discretion, not in
accordance with law, and unsupported by substantial evidence. The
Director of the DOCS failed to demonstrate in his testimony before the
BZA that the decisions set forth in the Letter of Determination were
supported by any credible evidence. The Director's brief testimony at the
hearings did not include any exhibits or witnesses from which it could be
concluded that the Director had analyzed the prior use of the land that is
the subject of the Appeal or its lack of compliance with prior ordinances.
Further, the Director submitted no documentary information whatsoever.
Therefore, the Letter of Determination is without legal or factual basis and
should have been overturned by the BZA.
6
14.4. The Nonconforming Use is Illegal. By refusing to overturn the Letter of
Determination, the BZA approved the contents thereof, which include a
statement that the use of the Land is a legal, rather than illegal,
nonconforming use. Such approval is arbitrary, not in accordance with
law, and unsupported by substantial evidence, and is therefore illegal.
Contrary to the decision of the BZA, the overwhelming evidence
establishes that the use of the Land for mining and the Carmel Sand Plant
have been illegal since the commencement of mining thereon and
construction of the Carmel Sand Plant, and that such uses continue to be
illegal because they have never complied with any applicable ordinance,
past or present. The failure of the BZA to hold such uses to be illegal is
itself illegal.
14.5. Failure to Prove Legal Nonconforming Use Status Based on Ind. Code S
36-7 -4-1103. The determination by the BZA that the Land is not in an
"urban area" for purposes of Ind. Code S 36-7-4-1103 is not in accordance
with law and therefore is illegal. Further, because the evidence clearly
demonstrates that the Land was always a part of an urban area, such
statute would not apply and reliance thereon by the BZA is unsupported
by substantial evidence and not in accordance with law.
14.5.1. Failure to Prove Change of Zoning Status by Agreement. Reliance
by the BZA on two different agreements entered into by and between
American Aggregates Corporation and the City of Carmel in 1997 (the
"1997 Agreement") and Martin Marietta Materials, Inc., the City of Carmel,
7
and others in 2002 (the "2002 Settlement and Release Agreement") to
essentially permit contract zoning, is arbitrary, capricious, and a violation
of constitutional rights in Indiana. The BZA held these Agreements
estopped the City of Carmel from asserting that the Carmel Sand Plant
was not a legal conforming use. The BZA also found that these
Agreements changed the zoning status of the Carmel Sand Plant from an
illegal to a legal nonconforming use. Reliance on such Agreements is
improper because (a) contract zoning is not permitted in Indiana; (b)
neither of the Agreements in question were executed by a division of
government empowered to change zoning status, being the BZA, the
Carmel/Clay Advisory Plan CommiSSion, or the Common Council of the
City of Carmel; and, (c) the 2002 Settlement and Release Agreement by
its own terms does not purport to control the authority of the BZA or
Carmel/Clay Advisory Plan Commission.
14.6. Failure to Prove a Permitted Use Based on Carmel/Clay Zoning
Ordinance Subsection 28.01.06. The determination by the BZA that
Subsection 28.01.06 of the Carmel/Clay Zoning Ordinance, set forth
below, is applicable is arbitrary, capricious, and illegal:
28.01 Legal Nonconforming Use Specifications.
A legal nonconforming use may be continued, although such
use does not conform to all the provisions of this Ordinance,
as hereinafter provided:
8
28.01.06 Existing uses eligible for special use approval shall
not be considered legal nonconforming uses nor require
special use approval for continuance but shall require
special use approval for any alteration, enlargement or
extension.
Carmel/Clav Zoning Ordinance, 9 28.01.
At the hearing, MM and the DOCS failed to establish that the use was
originally a legal nonconforming use. Having failed to prove such status,
Subsection 28.01.06 is inapplicable. To the extent the BZA decision is
based on this Subsection, its decision is arbitrary, capridous, not in
accordance with law, and unsupported by substantial evidence.
14.7. Construction of the Carmel Sand Plant In 1992 Was an Illegal Expansion
of a Nonconforming Use. In the alternative, if the BZA found, arquendo,
that mineral extraction prior to construction of the Carmel Sand Plant was
legal, the construction of a large sand and gravel processing plant on the
Land in approximately 1992 represents an illegal expansion of such use
because no buildings or other improvements are to be constructed within
legal nonconforming uses without permits from the City of Carmel. No
such permits were requested or approved. To the extent the BZA found
that the construction of the Carmel Sand Plant was a legal expansion of
the prior use, its decision is arbitrary, capricious, not in accordance with
law, and unsupported by substantial evidence.
9
14.8. Operation of the Carmel Sand Plant is an Illegal Change of a
Nonconforming Use. In the alternative, if the BZA found, arquendo, that
mineral extraction prior to construction of the Carmel Sand Plant was legal
and found that the construction of a large sand and gravel processing
plant on the Land in approximately 1992 was legal, then the BZA also
found that such uses are nonconforming. Being nonconforming uses,
then under the Carmel/Clay Zoning Ordinance they may not be changed'.
without a permit. Use of the Carmel Sand Plant for the processing df
aggregate into marketable sand and gravel, including stockpiling of
finished product and retail sales thereof (hereinafter collectively referred to
as "Processing"), is represents a change of use because Processing,
which is in the nature of a industrial operation followed by retail sales, had
not been a part of the use at any time prior to 1992. As such, it represents
a significant change of use without a permit of any kind and is therefore
illegal. To the extent the BZA found that the Processing conducted by MM
on the Land was legal the BZA's decision was arbitrary, capricious, not in
accordance with law, and unsupported by substantial evidence.
14.9. Importation of Sand and Gravel Aggregate from Off-site for Processing at
the Carmel Sand Plant is Illegal. In the alternative, if the BZA found that
Processing of sand and gravel that was mined from the Land was a legal
nonconforming use, the importation of raw aggregate to the Carmel Sand
.
Plant represents a change of use. The change is in the nature of the
Carmel Sand Plant wherein Processing was converted from an ancillary
10
use with respect to mining into the primary and perhaps sole use of the
Land. Because Processing is industrial and retail in nature, it is not
permitted under the current zoning and could only be allowed when it is
ancillary to the primary purpose of mining. When the primary use is
terminated, as it was in 2002 when active mining ceased on the Land, the
ancillary uses must also be terminated. Therefore, the Carmel Sand Plant
could not be legally used for Processing of off-site minerals without a
permit. To the extent the BZA approved of the use of the Carmel Sand
Plant for Processing off-site minerals without a valid permit, its decision is
arbitrary, capricious, not in accordance with law, and unsupported by
substantial evidence.
14.10. At the October 25, 2004 hearing, the BZA rejected the Findings of Fact
and Conclusions of Law tendered by the Petitioners on October 13, 2004
and in their Post-hearing Brief dated October 20, 2004, and instead
adopted the Proposed Findings of Fact and Conclusions of Law offered by
MM. DOCS offered no proposed findings of fact or conclusions of law.
Said adopted Findings of Fact and Conclusions of Law are clearly
erroneous based on the facts in evidence and the applicable law.
Therefore, adoption of such Findings of Fact and Conclusions of Law by
the BZA was arbitrary, capricious, not In accordance with law, and
unsupported by substantial evidence. In particular, in its proposed
findings of fact and conclusions of law, the BZA found that MM could claim
legal nonconforming use status for the Land, which was purchased in
II
1964 as a farm, and legal nonconforming use for the Carmel Sand Plant,
which was erected between 1990 and 1992, because American
Aggregates Corporation was operating a small sand mine and small
processing plant more then one-half mile north of the Land in 1964.
Indiana law does not permit this kind of "tacking" of land uses, Stuckman
v. Kosciusko County Board of Zoning Appeals, 506 N.E.2d 1079
(Ind.1987), especially when separated by time, distance, and intervening
ownerships from each other, to extend legal nonconforming use status to
land that would otherwise never qualify as such. Therefore, to the extent
the BZA decision is based on the concept that tacking is permitted, the
decision is illegal because it is arbitrary, capricious, not in accordance with
law, and unsupported by substantial evidence.
WHEREFORE, Petitioners request that:
1. The Court Issue a citation to the Carmel/Clay Advisory Board of Zoning Appeals
to show cause why a writ of certiorari should not issue;
2. The Court require the Carmel/Clay Advisory Board of Zoning Appeals certify to
the Court for review all pages, petitions, exhibits, transcripts of proceedings, and
videotaped recordings of the proceedings of said Board in connection with the
Appeal, including, but not limited to, the hearings on October 13, 2004 and
October 25, 2004;
3. Following due consideration and review of all of the said proceedings and
information, the Court set this matter for an evidentiary hearing to supplement the
12
evidence and facts disclosed by the return to the writ of certiorari and/or for oral
argument;
4. Following said evidentiary hearing and/or oral argument, the Court reverse the
decision of said Board and mandate the adoption of the Findings of Fact and
Conclusions of Law tendered by the Petitioners in their Post-hearing Brief;
5. The Court award the Petitioners the costs of this proceeding; and
6. The Court award the Petitioners all other and further relief as may be just and
proper based on the evidence.
[signature on next page]
13
I affirm, under the penalties for perjury, that the foregoing representations are true.
THRASHER BUSCHMANN GRIFFITH &
VOELKEL, P.C.
DISTRIBUTION:
Mr. Zeft A. Weiss, Esq., lee Miller, One American Square, Box 82001, Indianapolis, IN
46282-0002
Mr. Michael Hollibaugh, Director, Department of Community Services, Carmel Town
Hall, Carmel, IN 46032
Mr. Thomas Yedlick, 5053 St. Charles Place, Carmel, IN 46033
Carmel/Clay Advisory Board of Zoning Appeals, in care of the
Department of Community Services, Carmel Town Hall, Carmel, IN 46032
L :\W PFI LES\021 330\Appeal L ENC U 2004 \Ham iltonCty Appeal\PetW ritofCertPCT 4. doc
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LEGAL tt BUSINESS ADVISORS
December 7, 2004
WRITER'S DIRECT NUMIl~R: (317) 236-5832
DrRECTFAX: (317) 592-4708
INTERNET: Thomas.Mixdori@icemilleLGom
Clerk
Hamilton County Courts
Government & Judicial Center
One Hamilton County Square
Noblesville, IN 46060-2233
RE: William D. McEvoy, et aI. v. Carmel/Clay Advisory Board of Zoning
Appeals. Cause No. 29D05-0411-MI-2783
Dear Clerk:
Enclosed please find an original and one copy of Martin Marietta Materials, Inc. ts
Unopposed Motion to Intervene as of Right in connection with the above-referenced cause of
action. Please file and return a file-stamped copy of same to the undersigned in the enclosed,
self-addressed, stamped envelope.
Please note that this letter is being sent via certified mail in order that the pleadings may
be file-stamped as of the date of mailing, pursuant to Trial Rule 5(F).
Thank you for your assistance in this matter.
Very truly yours,
ICE MILLER
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IJGIJ Y'~ (g LL};ffcurcl/
Thomas E. Mixdorf ~
TEMlmed
Enclosures
cc: Philip C Thrasher
Michael Hollibaugh
Thomas Yedlick
Carmel/Clay Advisory Board of Zoning Appeals
J olm R. Molitor
INDY 1468982v 1
One American Square i Box 82001 i Indianapolis, IN 46282-0200 I P 317-236-2100 i F 317-236-2219 www.icemiller.com
Indianapolis I Chicago I Washinglon, D.C.
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STATE OF INDIANA HAMILTON COUNTY SUPERIOR COURT
COUNTY OF HAMILTON CAUSE NO. 29DOS-0411-MI-2783
William D. McEvoy, Gregory M. Policka, )
Susan Becker, Rex A. Weiper, Rene )
Pimentel, and Donald K. Craft, )
)
)
Petitioners (Appellant/Intervenors )
below), )
)
)
v. )
)
CARMELlCLA Y ADVISORY BOARD )
OF ZONING APPEALS, )
)
Respondent. )
MARTIN MARlETT A MATERIALS. INC. 'S
UNOPPOSED MOTION TO INTERVENE AS OF RIGHT
Martin Marietta Materials, Inc. ("Martin Marietta"), by counsel, respectfully moves to
intervene in the above cause pursuant to Indiana Rule of Trial Procedure 24(A)(2). In support of
this Motion, Martin Marietta states:
1. Undersigned counsel has contacted counsel for Petitioners and Respondent, and
neither Petitioners nor Respondent oppose Martin Marietta's intervention in this action.
2. As shown by the Petition for Writ of Certiorari, Martin Marietta owns and
operates the sand and gravel processing plant located north of 106lh Street and west of Hazel Dell
Parbvay, Carmel, Indiana ("Carmel Sand & Gravel Plant") that is the subject of Petitioners' suit.
Petitioners contend that the sand and gravel plant is being operated by Martin Marietta as an
illegal nonconforming use and are seeking to have Martin Marietta's plant shut down.
3. On or about December 16, 2003, Thomas Yedlick ("Yedlick") tiled a letter with
the Department of Community Services 0 f the City of Carmel (the "DOCS ") alleging that the
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Carmel Sand & Gravel Plant was being operated as an illegal nonconfonning use by Martin
Marietta. The DOCS submitted Yedlick's letter to the BZA on or about June 11, 2004, an~ the
case was assigned as Docket No. 04060001A. Martin Marietta intervened in that action.
4. On or about June 24, 2004, following a pre-hearing conference, the Director of
the DOCS (the "Director") withdrew Docket No. 04060001A and issued a ItLetter of
Determination," finding that Martin Marietta's operations were legal nonconforming uses.
5. On or about July 15, 2004, Yedlick filed an "Application for Board of Zoning
Appeals Action - Appeal Request" (the "BZA Appeal") and the Appeal was docketed for the
BZA as Docket No. 04070020A. Martin Marietta also intervened in that action.
6. The BZA held hearings on the BZA Appeal on October 13 and October 25, 2004,
and Martin Marietta was present and offered evidence and argument at the hearings.
7. At the conclusion ofthe October 25, 2004 hearing on the Appeal, the BZA denied
the Appeal and affirmed the DOCS' "Letter of Detennination," finding, among other things, that
Martin Marietta's operations were legal nonconforming uses.
8. Subsequently, on or about November 19, 2004, the Petitioners filed with this
Court, a Verified Petition for Writ of Certiorari, Notice of the Petition for Writ of Certiorari, and
an Order to Show Cause. Martin Marietta is listed as an "adverse party". in the Petitioner's
V erified Petition for Writ of Certiorari, Notice of the Petition for Writ of Certiorari, and Order to
Show Cause. In addition, Martin Marietta was served with notice of the Petition for Writ of
Certiorari.
9. Pursuant to Indiana Rule of Trial Procedure 24(A)(2), Martin Marietta has a right
to intervene in this action because Martin Marietta is the owner of the Cannel Sand & Gravel
Plant which is the subject ofthi8 action. Martin Marietta is so situated that the disposition of this
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action will impair or impede its ability to protect its interests, and Martin Marietta's interests are
not adequately represented. See In Re Remonstrance Appealing Ordinance Nos. 98-001;, 98-005,
98-006, 98-007 and 98-008 of the Town of Lizton, 737 N.E.2d 767 (Ind. Ct. App. 2000/
10. Martin Marietta's Motion to Intervene is timely and intervention by Martin
Marietta will not cause any undue delay or prejudice to the parties. Martin Marietta's Motion to
Intervene is being filed within twenty (20) days of the filing of the Verified Petition for Writ of
Certiorari.
WHEREFORE, Martin Marietta respectfully requests that the Court issue an order
granting Martin Mariettats Motion to Intervene in this matter and for all other necessary and
proper relief.
Respectfully Submitted,
J~'/~l
. ,
Thomas E. Mlxdorf, Attorney No. . 812-49
Attorney for Martin Marietta Materials, Inc.
---r
ICE MILLER
ICE MILLER
One American Square
Box 82001
Indianapolis, IN 46282-0200
(317) 236-2100
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The undersigned hereby certifies that a copy of the foregoinghas been sent via U.S. Mail,
first class, postage prepaid, on the "I day of December, 2004, addressed to:
ICE MILLER
One American Square
Box 8200]
Indianapolis, IN 46282-0200
INDY 146S326vl
CERTIFICATE OF SERVICE
Philip C. Thrasher
Thrasher Busclunalill Griffith & Voelkel, P.e.
] 51 N. Delaware St., Suite 1900
Indianapolis, IN 46204-2505
Mr. Michael Hollibaugh, Director,
Department of Community Services,
Cam1el Town Hall, Carmel, IN 46032
Mr. Thomas Yedlick
5053 S1. Charles Place
Cannel, IN 46033
Carmel/Clay Advisory Board of Zoning Appeals,
c/o The Department of Community Services
Carmel Town Hall
Carmel, IN 46032
John R. Molitor
Molitor Grisham & Hester
9465 Counselors Row, Suite 200
Indianapolis, IN 46240
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STATE OF INDIANA
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)
COUNTY OF HAMILTON
William D. McEvoy, Gregory M. Policka, Susan
Becker, Rex A. Weiper, Rene Pimentel, and Donald
K. Craft
Petitioners,
(Appellant Intervenors, below)
Thomas Yedlick,
Intervenor Petitioner,
(Appellant, below)
v.
CARMEL/CLAY ADVISORY BOARD OF ZONING
APPEALS,
Respondent.
APPEARANCE FORM
Pro Se
1. Name of initiating party: Thomas Yedlick
2. Telephone no.: 317-844-0141 x253
3. Address: 5053 St. Charles Place
Carmel, IN 46033
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Date: December 6, 2004
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STATE OF INDIANA )
)SS
COUNTY OF HAMILTON )
William D. McEvoy, Gregory M. Policka, Susan
Becker, Rex A. Weiper, Rene Pimentel, and Donald
K. Craft
Petitioners,
(Appellant Intervenors, below)
Thomas Yedlick,
Intervenor Petitioner,
(Appellant, below)
v.
CARMEL/CLAY ADVISORY BOARD OF ZONING
APPEALS,
Respondent.
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MOTION TO INTERVENE AS A PETITIONER UNDER RULE 24
Now comes Thomas Yedlick, Intervenor, to respectfully move the Court to allow
his intervention in the above-captioned action, pursuant to Indiana Trial Rules 24(A)(2)
and 24(6)(2), as party in support of the Verified Petition for VVrit of Certiorari to Review
Decision of Board of Zoning Appeals ("Petition") filed by Petitioners in this action.
In support of this motion, the Intervenor states:
The I ntervenor appeared as the Petitioner in the action below before the
Carmel/Clay Advisory Board of Zoning Appeals ("BZA"), which is the subject of this
Petition, To wit:
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1. On December 16, 2003, Intervenor filed a complaint letter (Complaint") with
the Director of the Department of Community Services ("Director") alleging that
Martin Marietta's use of its processing plant at its Hazel Dell Road site ("Carmel
Sand") to process sand and gravel obtained off-site constituted an illegal change in
use and an illegal non-conforming use. Carmel Sand is currently in the 8-1
Residential Zoning District pursuant to the Carmel/Clay Zoning Ordinance
("Ordinance").
2. The Intervenor's Complaint alleged the following:
(a) That the mineral processing plant being used as an integral part of
alienation of mineral resources to process mInerals extracted from the
site, was improperly converted to a commercial use to process off-site
material,
(b) That any processing activities related to a "mineral extraction use" as a
non-conforming use can not be continued after mineral extraction is no
longer taking place, and
(c) That the mineral extraction use exempt under I.R.C. 36-7-4-1103 does
not retain any non-conforming use rights when the exempt status under
I.R.C. 36-7-4-1103 lapses.
3. On June 18, 2004, the Director issued a Determination Letter
("Determination") to the Intervenor in response to Intervenor's Complaint, stating in
part:
2. The land uses that were established on Martin Marietta's properties
on or about May 17.2002, constituted legal, non-conforming 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, non-conforming 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.
4. On July 15, 2004, Intervenor filed an Appeal of the Director's Determination
with the BZA.
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5. On October 25, 2004, the BZA denied the Intervenor's Appeal of the
Director's Determination and adopted Findings of Fact submitted by Martin Marietta
as to change in use and existence of a non-conforming use.
6. The Intervenor is aggrieved by the BZA's denial in that the Director's
Determination and the Findings of Fact would permit the processing of off-site sand
and gravel as an impermissible change in use, and would permit the processing
plant to continue as an illegal non-conforming use in a Residential District, both
contrary to Carmel zoning law and Indiana law.
7. The Intervenor's interest in the subject of the Petition involves questions of
law or fact in common with the main action which are not considered by the
Petitioners. Therefore, Intervenor's interest is not be adequately represented by the
Petitioners.
INTERVENOR'S BRIEF IN SUPPORT OF WRITOF CERTIORARI
8. Paragraphs 1 through 6 above are incorporated herein by reference.
9. The BZA's decisions are unlawful jn that:
a. The BZA's decision is contrary to existing law, is not supported by the
evidence, is not supported by substantial evidence, is contrary to the
evidence, and is clearly erroneous.
b. The BZA's decisions are not supported by findings that show an
adequate and legal basis for the BZA's decision.
c. The BZA's decision is arbitrary and capricious and an abuse of
djscretion.
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d. The Director's Determination is invalid because it is vague and
does not establish the "land uses" which are the subject off the
Determination. Therefore adoption of the Director's Determination by the
aZA is also invalid.
e. The Director's Determination and the Findings of Fact adopted by the
BZA in making their decision violate Carmel's zoning ordinances and Indiana
law because:
I. Under Indiana law, "Use" is defined as the purpose for which it
is occupied or maintained. Protective Ins. Co. v. Coca-Cola
Bottling, 467 N.E.2d 754, Harbour Town Associates v. City of
Noblesville, 540 N.E.2d 1283. When viewing the land use
concept from a historical perspective or by hindsight, actual
utilization would seem to be the appropriate criterion, Metro.
Dev. Com'n of Marion County v. Hair.
II. The purpose and historical use of the processing plant is as an
integral part of "the alienation of mineral resources" from the
Carmel Sand property as established under I.R.C. 36-7-4-1103.
As such the processing plant is not a separate use eligible for
non-conforming use status under Carmel's zoning.
Ill. Maxev v. Board of Zoninq Appeals 480 N.E.2d 589, established
the principle that a non-conforming use established as an
exempt use could not be continued as a non-conforming use
after the exemption lapses.
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IV. The historical use of the processing plant. as established under
I.R.C. 36-7A-1103, is an exempt use and not a non-conforming
use, and is not a lawful use under Carmel zoning. I.R.C.36-7-
4-1103 merely prohibits a municipality from preventing the
"alienation of mineral resources" outside an urban area. It does
not establish a permitted use within the definitions of Carmel's
zoning ordinance. Therefore the use established under I.R.C.
36-7 -4-1103 is an exempt use, and an exempt use is not
recognized as a lawful use.
v. The exempt use of the processing plant is dependent on its
continued use as part of alienation of mineral resources under
I.R.C. 36-7-4-1103. The exempt use of alienation of mineral
resources is dependent on its continuing existence outside of
an urban area to be exempt from Carmel zoning.
VI. Carmel Sand's exemption under I.R.C. 36-7-4-1103 ended no
later tha n 1989 after the Kingswood su bd ivision was an nexed.
Carmel Sand property is contiguous to Kingswood. This
brought the Carmel Sand property within an urban area by
virtue of being "land contiguous to a municipality and planned
for residential use" (I.R.C. 36-7-4-1103). At that time the
Carmel Sand property became subject to Carmel zoning.
VII. The processing plant was established on the Carmel Sand
property between 1990 and 1992 without obtaining a use
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variance as a use in a residential district. Therefore the
processing plant was impermissibly established under Carmel
zoning in a residential district without a required use permit or
use variance.
VIII. From the date the processing plant was established up to the
end of 2002, the processing plant was used for its original
intended purpose as an integral part of the alienation of mineral
resources for processing sand and gravel extracted from the
Carmel Sand quarry.
IX. At or about the end of 2002, Carmel Sand ceased the extraction
of sand and gravel from its quarry and began importing off-site
sand and gravel from its Noblesville site to be further processed
at the Carmel Sand processing plant.
x. Under Carmel's zoning ordinance, an illegal non-conforming
use is defined as follows:
USE, NONCONFORMING ILLEGAL. A Use of a
Building, land or premise existing at the time of the
passage of this ordinance which does not conform to
all of the applicable provisions of this ordinance nor
those of any ordinance 'superceded bv this ordinance.
(emphasis added) Chapter 3: Definitions
XI. The processing of off-site sand and gravel at the Carmel Sand
processing plant is an illegal non-conforming use under Carmel
zoning ordinance because it is not a permitted use in a
residential district, does not conform to applicable "use"
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provisions of any current ordinance or regulations, and did not
conform to "use" provisions of any ordinance superceded by the
current ordinance. Further, even if the processing plant is
deemed to be eligible for non-conforming use status, its use
under Indiana law would be limited to its historical use, which is
as an integral part of extracting minerals from the Carmel Sand
property, not a separate use for processing sand and gravel
obtained from other unrelated property.
XII. Carmel Sand's importation of off-site sand and gravel from
Noblesville is an illegal tying together of non-contiguous tracts
for non-conforming mining uses. Indiana law does not permit
the tying together of non-contiguous tracts for purposes of
expanding non-conforming 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 non-conforming use, and thus is illegal. See
Stuckman v. Kosciusko County Board of Zoninq Appeals, 506
N.E.2d 1079 (Ind.1987).
XIII. The use of the processing plant at this Carmel Sand site has
been as an integral part of mineral extraction on this property.
Mineral extraction is defined in Carmel's zoning regulations as
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"any process used in obtaining from the earth, naturally
occurring substances (emphasis added)". Therefore the
proper legal interpretation of the historical "use" as it relates to
the processing plant is the "related processing" of minerals
obtained from the Carmel Sand property (i.e. "earth").
Therefore processing of off-site sand and gravel at Carmel
Sand must be considered a violation of its "use".
XIV. In light of the definition of "use" as defined above, processing is
an integral and related part of extraction of minerals from the
Carmel Sand property, and not a separate use. Therefore the
change in use from mineral extraction to processing of off-site
material is an impermissible and unlawful change of a non-
conforming use under Carmel's ordinances and Indiana law.
xv. Section 28.1.6 of the Carmel/Clay Zoning Ordinance provides
that "existing uses eligible for special use approval shall not be
considered leqal non-conforminq uses or require special use
approval for continuance. but shall require special use approval
for any alteration, enlargement. or extension.'" (emphasis
added) To be consIdered a legal, lawful use, a special use
must first be approved by the BZA.
XVI. While mineral extraction is a use "eligible for special use
approval" under Carmel zoning, it only becomes a "lawful" use
upon obtaining BZA approval. Special use approval for mineral
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extraction (including related processing) has never been
obtained for this property. Therefore, mineral extraction and
related processing do not qualify as "lawful, permitted" uses
under Section 28.1.6 of the Carmel Zoning Ordinance.
XVII. The conversion of use of the processing plant from a mineral
extraction use to a commercial use is an impermissible
expansion of a non-conforming use contrary to Carmel's zoning
regulations and Indiana law. Indiana law restricts the
expansion of non-conforming uses.
"State Code tends to interpret nonconforming
uses in strict terms. In view offact that ultimate
purpose of zoning regulations is to confine
certain classes of uses and structures to certain
areas, nonconforming uses are not generally
favored since they detract from attainment of
that purpose and, thus~ policy of zoning
ordinances is to secure the gradual, or
eventual elimination of nonconforming uses
and to restrict or diminish rather than
increase such uses (emphasis added)".
Jacobs v. M;shawaka Bd of Zon;ng Appeals, 395
N.E.2d, 834
XVIII. The Board's adoption of the Determination of the Director was
illegal as a matter of law because the Director's Determination
does not have a basis under law. As the basis of the Director's
Determination, the Director relies solely on provisions of a 2002
settlement agreement between Martin Marietta, the Mayor of
Carmel, and Kingswood Homeowners Association. In that 2002
agreement, the Mayor, on behalf of the City, said
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" The City recognizes that the uses now
established on the Martin Property... constitute
legal, non-conforming uses... that may not be
substantially modified, expanded, or added to
without a change in zoning classification or BZA
approval of a spec1al use or variance."
The agreement further indicates:
'The City recognizes that this agreement is for the
purpose of settlement of the Lawsuit and is not
binding on the BZA, the Carmel Clay Plan
Commission or the Common Council in the
exercise of their responsibilities for land use and
zoning."
XIX. That settlement agreement was for the purpose of settling
litigation and was not ratified by either the Carmel Common
Councilor the Carmel/Clay Plan Commission in their respective
capac1ties for regulating planning and zoning uses under
Indiana law. Because the Director's Determination was not
based on valid law, it is invalid, and therefore the BZA's
decision based on the Director's Determination is illegal.
XX. Even if the "use provisions" in the settlement agreement were to
have merit under law, there is still the issue that those uses:
"may not be substantially modified,
expanded, or added to without a change
in zoning classification or BZA approval of
a spec1al use or variance." (Settlement
Agreement)
Since a "processing use" is not a permitted use in a residential
district, and can only exist as an integral part of mineral
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extraction (a special use requiring approval), the commercial
processing of off-site material is an impermissible, illegal use.
xxi. The Board's adoption of Findings of Fact based on a 1997
Agreement between the City of Carmel and American
Aggregates (Martin Marietta's predecessor) was illegal as a
matter of law. In that Agreement, the City agreed to recognize
existing operations as "existing, legal non-conforming uses
pursuant to case law..." in the event of an annexation. The
1997 Agreement was entered into on behalf of the City by the
Board of Public Works, which does not have planning and
zoning authority. Therefore, the BZA's decision based on the
Findings of Fact was illegal.
xxii. The continued use of the processing plant after minerals
are exhausted is a violation of the Diminishing Asset
Doctrine.
The rationale of the Diminishing Asset Doctrine is
that the very nature of an excavation business is the
continuing use of the land and that this use is what
is endorsed by the non-conforming use concept By
its very nature, quarrying involves a unique use of
land. As opposed to other non-conforming uses in
which the land is merely incidental to the activity
conducted on it, quarrying contemplates the
excavation and sale of the corpus of the land itself as
a resource. Nor is it possible to extend the protection
of a permitted non-conforming use established on
one parcel of land to physically separate, though
adjoining, parcels. Syracuse Aqqreqate Corp v
Weise. 414 N.E.2d 651.
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Where non-extinction of mineral rights are involved, an
existing site can be worked in the usual manner, but when a
site no longer yields minerals, the use is consummated.
XXIII. The importation of stone to be further processed is an
impermissible change in a quarrying business use. See
Massachusetts Broken Stone Company v. Town of Weston 195
N.E.2d 522 (1964). The Court determined that the standard in
determining whether there has been a change in a preexisting use
is the degree to which the "original nature and purpose of the
undertaking remain unchanged". The quarrying (i.e. extraction)
and crushing of stone for sale is considered as one distinct
business (i.e. "use"). Property owner conducting non-conforming
use business of quarrying, crushing and selling stone as a non-
conforming use had no right to change non-conforming use through
importation of stone to be processed and sold. The Court held that
the importation of stone to be processed and sold on the premises
would be a new business and an impermissible change in the prior
non-conforminq quarrvinq (extraction) use.
10. Since the Director's Determination and the Findings of Fact submitted by Martin
Marietta were illegal and invalid, the BZA's decision must also be considered illegal,
unlawful, and an improper exercise of the BZA's discretion.
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WHEREFORE, the Intervenor respectfully moves this Honorable Court for leave to
intervene in this action as a matter of right pursuant to Indiana Trial Rule 24(A)(2) and
as permissive intervention pursuant to Indiana Trial Rule 24(8)(2), and for all other relief
that is just and proper in the premises.
Respectfully submitted,
Thomas Yedllck tervenor Petitioner
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CERTIFICATE OF SERVICE
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I do hereby certify that a copy of the foregoing has been served by United States
First Class Mail, postage prepaid, this 6th day of December, 2004.
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
City of Ca rmel
One Civic Square
Carmel, IN 46032
Mr. Philip C. Thrasher, Esq.,
THRASHER BUSCHMANN GRIFFITH & VOELKEL, P.C.
151 N. Delaware St., Ste. 1900
Indianapolis, IN 46204
Carmel/Clay Advisory Board of Zoning Appeals
C/o Department of Community Services
One Civic Square
Carmel, IN 46032
John R. Molitor, Esq.
9465 Counselors Row, Ste 200
Indianapolis, IN 46240
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Thomas Yedlick
5053 St. Charles Place
Carmel, IN 46033
14
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f'.
ST ATE OF INDIANA
HAMILTON COUNTY SUPERIOR COURT
COUNTY OF HAMILTON
CAUSE NO. 29DOS-0411-MI-2783
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CARMELlCLA Y ADVISORY BOARD
OF ZONING APPEALS,
William D. McEvoy, Gregory M. Policka, )
Susan Becker, Rex A. Weiper, Rene )
Pimentel, and Donald K. Craft, )
)
)
)
)
)
)
)
)
)
)
)
Petitioners (Appellant/Intervenors
below),
v.
Respondent.
ORDER ON MARTIN MARIETTA MATERIALS. INC.'S MOTION TO INTERVENE
Martin Marietta Materials, Inc. ("Martin Marietta"), having filed its Motion to Intervene
in this matter, and the Court, being in all things duly advised, now GRANTS the Motion.
IT IS THEREFORE ORDERED that Martin Marietta may intervene as a party in this
matter pursuant to Indiana Rule of Trial Procedure 24, and is entitled to engage in any and all
actions permitted by the Indiana Rules of Trial Procedure.
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SO ORDERED this 9 day of Dec.
,2004.
AI A ~,t~~
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JUDGE, Hamilton Superior Court
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Distribution to:
Thomas E. Mixdorf
Zeff A. Weiss
ICE MILLER
One American Square
Box 82001
Indianapolis, IN 46282-0200
Philip C. Thrasher
Thrasher Buschmann Griffith & Voelkel, P.C.
151 N. Delaware St., Suite 1900
Indiallapolis, IN" 46204-2505
Michael Hollibaugh, Director,
Department of Community Services,
Cannel Town Hall, Carmel, IN 46032
Thomas Yedlick
5053 St. Charles Place
Cannel, IN 46033
Carme ay Advisory Board of Zoning Appeals,
c/ e Department of Community Services
armel Town Hall
Cannel, IN 46032
John R. Molitor
Molitor Grisham & Hester
9465 Counselors Row, Suite 200
Indianapolis, IN 46240
INDY 1465627vl
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STATE OF INDIANA
IN THE HAMILTON SUPERIOR COURT # 5
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COUNTY OF HAMILTON
CAUSE NO. 29D05-04l1-MI-2783
William D. McEvoy, Gregory M. Policka, Susan
Becker, Rex A. Weiper, Rene Pimentel, and Donald K.
Craft
Petitioners,
(Appellant Intervenors, below)
Thomas Yedlick,
I ntervenor Petitioner,
(Appellant below)
v.
CARMEL/CLAY ADVISORY BOARD OF ZONING
APPEALS,
Respondent.
ORDER
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The Intervenor files herein his Motion to Intervene as a Petitioner under
Rule 24, to-wit:
(H.l. )
The court having read and examined this Motion, and being duly advised
on the circumstances, hereby grants said Motion.
IT IS THEREFORE, ORDERED, ADJUDGED AJ\TD DECREED that the Motion
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to Intervene is hereby granted.
DATED
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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
City of Carmel
One Civic Square
Carmel, IN 46032
Mr. Philip C. Thrasher, Esq.,
THRASHER BUSCHMANN GRIFFITH & VOELKEL, P.C.
151 N. Delaware St., Ste. 1900
Indianapolis, IN 46204
Carmel/Clay Advisory Board of Zoning Appeals
C/o Department of Community Services
One Civic Square
Carmel, IN 46032
John R. Molitor, Esq.
9465 Counselors Row, Ste 200
Indianapolis, IN 46240
Thomas Yedlick
5053 St. Charles Place
Carmel, IN 46033
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STATE OF INDIANA
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HAMILTON COUNTY SUPERIC
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William D. McEvoy, Gregory M. Policka, Susan
Becker, Rex A. Weiper, Rene Pimentel, and Donald
K. Craft
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Respondent.
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PetitIoners,
(Appellant Intervenors, below)
v.
CARMEL/CLAY ADVISORY BOARD OF ZONING APPEALS,
VERIFIED PETITION FOR WRIT OF CERTIORARI
TO REVIEW DECISION OF BOARD OF ZONING APPEALS
,
William D. McEvoy, Gregory M. Policka, Susan Becker, Rex A. Weiper, Rene
Pimentel, and Donald K. Craft (the "Petitioners"), by counsel, petition this Court
pursuant to Ind. Code 9 36-7-4-1003 for a writ of certiorari to review the action of the
Carmel/Clay Advisory Board of Zoning Appeals ("the BZA") taken October 25, 2004, in
which the BZA denied the Application for Board of Zoning Appeals Action-Appeal
Request, filed on July 15, 2004 by Thomas Yedlick (the "Appeal Application"), and
denied the requests of the Petitioners in their Notice of Intervention filed July 23, 2004
(the "Notice of Intervention"), both of which appealed the decision of the Director (the
"Director") of the Department of Community Services of the City of Carmel (the "DOCS")
that a certain use was a legal non-conforming use. The Appeal ApplicatIon and Notice
of Intervention were combined and docketed before the BZA as No. 04070020 A (the
"Appeal").
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In support of this petition, Petitioner states:
1. On December 16, 2003, Thomas Yedlick ("Yedlickrr) filed a letter ("Complaint"}
with the DOCS alleging that a certain sand and gravel processing plant located
north of 1 06th Street and west of Hazel Dell Parkway, Carmel, Indiana (the'
"Carmel Sand Plant") was being operated as an illegal nonconforming use by
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Martin Marietta Materials, Inc. ("MM"), successor by merger to American
Aggregates Corporation, the nominal owner of the Land and the Carmel Sand
Plant. The basis for this allegation was that MM was importing raw sand and
gravel aggregate from off~site for processing, storage, and sale in violation of the
applicable zoning. Yedlick further alleged that such processing constituted a
commercial manufacturing activity not permitted by the current zoning.
2. The land in question contains approximately 70 acres, now covered mostly with a
lake but with the Carmel Sand Plant located in the middle of the tract. The tax
parcel number for the Land is 1714040000018.00, in the City of Carmel, Clay
Township, Hamilton County, Indiana (hereinafter, the "Land").
3. On or about June 11, 2004, the DOCS submitted to the BZA the question of
whether or not or not the use of the Carmel Sand Plant was a legal
nonconforming use to the BZA. The DOCS docketed the case as Docket No.
04060001 A. The Petitioners and MM intervened in such action.
4. Following a pre-hearing conference, the Director withdrew Docket No. 04060001
A and issued a letter dated June 24, 2004 (the "Letter of Determination"), stating
in pertinent part:
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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.
Letter of Determination, page 1, a true and accurate copy of which is attached
hereto and incorporated herein.
5, On July 15, 2004, Yedlick filed his Appeal Application. The Appeal was docketed
for the BZA as Docket No. 04070020 A.
6. On July 23, 2004, the Petitioners, by counsel, filed their Notice of Intervention in
Docket No. 04070020 A. MM intervened in the matter on August 17, 2004.
7. At the October 13, 2004 hearing, despite requests from the Petitioners for,
additional time, the BZA adopted a special rule limiting the time for presentation
of evidence to 15 minutes per party, permitting cross~examination of witnesses at
the end of each presentation, and allowing five minutes per party for rebuttal and
summation. Counsel for the Petitioners timely objected to these tIme constraints
on the grounds that it did not allow sufficient time for presentation of the large
amount of evidence that was available and necessary for a full and fair hearing of
the Appeal. Such objection was overruled,
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8. At the conclusion of the presentation of evidence by all parties, the BZA
continued the hearing to October 25, 2004 for the purpose of analyzing the
testImony and written materials provided by the parties and to prepare questions
for the parties to be answered at the October 25, 2004 hearing.
9. Before 4:00 p.m. on October 21, 2004, the Petitioners filed their Post-hearin~
Brief dated October 20, 2004 with the DOCS, which functions as the office of and
for the BZA, and requested that the Post-hearing Brief be forwarded to the
members of the BZA.
10. The DOCS, the Respondent in the Appeal, refused to forward the Petitioners'
Post-hearing Brief to the BZA, so the Post-hearing Brief was not received by any
member of the BZA prior to the October 25, 2004 hearing.
11. At the continued hearing on October 25, 2004, the Petitioners requested that the
DOCS provide to each BZA member a copy of the Petitioners' Post-hearing Brief.
Petitioners then filed an Objection to the withholding of the Post-hearing Brief.
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This request and Objection were denied and the BZA elected to proceed to a
conclusion on the Appeal without the benefit of reviewing the Petitioners' Post-
hearing Brief.
12. At the conclusion of the October 25, 2004 hearing on the Appeal, the BZA voted
three to one to deny the Appeal, thereby ratifying the Letter of Determination and
allowing the Carmel Sand Plant to continue in operation.
13. The Petitioners are aggrieved by the BZA's decision affirming the Letter of
Determination, allowing the continued operation of the Carmel Sand Plant on th.e
Land.
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14. The actions of the BZA are illegal for the following reasons:
14.1. Violation of Procedural Due Process-Inadequate Time for Presentation
of Evidence at the Hearing: The limitation of presentations by the
BZA was arbitrary, capricious, and an abuse of discretion because it
effectively eliminated the presentation of most of the evidence available
from the Petitioners. Having granted an evidentiary hearing, it was
arbitrary, capricious, an abuse of discretion, and a violation of the
constitutional right~ of the Petitioners, for the BZA to restrict artificially the
presentation of relevant evidence by the Petitioners. Further, the aZA
permitted only five minutes for rebuttal and summation at the conclusion of
the October 13, 2004 hearing, thereby effectively limiting proper rebuttal,
summation, and legal argument by the Petitioners. The adoption of the
temporary rule limiting the time for presentation and analysis of evidence
by the BZA caused the BZA to be poorly informed concerning the facts
and issues in the Appeal, caused great prejudice to the Petitioners, and
resulted in an incorrect and illegal decision.
14.2. Violation of Due Process-Withholding of Information from the BZA by the
DOCS: The BZA, by its administrative arm, the DOCS, arbitrarily, in
abuse of its discretion, illegally, in violation of the constitutional rights of
the Petitioners to a fair hearing, in excess of its statutory authority, and in
violation of BZA rules, withheld delivery of the Petitioners' Post-hearing
Brief on October 21, 2004 from the members of the BZA. The Post- .
hearing Brief was the Petitioners' response to the new issues raised for
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the first time by MM at the October 13, 2004 hearing and would have
provided necessary analysis and information concerning such new issues
that the BZA otherwise did not receive. By illegally withholding such
information, the members of the BZA were unable to make proper
inquiries of the parties at the October 25, 2004 hearing, resulting in great
prejudice to the Petitioners and an arbitrary, capricious, and illegal .
decision. By refusing to consider the Post-hearing Brief at the October 25,
2004 hearing, the BZA acted arbitrarily, capriciously, in abuse of its
discretion, and in violation of the Petitioners' constitutional rights to a fair
hearing.
14.3. The Upholding of the Decision by the DOCS Is Unreasonable and
Unsupported. The failure by the BZA to overturn the Letter of
Determination is arbitrary, capricious, an abuse of discretion, not In
accordance with law, and unsupported by substantial evidence. The
Director of the DOCS failed to demonstrate in his testimony before the
BZA that the decisions set forth in the Letter of Determination were
supported by any credible evidence. The Director's brief testimony at the
hearings did not include any exhibits or witnesses from which it could be
concluded that the Director had analyzed the prior use of the land that is
the subject of the Appeal or its lack of compliance with prior ordinances.
Further, the Director submitted no documentary information whatsoever.
Therefore, the Letter of Determination is without legal or factual basis and
should have been overturned by the BZA.
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14.4. The Nonconforming Use is Illegal. By refusing to overturn the Letter of
Determination, the BZA approved the contents thereof, which include a
statement that the use of the Land is a legal, rather than illegal,
nonconforming use. Such approval is arbitrary, not in accordance with
law, and unsupported by substantial evidence, and is therefore illegal.
Contrary to the decision of the BZAt the overvvhelming evidence
establishes that the use of the Land for mining and the Carmel Sand Plant
have been illegal. since the commencement of mining thereon and
construction of the Carmel Sand Plant, and that such uses continue to be
illegal because they have never complied with any applicable ordinance,
past or present. The failure of the BZA to hold such uses to be illegal is
itself illegal.
14.5. Failure to Prove Legal Nonconforming Use Status Based on Ind. Code 3
36-7-4-1103. The determination by the BZA that the Land is not in an
"urban area" for purposes of Ind. Code 3 36-7-4-1103 is not in accordance
with law and therefore is illegal. Further, because the evidence clearly
demonstrates that the Land was always a part of an urban area, such
statute would not apply and reliance thereon by the BZA is unsupported
by substantial evidence and not in accordance with law.
14.5.1. Failure to Prove Change of Zoning Status by Agreement. Reliance
by the BZA on two different agreements entered into by and between
American Aggregates Corporation and the City of Carmel in 1997 (the
"1997 Agreement") and Martin Marietta Materials, Inc., the City of Carmel,
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and others in 2002 (the "2002 Settlement and Release Agreement") to
essentially permit contract zoning, is arbitrary, capricious, and a violation
of constitutional rights in Indiana. The BZA held these Agreements
estopped the City of Carmel from asserting that the Carmel Sand Plant
was not a legal conforming use. The BZA also found that these
Agreements changed the zoning status of the Carmel Sand Plant from an
illegal to a legal nonconforming use. Reliance on such Agreements is
improper because (a) contract zoning is not permitted in Indiana; (b)
neither of the Agreements in question were executed by a division of
government empowered to change zoning status, being the BZA, the
Carmel/Clay Advisory Plan Commission, or the Common Council of the
City of Carmel; and, (c) the 2002 Settlement and Release Agreement by
its own terms does not purport to control the authority of the BZA or
Carmel/Clay Advisory Plan Commission.
14.6. Failure to Prove a Permitted Use Based on Carmel/Clay Zoning
Ordinance Subsection 28.01.06. The determination by the BZA that
Subsection 28.01.06 of the Carmel/Clay Zoning Ordinance, set forth
below, is applicable is arbitrary, capricious, and illegal:
28.01 Leqal Nonconforming Use Specifications.
A legal nonconforming Use may be continued, although such
use does not conform to all the provisions of this Ordinance,
as hereinafter provided:
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28.01.06 Existing uses eligible for special use approval shall
not be considered legal nonconforming uses nor require
special use approval for continuance but shall require
special use approval for any alteration, enlargement or
extension.
Carmel/Clay Zoning Ordinance, 9 28.01.
At the hearing, MM and the DOCS failed to establish that the use was
originally a legal nonconforming use. Having failed to prove such status,
Subsection 28.01.06 is inapplicable. To the extent the BZA decision is
based on this Subsection, its decision is arbitrary, capricious, not in
accordance with law, and unsupported by substantial evidence.
14.7. Construction of the Carmel Sand Plant In 1992 Was an Illegal Expansion
of a Nonconforming Use. In the alternative., if the BZA found, arquendo,
that mineral extraction prior to construction of the Carmel Sand Plant was
legal, the construction of a large sand and gravel processing plant on the
Land in approximately 1992 represents an illegal expansion of such use
because no buildings or other improvements are to be constructed within
legal nonconforming uses without permits from the City of Carmel. No
such permits were requested or approved. To the extent the BZA found
that the construction of the Carmel Sand Plant was a legal expansion of
the prior use, its decision is arbitrary, capricious, not in accordance with
law, and unsupported by substantial evidence.
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14.8. Operation of the Carmel Sand Plant is an Illegal Change of a
Nonconforming Use. In the alternative, if the BZA found, arguendo, that
mineral extraction prior to construction of the Carmel Sand Plant was legal
and found that the construction of a large sand and gravel processing
plant on the Land in approximately 1992 was legal, then the BZA also
found that such uses are nonconforming. Being nonconforming uses,
then under the Carmel/Clay Zoning Ordinance they may not be changed'
without a permit. Use of the Carmel Sand Plant for the processing tif
aggregate into marketable sand and gravel, including stockpiling of
finished product and retail sales thereof (hereinafter collectively referred to
as "Processing"), is represents a change of use because Processing,
which is in the nature of a industrial operation followed by retail sales, had
not been a part of the use at any time prior to 1992. As such, it represents
a significant change of use without a permit of any kind and is therefore
illegal. To the extent the BZA found that the Processing conducted by MM
on the Land was legal the BZA's decision was arbitrary, capricious, not in
accordance with law, and unsupported by substantial evidence.
14.9. Importation of Sand and Gravel Aggregate from Off-site for Processing at
the Carmel Sand Plant is Illegal. In the alternative, if the BZA found that
Processing of sand and gravel that was mined from the Land was a legal
nonconforming use, the importation of raw aggregate to the Carmel Sand
.
Plant represents a change of use. The change is in the nature of the
Carmel Sand Plant wherein Processing was converted from an ancillary
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use with respect to mining into the primary and perhaps sole use of the
Land. Because Processing is industrial and retail in nature, it is not
permitted under the current zoning and could only be allowed when it is
ancillary to the primary purpose of mining. When the primary use is
terminated, as it was in 2002 when active mining ceased on the Land, the
ancillary uses must also be terminated. Therefore, the Carmel Sand Plant
could not be legally used for Processing of off-site minerals without a
permit. To the extent the BZA approved of the use of the Carmel Sand
Plant for Processing off-site minerals without a valid permit, its decision is
arbitrary, capricious, not in accordance with law, and unsupported by
substantial evidence.
14.10. At the October 25, 2004 hearing, the BZA rejected the Findings of Fact
and Conclusions of Law tendered by the Petitioners on October 13, 2004
and in their Post~hearing Brief dated October 20, 2004, and instead
adopted the Proposed Findings of Fact and Conclusions of Law offered by
MM. DOCS offered no proposed findings of fact or conclusions of law.
Said adopted Findings of Fact and Conclusions of Law are clearly
erroneous based on the facts in evidence and the applicable law.
Therefore, adoption of such Findings of Fact and Conclusions of Law by
the BZA was arbitrary, capricious, not in accordance with taw, and
unsupported by substantial evidence. In particular, in its proposed
findings of fact and conclusions of law, the BZA found that MM could claim
legal nonconforming use status for the Land, whlch was purchased in
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1964 as a farm, and legal. nonconforming use for the Carmel Sand Plant,
which was erected between 1990 and 1992, because American
Aggregates Corporation was operating a small sand mine and small
processing plant more then one-half mile north of the Land in 1964.
Indiana law does not permit this kind of "tacking" of land uses, Stuckman
v. Kosciusko County Board of Zoning Appeals, 506 N.E.2d 1079
(Ind.1987), especially when separated by time, distance, and intervening
ownerships from each other, to extend legal nonconforming use status to
land that would otherwise never qualify as such. Therefore, to the extent
the BZA decision is based on the concept that tacking is permitted, the
decision is illegal because it is arbitrary, capricious, not in accordance with
law, and unsupported by substantial evidence.
WHEREFORE, Petitioners request that:
1. The Court Issue a citation to the Carmel/Clay Advisory Board of Zoning Appeals
to show cause why a writ of certiorari should not issue;
2. The Court require the Carmel/Clay Advisory Board of Zoning Appeals certify to
the Court for review all pages, petitions, exhibits, transcripts of proceedings, and
videotaped recordings of the proceedings of said Board in connection with the
Appeal, including, but not limited to, the hearings on October 13, 2004 and
October 25, 2004;
3. Following due consideration and review of all of the said proceedings and
information, the Court set this matter for an evidentiary hearing to supplement the
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evidence and facts disclosed by the return to the writ of certiorari and/or for oral
argument;
4. Following said evidentiary hearing and/or oral argument, the Court reverse the
decision of said Board and mandate the adoption of the Findings of Fact and
Conclusions of Law tendered by the Petitioners in their Post-hearing Brief;
5. The Court award the Petitioners the costs of this proceeding; and
6. The Court award the Petitioners all other and further relief as may be just and
proper based on the evidence.
[signature on next page]
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I affirm, under the penalties for perjury, that the foregoing representations are true.
THRASHER BUSCHMANN GRIFFITH &
VOELKEL, P.C.
DISTRIBUTION:
Mr. Zeff 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 46032
Mr. Thomas Yedlick, 5053 St. Charles Place, Garmel, IN 46033
Carmel/Clay Advisory Board of Zoning Appeals, in care of the
Department of Community Services, Carmel Town Hall, Carmel, IN 46032
L:\W PFI LES\021330\AppeaJLENCU 2004\Ham iltonCtyAppeal\PetW ritofCertPCT 4.doc
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