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W'. _ CITY OF CARMEL ~ CLAY TO~ u'jSHIP
. HAMIL TON COUNTY, JNDI~A _~"_
.(/;rl j_J_Lrr~_:,-~~~- .
APPLICATION FOR BOARD OF ZONING APPEALS ACTJON /i.::;'.,))/'<:.~'
APPEAl REQUEST /<;/ ~.
('I" ~.
Fee: $125.00
DOCKET NO.
6 tf 07 tJOd-O /l
DATE RECEIVED:
\"-'\
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1)
Applicant:
'T'homas Yedlick
'\ ..----\
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Address:
5053 st Charles Place
Carmel, IN 46033
2)
Project Name:
Carme~ Sand
Phone:
Engineer/Architect:
Phone:
Attorney:
Phone:
!>-
>-1:
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3)
Applicant's Status: (Check the appropriate response)
(a) The applicant's name is on the deed to the property
(b) The applicant is the contract purchaser of the property
DOCS
x (c) Other:
4) If Item 3) (c) is cheeked, please complete the following:
Owner of the property involved:
Owner's address:
1980 E 116th Street, Suite 200, Car~6rfe:IN 46032
Martin Marietta Materials, Inc.
5) Record of Ownership:
Deed Book No./lnstrument No.
Page:
Purchase date:
B) Common address of the property involved: 106th street and Hazel Dell parkwa)'
Legal description:
7)
Tax Map Parcel No.: ID tIOD. 17 14 Q4-nfLOO-018.000 and
17-14-09-00-00-012.000
State explanation of requested Appeal: (State what you want to do and cite the section number(s) of the
Carmel/Clay Zoning Ordinance which applies and/or creates the need for this appeal).
attached Exibit A
5~cr/o# "J..rf; 0'
;;? D~tpt-
c .If~A.{ GL C l. ~'7
c!J~DI"vA-.u~e
8) State reasons supporting the Appeal: (Additionally, complete the attached question sheet entitled "Findings of
Fact-Appeal").
See ~tt~Ch8g Evhibir . A
BZA Appeal Application - pg 1
!:J)
Present zoning of the property {give exact c1assification):------.,r-' .1 Re s ifll"'n t- i ill
( \ r It'
Present use ofth....roperty; Mineral e~ac l.on
..
10)
11 )
Size of 'at/parcel in question
acres
12) Describe the proposed use of the property
13)
Owner occupied
Is the property:
Renter occupied
Other
14)
Are there any restrictions, laws, covenants, variances, special uses, or appeals filed in connection with this
property that would relate or affect its use for the specific purpose of this application? If yes, give date and docket
number, decision rendered and pertinent explanation.
15)
Has work for which this application is being fiied already started? If answer is yes, give details:
Building Permit Number:
Builder:
16) If proposed appeal is granted, when will the work commence?
17) If the proposed appeal is granted, who will operate and/or use the proposed improvement for which this application
has been filed?
NOTE:
LEGAL NOTICE shalf be published In the Indianapolis Star a MANDATORY twenty-five (25) days prior to the pUblic
hearing date. The certified "Proof of Publication" affidavit for the newspaper must be available for inspection the night of the
hearing.
LEGAL NOTICE to all adjoining and abutting property owners ls also MANDATORY, two methods of notice are
recommended:
1) CERTIFIED MAIL - RETURN RECEIPT REQUESTED sent to adjoining property owners. (The white receipt
should be stamped by the Post Office at least twenty-five (25) days prior to the public hearing date)
2) HAND DELIVERED to adjoining and abutting property owners (A receipt signed by the adjoining and abutting
property owner acknowledging the twenty. five (25) day notice should be kept for verification that the notice was completed)
REALIZE THE BURDEN OF PROOF FOR ALL NOTICES IS THE RESPONSIBILITY OF THE APPLICANT. AGAIN, THIS
TASK MUST BE COMPLETED AT LEAST TWENTY-FIVE (25) DAYS PRIOR TO PUBLIC HEARING DATE.
The applicant understands that docket numbers will not be assianed until all SUDDortinQ fnformation has been
submitted to the Department of Commurmy Services.
The applicant certifies by signing this application that he/she has been advised that all representations of the
Department of Community Services are advisory only and that the applicant should rely on appropriate subdivision and
zoning ordinance and/or the legal advice of his/her attorney.
aZA Appeal Appfication - pg 2
AFFIDAVIT
I, being duly swod..)pose and say that the foregoing s;gnatureUatements and answers herein contained anc
the information herewith submitted are in all respects true and correct to the best of my knowledge and belief. I, thE
. undersigned, authorize the applicant to act on my behalf with regard to this application and subsequent hearings anc
testimony.
Signed:
-rH(),-41t4-5 Yt3f)LIC.tr
(Please Print)
STATE OF INDIANA
55:
County of
M ~,to'-"'"
(County in which notarization take place)
Before me the undersigned. a Notary Public
for ~oor'\~
(Notary Public's county of residence)
~i\..I..a S ~ Prl. \\' (, 'L
(Property Owner, Attorney, or Power of Attorney)
instrument this J 4 +V\ day of
County, State of Indiana, personally appeared
and acknowledge the execution of the foregoing
,20 01
(SEAL)
-
~
Notary Public--Plea
Boone County
My CommissIon ExpJres
My comm ission expires:
BZA Appeal Application - pg 4
U CARMEUCLAY BOARD OF ZONIJ.lPPEALS
CARMEL, INDIANA
Docket No.:
Petitioner:
'T'hnm;:u::; Yedl ick
FINDINGS OF FACT. APPEAL
1. The Petitioner has (has not) properly followed the Appeals Procedures outlined in Ordinance Z-160, Section 30.2,
et seq. except as follows:
~.:: ~1..h.-l _ 1. " i!!B""~~
2. Nature of action appealed from:
Dctcrmin~tion of the Diroctor
Agency:
Department of Community Services
Date of Agency B>:i!(~ Determination
June 24,2004
3. Attached copy of Ordinance or materials which is subject of Ap'peal as Petitioner because:
~~~ ~~rrl~hprl Rxhibit .1/
4. The written materials submitted to the Board does support the Petitioner because:
.A!II'f
5. The Agency, Official, Board or Zoning District boundary should be affirmed.
See Attached Exhibit Q A
See attached Exhibit . #
6. The work on the premises upon which appeal has been filed shall .at be stayed because:
See attached Exhibit . ~
DECISION
IT IS THEREFORE the decision of the Carmel/Clay Board of Zoning Appeals that Appeal Docket No.
is granted, subject to any conditions stated in the minutes of this Board, which are
incorporated herein by reference and made a part hereof.
Adopted this
day of.
,200
CHAIRPERSON, Carmel/Clay Board of Zoning Appeals
SECRETARY, Carmel/Clay Board of Zoning Appeals
S:\carmellanduseregs\checklist\appealapp rev 01/05/04
Conditions of the Board are listed on the back.
(Petitioner or his representative to sign).
BZA Appeal Application - pg 8
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Exhibit A
Statement in Support of Appeal
This is an appeal of a Determination by Mr. Hollibaugh on June 24, 2004 in response to a
letter from Thomas Yedlick requesting that there is a question whether or not a
nonconforming use exists.
In his Determination, Mr. Hollibaugh states that "the land uses that were established on
Martin Marietta's properties on or about May 17, 2002, constituted legal, nonconforming
uses"; and that "those uses do not appear to have been substantially modified, expanded,
or added to since May 2002". This is"an appeal ofthat Determination.
Historical Background
The following facts are undisputed.
Sand and gravel operations have been conducted on Martin Marietta's property (referred
to herein as "Carmel Sand") north of I06lh Street for over 25 years. Although this
property is classified as 8-1 Residential, these sand and gravel operations have been
treated as exempt from Carmel's zoning regulations under IC 36-7-4-1103. Essentially
these operations have been treated as "nonconforming uses" under Carmel's land use
regulations.
Sand and Gravel Operations
As defined by Martin Marietta in previous filings with the Department, sand and gravel
operations consist of extracting sand and gravel minerals by means of a floating dredge,
transporting the extracted minerals to an on-site finishing plant through a slurry pipe,
washing and sorting the extracted minerals at the finishing (processing) plant, and
stockpiling the finished product for sale.
The primary use which gives rise to the nonconforming use is the extraction of minerals.
The finishing (processing) plant, if classified separately, would be classified under zoning
as a "manufacturing use". However since the processing plant has been classified as a
secondary (subsidiary) operation of mineral extraction, it has been permitted as an
accessory operation.
Prior Variance and Special Use History
In or about May 2002, Martin Marietta sought to expand Cannel Sand operations. The
primary applications requested were to expand onto the Mueller property on their
southern boundary, and to relocate the processing plant from the west side to the east side
of Hazel Dell Road. The Board of Zoning Appeals denied these applications. . Note:
Martin Marietta had begun mineral extraction on the Mueller property prior to obtaining
a Special Use permit and was ordered by the BZA to stop extraction.
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Sometime after May 2002, Carmel Sand's available mineral reserves became exhausted.
Because of the investment they had in the Carmel Sand processing plant, it was in their
economic interest to extend the life ofthis processing plant by obtaining raw sand and
gravel from other quarries for processing at the Hazel Dell plant.
This was done by trucking in off-site sand and gravel from a quarry in Noblesville and
from a gravel quarry south of 96tl1 Street to the Carmel Sand plant on Hazel Dell for
processing. These raw materials have been, and continue to this date, to be processed
into finished product at the Carmel Sand processing plant.
ISSUES
The following issue was presented to the Director for Determination:
Does the processing of off-site minerals at the Carmel Sand plant constitute a
violation of their nonconforming use and the zoning ordinance?
LEGAL PRECEDENTS
Diminishing asset nonconforming use Concept. 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 nonconforming use concept. By its very
nature, quarrying involves a unique use of land. As opposed to other nonconforming 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 nonconforming use established on one
parcel ofland to physically separate, though adjoining, parcels. 56 ALR4th 761,
Syracuse Aggregate Corp v Weise, 414 NE2d 651.
While an established nonconforming use may be continued after the effective date, there
is no constitutionally protected right to change one nonconforming use to another, and a
change to a different use inconsistent with the zoning regulations is prohibited. A change
may be prohibited even though the new use is in some respects generically the same as
the old.
A legal nonconformjng use may not be substantially modified, expanded or added to
without approval.
Where nonextinction 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 of the site is
consummated.
A nonconforming use cannot be extended or moved to subsequently acquired property.
A nonconforming use may not be extended over ground not occupied at the time the use
became subject to zoning restrictions.
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ANALYSIS
The question for Determination is whether the nonconforming use of land for mineral
extraction contemplates a separate use for processing operations not associated with the
land. Legal precedents cited above would clearly indicate not. Importing minerals for
processing is clearly not associated with the underlying use of mineral extraction.
CONCLUSION
The Director has not met the burden under the law. In his Determination that "those uses
(i.e. processing plant) do not appear to have been substantially modified, expanded, or
added to since May 2002", he fails to recognize the facts as they relate to the unique
nature of mineral extraction and the importation of off-site minerals. As a process closely
linked to the extraction of minerals, mineral processing cannot be changed or modified to
an entirely separate use (i.e. processing of off-site minerals) without a zoning variance.
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City of Carmel
June 24, 2004
Mr. Thomas Yedlick
5053 81. Charles Place
Carmel, IN 46033
Re: Your Letter of December 16,2003
Dear Mr. Yedlick:
After the pre-hearing conference held an Tuesday, lrme 22,2004, I reviewed tbe arguments submitted by
Mr. Weiss and Mr. Thrasher (in their respective docwnents submitted to this department on June 18,
2004), in consultation with legal counsel. As a result of tills review, I have reconsidered my earlier
determination that the issue raised in your letter should be presented to the Board of Zoning Appeals for
resolution tUlder Section 28.06 ofthe Cannel Clay Zoning Ordinance, and I have withdrawn the petition
that I previously filed with the Board which called far a puhlic hearing on this matter to be held on June
28, 2004.
Moreover, I have now made the following deterininations under the Zoning Ordinance:
1. The Board of Zoning Appeals lacks jurisdiction to hear the question of nonconforming use unless
and until this department makes a decision or determination regarding such question and an
appeal of such decision or determination is filed with the Board;
2. The land uses that were established on Martin Marietta'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, nonconfonTling uses under the Carmel Clay Zoning
Ordinance which may not be substantially modified, expanded, or added to without a change of
zoning classification or Board approval of a special use or variance.
Should you wish to appeal any or all of the above detenninations to the Board, please contact the
department and we will provide you with the appropriate forms and hearing schedules. If you have any
questions, or wish to discuss this matter further, please do not hesitate to contact me at 571-2422.
v cry truly yours,
A-,
V J.; .
~
Michael Hollibaugh
Copy: Zeff Weiss
Philip TIrrasher
Brian Tuohy
John Molitor
Douglas C. Haney
ONE CIVIC SQUARE
CARMEL, Il\IDIANA 46032
317/571-2417
CARMEL/CLAY BOARD OF ZONING APPEALS
CARMEL, INDIANA
Docket No.:
Petitioner:
04070020 A
Thomas Yedlick
FINDINGS OF FACT - APPEAL
L The petitioner has properly followed the Appeals Procedure outlined in Ordinance Z-160, Section
30.2, et seq. except as follows: Petitioner has followed the Procedures outlined in Ordinance Z-
160
2. Nature of action appealed from:
1) Chapter 28.06 Existence of a Nonconforming use: In circumstances where there is
question whether or not a nonconforming use exists, it shall be considered a question of
fact and shall be decided by the Board following public notice and a public hearing.
2) Chapter 30.01 Appeals to the Board:
An appeal shan also be filed where the Board is required to determine a zoning district
boundary or the existence of a nonconforming use.
3) Determination of the Director dated June 24, 2004
Agency: Department of Community Services
Date of Agency Decision: June 24, 2004
3. Attach copy of Ordinance or materials is subject of Appeal as Petitioner because:
There is a question (a) whether certain operations of Martin Marietta constitute an illegal
nonconforming use, and(b) whether processing off-site materials constitute an impermissible
change in use and/or impermissible expansion of a nonconforming use.
4. The written materials submitted to the Board does support the Petitioner because:
By processing off-site material, Martin Marietta has violated the established nonconforming use
5. The agency, Official, Board or Zoning District boundary should not be affirmed because:
The use of the facilities to process off-site material is (a) an impermissible expansion ofa
nonconforming use, and (b) is an impermissible change in use from mineral extraction to a
manufacturing zone district for processing uses.
6. The work on the premises upon which appeal has been filed shall be stayed because:
The change in use requires a use variance and the operations being conducted constitute a public
nuisance.
DECISION
IT IS THEREFORE the decision of the Carmel/Clay Board of Zoning Appeals that Appeal
Docket No. 07070020 A is granted, subject to any conditions stated in the minutes of this Board,
which are incorporated herein by reference and made a part hereof
Adopted this
day of
,2004.
CHAIRPERSON, Carmel/Clay Board of Zoning appeals
SECRETARY, Carmel/Clay Board of Zoning appeals
DOCKET NO.
. r ,
W CITY OF CARMEL. CLAY TOWNS.~
. HAMILTON COUNTY. INDIANA /:"(11 eJ;;,.
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APPLICATION FOR BOARD OF ZONING APPEALS ACTION P.
APPEAL REQUEST .\ .' ~~\\\~.\)
Fee: $125.00 . f~~=' ~t~\~ '~"'
\ Y t"\\)C;)
DATE RECEIVED: \ ""' \J
\b'- .."
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1)
Applicant:
/
Address:
rrhllmas Yedlick
5051 St Charles Place
Carmel, IN 46033
2)
Project Name:
carmel sand
Phone:
Engineer/Architect:
Phone:
Attorney:
Phone:
3) Applicant's Status: (Check the appropriate response)
(a) The applicant's name is on the deed to the property
(b) The applicant is the contract purchaser.of the property
x (c) Other:
4) If Item 3) (c) is checked, please complete the following: Aa. OI('~~aJp ( C' oYp _
A Yvle.Y I' (dih -..J J (.)
Owner of the property involved: Martin Marietta Materials r Inc.
Owner's address:
.;J')80 13 l1Gth Ctrggt, ~uite 200, Ga.LJ.'Pftbr1'e:~N 4G03~
13~ 7 !)Ot.-f~ '/.--eVI t4. Qd. ')(--en l'Q /6 i-t
l...../ S3BS
.-'
5)
Record of Ownership:
Deed Book No.llnstrument No.
Page:
Purchase date:
6) Common address of the property involved: 106th street and Hazel Dell parkwa7
Legal description:
7)
Tax Map Parcel No.: ID NOD. 17 14 Q4-011-1111-018.000 and
17-14-09-00-00-012.000
State explanation of requested Appeal: (State what you want to do and cite the section number(s) of the
Carmel/Clay Zoning Ordinance which applies and/or creates the need for this appeal).
See attached Exibit A
5~CTIO,.v -;1~ 0(,
;? o~t#fr
C A-~kf. BL C lli/"
c:> rt .D l,.v " ;u (! E-
8) State reasons supporting the Appeal: (Additionally, complete the attached question sheet entitled "Findings of
Fact-Appeal").
Gee ~tt~ch~d Exhihi~ . A
BZA Appeal Application - pg 1
9)
10)
11)
Present zoning of the property (give exact classification): ~ 1 Op c:: i t1pn t- in 1
Present use of the pr~ Mineral extrUon
Size of loUparcel in question
acres
12) Describe the proposed use of the property
13)
Is the property:
Owner occupied
Renter occupied
Other
14) Are there any restrictions, laws, covenants, variances, special uses, or appeals filed in connection with this
property that would relate or affect its use for the specific purpose of th is application? If yes, give date and docket
number, decision rendered and pertinent explanation.
15) Has work for which this application is being filed already started? If answer is yes, give details:
Building Permit Number:
Builder:
16) If proposed appeal is granted, when will the work commence?
17) If the proposed appeal is granted, who will operate and/or use the proposed improvement for which this application
has been filed?
NOTE:
LEGAL NOTICE shall be publiShed in the Indianaoolls Star a MANDATORY tvventy-five (25) days prior to the public
hearing date. The certified "Proof of Publication" affidavit for the newspaper must be available for inspection the night of the
hearing.
LEGAL NOTICE to all adjoining and abutting property owners is also MANDATORY, two methods of notice are
recommended:
1) CERTIFIED MAIL - RETURN RECEIPT REQUESTED sent to adjoining property owners. (The white receipt
should be stamped by the Post Office at least twenty-five (25) days prior to the public hearing date)
2) HAND DELIVERED to adjoining and abutting property owners (A receipt signed by the adjoining and abutting
property owner acknowledging the twenly-five (25) day notice should be kept for verification that the notice was completed)
REALIZE THE BURDEN OF PROOF FOR ALL NOTICES IS THE RESPONSIBILITY OF THE APPLICANT. AGAIN, THIS
TASK MUST BE COMPLETED AT LEAST TWENTY-FIVE (25) DAYS PRIOR TO PUBLIC HEARING DATE.
The applicant understands that docket numbers wi!! not be assfQned until all supportinq information has been
submitted to the Department of Community Services.
The applicant certifies by signing this application that he/she has been advised that all representations of the
Department of Community Services are advisory only and that the applicant should rely on appropriate subdivision and
zoning ordinance and/or the legal advice of his/her attorney.
BZA Appeal Application - pg 2
AFFIDAVIT
I, being duly sworn de(~1d say that the foregoing signatures, stL~ts and answers herein contained and
the information herewith submitted are in all respects true and correct to the best of my knowledge and belief. I, the
undersigned, authorize the applicant to act on my behalf with regard to this application and subsequent hearings and
testimony.
Signed:
-rHeJ/-1A-S Yt30L1c.r
(Prease Print)
STATE OF INDIANA
S8:
County of
fA. ~r \ C:>Y'"'\
(County in which notarization take place)
Before me the undersigned, a Notary Public
for ~oor'\~
(Notary Public's county of residence)
Jt.----.oM'a S ~ pci \, r' 'L
(Property Owner, Attorney, or Power of Attorney)
County, State of Indiana, personally appeared
and acknowledge the execution of the foregoing
instrument this
I 4 +V'\
day of
(SEAL)
i
Notary Public--Plea
Boone County
My Commission Expires
My commission expires:
BZA Appeal Application - pg 4
1.
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The Petitioner has (has not) properly followed the Appeals Procedures outlined in Ordinance Z-160, Section 30.2,
et seq. except as follows:
~~~~1iIi'1~a1 ~iD V.
(~.~.1RMELlCLAY BOARD OF ZONING ~s
CARM EL, INDIANA
Docket No.:
Petitioner:
Thomas Yedlick
FINDINGS OF FACT - APPEAL
2.
Nature of action appealed from:
DctcrminJtion of tho Diroctor
Agency:
Department of Community Services
Date of Agency RI.l!l:Q{S{QtK Determination
June_24,2004
3. Attached copy of Ordinance or materials which is subject of Appeal as Petitioner because:
Se~ rlrrrlrh~n F.xhihit .1/
4. The written materials submitted to the Board does support the Petitioner because:
~
5. The Agency, Official, Board or Zoning District bounda!)' should be affirmed.
See Attached Exhibit ~ A
See attached Exhibit . ~
6. The work on the premises upon which appeal has been filed shall _ be stayed because:
See attached Exhibit e ~
DECISION
IT IS THEREFORE the decision of the Carmel/Clay Board of Zoning Appeals that Appeal Docket No.
is granted, subject to any conditions stated in the minutes of this Board, which are
incorporated herein by reference and made a part hereof.
Adopted this
day of.
,200
CHAIRPERSON, Carmel/Clay Board of Zoning Appeals
SECRETARY, Carmel/Clay Board of Zoning Appeals
S:\carmellanduseregslchecklist\appealapp rev 01/05/04
Conditions of the Board are listed on the back.
(Petitioner or his representative to sign).
BZA Appeal Application - pg 8
. "
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Exhibit A
Statement in Support of Appeal
This is an appeal of a Determination by Mr. Hollibaugh on June 24, 2004 in response to a
letter from Thomas Yedlick requesting that there is a question whether or not a
nonconforming use exists.
In his Determination, Mr. Hollibaugh states that "the land uses that were established on
Martin Marietta's properties on or about May 17,2002, constituted legal, nonconfoffiling
uses"; and that "those uses do not appear to have been substantially modified, expanded,
or added to since May 2002". This is an appeal of that Determination.
Historical Backi!round
The following facts are undisputed.
Sand and gravel operations have been conducted on Martin Marietta's property (referred
to herein as "Carmel Sand") north of 1 06th Street for over 25 years. Although this
property is classified as S-l Residential, these sand and gravel operations have been
treated as exempt from Cannel's zoning regulations under IC 36-7-4-1103. Essentially
these operations have been treated as "nonconforming uses" under Carmel's land use
regulations.
Sand and Gravel Operations
As defined by Martin Marietta in previous filings with the Department, sand and gravel
operations consist of extracting sand and gravel minerals by means of a floating dredge,
transporting the extracted minerals to an on-site finishing plant through a slurry pipe,
washing and sorting the extracted minerals at the finishing (processing) plant, and
stockpiling the finished product for sale.
The primary use which gives rise to the nonconforming use is the extraction of minerals.
The [mishing (processing) plant, if classified separately, would be classified under zoning
as a "manufacturing use". However since the processing plant has been classified as a
secondary (subsidiary) operation of mineral extraction, it has been permitted as an
accessory operation.
Prior Variance and Special Use History
In or about May 2002, Martin Marietta sought to expand Canllel Sand operations. The
primary applications requested were to expand onto the Mueller property on their
southern boundary, and to relocate the processing plant from the west side to the east side
of Hazel Dell Road. The Board of Zoning Appeals denied these applications.. Note:
Martin Marietta had begun mineral extraction on the Mueller property prior to obtaining
a Special Use permit and was ordered by the BZA to stop extraction.
. -
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Sometime after May 2002, Carmel Sand's available mineral reserves became exhausted.
Because of the investment they had in the Camle1 Sand processing plant, it was in their
economic interest to extend the life of this processing plant by obtaining raw sand and
gravel from other quarries for processing at the Hazel Dell plant.
This was done by trucking in off-site sand and gravel from a quarry in Noblesville and
from a gravel quarry south of 96th Street to the Carmel Sand plant on Hazel Dell for
processing. These raw materials have been, and continue to this date, to be processed
into finished product at the Cannel Sand processing plant.
ISSUES
The following issue was presented to the Director for Determination:
Does the processing of off-site minerals at the Carmel Sand plant constitute a
violation of their nonconforming use and the zoning ordinance?
LEGAL PRECEDENTS
Diminishing asset nonconforming use Concept. 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 nonconforming use concept. By its very
nature, quarrying involves a unique use of land. As opposed to other nonconforming 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 nonconforming use established on one
parcel ofland to physically separate, though adjoining, parcels. 56 ALR4th 761,
Syracuse Aggregate Corp v Weise, 414 NE2d 651.
While an established l1onconfom1ing use may be continued after the effective date, there
is no constitutionally protected right to change one nonconforming use to another, and a
change to a di fferent use inconsistent with the zoning regulations is prohibited. A change
may be prohibited even though the new use is in some respects generically the same as
the old.
A legal nonconforming use may not be substantially modified, expanded or added to
without approval.
Where nonextinction 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 of the site is
consummated.
A nonconforming use cannot be extended or moved to subsequently acquired property.
A nonconforming use may not be extended over ground not occupied at the time the use
became subject to zoning restrictions.
.~
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ANALYSIS
The question for Determination is whether the nonconfOlming use of land for mineral
extraction contemplates a separate use for processing operations not associated with the
land. Legal precedents cited above would clearly indicate not. Importing minerals for
processing is clearly not associated with the w1derlying use of mineral extraction.
CONCLUSION
The Director has not met the burden under the law. In his Determination that "those uses
(i.e. processing plant) do not appear to have been substantially modified, expanded, or
added to since May 2002", he fails to recognize the facts as they relate to the unique
nature of mineral extraction and the importation of off-site minerals. As a process closely
linked to the extraction of minerals, mineral processing Calmot be changed or modified to
an entirely separate use (i.e. processing of off-site minerals) without a zoning variance.
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June 24, 2004
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Mr. Thomas Yedlick
5053 81. Charles Place
Cannel, IN 46033
Re: Your Letter of December 16, 2003
Dear Mr. Yedlick:
After the pre-hearing conference held on Tuesday, June 22, 2004, I reviewed the arguments submitted by
Mr. Weiss and Mr. Thrasher (in their respective documents submitted to this department on June 18,
2004), in consultation with legal counsel. As a result of this review, I have reconsidered my earlier
determination that the issue raised in your letter should be presented to the Board of Zoning Appeals for
resolution under Section 28.06 of the Carmel Clay Zoning Ordinance, and I have withdrawn the petition
that I previously filed with the Board which called for a public hearing on this matter to be held on June
28, 2004.
Moreover, I have now made the following determinations under the Zoning Ordinance:
1. The Board of Zoning Appeals lacks jurisdiction to hear the question of nonconforming use unless
and until this department makes a decision or determination regarding such question and an
appeal of such decision or determination is filed with the Board;
2. The land uses that were established on Martin Marietta'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.
Should you wish to appeal any or all of the above determinations to the Board, please contact the
department and we will provide you with the appropriate forms and hearing schedules. If you have any
questions, or wish to discuss this matter further, please do not hesitate to contact me at 571-2422.
Very truly yours,
Michael Hollibaugh
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Copy: ZeffWeiss
Philip Thrasher
Brian Tuohy
John Molitor
Douglas C. Haney
ONE CIVIC SQUARE
CARMEL, INDIANA 46032
317 /571-2417