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CITY OF~ARMEL, 'NDJANA
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Request For Records pursuant To h,d1cino Abcess To public Record >\
(LC,. 5-14-3--1, .m~. os amended)
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indiona, the rtght to inipect and copy the followlhg recor~s:
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MARTIN MARIETTA" 04040024 SU
MUELLER PROPERTY SOUTH
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INDEX
1. Application for BZA Action
Special Use Approval Request
City of Carmel
December 13, 2002
2. Response to Requests for Information in COlll1ection
with Application for Special Use Approval
City of Carmel
March 5, 2004
3. Construction Plan for Operation to Comply with 327 lAC 15-5-6.5
Hamilton County Soil and Water
April 2004
4. Erosion and Sediment Control Report
Shelly and Loy Consultants
June 2004
5. BZA Informational Booklet Hearing date June 28, 2004
ICE MlLLER
June 18, 2004
6. Response to Conunents Provided During April 24, 2004 TAC Meeting
in Connection with Application for Special Use Approval
City of Carmel
July 2004
7.
a.
Effects of Proposed Mine Expansion on Public Water Supply Wells
Wittman Hydro
July 27, 2004
b. Executive Summary: Assessment of the Effects
on Public Water Supply Wells
Wittman Hydro
August 10, 2004
8. Spill Prevention, Control, and Countermeasure Plan
Hamilton and Marion Counties
August 2004
9. Written Remonstrance
KINGSWOOD Homeowners Association
August 11, 2004
10. Summary of Application for Special Use Approval
to mine Sand and Gravel
City of Cannel
August 10,2004
Martin Index z-pb
11. Application for BZA Appeals Action
Special Use Approval Request
Power Point Presentation
August 11, 2004
12. Sound Level Assessment
Mueller Property South Sand and Gravel
Special Use Application
Prepared by: Smelly and Lay, Inc.
September 2004
13. Executive Summary of Application for BZA Appeals Action
Mueller Property South Sand and Gravel
Prepared by: Martin Marietta
September 2004
14.
Remonstrators' Presentation
. Opposing
Martin Marietta Materials, Inc.
# 04040024 SU
September 27, 2004
YARGER ENGINEERING
Letter/SEPTEMBER 27,2004
a.
b. Remonstrator's objections to
Affidavit of Michael c. Lady
And attached neighborhood analysis
c. Remonstrator's objections to
Affidavit of Johnj. Tiberi
d. Remonstrators' objections to
Affidavit of David Buss
15. Comments in opposition to Special Use Application
For Mueller south Sand and Gravel Operations
Submitted by; Thomas Wedlock
16. Various Martin Marietta Submittals:
August 11, 2004
a. Affidavit of David Buss
b. Affidavit of Michael C. Lady
c. Affidavit of John J. Tiberi
d. OBJECTIONS BY MARTIN MARIETTA MATERIALS, INC.
17. DNR - Blue Woods Creek
Hamilton County, Basin 14
August 11, 2004
18. NEIGHBORHOOD ANALYSIS
Kingswood Subdivision
Submitted by: INTEGRA REALTY RESOUCES - INDIANAPOLIS
August 11, 2004
Martin Index z-pub 2
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One Civic Square
Carmel, IN 4S032
(317) 57~-2417
Fax: (317)571-2426
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THOMAS C. YEDLICK
5053 St. Charles Place
Carmel, Indiana 46033
317-844-0141 x253
October 22, 2004
Michael Hollibaugh
Department of Community Services
City of Carmel
1 C~vic Square
Cannel, IN 46032
Re Docket No. 04070020 A: Public Hearine on an
Appeal to Director's determination that Martin Marietta's operation
is a le2:al. nonconformine use
Findings of Fact Requirement
Dear Mr. Hollibaugh:
In accordance with instructions received from Connie Tingley on October 20,2004 via e-
mail, attached are 8 copies of Appellant's Findings of Fact.
I understand that the' Board closed the Public Hearing with respect to submission of "new
evidence". This is not new evidence but rather completion of the Appelant's obligation
for submitting the required Findings. I request these be submitted to the Board prior to
the meeting on October 25,2004 to advance any discussion at that meeting.
Thank you,
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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:
l) Chanter 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 shaUbe decided by the Board following public notice and a public hearing.
2) Chapter 30.01 Apveals to the Board:
An appeaLshall 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 ormaterials 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 impennissible
change in use and/or impermissible expansion of a nonconforming use.
4. The written materials submitted to the Board does support the Petitioner because:
Bv processing off-site materiaL Martin Marietta has violated the established nonconforming use.
SEE ATTACHED APPELLANT'S FINDINGS
5. The agency, Official, Board or Zoning District boundary should not be affirmed because:
The use ofthe facilities. to process off-site material is (a) an impermissible expansion of a
nonconforming use, and (b) is an impermissible chan,ge 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
nUlsanee.
DECISION
IT IS THEREFORE the qecision of the Carmel/Clay Board of Zoning Appeals that Appeal
DocketNo. 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, CarmellClay Board of Zoning appeals
SECRETARY, CannellClay Board of Zoning appeals
BOARD OF ZONING APPEALS
CITY OF CARMEL, INDIANA
IN RE: APPEAL OF THOMAS YEDLICK
Docket No. 04070020 A
Appellant's Pvoposed Findines of Fact and Conclusions of Law
The Issue
Specifically, the Appellant, Thomas Yedlick, challenges Martin Marietta's right to
utilize certain sand and gravel processing and screening equipment on the Carmel Sand
property to process sand and gravel not extracted from the Carmel Sand property
(herein referred to as "off-site material").
Back2round
This matter is before the Board of zoning Appeals ("Board") on Appellant's appeal of a
determination by the Director of the Department of Community Services finding that uses
being conducted on Martin Marietta's property (herein Carmel Sand) constitute legal,
nonconforming uses.
At a Hearing on this matter on October 13, 2004, the parties to the appeal, as well as
interested members ofthe public, were heard. The following relevant materials or
testimony were submitted by the Appellant, Marhn Marietta, and the Director of
Community Services:
1. The Appellant does not challenge Martin Marietta's right to continue to utilize those
certain sand and gravel processing and screening equipment for tbe original purpose
for which the equipment was established, that being the "alienation of mineral
resources from the owners property".
2. At the hearing, the following facts or admissions were presented and are not disputed:
(a) Martin Marietta's predecessor, American Aggregates, acquired the
property on which tbe Carmel Sand plant is presently located in about
1964.
MINERAL, SOIL, OR GRAVEL EXTRACTION OPERATIONS. Any process used in
obtaining, from the earth (emphasis added), naturally occurring substances.
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 auy alteration, enlargement or extension (emphasis added).
Carmel Zoning Chapter 28.01.06
The advisory planning law does not authorize an ordinance that would prevent, outside of
urban areas, the complete use and alienation of any mineral resources or forests by the
owner or alienee of them. I.R.e. 36-7-4-1103
The term "use" as employed in the context of zoning, is a word of art denoting the
purpose for which a parcel of land is intended, or for the purpose for which it is
occupied or maintained. Zoning in general and "uses" in particular focus on how a
parcel of land was utilized. Protective Ins. Co. v. Coca-Cola Bottling, 467 NE2d.754,
Harbour Town Associates, v. City of Noblesville, 540 NE2d 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
State Code tends to interpret nonconforming uses in strict terms. ... 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. Mishawaka Bd of Zoning Appeals, 395 NE2d, 834
Discussion
There is only one Question for the Board to determine in this Appeal. Is processing of
off-site material a use permitted as a continuation of a prior mineral extraction use?
Martin Marietta has attempted to restate the question as "has processing been established
as a separate use regardless ofthe source of the material?"
While the Appellant agrees with the Intervenors that mineral extraction and processing
were never properly established in the first place, the Appellant believes that is a moot
point at this time.
Martin Marietta acknowledges that mineral extraction has not taken place on Carmel
Sand property since early 2003. Martin Marietta also acknowledges that processing is an
integral part of mineral extraction ("Tiberi").
I'
The definition of "use" under Indiana law is quite clear. A Use is defined as the purpose
for which a plant is used. But more significantly when considering a nonconforming use,
viewing land use from a historical perspective or by hindsight, or by actual utilization
would seem to be the appropriate criterion (for defining use). See above, emphasis
added.
In applying this law, it is quite clear that the purpose for which the plant was established
and historically used was to process minerals from the Carmel Sand quarry. Martin
Marietta would like you to believe that some day they might resume extractio'n on Cannel
Sand property, and therefore in the mean time, they are entitled to find other uses to keep
the plant running. While tltis makes natural economic sense for Martin Marietta, it is
contrary to Jacobs v. Mishawaka Bd of Zoning Appeals (see above), "that the policy of
zoning ordinances is to secme the gradual, or eventual elimination of nonconforming
uses and to restrict or diminish rather than increase such uses."
The Appellant has provided this Board ample supporting case law from Maxey v Board of
Zoning Appeals and Massachusetts Broken Stone Company v. Town of Weston to sustain
this appeal (see Appellant's Memorandum of Points and Authorities).
· In Maxey, the court detennined that a nonconforming use established as an
exempt use couldn't he continued as a nonconforming use after the
exemption lapses.
4) In Massachusetts, the court determined that importing off-site sand and
gravel to be processed at an existing nonconforming processing plant
constituted a new business and was not permitted.
Martin Marietta and the Director wish this Board to view the Settlement Agreement as
establishing the "law" when defining nonconforming use. I object for two reasons:
First, the language is too vague for you to interpret. '.Uses existing on May 17,2002" is
too vague, and neither the Director nor Martin Marietta has never actually made claim
that processing off-site material was a use on May 17, 2002. Quite to the contrary, Mr.
Weiss' letter of June 18,2004 clearly indicates processing of off-site material did not
begin until late 2002 and therefore could not be a use as of May 17,2002.
Second, the Settlement Agreement cannot replace the law. If you allow that to happen,
the authority of this Board to enforce the zoning laws of the City will be invalidated
every time a officer or agency of the City decides to '.cut a deal" for sake of convenience.
If Martin Marietta feels they have been wronged by the City or Kingswood because of
provisions in the Settlement Agreement, or even the Hazel Dell Agreement for that
matter, their recourse is in the civil courts, not with tItis zoning body.
Further the Director's Determination should be considered invalid because the fmdings
upon which his determination was made are incomplete. The definition of a legal
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nonconforming use under Carmel Ordinance is "a Use of a Building, land or premises
existing at the time of the passage of this ordinance which does not conform to all of the
applicable provisions ofthi8 ordinance but did conform to applicable provisions of any
ordinance superseded by this ordinance".
To be determined a valid Determination, the Director must provide the following at a
minImum:
1) \\That specifically is the use is that is being considered.
2) Did that "use" conform to the applicable provisions of any previous
ordinance, and if so, identify that compliance.
In order for this Board to sustain the Director's Determination, you must find that he has
met that burden. Since the Director did not provide any evidence at the Hearing to
indicate that he has meet that burden, you cannot find in support of that Determination.
Conclusion
Based on the above Findings, the Director's Determination cannot be sustained. Further
the Board finds that the Appellant has met the burden of this Appeal and therefore,
processing off-site material at Cannel Sand is an impermissible use.
STATE OF INDIANA
CARMEL/CLAY ADVISORY BOARD
OF ZONING APPEALS
CITY OF CARMEL
Docket No. 04070020 A
Thomas Yedlick,
APPELLANT
William D. McEvoy, Gregory M. Policka,
Susan Becker, Rex A. Weiper,
Rene Pimentel, and Donald K. Craft
APPELLANT INTERVENORS
v.
Department of Community Services
for the City of Carmel, Indiana
RESPONDENT
Martin Marietta Materials, Inc.
RESPONDENT INTERVENOR
OBJECTION BY THE APPELLANT INTERVENORS
TO THE EXCLUSION OF THEIR POST-HEARING BRIEF
BY THE DEPARTMENT OF COMMUNITY SERVICES
And
REQUEST FOR DELIVERY OF THE POST-HEARING BRIEF
AND
REQUEST FOR CONTINUANCE PENDING REVIEW OF THE
POST-HEARING BRIEF BY THE BZA
1
'i
This matter is before the Carmel/Clay Advisory Board of Zoning Appeals (the
"BZA") on an appeal by Thomas Yedlick (the "Appellant"), joined in by William D.
McEvoy, Gregory M. Policka, Susan Becker, Rex A. Weiper, Rene Pimentel, and
Donald K. Craft (the "Appellant Intervenors"), of a certain determination ("Letter
of Determination") issued by the Director of the Carmel Department of
Community Services (the "DOCS") on June 24, 2004.
On October 13, 2004, a hearing was held at which evidence was heard
from all parties. At the conclusion of the hearing, the BZA passed a resolution
that they would take no more evidence at the next hearing, October 25, 2004,
and would instead limit input by the parties at the October 25, 2004 hearing to
answers to questions from the members of the BZA. Nothing was said with
respect to the submitting of additional briefs or other information prior to the
October 25, 2004 hearing. In fact, it is the custom of the DOCS to send materials
to the BZA between hearings as it is received from the parties.
On Thursday, October 21, 2004, eight days following the October 13,
2004 initial hearing of this matter by the BZA, the Appellant Intervenors submitted
their Post-Hearing Brief, a copy of which is incorporated herein by reference, for
the purpose of responding to the new information finally provided by the Martin
Marietta Materials, Inc., the Respondent I ntervenor, at the October 13, 2004
hearing. At 4:45 p.m. on October 21, 2004, Jon Dobosiewicz of the DOCS sent
an email, copy attached, to counsel for the Appellant Intervenors stating that the
DOCS would not forward the Post-Hearing Brief to the BZA, even though a
2
package of other documents was being sent to the members of the BZA that day.
See the email from Jon Dobosiewicz dated October 20,2004, attached hereto.
The Appellant Intervenors believe that the DOCS overstepped its
authority by refusing to forward the Post-Hearing Brief to the BZA prior to the
October 25, 2004 hearing. This action has prevented the members of the BZA
from being informed of the additional law that applies to the new evidence that
was introduced at the October 13, 2004 hearing by Martin Marietta Materials,
Inc., the Respondent Intervenor. It also prevented the BZA from being informed
of the Amended Findings of Fact and Conclusions of Law prepared by the
Appellant Intervenors based on the facts introduced by the Respondent
Intervenors.
In this case, the DOCS is the named Respondent and it is the contents of
its Letter of Determination that the Appellant Intervenors are challenging. It is a
conflict of interest for the DOCS, a party to the appeal, to knowingly withhold
information from the BZA that might serve to overturn its own Letter of
Determination. By acting as a gatekeeper to the BZA and withholding
information, the DOCS has violated the procedural due process rights of the
Appellant Intervenors, creating a potential ground for appeal by the Appellant
Intervenors should the BZA decide this case unfavorably to the Appellant
Intervenors.
In an effort to prevent the need for an appeal, the Appellant Intervenors
request that the DOCS immediately make available to the members of the BZA
3
one copy each of the Post-Hearing Brief filed by the Appellant Intervenors on
October 21, 2004.
Further, to prevent the BZA from being forced to make a decision on this
case without proper time for study of the Post-Hearing Brief and reflection on the
law and facts recited therein, the Appellant Intervenors request that the BZA
withhold making its decision until the next meeting of the BZA.
Counsel for the Appellant Intervenors will be available to answer any
questions the BZA may have with respect to the October 13, 2004 hearing and
the materials contained in the Post-Hearing Brief.
ReS~Ubm~tted' .
Th~r~c~~p.c.
Attorneys for the Appellant Intervenors:
William D. McEvoy, Gregory M. Policka,
Susan Becker, Rex A. Weiper,
Rene Pimentel, and Donald K. Craft
Attachments:
Post-Hearing Brief dated October 20, 2004 Prepared By
Appellant Intervenors
Email dated 4:45 p.m. on October 21, 2004 from Jon C.
Dobosiewicz to Phil Thrasher
Email dated 5:10 p.m. on October 20,2004 from Jon C.
Dobosiewicz to Phil Thrasher
Distribution:
Mr. Zeft A. Weiss, Esq., Ice Miller, One American Square, Box 82001,
Indianapolis, IN 46282-0002 (hand delivery)
Mr. Michael Hollibaugh, Director, Department of Community Services, Carmel
Town Hall, Carmel, IN 46032 (hand delivery)
Mr. Thomas Yedlick, 5053 S1. Charles Place, Carmel, IN 46033 (hand delivery)
4
Page 1 01'2
Phil Thrasher
From:
To:
Sent:
Subject:
"Dobosiewicz, Jon C" <JDobosiewicz@cLcarmel.in.us>
"Phil Thrasher" <thrasher@indiana-attorneys.com>
Thursday, October 21, 2004 4:45 PM
RE: Mueller South Special Use application
Phil,
As I indicated on the phone. DOCS will not deliver any information to the Board on the Appeal.
The information you delivered will be available to the Board at the meeting. I will wait for their direction to deliver
it to them.
Thanks,
Jon
n---Original Message-----
From: Phil Thrasher [mailto:thrasher@indiana-attorneys.com]
Sent: Thursday, October 21, 2004 3:04 PM
To: Dobosiewicz, Jon C
Subject: Re: Mueller South Special Use application
Jon:
My clerk, Laura Conway, is on her way with something to file in each of the two cases. I have asked her to
file 10 each with DOCS, to get the extra copies file-stamped, and to send a file-stamped copy to everyone
else.
Please make sure that the Blue material goes to the Carmel Sand file and the white material goes to the
Mueller South Sand and Gravel file.
I am out tomorrow, so talk to you Monday.
Thanks.
----- Original Message -----
From: Dobosiewicz, Jon C
To: Hollibaugh, Mike P ; Duffy, John M ; John Tiberi (E-mail) ; Wayne Phears (E-mail) ; John R. Molitor
(~::mgilLC~~.r:m3jD ; ~~QCy_tL.-,~9'yg~J.!;:.m9jD
Cc: l2bil ThmsherjE-mgill; ~~fLWei~jf~m.9jJl
Sent: Wednesday, October 20,20045:10 PM
Subject: Mueller South Special Use application
FYI,
Now is the time for everyone who ever thought that there was an opportunity for the parties to come
logether and work out an acceptable solution to step forward.
Phil, should I infer from your comments latest that you have loaded your comments regarding
the commitments with things you do not think MM would ever agree to? Specifically you state that your
clients are committed against doing anything that would imply they are in favor of the Mueller South Sand
and Gravel Application. I want to make sure the residents interests are protected. I do not desire to
diminish the value of commitments by suggesting things the can not reasonable occur
10/25/2004
Page2of2
A copy of the documents (DOCS comments and proposed commitment from MM) went out In the mailing
to the Board members today. We did not receive anything else prior to the mailing. I will, against my
better judgment, send out an additional mailing to the Board members tomorrow (Thursday) at 4 p. m
Everyone has an opportunity to submit items to go out in this mailing. We need 10 copies of all items that
you want transmitted. Anything else will have to be presented to the Board at the meeting
It has been my experience in the past, as I am sure it is now all of yours (with this Board at least) that
they will not feel obligated to act on anything they receive (for the first time) at the meeting. With that
said. I hope to see our office inundated with proposed findings (supporting denial or approval),
commitments, etc. from both sides.
Thanks,
Jon
10/25/2004
Page 1 of 1
Phil Thrasher
Cc:
"Dobosiewicz, Jon Cor <JDobosiewicz@cLcarmel,in.us>
"Hollibaugh, Mike P" <MHollibaugh@ci.carmel.in.us>; "Duffy, John M" <JDuffy@cLcarmel.in.us>;
"John Tiberi (E-mail)" <john.tiberi@martinmarietta.com>; "Wayne Phears (E-mail)"
<wphears@pmlawfirm,com>; "John R. Molitor (e-mail) (E-mail)" <jmolitor@prodigy.net>; "Gregory
H. Savas (E-mail)..<gsovas@spectraenv.com>
"Phil Thrasher (E-mail)" <thrasher@indiana-attorneys,com>; "Zeff Weiss (E-mail)"
<weiss@icemiller.com>
Wednesday, October 20, 2004 5:10PM
REMONAmendDOCSCom m itvs.DOCSComments.doc;
REMONAmend DOCSComm it1 0.25, 04.doc
Mueller South Special Use application
From:
To:
Sent:
Attach:
Subject:
FYI,
Now is the time for everyone who ever thought that there was an opportunity for the parties to come together and
work out an acceptable solution to step forward.
Phil, should I infer from your comments latest that you have loaded your comments regarding the commitments
with things you do not think MM would ever agree to? Specifically you state that your clients are committed
against doing anything that would imply they are in favor of the Mueller South Sand and Gravel Application. I
want to make sure the residents interests are protected. I do not desire to diminish the value of commitments by
suggesting things the can not reasonable occur.
A copy of the documents (DOCS comments and proposed commitment from MM) went out in the mailing to the
Board members today. We did not receive anything else prior to the mailing. I will, against my better judgment,
send out an additional mailing to the Board members tomorrow (Thursday) at 4 p. m. Everyone has an
opportunity to su bmit items to go out in this mailing. We need 10 copies of all items that you want transmitted.
Anything else will have to be presented to the Board at the meeting.
It has been my experience in the past, as I am sure it is now all of yours (with this Board at least) that they will not
feel obligated to act on anything they receive (for the first time) at the meeting. With that said. I hope to see our
office inundated with proposed findings (supporting denial or approval), commitments, etc. from both sides,
Thanks,
Jon
10/25/2004
City of Carmel/Clay' Township
Department of Community Services
One Civic Square; Carmel, IN 46032
Planning & Zoning Office: ph. (317) 571-2417 Fax (317) 571-2426
Building & Code Enforcement: Ph. (317) 571-2444 Fax (317) 571-2499
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REQUEST FOR RECORDS PURSUANT TO INDIANA ACCESS TO PUBLIC
REea S ACT - (I.C. 5.14-3-1, et seq., As Amended).
I, '%;~ . c (;;j Ii- .' hereby request of the City of
(NAME OPTlQ ~L -- please. print)
Carmel, Indiana, the right to inspect and/or copy the following records:
(Please be specific as to what records you are looking for/requesting, and list the correct property information)
Mr!- vde.?~ v;: fit:?' Pc%: /3 /3:?A
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THE CITY MAY PROVIDE :ME WITH ITS RESPONSE:.
Date of Req uest:
/?/4;0/
Signature:
o By telephone at:
o By facsimile transmission at:
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By mail at: ;J.
Other: p/l; 'ff --- ~
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q07-3~/6lf6-~7?3
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OFFICE USE:
Signature:
Dept: D)(~..
Date: ~ Time:
On:
Received by:
Received in Legal Department by:
On:
FILLED WITHOUT NOTIFICATION TO LEGAL DEPT.: Y / N DATE FILLED:
Staff Init._
5:Forms I Request for Information Form
, Yrou, IC /[>-/3 H
SlJ~""'" f'I1::,b 1!'r 7bl"'t Y6'OUC"<,) Oc..TI3,2.00Cf It
BZA HEARING
October 13, 2004
EXHIBITS
THE ISSUES
A. If the Processing Plant is considered as
part of mineral extraction operations
then that use expires when there is no
miner-al extractione The plant use
cannot then be converted to the
commercial processing of off-site
materialo
B.' If the Processing Plant is considered a
Use independent from mineral extraction
then the processing plant was never
permissible at its inception because it
was a manufacturing use established
in a residential districts
"USE"
The term "use" as employed in the
context of zoning, is a word of art
denoting the purpose for which a parcel
of land is intended, or for the purpose
for which it is occupied or maintained.
Zoning in general and "uses" in
particular focus on how a parcel of land
was utilized.
-------------------------------------
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
NONCONFORMING USES
LEGAL NONCONFORMING USE.
A Use of a Building, land or premises
existing at the time of the passage of this
ordinance which does not conform to all of
the applicable provisions of this ordinance
but did conform to applicable provisions of
any ordinance superseded by this ordinance.
ILLEGAL NONCONFORMING USE.
A Use of a Building, land or premises
existing at the time of the passage of this
ordinance which does not conform to all of
the applicable provisions of this ordinance
nor those of any ordinance superseded by
this ordinance.
Carmel Zoning Ordinance
. "
NONCONFORMING USES - cont'd
Existing (nonconforming) 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 (change), enlargement or
extension. Carmel Zoning Ordinance
28.01.06
NONCONFORMING USES ARE TO BE
INTERPRETED STRICTLY
"State Code tends to interpret nonconforming
uses in strict terms. In view of fact 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 o'onconforming
uses and to restrict or diminish rather than
increase such uses (emphasis added)".
Jacobs v. Mishawaka Bd of Zoning Appeals.
Diminishing Asset Conce!!!:
Mineral extraction operations are defined as
"any process used in obtaining, from the
earth, naturally occurring su~stances".
(Chapter 3 : Definitions)
Under the Diminishio2 Asset Doctrine,
quarrying involves a unique use of land. The
activity contemplated by quarrying is
temporary because it contemplates the
excavation and sale of the corpus of the land
itself as a resourceo When the quarry can no
longer extract minerals, its temporary use is
ended.
DEFINING LAW
Maxey v. BZA
"The Court found an important distinction is evident
when the character of the use is examined. Vehicle
maintenance garages are not permitted in residential
zoning, however because the public uses are
permitted, the bus barn was "permitted" as an
accessory school use.
It (was) the character of use as public which
gualified it as a permitted use (bus barn) in
residential zoningo It is to be distinguished from
commercial uses of land. The character of the use
changes when it ceases to be governmental (public
use) and becomes commercial."
; '-.
DEFINING LAW
Massachusetts Broken Stone Company v. Town of
Westontl 195 NE2d 522 (1964)
The standard in determining whether there has been a
change in the preexisting use of the processing plant is
the degree to which the "original nature and
purpose of the undertaking remain unchanged" e
Since the property owner was conducting the
quarrying.. Gas a nonconforming use, the property
owner had no right to change this nonconforming
use through importation of stone to be processed
and sold on premises
The court referred to "the quarrying and crushing
of stone for sale" as one distinct business. The Court
held that the importation of stone to be processed and
sold on the premises as stone would be a change in
use, and the petitioner has no right thereto."
FINDINGS OF FACT
1) Processing off-site material at the Carmel Sand
Processing Plant is an impermissible change of its
USE as defined in Protective Insurance Company:
2) Processing off-site material is a change in the
established use of the plant without obtaining a use
.
varIance
3) The nonconforming use of the plant expired when
the underlining extraction of reserves stopped
(Diminishing Asset Concept)
4) Continued use of the processing plant as a
nonconforming use to process off site material is not
permitted under Carmel Zoning Ordinance 28.01.06
"Existing (nonconforming) uses eligible
for special use awroval .. e.. shall require
.wecialuse awroval for any alteration
(chan2e).. enlareement or extension."
I:::JWA~\? F. NEW
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MEl..RCSE 2"7363
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American Aggregates Corporat~on
c/o Mark W. Gray; Esq.
III Monument Circle
Indianapolis 4; Indiana 46204
Ai~~ i~ 7 1964
A~U~~~-.nJ.t\jG GAUSE
, ~TI)~,(; N & KJGBTLINGER
Dear Sir:
My apologies for not answering your inquiry of October
14; 1963 in which you request some statement from, the
,Carmel Plan Commission regarding our understanding as
to the inclusion of mineral extraction under our present
zoning ordinance. The matter was discussed some months
ago and my schedule has caused the entire subject to
slip from my mind until now.
Piease be advised that the Plan Commission which has
zoning jurisdiction over Clay Township, Hamilton County,
Indiana, considers that by the express terms of oUr
Master Plan Zoning Ordinance under lIPigure 9" under
11 Special Exceptions 11 you will find a specific. exclus ion
in See. u3 and refers to a so-called IIPlanning Act.; Sec.'
58~1l;'which.. for your records, can be found in Burns
Annat. Stat. Sec. 53-759. Thus, 'the activities of your
bus1lless in the nature of mineral extraction would not
be subject to the zoning authority of this Plan Commiss-
ion. We app~eciate your cooperation, however, in the
orderly and considerate compliance With, safety and clean-
liness practices, which has been your practice .elsewhere,
to the end that the entire area of Clay Township can.bene-
fit from your operation in the long run~ I shall be happy
to inspect the north side of 96th' St. with you ,in the near
'future in contemplation of a proposed pmant which you pro-
pose to build someti~e in the l~ture. Trusting this is
satisfactory, I remain
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CAR1VIEL/CLA Y BOARD OF ZONING APPEALS
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In re: Appeal of Director's Determination
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Docket No. 04070020 A
I':
AFFIDA VIT OF JOHN J. TIBERI
The lmdersigned, after being first duly sworn upon his oath, hereby deposes and states as
follows;
1. I am over the age of eighteen (18) years and have personal knowledge of the
matters recited herein.
2. I am the Regional Vice-President and General Manager of the MidAmerica
Region of Martin Marietta Materials. I have responsibility for the operation known as the
Carmel Sand plant.
3. Based on my review of business records maintained by Martin Marietta in the
ordinary course of business, Martin Marietta (or its predecessors) have mined the Marburger
farm property (the "Marburger Propeliy"), known as the Carmel Sand Plant, since at least 1971,
on an annual basis up to the present time.
4. The Marburger Property was part of a larger parcel of property owned and
operated as a sand and gravel mining and processing operation by American Aggregates and
known as Carmel Sand. CarnIel Sand is a single mine consisting of multiple parcels, as reflected
on Exhibit A hereto. This mine included the area that is now known as the future home of
"Founders Park", Carmel, lndiana, and more particularly depicted as such on Exhibit A hereto~
5. Processing is an integral part of the Cannel Sand mine.
Further Affiant saith not.
COUNTY OF HF'lfY,\, ,1-0",,\ )
) SS:
STATE OF -..L>--l bl AI.... I A )
Subscribed and sworn to before me, a notary public, in and for said County and State this
~ day of October, 2004.
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Signature
L1SO-. k, leN I~R-
Printed
Notary Public
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\'f);:-COni~lission Expires: 10 J ;;II' 10
County of Residence: \-h\c'n' H-nJ--l
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This instrument was prepared by Zeff A. Weiss, Attorney at Law, TCE MILLER, One American
Square, Box 82001, Indianapolis, IN 46282; 317-236-2319.
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Exhibit A
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CARMEL /CLAY BOARD OF ZONING APPEALS
In re: Appeal of Director's Determination
Docket No. 04070020 A
AFFIDAVIT OF WILLIAM KARNS
The undersigned "Affiant after being first duly sworn upon his oath, hereby deposes
and states as follows:
1. Affiant is over the age of eighteen (18) years and presently resides at 1106
Fairbanks Drive, City of Carmel, Hamilton County, Indiana.
2. Affiant was employed by American Aggregates Corporation "American
Aggregates for the period of 1959 through early winter, 1981. For the period of 1969 through
early winter, 1981, Affiant's title was District Manager. Affiant had responsibility for managing
nine (9) mining operations conducted by American Aggregates throughout the state of Indiana.
3. Affiant had responsibility for the supervision of the mining of sand, gravel and
other minerals in the vicinity of the intersections of East 96 Street, East 106 Street and East
116 Street and what is now known as Hazel Dell Road, City of Carmel, Hamilton County,
Indiana.
4. At least as early as 1971, American Aggregates owned and mined property north
of 106 St., on both sides of what is now Hazel Dell Parkway. American Aggregates acquired
property from Donald K. Marburger and Emma B. Marburger pursuant to that certain Warranty
Deed dated January 21, 1964, a copy of which is attached hereto as Exhibit A and incorporated
herein by this reference (the "Marburger Property The Marburger Property is shown on
Exhibit B. The Marburger Property was acquired for the express purpose and with the intention
of mining it. American Aggregates obtained a letter, attached hereto as Exhibit C, dated April 6,
1964, acknowledging that the Carmel Plan Commission had no zoning authority over the
Marburger property.
5. American Aggregates had also acquired land from the Kellers (the "Keller
Parcel prior to the acquisition of the Marburger property in 1964. That land is now known as
the future Founders Park. In 1971, however, the Keller Parcel included land on both sides of
what is now Hazel Dell Parkway, as shown on the attached Exhibit B from 1968.
6. From at least the period of 1971 through 1981, American Aggregates extracted
minerals from the Marburger Property.
7. The Marburger Property was part of a larger parcel of property owned and
operated as a sand and gravel mining and processing operation by American Aggregates. This
mine included the area that is now known as the future home of "Founders Park Carmel,
Indiana, and more particularly depicted as such on Exhibit B attached hereto (the "Founders
Property").
8. Beginning with the initial extraction of sand and gravel and other minerals from
the Marburger Property, and throughout my employment with American Aggregates, such
minerals were processed either at the processing plant then located on the Founders Property,
known as Plant 512, or the processing plant located near the intersection of East 96 Street and
what was then River Road and now known as Hazel Dell Parkway.
9. At all times during the period of 1971 (actually prior to that date) and continuing
through my separation of employment with American Aggregates in the early winter, 1981, there
was a processing plant located at both of such above noted locations. Both plants were used
from time to time as needed.
10. From at least 1971 until I ceased employment with American Aggregates in 1981,
processing was an integral part of the Carmel Sand mine.
11. I have reviewed photographs of the mine operations during the period I was
employed by American Aggregates and they depict the operations accurately to the best of my
recollection.
12. During the time I was employed by American Aggregates, it kept records of the
fact that it had mined the Marburger Property. These records were kept as an ordinary part of its
business to document the use of the property for mining purposes, and included photographs
with annotations as to what they depicted. I have reviewed the records and photographs to be
submitted to the Board by Martin Marietta and they are a part of those records maintained by
American Aggregates.
Further Affiant saith not.
(A.9
William Karns
COUNTY OF 1-10,
SS:
STATE OF
Subscribed and sworn to before me, a notary public, in and for said County and State this
13 day of October, 2004.
C2,(
Signature
LI L. Lan,e
Printed Notary Public
My Commission Expires: i o11' a County of Residence: 1-4 Hrnv Iki
This instrument was prepared by Zeff A. Weiss, Attorney at Law, ICE MILLER, One American
Square, Box 82001, Indianapolis, IN 46282; 317 236 -2319.
-2-
DULY ENTERED FOR TAXATION /64/
2.3 day 7 ,19_��`_ aocac 186 p-c
_Auditor
Hamilton County
g It WARRANTY DEED
THIS INDENTURE WITNESSETH: that DONALD K. MARBURGER
and EMMA B. MARBURGER, husband and wife, of Hamilton County,
in the State of Indiana,
CONVEY and WARRANT to AMERICAN AGGREGATES CORPORATION,
of Darke County, in the State of Ohio, for the sum of One Dollar
($1,00) and other valuable considerations, the receipt of which
is hereby acknowledged, the following REAL ESTATE in Hamilton
County, in the State of Indiana, to wit:
I. A part of the East Half of the Northeast Quarter of
Section 4, Township 17 North, Range 4 East, in Clay
Township, Hamilton County, Indiana, described as
follows:
Beginning at a point 211.2 feet West and 1038,25 feet
Measured South .,of;the Northeast Corner Northeast
Quarter of Section 4, Township 17 North, Range 4 East
run thence South parallel with the East line of said
Quarter Section 870.65 feet, thence West 713.07 feet
to the centerline of River Road, thence northwesterly
along the centerline of said River Road 873.85 feet,
thence East 787.88 feet to the place of beginning, con-
taining 15 acres, more or less.
IT. A part of the Northeast Quarter of Section 4, Township
17 North, Range 4 East, in Clay Township, Hamilton
County, Indiana, described as follows:
Beginning at the Northwest corner of the Northeast
Quarter of Section 4, Township 17 North, Range 4 East,
run thence South 2928.6 feet to the Center of said
Section 4, thence East on the South line of the North-
east Quarter of said Section 4, 1806.75 feet to the
centerline of River Road; thence Northwesterly along
the centerline of said River Road 2931.65 feet Measured
to the North line of said Section 4, said point is
1565.39 feet East of the place of beginning, thence
West on the North line of said Section 4, 1565.39 feet
Measured to the place of the beginning, containing 113.2
acres more or less.
III A part of the West Half of Section 3, Township 17 North,
Range 4 East, and part of the East Half of Section 4,
Township 17 North, Range 4 East, in Clay Township,
Hamilton County, Indiana, described as follows:
Beginning at the Center of Section 4, Township 17 North,
Range 4 East, thence South on and along the West line
of the Southeast Quarter thereof 1167.06 feet; thence
Exhibit A
ink
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p ia
East 3650 feet more or less, to White River; thence
meandering North and Westwardly in and along said eslooi
White River 1890 feet, more or less, to a point 505.89
T sias; sma i feet Deed North of the South line extended of the i, l 1 4° 0
Northeast Quarter of said Section 4, thence West 988.0 c)
+o Al feet Measured more or less to a point in the centerline l URE
of River Road; thence Southeasterly on and along said
NE "ORE °psi centerline to a point in said South line of said North-
east Quarter Section 530.00 feet; thence West on and along
said South line 1806.75 feet to the place of beginning,
containing in all 99.23 acres, more or less.
The above descriptions are subject to all legal easements
and rights -of -way, and subject to taxes payable in May,
1964 and, there ejf tar
Said ga ixeb represent and state that each
ra�t s� y
:rata 5
have continuou 'eep boir4.c•iled in and a subject, citizen and
resident of tha- Uni ted :Stiles of America since prior to April 8,
1940; that they are}riol acting directly or indirectly in any
capacity whatsoevert for ,,arty enemy or blocked country or national
the reof.
IN WITNESS WHEREOF, the said Donald K. Marburger and
Emma B. Marburger have hereunto set their hands and seals, this
l day of 1964.
.t\
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SIL��a c 6U0) SIVG r S a `Y /P''f' 64Gi�i��
I .Z 2,7 (SEAL)
4 C
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C': V E(DJ O 1 r I n „CZ) Parnttr'nu' can
ONE HUNOREOOOltAR5) I ONE MINOR EO OO E.RSt Ir
S TATA UN 1
County of _'ld'l‘ ss:
Before me, the upjlersigned, a Not.' Public in and for
said County, this day of .e 1964,
personally appeared onald K. Marbur: an. Emma
and acknowledged the execution of the annexed Deed, and who being
duly sworn, upon oath, stated that the facts therein contained
are true and correct.
Witness my hand and Notarial Seal.
V,
My cottimiss on expires: i 5
try •u• c J�
446 w GQA
This instrument was prepared by Mark W. Gray, of Armstrong,
Gause, Hudson Kightlinger, Attorneys at Law.
This Instrument Recorded °Z 3 1L
CHARLOTTE E HALL, RECfl94 AMILTON COUNTY, Oa
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Exhibit B
EDWAiE33 F. NEW LEROY K. NEW
N E W A N D N E W
ATTORNEYS AT LAW I
704 INLAND BUILDING
INDIANAPOLIS 4. INO.
MELROSE Z-7363
April 6, 1964
All 1564
American Aggregates Corporation L t.Ji.1 SE
c/o Mark W. Gray, Esq. Nrr�4p v•w CAU TC;H GER
111 Monument Circle
Indianapolis 4, Indiana 46204
Dear Sir:
My apologies for not answering your inquiry of October
11-, 1963 in which you request some statement from the
•Carmel Plan Commission regarding our understanding as
to the inclusion of mineral extraction under our present
zoning ordinance. The matter was discussed some months
ago and my schedule has caused the entire subject to
slip from my mind until now.
Please be advised that the Plan Commission which has
zoning jurisdiction over Clay Township, Hamilton County,
Indiana, considers that by the express terms of our
Master Plan Zoning Ordinance under "Figure 9" under
"Special Exceptions" you will find a specific exclusion
in Sec. u3 and refers to a so- called "Planning Act, Sec:
58Z which, for your records, can be found in Burns
Annot. Stat. Sec. 53 -759. Thus, the activities of your
business in the nature of mineral extraction would not
be subject to the zoning authority of this Plan Commiss-
ion. We appreciate your cooperation, however, in the
orderly and considerate compliance with safety and clean-
liness practices, which has been your practice elsewhere,
to the end that the entire area of Clay Township can.bene-
fit from your operation in the long run. I shall be happy
to inspect the north side of 96th'St. with you in the near
future in contemplation of a proposed pd)ant which you pro
pose to build sometime in the future. Trusting this is
satisfactory, I remain
ours -ry
LER*7 NEW,
A torney for
Carmel Plan Commission
LKN:ss
Exhibit C
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SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT is entered into as of the 17th day
of May, 2002 by and among Kingswood Homeowners Association, Inc., an Indiana not-for-
profit corporation ("Kingswood"); Martin Marietta Materials, Inc., a North Carolina
corporation, ("Martin Marietta"); Hughey, Inc., an Indiana corporation ("Hughey"); the City,
of Carmel, Indiana, an Indiana municipal corporation (the "City"); and the City of Cannel
and Clay Township Board of Zoning Appeals (the "BZA') - This Agreement is effective
when executed by all parties and is premised on the following recitals which are incorporated
into the Agreement.
RECITALS
A. Martin Marietta and the Helen M. Mueller Conservatorship ("Mueller") are
parties to a certain lease dated January 1, 2000 with respect to certain real estate located
in Hamilton County, Indiana, comprising 237 acres, more or less, and more particularly
described on Exhibit A attached hereto and made a part hereof (the "Mueller Property").
B. Martin Marietta is the owner of certain real estate located in Hamilton
County, Indiana, located north of 96th" Street and south of 106th Street, depicted on
Exhibit B attached hereto andmade a part hereof (the "Martin Property").
C. Martin Marietta and Hughey are parties to a certain agreement and lease dated
August 8, 1998 witli respect to a portion of the Martin Property comprising 8.18 acres,
more or less, and more particularly described on Exhibit C attached hereto and made a
part hereof (the "Hughey Premises"). Martin Marietta leased the Hughey Premises to
Hughey for the purpose of operating a ready mix concrete plant and related activities (the
"Hughey Operations").
D. In an' agreement with American Aggregates Corporation, the predecessor in
interest to Martin Marietta dated November 5, 1997 with respect to construction of Hazel
Dell Parkway (the "Hazel Dell Agreement"), the City agreed that the operations on the
Martin Property (i) were outside an ,"urban area': as; defined by'Le. 9 36-7-4-1103; and
(ii) constitute existing, legal non-conforming uses pursuant to pase law and as defmed in
Carmel's current zoning' ordinance:" '.'" ." '
E. On May 30, 2000, Kingswood brought suit against (i) the City; (ii) Steven
Engleking as Director of the Department 'of Community Services of the City of Carmel;
(iii) the BZA, consisting oftn~!llbers Charles Weinkauf; Pat Rice, Leo Dierckman,
Michael Mohr and Earlene Plavchak ("Board Members"); (iv) Martin Marietta; and (v)
Hughey in the Hamilton Superior Court, docketed as Cause No. 29DOS-OI10-CP-2169'
(the "Lawsuit"). The Lawsuit sought declaratory and mandatory r~lief, and alleged, inter
alia, that the mining" of the Mueller. Property by Martin Marietta and the Hugbey
Operations were undertaken without obtaining appropriate land use approval from the
City.'
F. The City, the BZA, Martin Marietta, and Hughey (together, the "Defendants")
denied and continue to deny the claims of Kingswood in tbe Lawsuit, and are entering
into this Agreement to avoid the expense and uncertainty of further litigation. Neither
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this Agreement, nor the consideration for it, shall be construed as an admission of fact or
of any liabil~ty by the Defendants.
G. The Defendants and Kingswood have participated in lengthy consultation and
negotiations through their respective counsel to resolve the issues in the Lawsuit and
have concluded it would be in their best interests to settle and compromise their disputes
on ther terms and in the manner provided in this Agreement. Steven Engelking and the
Board Members were- joined in their official capacity, not individually, and are not-
necessary to resolution of the Lawsuit and the agreements contained herein.
AGREEMENTS
NOW, THEREFORE, Kingswood, the City, the BZA, Martin Marietta, and Hughey, in
consideration of the mutual covenants in this Agreement and the acts to be performed
pursuant to this Agreement, hereby agree as follows:
A. Agreements of the City
1. Subject to Section A.3 below, the City shall not object to Martin Marietta's
_ _ application to the BZA for special use approval for" sand and gravel extraction on the
Mueller Property, including a variance of setback requirements to reduce the required
buffer to 150 feet where abutting Kingswood subdivision and to 100 feet where abutting
otber property not owned by or subject to mining rights in favor of Martin Marietta (the
"Special Use and Variance"), subject to the Commibnents (as hereinafter defined).
2. Subject to Section A.3 below, the City shan not object to Martin Marietta's
application to the BZA for a variance of use to permit the processing plant presently
located west of Hazel Dell Parkway and north of 106th Street to be relocated to the east
side of Hazel Dell Parkway, at a location farther fro~ any home in Kingswood than at
present (the "Use Variance").
3. The City has retain~d Spectra Environmental Group ("Spectra") to review
Martin Marietta's Special Use. and Variance and Use Variance applications (together,. the
"Applications") and advise the City whether they meet the Indiana Mineral Aggregates
Association's guidelines for reclamation and the City's standards for buffer area
landscaping. The City's Department of Community Services (the "Department") shall
recommend that the applications be approved only if the;:y meet tbose guidelines and
standards and Martin Marietta makes tbe Commitments as part of its applications. The
City shall also review and consider the Applications in accordance with its ordinances
and procedures.
4.. The City, with the assistance of Spectra, shaH conduct a study, of the
southeastern part of Clay Township, including speCifically the Mueller Property as well
as all existing Martin Marietta parcels in Clay Township.. The study shall describe in
detail all existing land ilses ands].l.ggest appropriate development standards for those uses
and, if appropriate, new regulations covering noise and blasting in the vicinity. The
study, which should be considered for incorporation into the Carmel Clay Comprehensive
PLan, shall include a policy, subject to Paragraph's A. 8 and C.3 below, on the suitability
2
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of allowing mining uses on property in Carmel and Clay Township.
5. The City shall work with Martin Marietta to draft and submit to the Plan
Commission for consideration and recommendation to the City Council a Mineral
Resource Overlay Zone Ordinance (the "Overlay Ordinance") and a change in the official
zoning maps pursuant to which the Mueller Property would be rezoned to the MR
Mineral Resource Overlay Zone, with Martin Marietta making the Commitments. The
Commitments shall be consistent with, and no less restrictive than, tbe commitments that
Martin Marietta has made in connection with any mining permit application in any other
jurisdiction in Indiana. The City shall be specifically authorized to enforce the
Commitments.
6. The City shall expedite the Overlay Ordinance adoption process so that all
required public hearings are held' by tbe Plan Commission and City Council within 4
months of the Effective Date (as hereafter defined), with the intent that the Overlay
Ordinance and the ordinance rezoning the Mueller Property to the 1vIR Mineral Resource
Overlay Zone become effective within 6 months of the Effective Date. However, failure
to accomplish these goals by the specified dates shall not affect any other provision of
tb!s Settlement Agreement.
7. The City shall not prejudge, during the ordinance;..adoption process, the issue
of whether mining uses, other than sand and gravel extraction by dredging if the
Application,'; are approved, should be allowed on all or any part of the Mueller Property.
8. The City rec0gii.iz':3 that the uses now established on the Martin Property,
including but not limited to the Hughey Operations, constitute legal, nonconforming uses.
However, the City also recognizes that existing non-conforming uses may not be
substantially modified, expanded, or added to without a change of zoning classification or
BZA approval of a special use or variance. The City also recognizes that upon approval
of the Applications, Martin Marietta. shall have a vested right to commence and complete
sand and gravel extraction on the Mueller Property as requested in such Applications.
9. The City shan pay reasonable attorney's fees that have been incurred' by
Kingswood in connection with the Lawsuit in the amount of $7,500.00.
B. Agreements of Martin Marietta'
1. Martin Marietta shall not assert that the Mueller Property is outside an urban
area.
2. Martin Marietta :sha.ll seek approval of the Applications to conduct sand and
gravel extraction, subject to the Commitments, on the Mueller Property; and shall not
conduct any mining or related operation on the Mueller Property, other than sand and
gravel extraction by means of a dredge if the Applications are approved, without
obtaining a change in zoning classification or other zoning approval.
3. Martin Marietta shall not permit Hughey or any other related' industry to
expand its operations beyond the Hughey Premises or add uses not existing on the Martin
Property as of the Effective Date without appropriate governmental approvals, except
Hughey may, provided it has entered into valid lease or other agreements with Martin
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Marietta, (i) continue to utilize th~ area between the Hughey Premises and the existing
berm along the south right-of-way line of 106lh Street, as depicted on Exhibit C attached
hereto and made a part hereof for outside product storage and (ii) expand the grotuld floor
square footage of the existing structure on the Hughey Premises by up to twenty percent
(20%).
)
4. Upon approval of the AppIications, Martin Marietta shall execute written
commitments providing that its sand and gravel extraction on the Mueller Property north
of 106th Street shall be subject to the following conditions and restrictions (the
"Commitments"):
(a) If Martin Marietta is permitted to commence sand and
gravel extraction on the Mueller Property by June 1, 2002 and
is not precluded from continuing such extraction, Martin
Marietta shall, subject toapprovaI by the BZA and the Indiana
Department of Natural Resources, move the processing plant
located north. of 106th Street west of Hazel Dell Parkw"ay and
adjacent to the Kingswood Subdivision to a new location just
east of Hazel Dell Parkway and north of 106th Street. Such
new location shall be farther from any home in the Kingswood
Subdivision than. at present. Subject to obtaining the required
governmental approvals, Martin Marietta shall start the plant
relocation no later than January 31, 2004 with completion of
such mov~ to QCcur no later than March 31, 2004. Martin
Marietta shall terminate all processing operations at the current
site of the processing plant as soon as the relocation of the
plant is co.mpleted. Martin Marietta shall install and maintain
noise abatement features at the relocated Plant which are no.
less effective than those now utilized, including the use of on-
site berms and aggregate piles as buffers, and the use of stro.be
light signals at night instead of audible signals, for all
equipment as permitted by applicable legal reqilirements. The
existing tree buffer on Hazel Dell Parkway shall be maintained
and shall not be disturbed. Subject to obtaining any required
permits and approvals from applicable governmental
authorities, Martin Marietta shall recycle waste water from the
reloe.ated processing. plant from the east side of Hazel Dell
Parkway to the lake(s) on the Mueller Property and Martin
Property west of Hazel Dell Parkway and north of 106th Street.
(b) All overburden removal on the Mueller Property north
of l06th Street shall be completed during daYlight hours
(between one. half hour after sunrise and one half hour before
sunset), during the months of November through March, and
only on days other than Saturday or Sunday. Martin Marietta
shall also cause any operations under its control to be
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undertaken and conducted in a manner so as to minimize noise,
dust, light or smoke impact on surrounding properties.
(c) No surface operations shall be undertaken on the
wooded portion of the Mueller Property north of I061h Street
located directly south of the existing park at the northeast
come~ of Gray Road and 1061h Street
(d) All trucks entering public streets from operations
conducted by Martin Marietta in Clay Township north of 96th
Street shall have covered beds. .
(e) Martin Marietta shall reclaim the Mueller Property
north of 106th Street (except the wooded portion of the Mueller
Property north of 106th Street located directly south of the
existing park at the northwest corner of Gray Road and I06th
Street) and the Martin Marietta property between 106th and
116th Streets a1;Jutting the Kingswood Subdivision and west of
Hazel Dell Parkway as a lake with (i) slopes no steeper than 3
to 1, (ii) a waterline not less than 150 feet from the nearest
property line in the :K.ingswood Subdivision, assuming that the
normal pool elevatio.n, subject to .seasonal variations, is 722
above mean sea level, and (iii) domestic grass coverage of not
less than eighty percent per square yard. Martin Marietta shall
submit a reclamation plan to the City's consultant before the
City makes any reconunendation for approval of the
Applications. Reclamation shall begin on the northern portion
of the Mueller Property and move in a southerly d,irection.
(f) Subject to approval of the co-conservators of Mueller
and the courtovetseeing it, Martin Marietta shall cause to be
conveyed to Hamilton County or the City. as the case may be, a
forty-five foot half right of way along the northern edge of
106th Street measured from the existing center line of 106th
Street.
(g) All reclamation shall comply generally with the
reclamation guidelines adopted by the Indiana Mineral
Aggregates Association, a current copy of which shall be
provided to the Director annually, and shall be done in
accordance with the Mining and Reclamation PLan submitted
by Martin Marietta in connection with the Applications, as last
revised and approved in connection with the Applicatons (the
"Plan").
(h) Martin Marietta agrees that it as part of sand and gravel
extraction it shall not pump water from the Mueller Property,
except as necessary to convey sand and gravel through a pipe
)
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to the processing plant, and will utilize a closed loop system
pursuant to which water pumped from the Mueller Property to
the processing plant is returned to the Mueller Property (except
as may be lost naturally through evaporation or in the
processing activity. Upon completion of the sand and gravel
extraction, Martin Marietta shall take no actions to drain the
lake created, or to reduce the water level below 722 above
mean sea level, subject to seasonal variations and natural
fluctuations..
(i) From the overburden removed during sand and gravel
extraction, Martin Marietta shall construct an earthen landscape
berm six (6) feet in height on the north side of 106.th Street on
the Mueller Property (except the wooded portion of the
Mueller Property located directly south of the existing park at
the northwest comer of Gray Road and 106th Street).
(D Martin Marietta shall be responsible for all
environmental matters arising from its operations and shall
indemnify and hold hannless the adjacent landowners in the
Kingswood Subdivision with respect to any losses, claims or
costs arising therefrom.
(k) Sand and gravel shall be extracted only through the use
of a floating dredge. Such extraction will be done in the
sequence depicted in the Plan submitted by Martin Marietta in
connection with the Applications. Martin Marietta agrees that
once it has coi111nenced sand and gravel extraction on the
Mueller Property, no sand and gravel from any source other
than Mueller property north of 106th Street. will be processed
through the Processing Plant until extraction on the Mueller
property north of 106th Street is complete.
(1) Any other comI;uitments required by the BZA in its
approval of the Applications including, but not limited to, a
perimeter buffering landscape plan approved by the
Department.
5. Martin Marietta shall pay the City's reasonable attorney's fees incurred in
cozmection with the Lawsuit, and the fees for its qualified mining engineer, geologist or
consultant, to an aggregate maximum of$25,000.00.
6. Marti!1 Marietta shall pay Kingswood's reasonable attorney's and experts fees
incurred in connection with the Lawsuit, upon receipt of documentary evidence of the
work performed and time expel1ded, to a maximum of $21,750.00. Such amount will be
due thirty (30) days after the Effective Date.
7. For each calendar year or part thereof that Martin Marietta is extracting sand
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and gravel from the Mueller Property north of 106lh Street, it shall pay the' City $5,000.00
to monitor Martin Marietta's compliance with the Commitments. Such payment shall be
due on the first day of the second month follo'wing approval of the Applications and on
each anniversary thereof.
8. For each calendar year or part thereof that Martin Marietta is extracting sand
and gravel from the Mueller Property north of 106lh Street, it shaH pay the Kingswoodan
amount to be used for publication of a Kingswood directory, maintenance of common
areas in Kingswood or social events for the entire Kingswood neighborhood. The first
such payment shall in the amount of $26,750.00 and shall be due on the first day of the
second month following approval of the Applications. Each subsequent payment shall be
in the amount of $5,000 and shall be due on each anniversary of the first day of the
second month following approval of the Applications.
9. Once a year, at the invitation of Kingswood, and for so long as Martin
Marietta is condllcting sand and gravel extraction or perfOrming reclamation on the
Mueller Property, Martin Marietta will send a representative to a meeting of Kingswood
to report on Martin Marietta's activities on the Mueller Property..
C. ,'Agreements of Kings wood
1. Kingswood shall cause the Lawsuit to be dismissed with prejudice.
Kingswood shall and does hereby RELEASE AND FOREVER DISCHARGE the
Defendants and their respe'ctive corporate parents and affiliates, all of their present or
fanner officers or elected officials, employees, representatives, agents and directors,
fro~ any and all claims, demands, losses, darm'tges, injuries, actions or causes of action
with respect to, on account of, arising out of or in any w~y connected with the allegations
of Kings wood in the Lawsuit.
2. Kingswood recognizes that the uses now established on the Martin Marietta
parcels property, including but not limited to the Hughey Operations, constitute legal,
nonconforming uses. However, Kingswood also recognizes that, except as provided in
Section D below, existing non-conforming uses may not be substantially modified,
expanded, or added to without a change of zoning classification or BZA approval of a
special use or variance. Kif!.gswood also recognizes tbat upon approval of the
Applications, Martin Marietta shall have a vested right to commence and complete sand
and gravel extraction on the Mueller Property as requested in such Applications.
3. Kingswood shall not oppose the enactment of an Overlay Ordinance
permitting sand and gravel extraction on the Mueller Property.
D. Agreements of Hughey
1. Hughey shall not expand its operations at or beyond the Hughey Premises
without appropriate governmental approvals, except the parties agree that Hughey may,
provided it has entered into valid lease or other agreements with Martin Marietta, (i)
continue to utilize the area benveen the Hughey Premises and the existing benn along the
south right-of-way line of 1 o 6th Street, as depicted on Exhibit C attached hereto and made
a part hereof for outside product storage and (ii) expand the ground floor square footage
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of the existing structure on tbe Hughey Premises by up to t\venty percent (20%).
2. Hughey shall pay reasonable attorney's fees that have been incurred by
Kingswood in connection with the Lawsuit in the amount of$7,500.00.
E. General Agreements of the Parties
1. Neither the Lawsuit nor anything contained in, this Agreement shall be
deemed to have deterrriined that the Mueller Property is in an "urban area" as that term is
defined by I.C. S 36-7-4-1103.
2. In making this Agreement, each party hereto has relied solely on its own
judgment, belief and knowledge of the nature of the matters described herein.
3. This Agreement constitutes the parties' entire agreement with respect to this
matter, and it supersedes all prior negotiations, representations or agreements, either
written or oral between the parties.
4. This Agreement shall become effective and binding upon the parties upon the
date (the "Effective Date") upon which the last party hereto executes this Agreement,
'" provided that if this Agreement is not fully executed by all the parties on or before May
11: 2002, it shall terminate and shall not bind any parties that have executed this
Agreement prior to such date.
5. Notwithstanding anything herein to the contrary, the provisions of paragraphs
B. 7 and B. 8 of this Agreement shall become effective and hinging upon the parties only
upon approval by the BZA of the Applications provided, however, that such approvals
are granted not later than June 1, 2002.
6. Each of Kingswood, Martin Marietta and Hughey represents that it has taken
all necessary and appropriate corporate action to make this Agreement its legal, valid and
binding obligation. The City represents that it has taken all necessary and appropriate
municipal action to make this Agreement the legal, valid and binding obligation of the
City. Kingswood, Martin Marietta, Hughey and the City recognize that this agreement is
for the purpose of settlement of the Lawsuit and is not binding on the BZA, the Carmel
Clay Plan Commission or the COl1ll1lon Council of the City in the exercise of their
responsibilities for land use and zoning of Clay Township and the City of Carmel.
7. This Agreement shall be governed by the laws of the State of Indiana.
. 8. This Agreement may be modified only by a written agreement executed by
Kingswoodand Defendants, provided that nothing herein shall be deemed a restraint
upon the police power of the City.
9. Each of the covenants contained in this Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors, and assigns.
10. This Agreement may be executed in any number of counterparts, each of
which shall be an original hut all of which together shall constitute one and the same
instrument.
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IN WITNESS 'NHEREOF, this Agreement has been executed as of the date first
set fortb above.
MARTINM.
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K' O~-\ ~,t fJ R LD 01
(prmted n=ei
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(sIgnature)
.fr:-o# b: H~I..'0
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INDS01 DRW. 490841 v10
KINGSWOOD HOMEOWNERS
ASSOCLA TIO ,INC.
By:
(signature)
(7+0/'111 S C.
(printed name)
Its: PIP!? 51 DIF/Ul
THE CITY OF CARNffiL, INDIANA.
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Attest:
By:
(si
. (printed name)
. Its: ~~ ~~A#A~
(title) ""
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F' '~D
OCT :.J ~CQ4
DOCS
BOARD OF ZONING APPEALS
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CITY OF CARMEL. INDIANA
IN RE: APPEAL OF THOMAS YEDLICK
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Docket No.
Proposed Filldin2s of Fact and Conclusions of Law
This matter is before the Board of Zoning Appeals ("Board") on an appeal by Thomas
Yedlick, joined in by certain intervenors, of a decision by the Director of the Department of
Community Services finding that certain uses of property by Martin Marietta Materials are pre-
existing, lawful uses.
The Board held a hearing on this matter on October 13, 2004, at which time the parties to the
appeal, as well as interested members of the public, were heard. Based on the hearing and the
materials submitted by interested parties, the Board hereby finds as follows:
1. Petitioners challenge Martin Marietta's right to utilize certain sand and gravel
processing and screening equipment on the property north of 106th Street and west of Hazel Parkway.
This operation is generally referred to as the Carmel Sand plant to distinguish it from operations
south of 106\h S1.
2, Martin Marietta's predecessor, American Aggregates, acquired the property on which
the Carmel Sand plant is presently located from Donald K. Marburger and Emma B. Marburger on or
about January 21, 1964. It commenced mining the property at least as early as 1971,
3. American Aggregates acquired property from the Kellers prior to 1964 that was a part
of the Carmel Sand mine, It operated a sand and gravel processing plant on the Keller property at
least as earl y as 1971.
4. Martin Marietta, or its predecessors, have operated sand and gravel processmg
equipment on land that was a part of the Camlel Sand mine since at least 1971. Specifically, photos
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from the 1970's and 1980's show sand and gravel processing equipment located on the land Amelican
Aggregates acquired from the Kellers plior to 1964.
5. Further, evidence from Bill Karns, who was employed by American Aggregates from
1959 to 1981, and who had responsibility for operations at Carmel Sand during this time period,
confirms that the processing of sand and gravel occurred on the Keller property beginning at least as
early as 1971.
6. When sand and gravel processmg operations commenced at Carmel Sand, the
property belonging to Carmel Sand was outside an "urban area" as that term is used in I.R.C. 36-7-4-
1103 (b), (c).
7. In 1997, the City of Carmel and Martin Marietta's predecessor entered into an
agreement involving the donation or transfer of land for parks and street rights-of-way. Among other
things, the land on which Martin Marietta's processing plant was originally located was donated to
the City of Carmel for a park to be known as Founders Park.
8. In the 1997 Agreement, American Aggregates agreed not to oppose annexation of its
property by the City, who agreed to recognize American Aggregates' then existing operations as
.'existing, legal non-conforming uses pursuant to case law and as defined in the city's current zoning
ordinance.. "in the event of an annexation. The City subsequently annexed the Carmel Sand
property on
9. Subsequent to the annexation of the property by the City, the Kingswood
Homeowners Association sued the City, Martin Marietta, this Board, and the Director of the
Department of Community Services with respect to disputes regarding Martin Marietta's operations
under the CamlellClay Zoning Ordinance.
10. In 2002, Kingswood, the City, and Martin Marietta entered into a settlement
agreement in which Kingswood expressly agreed as follows:
2
"Kingwood recognizes that the uses now established on the Martin Marietta
parcels. . .constitute legal, non-conforming uses."
11. The settlement agreement with Kingswood contemplated an application by Martin
Marietta to mine sand and gravel on property owned by E & H Mueller Development, LLC north of
I06th Street. The application referred to in the settlement agreement contemplated the processing of
sand and gravel removed from the Mueller property at Carmel Sand's then existing processing plant,
which was to be relocated to the east side of Hazel Dell Parkway. The settlement agreement reflects
the acquiescence by the Kingswood Homeowners Association in the legality of processing activities
on the Carmel Sand property.
12. Petitioner, Thomas Yedlick, signed the agreement on behalf of Kingswood
Homeowners Association.
Conclusions of Law
1 . The use of equipment to process sand and gravel on the Cannel Sand property north
of 106th St. commenced when the property was outside an urban area as that term is used in I.R.c.
36-7-4-1103 and neither Clay County nor the City of Carmel, therefore, had jurisdiction to prohibit
it. The use was, therefore, lawful.
2. At the time the area around Carmel Sand became urbanized, American Aggregates
was then using processing equipment located on its Carmel Sand mine to process sand and gravel
there. The use of such equipment was, therefore, grandfathered.
3. Mineral extraction, inc1 uding the processing of minerals, is permitted as a special use
in the S-1 District. Section 28.1.6 of the Cam1el Clay Zoning Ordinance provides that "existing uses
eligible for special use approval shall not be considered legal nonconforming uses or require special
use approval for continuance, but shall require special use approval for any alteration, enlargement,
or extension." The existing processing plant currently located at Carmel Sand north of l061h Street
is, therefore, a lawful, pennitted use under Section 28.1.6 of the Carmel/Clay Zoning Ordinance.
3
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4. Petitioners claim that Martin Marietta's processing operations are limited to the
processing of minerals removed from the site. In Dav v. Rvan, 560 N.E. 2d 77 (Cl. App. Ind. 1990),
however, the Indiana Court of Appeals held that a livestock auction could not be limited just to cattle
raised on the property and that the importation of cattle from other properties for sale was lawful as a
part of the non-conforming use.
5. The board concludes that the importation of materials to the Carmel Sand processing
plant does not change its status as a legal use.
6. The activities complained of by the petitioners on the subject property are lawful
under the Cannel/Clay Zoning Ordinance and the decision of the Director for the Department of
Community Services is affirmed. The petition is, therefore, dismissed.
CARMEL/CLAY BOARD OF ZONING APPEALS
By:
(Signature)
Its:
(Printed Name and Title)
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Do'bosiewicz, JOIl C
From:
Sent:
To:
Cc:
Subject:
Dobosiewicz, Jon C
Tuesday, October 12, 20049:14 PM
Tom Yedlick (E-mail); Phil Thrasher (E-mail); Zeff Weiss (E-mail); Wayne Phears (E-mail)
Hollibaugh, Mike P; John R. Molitor (e-mail) (E-mail)
Conduct of Appeal Hearing on October 13th (04070020 A)
Importance:
High
To all,
Wednesday evening at 7:30 (the time the meeting begins) DOCS will ask that the Board not consider the proposed rule
amendment sent out with their packet last week and consider the following:
1. A suspension of Section 13.(1-7) of the Rules of procedure (see attached file).
2. That the Chairperson of the BZA shall govem the conduct of the public heating, as follo\vs:
(1) The Chairperson shal1 officially open the public hearing. During the hearing, the Chairperson may limit the
length of tinle all persons may speak at request that repetitious statements by different speakers be avoided in
order to reasonably limit the length of the hearing.
(2) The party who initiated administrative review and any other parties in support of the appeal shall make their
presentations (total of 1 hour), with the burden of providing all necessary infonnation for a clear understanding
of the appeal falling upon the party who initiated administrative review.
(3) All parties adverse to the party who initiated administrative review shall be heard (total of 1 hour).
(4) Statements and/or letters from Ilonparties and/or the public in regard to the appeal shall be heard (total of 15
minutes).
(5) The paliy who initiated administrative review may make a brief rebuttal or closing statement (5 minutes).
Any other party may also make a brief rebuttal or closing statement (5 minutes pet party).
(6) To maintain orderly procedure, each party shall proceed without interruption by other party.
Presumably the parties under munber (2) above are Yedlick and Thrasher (for clients) and the parties under
number (3) are Weiss and Phears for Martin Marietta and DOCS. Please let me know if someone understands
differently.
I will be out of the office until approximately 4pm Wednesday. If you have any questions I will be available
then. Please reply to all if you inteild to object to this proposal. Please remember that this is only a request that
DOCS will be.making of the Board. There is no guarantee that they will desire to suspend their rules in this
manner.
Thanks,
Jon
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Page 1 of 4
Dobosiewicz, Jon C
From: Phil Thrasher [thrasher@indiana-attorneys.com]
Sent: Friday, OctOber 08,2004 5:01 PM
To: Dobosiewicz, Jon C; Hollibaugh, Mike P
Subject: Fw: Proposed Temporary Rule for Carmel Sand hearing
Forgot to put you on the email. Please.see comments below. Thanks.
----- original Message _____
From: Ebj.!Iblg$..bJ~.r.
To: John Molitor
Cc: Zeff Weiss; Tom Yedlick ; William D. McEvoy; Steven C. Earnhart
Sent: Friday, October 08, 2004 3:51 PM
S'ubject: Proposed Temporary Rule for Carmel Sand hearing
John:
Thanks for fOrNarding your proposed temporary rule. I have seen Tom's comments but nothing from Zeff, so my
comments below must be viewed as preliminary.
There are many issues, some interrelated, so a decision with respect to one rule may impact the decision
regarding another.
Sec. 2. It should be made clear thata "pleading" includes an appeal from a determination of the DOCS.
Further, there is no mention of the rights of intervenors. You will recall directing me t.o file an intervention rather
than a separate appeal because you only wanted to have one appeal at a time to,a given DOCS Determination.
would like to see sOrl}e mehtion of intervention and that the intervenors may raise issues other than those
specifically raised in the first "pleading" or appeal to be filed. In addition, it shOuld be clear that intervenors
become parties. on the side that they choose in their Notice of Intervention.
Sec. 3. There is no definition of "adverse party." Most often the DOCS will be the adverse party. How does
anyone else become an "adverse party"? Are the Intervenors, my clients, adverse parties? Should this not be
more closely akin to Small Claims Rule 47
Sec. 4. How is it possible to have a counterclaim or cross-claim in this context? If under Sec. 3 all claims are
automatically denied, why would it be necessary to file affirmative defenses (which might be deemed waived if not
filed)? Again, the Small Claims rules simply state that all defenses are available without a responsive pleading.
That is probably your intent.
Sec~ 5. The 15-day limit is already exceeded, meaning that for purposes oflhis hearing there is no opportunity
to amend the "pleadings." It seems clear that. the 1 0/13 BZA meeting should be for the purpose of adopting this
Temporary Rule, then setting the time for the prehearing conference and the actual evidentiary hearing. There is
much more to do at the prehearing conference than simply stipulating as' to facts. In general, there would seem to
be little reasoh to prohibit amendments of pleadings since responsive pleadings are not required.
Sec. 6. (a) What and where is the "Office of the BZA"? What is its email address?
(c) I assume that service upon the attorney for a party relieves the sender from service on the party itself.
Are you contemplating the filing of an Appearance by attorneys, including all oftheir information?
(d) So, does the rule allow for email service to adverse parties or not?
Sec. 7. (a) Dismissal at the request of the original filer should not dismiss the Intervenor's claims, which
should remain viable. Further, the failure of the DOCS or other respondEmtintervenor, such as Marlin Marietta,
should not cause the appeal by Yedlick to be dismissed. Rather, if there is a remedy, it should be against the
non-performing party ahq might be the granting of the petition, not its dismissal.
(b)(2) Intent unclear. When is a party responsible for "taking action"? Can the DOCS be defaulted?
1011012004
Page 2 of 4
(b)(3) Is this a standing issue or are there other rules or standards that allow a person to "qualify for
review"?
(b)(4). This would bring in all of the Indiana Trial Rules, where civil action is defined and the grounds for
default and dismissal are defined, as well as the case law interpreting the IndTR Is that your intent? Is this
necessary or could it be left to the sound discretion of the BZA? If the IndTR are brought in for this purpose,. how
do you propose to keep them out for other related or unrelated purposes?
(c) It goes without saying that the BZA may not approve an agreed order that is contrary to law or covers
issues not raised in the appeal, other pleadings, or by the evidence. The BzA only has limited jurisdiction.
Sec. 8. (a) We understand that the BZA is not trained to act as a judge, but it is difficult for the attorneys to
know when they are going too far in trying to enforce rules of evidence, discovery,cross-examination, rebuttal,
and so forth , This will cause a constant tension with the BZA, its attorney, and the rights of a party to appeal an
apparently arbitrary decision to exclude 'or include evidence. The prehearing conference in each case should
address the types of evidence that will be Offered and give the other parties an opportunity to express objections
at that time so they can be worked out For instanc;e, if a party has some good hearsay evidence but the other
party wants to exclude it, the offering party might be required to prove that the hearsay is verifiable in order to
have it admitted at the hearing.
(b) This subsection is directly contrary to Sec. 10(c) in that this subsection allows reasonable opportunity to
present evidence It also enLimerates response, argument, cross-examination, and rebuttal as events that are
allowed to occur, whereas Sec. 10(c) make no such reference. I think this section is the better section and 10(c)
needs to be revised to conform.
(c) Th'is subsection contemplates a prehearihg order by the BZA. Thus, the BZA must meet to decide the
issues raised or resolved in the prehearing conference. That has not occurred in this case and unless the 10/13
meeting is used for this purpose, t~e rLJle Will not be observed. If the rLite is not observed, then we think a
continuance of the hearing to alloW the rule to be observed would be in order.
(c)(1) Does party include intervenors? It should. Does "participation"mean full participation as a party or is
there a more limited meaning?
(c)(2) There does not appear to Many right of discovery, so how could it be limited? If there is discovery,
what are those rules?
(c)(3) We do not understand the reason for or the implementation of, this paragraph. How is it possible for
two parties to combine their presentations? Do you expect Tom and Bill to get together and work together on this
.appeal? Will the DOCS and MM be required to work together on this appeal? This is a clear violation of due
process and should be deleted. Further, if there ,are multiple parties, then if there are time limits they should be
imposed on individual parties, not groups of parties.
(d) This is probably too much cjetail. So long as the BZA has control over the hearing, it can do the'things
described herein, and more,. at its reasonable discretion. I would delete' it as unnecessary.
(e) For these hearings, all evidence should be presented under oath, so it should be mandatory, not .
discretionary. The ref~rence to "offer of proof or other motion" implicatl3d the IndTR again. How much of the law
involving th'ese issues will be enforced by the BZA? Why is it necessary to have a rule on offers of proof if there
is no jury?
Sec. 9(a) We would suggest deleting the last two sentences. The BZA can be made aware of the fact that the
evidence is hearsay or not, at the opponent's discretion, but if itis admitted then it should be allowed to be the
basis of a decision. If the BZA does not give it much weight, then the BZA does not have to base its decision on
it. On appeal, if the trial court believes the hearsay did not have enough weight to carry the burden of proof, then
reversal is possible.
(c) What is. a "statement"? Should this be testimony to relevant facts, or should it be someone's opinion
about what is attractive? The issues that will be adjudicated in these hearings will typically have nothing to do
with opinions about nuisance, but rather whether or not the decision of the DOCS was reasonable. When will the
parties know that non-party statements are being "received [admitted] as evidence"? Should all such statements
not be made under oath?
(d) I would prefer that evidence be introduced under oath, either by a witness or through an affidavit, and that
all affidavits be presented to opposing parties five business days before the hearing,
(e) When will the original be available for inspection? At the hearing, when there is no more opportunity to
challenge the exhibit? This is very tight timing and could lead to abuse.
(9)(1) The reference td "subsettior:) '(m)" in the second line should be to "subsection (f) hereinabove."
Further, what is the meaning of "including any staff memoranda and data"? What does that add to "the source of
the facts or material noticed"?
(g)(2) How long an opportunity should a party have to contest the noticed materials? Will the hearing be
continued pending such objection? Should they not be submitted at the prehearing conference, first? We do not
10/1 0/2004
Page 3 of 4
believe the BZA should take judicial notice of matters buried in the "staff memoranda and data" unless the DOCS
puts on a witness to verify the information, and then it would be only for the purpose of proving that such
memoranda and data were within the DOCS files, not for the purpose of establishing the truth of the assertions in
the memoranda or data.
Sec. 10(b) Does separation ofwitnes.ses apply to the public who might choo~e fa make a "statement" later in
the hearing? Ind.Code does notspeak to separation of witnesses, but we would like to know the answer to the
above question so we can advise our clients accordingly. Further, does it apply to parties who might be called to
testify?
(c)(2) and (3) This procedureisset forth as being mandatory. To. limit the time for the presentation of
relevant evidence is a clear violation of'the due process rights of the litigants. Further, to force all parties to
combine their presentations, which may be quite different, into one is also a violation of due process. This will
provide an automatic right of appeal if'a party simply asserts that it needs more time; names a witness or two, and
then is not granted more time. The better procedure would be for the parties to select a time limit for themselves
at the prehearing conference and then be required to adhere to theirown limit
(C)(4) Inasmuch as statements are allowed to come before the BZA per Ind. Code, it would seem that a
limitation on that right, such asa time limit, would be a violation of the Ind. Code. Thus, there should be no time
limit for the public to speak, either. ,
(c)(6) A second problem with the time limits is that there is no time. allowed for cross-examination, objections,
or rebuttal. If a party puts on clearly incorrect evidence, the other party must have the opportunity to expose it for
what it is, That time should not be subtracted from anyone's time allowance. This also is contrary to Sec. 8(b), as
discussed above. .
(c)(7) Will the questioning from the BZA be counted against a party's time limit? Hopefully, 'not.
(e) I applaud the opportUnity to file briefs, The question is, will they be filed in accordance with the IndTR or
are the parties free to file huge briefs with new evidence, new argument, response briefs, reply briefs, etc.? When
must they be filed? Will there be time to file reply and response briefs? Some reining in of this process may be
appropriate. The BZA should have the discretion to eliminate briefs if the parties consent.
Sec. 11 (b). This subsection would appear to be the stuff of mischief. The witness is either there live at the
hearing or he isnol. If an Affidavit is necessary; then it should be given little or no weight due to the lack of cross-
examination. Otherwise, there is no limit on the number of times a case could be continued on this basis.
(d) I applaud the opportunity to file proposed findings and conclusions. Will this be before, during, or after the
hearing; will it be before, simultaneously, or after the filing of briefs; or, will it be after the BZA has advised the
parties of the winnee I would suggest t!lat it be done with the briefs or not at all. Should the parties not also
submit a proposed Order at the same time as the briefs?
Sec. 12(a) This section appears to create a body of common law within the DOCS and BZA. Is that
necessary? If So, where do we get a copy of it? If there is a res judicata element in the proceedings, then that is
easily obtained and resolved because'the parties were involved in it, but to try to'find "case law" within the files of
the DOCS and BZA is not really necessary or appropriate. We are troubled by use of the terms "substantial and
reliable" as standards for the kinds ofeiJi'dence upon which findings are based. We would prefer "material,
relevant, and credible" to define such standard because we think those terms are.better defined in Indiana
common law, We would prefer "weighing" to "evaluating" of evidence in the last sentence.
.Sec. 13. There is no mention of any stay offiling an appeal if a request to modify a final BZA order is filed.
as.sume, therefore, that the time for filing a judicial appeal continues to run and that it must be filed timely,
notwithstanding any ruling by the. BZA on. a request for modification. Because it is probably not lawful to insert a
stay of appeal, as presecribed by Ind. Code, it would be appropriate to shorten the time for seeking a modification
to, say, 10 days, with a decision by the BZA in another 1 0 days. Then, the appealing party would have 10 days
within which to file its appeal with the court. .
Thank you for taking your tim'e and much effort to try to create something usable by all of us. We reserve the right
to offer additional comments as time goes on, even at the hearing or other time when the Temporary Rule is .
ultimately adopted.
It would seem clear that as a matter of due process, if there is to be a rule adopted to govern these
proceedings, the rule is not known at least three or four weeks in advance, and the rLile includes prehearing
discovery rights, prehearing conferences, and deadlines for submittal or review of materials, the rule must be
adopted by the BZA well in advance of its implementation. I would suggest 1Q/13 for that event. We can be
ready for a full hearing on 10/13, but without knowing the rules it will be very difficult to prepare for a 30-minute
10/10/2004
.JI- '1.-" '..
Page 4 of4
presentation or a one-hour presentation, with or without Tom Yedlick, with or without cross-examination, with' or
without written evidence, with or without affidavits, with or without rebuttal, etc. I strongly urge the BZA to avoid
the due process appeal by simply adopting the rule on 10/13 and then allowing the parties time to comply with the
rule. Apart from the heeds of the remonstrators, there is no need to rush to judgment. MM has stated that they
are shut down in the Winter, anyway, so t.hey are not likely to be prejudiced, either way, and would no doubt like
the extra month to process sand and gravel.
I understand from your most recent email that the DOCS may be rewriting the Temporary Rule to "simplify" it.
Hopefully, you will be able to include some ofthe more important concepts mentioned above into the revised
rule. Of course, We, and all bther parties, will have the right to object to the adoption and imposition of the rule at
the 10/13 hearing if we are not in agreement with it.
Again, thanks for your efforts on this project.
Please advise with respect to the above issues.
Philip C. Thrasher, Esq.
THRASHER BUSCHMANN GRIFFITH & VOELKEL, P.C.
151 N. Delaware St., Suite 1900
Indianapolis, IN 46204-2505
Telephone: (317) 686~4773
Fax: (317) 686-4777
WARNING: CONFIDENTIALITY NOTICE: This E-mail and the materials attached are the private confidential
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part. If you have received this transmission in error, please notify the sender immediately by replying to the
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appreciated.
1011 0/2004
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City of Carmel
CARMEL BOARD OF ZONING APPEALS
-MEMORANDUM-
Date: October 5, 2004
To: BZA Members
From: Angelina (Butler) Conn
Department of ComlIlunity Services
Re: December 2ib BZA meeting
BZA Members:
The following items need action taken soon, so that DOCS will know how to direct BZA
application filings at tbe November 12 filing deadline for the December 27 BZA meeting.
1. Vote to provide a BZA Hearing Officer earlier in the month of December, before the
holiday break..
2. Reschedule the regular December 2 ih BZA meeting or cancel the regular BZA meeting
for the month of December.
Feel free to call Jon Dobosiewicz or me with any questions at 571-2417.
BZAMEMO-2004-1004
Page 1
ONE CIVIC SQUARE
C.AR1vlEL, INDIANA 46032
317 /571-2417
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JAMES BI~AINARD, MAYOn.
MEMORANDUM
Date: October 5, 2004
To:
Board of Zoning Appeals
Michael Holbb,"gh, DOCS ~, ~
Proposed Rule Amendment
From:
RE:
Attached with this memo is the Department's proposal for a new rule that would govern
the hearing for the upcoming Director's appeal.
Drafted under the guidance of John Molitor, the change is our attempt to create a
framework for administrative appeal hearings where no rule currently exists.
It is our intent to ask the Board to adopt this rule as part of the Board's agenda on
October 13, under Legal Counsel Report.
Please contact John Molitor (8435511) or me (571 2422) should you wish to further
discuss this proposal.
ONE CiVIC SQUARE. CARMEL, IN 46032 OHlCE 317.571.240], [lAX 317.844.3498
E,VfAIL jbrainard@ci.cannel.in.us
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Temporary Rule Concerning Administrative Appeals.
Sec. 1. This Temporary Rule (this "Rule") controls proceedings described by IC 36-7-4-918.1
which are initiated on or before December 31, 2005. This Rule is supplemental to the pennallent Rules of
Procedure of the BZA.
Sec. 2. An ad in ini s trati ve appeal, under IC 36-7-4-918.1, is initiated by the filing of a pleading with .
the Office of the BZA.
Sec. 3. Except as provided in section 4 ofthi8 Rule, the matters contained in a pleading described in
section 2 oHhis Rule are deemed automatically denied by any adverse party.
Sec. 4. A party wishing to assert an affim1ative defense, counterclaim, or cross-claim shall do so, in
writing, filed and served not later than the initial prehearing conference, unless otherwise ordered by the
Office ofthe BZA.
Sec. 5. (a) A pleading described in section 2 ofthis Rule may be amended once as a matter of
course before a response is filed, but not later than the initial prehearingconference or fifteen (15) days
before a hearing (whichever occurs first), except by leave of the BZA. Leave shall be granted where justice
reqUIres.
(b) If the claim or defense asserted in the amended pleading arose out ofthe conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the
date of the original pleading.
Sec. 6. (a) Documents shall be fi1ea with the Office of the BZA and served on all other parties.
(b) The filing of a document with the Office of the BZA may be performed by personal delivery,
first class mail, certified mail, fax, or electronic mai1.
(c) If a party is represented by an attomey or another .authorized representati ve, service of a
document must be made upon the attorney or other authorized representative. If an individual appears
without sepa.rate representatiOjl, service must be tnade upon the individual.
(d}Filing or service is complete upon deposit in the United States mail properly addressed and first
class or certified post prepaid; filing or service by another method is complete upon receipt.
(e) This section does not modifY the time in which a partyinay file a petition for judicial review
under IC 36-7-4-1000 et seq.
Sec. 7. (a) The BZA may enter a final order of dismissal ifthe party who initiated administrative
review requests the proceeding be dismissed.
Call11el BZA Temponuy Rule
Proposed: September 30, 2004
Page 1
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(b) The BZA may, on its own motion or the motion of a party, enter an order of default or order of
dismissal if at least one (1 ) ofthe following applies:
(1) A party fails to attend or participate in a prehearing conference; hearing, or other stage ofthe
proceeding.
(2) The party responsible for taking" action does not take action on a matter for a period of at least
sixty (.60) days.
(3) The person seeking administrative review does not qualify for review.
(4) A default or dismissal could be entered in a civil a<;:tion.
(c) After a hearing ofrecord, the BZA may approve an agreed order entered by the parties ifit is:
(1) clear and concise; and
(2) lawful.
(d) A final order entered lmder this section is made with prejudice unless otherwise specified in the
order. A person may seek judicial review of'the order as provided in Ie 36-7-4-1000 et seq. .
Sec. 8. (a) The BZA shall regulate the course of the proceedings in conformity with any prehearing
order and in an infonnal manner without recourse to the technical, common law rules of evidence
applicable to civil actions in the courts.
(b) To the "extent necessary for full disclosure of all relevant facts and issues, the BZA shall afford
to all parties the opportunity to respond, present evidence and argument, conduct cross-examination, and
submit rebuttal evidence, except as ,restricted by a limitation under subsection (c) or by the prehearing
order.
(c) The BZA may, after a prehearingorder is issued under these Rules, impose conditions upon a
party necessary to avoid unreasonably-burdensome or repetitious presentations by the party, such as the
following:
(1) Limiting the party's participation to designated issues in which the party has a particular interest
demonstrated by the petition.
(2) Limiting the party's use of discovery, cross-examination, and other procedures so as to promote
the orderly, prompt, and just conduct of the proceeding.
(3) Requiring two (2) or more parties to combine their presentations of evidence andargun1ent,
cross-examination, discovery, and other participation in the proceedings.
(d) If a person is allowed to intervene in the proceeding after the commencement of a healing under
this section, the BZA may prohibit the intervener from recalling any witness who has been heard or
Carmel HZA Temporary Rule
Proposed: September 30, 2004
Page 2
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reopening any matter that has been resolved, unless the intervener did not receive a notice required by the
Rules of Procedure of the BZA or the intervener presents facts that demonstrate that fraud, perjury, or an
abuse of discretion has occurred. Any proceedings conducted before the giving of a notice required by the
Rules of Procedure of tIle BZA are voidable upon the motion of the party who failed to receive the notice.
(e) The BZA may administer oaths and affirmations and rule on any offer of proof or other motion.
(J) Pursuant to IC 36-7-4, the BZA shall give nonparties and the:public an opportunity to present
oral or written statements. lfthe :aZA proposes to consider a written statement by a nonparty, the.BZA
shall give all parties an opportunity to chal1enge or rebut it and, on motion of any party, the BZA shall
require the statement to be given under oath or affirmation.
(g) The BZA shall have the public hearing recorded at the expense of the Office of the BZA. The
BZA is not required, at its expense, to prepare a transcript. Any party, at the party's expense, may cause a
reporter approved by the Office of the BZA to prepare a transcript from the BZA's record, or cause
additional recordings to be made during the hearing if the making ofthe additional recordings does not
cause distraction or disruption. The Office of the BZA may charge a person who requests that the BZA
provide a transcript (other than for judicial review under IC 36-7-4-1000 et seq.) the reasonable costs of
preparing the transcript.
Sec. 9. (a) Upon proper objection, the BZA shall exclude evidence that is irrelevant, immaterial,
unduly repetitious, or excludable on 'constitutional or statutory grounds or on the basis of evidentiary
privilege recognized in the courts. In the absence of proper objection, the BZA may exclude objectionable
evidence. The BZA may admit hearsay evidence. lfnot objected to, the hearsay evidence may form the
basis for an order. However, if the evidence is properly objected to and does not fall within a recognized
exception to the hearsay rule, the resulting order may not be based solely upon the hearsay evidence.
(b) All testimony of parties and witnesses must be made under oath or affirmation.
( c) Statements presented bynonparties in accordance with this section may be received as evidence.
(d) Any part of the evidence may be received in written form if doing so will expedite the hearing
without substantial prejudice to the interests of any party.
(e) Documentary evidence may be received in the form of a copy or excerpt Upon request, parties
shall be given an opportunity to compare ~he copy with the original if available.
(f) OtIicial notice may be tal<en of the following:
(1) Any fact that could be judicially noticed in the courts.
(2) The record of other proceedings before the BZA or the Cannel Plan Commission.
(3) Ordinances or rules that have been adopted the City of Cannel or an agency of the City of
Camlel.
(4) Codes or sta:t1dards that have been adopted by an agency of the United States or this state.
Carmel BZA Temporary Rule
Proposed: September 30, 2004
Page 3
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(g) Parties must be:
(1) notified before or during the public hearing, or before the issuance of any order that is based in
whole or in part on facts or material noticed under subsection (m), of the specific facts or material
noticed, and the source of the facts or material noticed, inclucting any staffmemoranda and data;
and
(2) afforded an opportunity to contest and rebut the facts or material noticed under subsection (m).
Sec. 10. (a) The Chairperson of the BZAshall govern the conduct of the public hearing, subject to
this section.
(b) On a motion by a party before the commencement of testimony, the BZA shall provide for a
separation of witnesses.
(c) The BZA shall conduct proceedings to issue a final order. The procedure to be followed for the
public healing shall be as follows:
(l) The Chairperson shall officially open the public hearing. During the hearing, the Chairperson
may limit the length of time all persons may speak or request that repetitious statements by
different speakers be avoided in order to reasonably limit the length of the hearing.
(2) The party who initiated administrative review and any other parties in support of the appeal
shall make. their presentations (total of 30 minutes), with the burden of providing all
necessary information for a clear understanding of the appeal falling upon the party who
initiated administrative review.
(3) All parties adverse to the party who initiated administrative review shall be heard (total of 30
minutes).
(4) Statements and/or letters from nonparties and/or the public in regard to the appeal shall be beard
(total of 30 minutes).
(5) The party who initiated administrative review may make a brief rebuttal or closing statement (5
minutes). Any other party may also make a brief rebuttal or closing statement (5 minutes per
party).
(6) To maintain orderly procedure, each party should proceed without intenuption by other pa11ies.
(7) The BZA members shall have an opportunity to question any party or nonparty concerning the
appeal. As deemed necessary, members inay also request a legal opinion from the BZA' s
counsel regarding any aspect of the appeal.
(d) Motions and petitions submitted by a party to the BZA shall be served on each party to the
proceeding.
(e) After the public hearing, the BZA shall continue the hearing of record in order to afford each
party ari opportunity to present briefs. The BZA may also:
Carmel BZA Temporary Rule
Proposed: September 30, 2004
Page 4
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(L) after the receipt of briefs, afford each pmiy an opportunity to present oral argument; or
(2) have a transcript prepared, at the expense of the Office of the BZA, of any portion of the record
of a proceeding that the BZA considers necessary.
(f) Any party may participate.in a proceeding in person or, if the party is not an individual or is
incompetent to participate, by a duly authorized representative.
(g) Whether o"r not participating in person, any party may be advised and represented at the party's
own expense by counsel or, unless prohibited by law, by another representative.
(h) Notices and orders of the BZA shall be served on all parties and all other persons who have
requested notice under this Rule.
Sec. 11. (a) Upon the motion of a pariy, a hearing may be continued by the BZA and shall be
continued upon a showing of good cause.
(b) A motion to continue a hearing because of the absence of evidence must be made upon affidavit
and must show:
(1) the materiati(y of the evidence expected to be obtained;
(2) that due diligence has been used to obtain the evidence;
(3) where the evidence may be; and
(4) if based on the absence of a witness:
(A) the name and residel}Ce of the witness, if known;
(B) the probability of procuring the testimony in a reasonable time;
(C) that absence ofthewitrtess was not procured by the party nor by others at the request,
knowledge, or consent of the party;
(D) what facts the party believes to be true; and
(E) that the party is lUlable to prove the facts by another witness whose testimony can be
readily procured.
(c) If, upon the receipt of a continuance motion under subsection (b), each adverse party stipulates
to the truth of the facts whi ch the party seeking the continuance indicated could not be presented, the
hearing shall not be continued.
(d) The BZA may continue the hearing of record in order to allow the parties a designated arnount
oftime for the submission of proposed findings and conclusions.
Sec. 12. (a) Upon a detennination by the BZA that an administrative appeal should be granted or
denied, the BZA shall issue a final order that does the following:
Carmel BZA Temporary Rule
Proposed: September 30, 2004
Page 5
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(1) Considers the pertinent factors set forth in the Zoning Ordinance.
(2) Includes, separately stated, findings of fact and conclusions oflaw for all aspects of the order,
including the remedy prescribed and, if applicable, the action taken on a petition for stay of
effectiveness. Findings of ultimate fact must be accompanied by a concise statement of the
underlying basic facts of record to support the findings. Conclusions oflaw must consider prior
final orders (other than negotiated orders) of the BZA under the same or sirnilar circumstances if
those prior final orders are raised on the record in writing. by a party and must state the reasons for
deviations from those prior orclers. Findings must be based exclusively upon the evidence of record
in the proceeding ancl on matters officially noticed in that proceeding. Findings must be based upon
the kind of evidence that is substantial and reliable. The BZA members' experience, technical
competence, and specialized knowledge may be used in evaluating evidence.
(b) The final order .ofthe BZA shall be filed within five (5) days following the date that the hearing
ofreC6rd is closed by the BZA.
(c) The BZA shall serve the'parties with a copy of the final order oftne BZA. Following
notification under this subsection, a party may apply for judicial review under Ie 36-7-4-1000 et seq. of
any matter determined under this section.
Sec. 13. (a) A person who wishes to seek modification of a final order entered under this Rule must
file a petition with the BZA and serve a copy upon each party. The petition must be filed within thirty (30)
days of the entry oUhe final order, but in no event after any party has sought judicial review of the final
order under Ie 36-7-4-1000 et seq.
(b) Except as provided in subsection (d), the BZA may modify a final order only where the
petitioner demonstrates each of the following:
(1) The petitioner is not in default of any obligation that it has under the Zoning Ordinance or any
condition imposed upon the petitioner by the BZA or the Carinel Plan Commission.
(2) Newly discovered material evidence exists.
(3) The evidence could not, by due diligence, have been discovered and produced at the hearing in
the proceeding.
(c) The BZA shall limit any hearing granted under subsection (b) to the issues directly affected by
the newly discovered evidence.
(d) The BZA may, or shall upon the agreement of all parties, modify a final order to conect a
clerical mistake or other enor resulting from oversight or omission.
Cannel BZA Temporary Rule
Proposed: September 30, 2004
Page 6
.,.
"
THOMAS C. YEDLICK
505381. Charles Place
Carmel, Indiana 46033
317-844-0141 x253
.-.~::~
q;"
October 4, 2004
To: Board of Zoning Appeals
cc: Michael Hollibaugh, Director
Department of Community Services
Via e-mail:
Phillip Thrasher
Zeff Weiss
Re.Docket N 0..04070020 A: Public Rearm!! on an
Appeal to Director's determination. that Martin Marietta's operation
is a le{!al. nonconformin1:!: use
Rebuttal to Letter from Mr. Weiss dated June 18. 2004 re certain activities carried
on bv Martin Marietta on its Carmel Sand and Gravel Site
This rebuttal is to supplement my previous memoranda of August 12, 2004; June 17,
2004; and mycomplaint letter of December 16, 2003. The purpose of this rebuttal is to
address certain statements contained in Mr. Weiss' letter dated June 18,2004 re: Martin
Marietta's Cannel Sand site. That letter was addressed to .Mr. Hollibaugh in response to
Mr. Hollibaugh's invitation (June 11,2004) to Mr. Tiberi to respond to issues raised in
my complaint letter dated December 16,2003. (A copy of Mr. Weiss' letter and my
December 16, 2003 letter are attached for your convenience.)
These issues were originally docketed before this Board for a Hearing on June 28, 2004.
Because of a series of procedural matters, these issues are now docketed for a special
meeting on October 13, 2004.
This Appeal is being heard under the Board's legislated authority to consider questions of
existence of nonconforming uses (Ordinance Chapter 28.06). It has been filed as an
"Appeal of a Determination of tl:1e Director" at the direction of the Director. However,
the Board should take notice that determinations of nonconforming uses are within this
Board's authority only, and therefore an appeal of the Director's determination is
unnecessary.
This memorandum is being provided to Board members prior to the October 13th meeting
in ordi;:r to provide the Board with background on the issues raised in this Appeal, to
clarify issues on nonconforming uses raised by Mr. Weiss, and to rebut several
statements by Mr. Weiss which are believed to be inaccurate or incomplete. For the sake
of convenience, these comments are presented in the same sequence as Mr. Weiss' letter.
Mr. Yedlick's Claims
Herein Mr. Weiss's claims are twofold.
1. That "Martin Marietta's uses are correctly analyzed as existing, permitted uses, and
not as non-conforming uses" and that,
2. Processing is a permitted use in an S-l District.
I will address each claim separately.
1. That Martin Marie,tta's uses are correctly analyzed as existing, permitted uses,
and not as non-conforming uses
Mr. Weiss relies on Section 28.1.6 of the Carmel Clay Zoning Ordinance
(Nonconforming Uses & Exemptions), which he cites as "existing uses eligible for
special use approval shall not be considered legal non-conforming uses nor require
special use approval for continuance". However the correct and complete citation is as
follows:
"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 a'DProval for any alteration~
enlare:ement or extension." (emphasis added)
From this, Mr. Weiss concludes that: "Martin Marietta's uses are thus correctly analyzed
as existing, permitted uses, and not as non-conforming uses." This conclusion then
allows Mr. Weiss to proffer that, as a permitted use, Carmel Sand requires no variance
permits and is free to expand or modify as it desires, contrary to 28.01.06 above.
There is no basis for Mr. Weiss' conclusion, and in fact it flaunts any reasonable logic.
This conclusion is incorrect for three reasons. First, the phrase "existing uses eligible for
special use approval shall not be considered legal non-conforming uses" does not convert
a nonconforming use to a permitted use by default. The proper analysis is that if such
uses are not to be considered legal nonconforming uses, then they must be considered
illegal nonconforming uses.
Second, sand and gravel operations are!!Q! listed as a permitted use in an S-l District. It
would take action by the Plan Commission and City Council to add a permitted use that
does not now exist.
Third, while sand and gravel operations in an S-l District may never qualify as a
Permitted Use, they may qualify as a Special Use, but only under the terms of the
Ordinance, and only if a proper application for a Special Use is submitted to this Board
for approval.
CONCLUSION: :Mr. Weiss has incorrectly interpreted the Zoning Ordinance; Martin
Marietta's uses can not be permitted uses since they do not exist in the Ordinance. Since
they are not permitted uses, by default they must be considered illegal nonconforming
uses.
2. Processing is a permitted use in an S-l District.
MI. Weiss fails to recognize that processing is neither a Permitted Use nor a Permitted
Special Use in an S~ 1 District. Processing is a permitted use only in an M-l
Manufacturing District.
CONCLUSION: A rezone t9 an M-l District would be required to allow Martin
Marietta's processing operations.
Extraction and Sale of Sand and Gravel Includes Processin2:
Here Mr. Weiss makes the statement that the Cannel zoning ordinance does not contain a
deffuition of mineral extraction. That is not correct. Chapter 3: Definitions contains the
following definition:
MINERAL, SOIL, OR GRAVEL EXTRACTION OPERATIONS. Any
process used in obtaining, from the earth, naturally occurring substances.
Note: This use definition refers only to extraction and does not include
process mg.
Mr. Weiss then proceeds to cite Section 20B.2 "Special Uses" to justify Cannel Sand's
processing operations. Section 20R2 reads:
Special Uses: Mineral extraction operations including sand, gravel, soil,
aggregate and all related processing operations.
Note: This is the definition comes from Section 20B M-l/Manufacturing
District.
The correct cite fof. a "Special Use)' in the S-l Residential District reads:
Special Uses: Mineral extraction, borrow pit, top soil removal and their
storage.
Note: This use definition is extraction only and does not include processing.
CONCLUSION: Mineral extraction, including processing, is aperrnitted special use in a
Manufacturing District only. But in an S-l Residential District, a mineral extraction use
does not include processing. In the context of this Appeal, .'Uses not specifically
enumerated are excluded"(Columhus Board of Zoning Appeals v. Big Blue).
Therefore processing can never bea permitted use not a special use in an S-1 District.
The Source of the Material is Irrelevant
Here, Mr. W eissproffers. that, if mineral processing has been legally established as a
separate use, the source of the minerals is irrelevant. I do 110t disagree with the
conclusion, only with the hypothetical premise. .
This issue goes to the,heart of this Appeal. Since mineral processing is not permitted in
an S-l District, processing can never be a legally established separate use. And by
conclusion, processing of offsite minerals is not permitted.
Mr. Weiss and I agree that processing is part of the historical "use" of..sand and gravel
operations" conducted on the site as a nonconforming use, and that processing was
conducted on the sand and gravel extracted from that site. However one must only look at
the defmition of "use" under Indiana law to realize that only sand and gravel extracted
from that site qualifies for processing.
The term .'use" as employed in the context of zoning, is a word of art
denoting the purpose for which a parcel of land is intended, or for the
purpose for which it is occupied or maintained. Zoning in general and
"uses" in particular focus on how a parcel of land was utilized. Protective
Ins. Co. v. Coca-Cola Bottling, 467 NE2d 754, Harbour Town Associates, v.
City ofNoblesville, 540 NE2d 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
Mr. Weiss and I agree that the historical nonconforming use of the property has been
sand and gravel operations, and that processing is within the scope of those operations as
they have conducted. In other words, we must look at how "processing" fits within the
total scheme of operations to define its proper "use" under the actual utilization concept
established by Metro Dev. Com'n of Mati on County above.
However processing has never been established as a separate use, but only an activity
within the total concept of mineral extraction operations conducted on this property.
Therefore, .'processing minerals from offsite" does not qualify as a use previously
conducted on this property. To conclude that processing is a legally established separate
use to process offsite minerals would violate the zoning ordinance:
Mr. Weiss cites Day Y. Ryan as authority that the source of material is irrelevant.
However the facts in that case are distinguished from the facts here at hand. In Day, the
landowners were engaged in a lawful permitted use of fanning, which included the
raising and sale of livestock. Later the owners expanded this permitted livestock use by
bringing in livestock for sale. Here the court did allow bringing in livestock for sale as
part of the use permitted in this agriculture district.
But the Day is distinguished from the facts applicable to Carmel Sand processing
operations. First, Cannel Sand is a nonconforming use, andp:rocessiog is oot a lawful
use under the Ordinance. Therefore they may not expand in the fashion described in
Day. While a permitted use may be expanded, nonconforming use may not be expanded
without a variance permit. This is the major distinction 'between Day and Carmel Sand.
Existing (nonconforming) 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 approv~l for any alteration,
enlargement or extension. Carmel Zoning Ordinance 28.01.06
Mr. Weiss goes on to say Martin Marietta's (historical) use of the Cannel Sand property
has been for the extraction, processing and sale of sand and gravel. I concur. But he then
proffers that "there is no requirement that each and every component of a use be carried
on in order for other components to the use be a.llowed (separately)". Here I disagree.
As defined in Protective Insurance above, it is the purpose for which the use was
intended and how it was, actually used that defines the use. Clearly the use of extraction
and processing of minerals from the Carmel Sand Quarry was the purpose and use
established, and indeed that was how it was actually used. Once the quarry reserves
became exhausted, the purpose and actuallise of the processing plant also became
exhausted. This is the essence ofthe Diminishing Asset Concept: when the minerals
are exhausted, mining is complete.
Martin Marietta Has Acquired Statutory and Contract Uiehts that Entitle It to
Continue Its Uses
Herein Mr. Weiss claims rights under three theories. Those are rights under Ie 36-7-4-
1103; the agreement entered into bet\.veen the City and Martin Marietta in cOllllection
with Hazel Dell Parkway; and the Settlement agreement between Martin Marietta, the
City, and Kingswood.
A. Rh!hts Under Ie 36-7-4-1103
I'll first discuss Ie 36-7-4-1103. Quoting from Mr. Weiss' letter, "Ie 36-7-4-1103
prohibited a local government from interfering... outside of urban areas the complete
use and alienation of any mineral resources by the owner or alienee thereof." He goes
further to cite Uhl Y. Liter's Quarry of Indiana, Inc. as follows, "that when a quarry is
outside an urban area it has the right to engage in any activity furthering the complete
use and alienation of any mineral resources on its property." (emphasis added)
Here the Cannel S::Jlld status is unique. It once was outside an urban area, if not
before annexation by Carmel,. then certainly after annexation. There can be no
question that after annexation by Cannel, it now is within an urban area, and therefore
the exemption from regulation under Ie 36-7 ~4-11 03 no longer applies.
The question is what rights does Martin Marietta retain from its prior exemption. I
can find no cases addressing this question, however the point is moot. Since Martin
Marietta is no longer extracting sand and gravel "on this property", any exemption
that may have carried over has expired.
IC 36-7-4-1103 only prohibits a municipality from "preventing" the complete
alienation of mineral resources outside an urban area. It does not grant legal
nonconfonning use status under Cannel Zoning Ordinance as established in Maxey.
In Maxey v Board a/Zoning Appeals, 480 NE2d 589, the court established the
principle that an exempt use does not establish legal nonconforming use status.
Maxey puri;hased a parcel of property in a residential area which had been used by
the Valparaiso Community Schools as a bus barn maintenance facility. Maxey
intended to use the facility in much the same way, but as a private, commercial
enterprise to repair commercial vehicles.
After the BZA denied a variance for change in use, Maxey appealed seeking
continuation of school's nonconforming use status. The Indiana Court of Appeals
denied the appeal.
"The Court found an important distinction is evident when the character of the use is
examined. Vehicle maintenance garages are not permitted in ;residential zoning,
however because the school or public uses are permitted (i.e. exempt), the bus barn
was "permitted" as an accessory school use. It is the character of use as school or.
public (exempt use) which qualifies it as a permitted use in residential zoning. It
is to be distinguished from commercial uses of land. The character of the use changes
when it ceases to be governmental (exempt use) and becomes commercial:'
A somewhat analogous situation exists with respect to the Carmel Sand processing
plant. The processing plant, as an incidental use, was exempt from regulation under
IC 36- 7 -4-1103 as part of the alienation of mineral resources. It is not a permitted
use, but the City was merely prevented from regulating it.
However the character of its use changes if it ceases to be part of a mining operation
(the alienation of mineral resources) and becomes a separate commercial use. Carmel
Sands I proposed use as a stand alone cOllll11ercial processing facility, although similar
to its incidental (exempt) use as part of mining, is neither a permitted use under the
. ~ 1
ordinance nor a continuation of a nonconforming use. As a separate use, it is not
permitted within this zoning district.
B. Rit!htsUndertheHazel Dell Aereement and the "Settlement Ae:reement"
The Board of Public Works entered into the Hazel Dell Agreement on behalf ofthe
City, and the Mayor on behalf of the City signed the Settlement Agreement.
The E;ssence of Mr. Weiss' arguments is that these two (civil) agreements somehow
granted- Martin Marietta zoning rigllts which the BZA is now bound by. No
conclusion could be more incorrect.
Neither the Board of Public Works nor the Mayor has zoning authority. Under
Indiana law, zoning and planning are legislative functions. The Board of Public
Works and the Mayor are executive branch functions.
In the Settlement Agreement; the City, Kingswood and Martin Marietta were careful
to preserVe these legislated rights of the BZA. Section E.6. of that Agreement
provides:
Kingswood, Martin Marietta, Hughey and the City recognize that this
agreement is for the purpose of settlement of the Lawsuit and is not binding
on the BZA, the Carmel Clay Plan Commission or the Common Council of
the City in the exercise of their responsibilities for land use and zoning of
Clay Township and the City of Carmel.
C. Determination of the Director
In his Determination Letter of June 24, 2004, it would appear that the Director relied
on the Settlement Agreement as the basis for his Determination. The relevant portions
of the Determination Letter and the Settlement Agreement follow:
o Determination Letter
3. The land uses that were established on Martin Marietta's properties on or
about May 17, 2002, constitute legal, nonconforming uses:
4. Those uses do not appear to have been substantially modified, expanded,
or added to sihce May 2002.
. Settlement Agreement (Dated May 17. 2002)
Paragraph A.S. "The City recognizes that the uses .now established on the
Martin (Marietta) property... constitute legal, nonconforming uses. However
the City also recognizes that existing nonconforming uses may not be
substantially modified, expanded, or added to without a change of zoning
classification or BZA approval of a special use or variance."
Since the Director's Determination was not based on law, the Determination itself is
not valid. However as stated earlier, this point is moot since only the Board of ,
Zoning Appeals has the authority to detennine the existence of nonconforming uses,
not the Director (Chapter 29.3.5).
CONCLUSION - FINDINGS OF FACT
1. Uses which do not conform to the applicable provisions of the current zoning
ordinance or those of any ordinance superseded by this ordinance are Illegal
Nonconforming uses.
2. Sand and gravel operations (including processing) do not conform to the
provisions of any current or superseded ordinance.
3. Processing does not qualify as a separate use'under Indiana law as described in
Protective Ins. Co. v. Coca-Cola Bottling, 467 NE2d 754, Harbour Town
Associates, v. City ofNoblesville; 540 NE2d 1283. and. Metro. Dev. Com 'n of
Marion County v. Hair
4. If processing is.not a permitted use, then processing of offsite material at
Carmel Sand is an illegal use.
Thank you for considering the above, and I look forward to resolving this issue with
you on October 13, 2004.
Very truly yours,
~
oi;- ~
THOIvlAS C. YEDLICK
5053 St. Charles Place
Carmel, Indiana 46033
317-844-0141 x253
October 4, 2004
To: Board of Zoning Appeals Members
cc: :Michael Hollibaugh, Director
Department of Community Services
Re Docket No. 04070020 A: Public Hearin!! on an
Apoeal to Director's determination that Martin Marietta ~s operation
is a le1!id. lBonconformiol! use .
NUISANCES - OVARRlES AND .GRA VEL PITS fA White Paper of Issues)
Indiana law lacksjudicial review of zoning of limestone quarries and sand and gravel
pits. Therefore there are no cases to be fOWld "on point" dealing with the issues this BZA
Board is facing regarding this Appeal and' the MueDler South Special Use. To say that
Indiana law is behind the times would be an understatement.
When there is a lack of development of case law as there is in these two issues, it is
common for Boards and courts to seek "'persuasive authority" contained in judicial
reviews in other jurisdictions.
Attached is a research document ("<white paper") on "case law" related to zoning and
operations of quarries and limestone pits. For the most part, this digest of cases was
derived from American Jurisprudence - Second Edition, a recognized legal digest and
encyclopedia.
The purpose of this white paper is to provide legal precedents of the issues, which have
heretofore been missing or skipped over. I will be referring to this white paper during the
Appeal Hearing on October 13, 2004.
Sincerely, .
~~7~ lfd'J
Thomas Yedlick
NUISANCES - QUARRIES AND GRAVEL PITS (A White Paper of Issues)
Prepared by Thomas Yedlick
Scope
The commercial activity that is contemplated is the "extraction" of minerals, as opposed to
mining. In mining operations, an essential feature appears to be that the desired mineral is
embedded in ore, or in neutral waste material. In quarrying and gravel operations, on the other
hand, the ehtiremass that is extracted is desired, and there is no ore involved, or masses of waste
material that bulk large in comparison with the mineral sought.
Nuisances
Used to designate the wrongful invasion of a legal right of interest, comprehending not only the
wrongful invasion of the use and enjoyment of property, but also thew-rongful invasion of
personal legal rights and privileges. A nuisance includes everything that endangers life or
health, or obstructstbe reasonable and comfortable use of property, as well as that which
gives offense to the senses. Furthermore, a nuisance has been described as anything which
causes a wellMfounded apprehension of danger, as anything that interferes with the enjoyment of
life or property, and as something that is offensive, physically~ to the senses, and which, by such
offensiveness, makes life uncomfortable. 58 AmJur2d 670.
Liability as nuisances
The noise and vibrations caused by the operation .of a stone quarry or the use of explosives
incidental to mining may constitute a. nuisance, especially where explosions cause structural
damage to homes of adjoining landowners~ but where noises from blasting in a stone quarry were
barely audible, since they took place well below the surface, neighboring lando'WIlers were not
entitled to an injlUlction. 53A AmJur2d 500.
Most cases concern quarries and the annoyances of a generally similar nature they create in
dynamiting and blasting. The chief annoyances as to which courts have been willing to grant
relief on the basis of a nuisance in ql.laITY operations are those resulting from rock blastings. It is
the blasting aspect of the operations that has raised their objectionability above the threshold of a
nuisance.
Almost every case bas arisen a~ra result of encroachments by pits on residential character
and uses of neighboring properties. However, relief has been denied where it seemed that the
complaining property owners were overly fastidious and sensitive and the annoyances shOm1
were not greater in degree than they should expect to bear as members of society. And the less
desirable the neighborhood is for residential purposes, the less is a quarry or pit to be deemed a
nuisance. The corollary to this argument then is that the more desirable the neighborhood,
the greater amount of protection from nuisance should be granted.
The fact that a business was established in the open COlUltry remote from habitations will not
defeat a proceeding for the maintenance ofa nuisance after the land in its vicinity has been built
up and occupied; such business must give way to the rights of the public and when building and
habitation approach the place of its location means must be devised to avoid the nuisance~ or it
must be removed or stopped. 58 AmJur 2d 808.
In Ledbetter-Bros. V. Holcomb, allegations that blasting in connection with a rock quarry
operated by the defendant caused shock and concussion waves which vibrated plaintiffs home
clearly disclosed that defendant~s quarry constituted a continuing, abatable nuisance.
Claims on various grounds that q~es and pits should be permitted to operate freely despite
their causing of nuisances bavenot been well received by the courts. These claims have been
rejected rather flatly as a matter of balancing equities, and subordinating commercial to
residential interests. More often,_however, rejection hasc01ne because operators have not been
able to demonstrate that restrictions sought to be imposed would destroy the business.
Scope of zonin~ and othermuuicipal ordinances
Because a quarry is basically a lawful business and not a nuisance per se, but only subject to
becoming so under particular circumstances, a municipality cannot outlaw quarries altogether. !!
may reJ1Ulate quarries, but this does not include the power to prohibit them.
It is frequently stated that the enactment of a zoning ordinance is for the pUrpose of promoting
the health, safety, moral, or general welfare of the community. Thus the police power as
evidenced by zoning ordinances has a much wider scope than the mere suppression of the
offensive uses of property; it acts not only negatively, but constructively and affinnatively for
the promotion of the public welfare. 58 AmJur2d 679.
Locality has an important bearing on areasonable use ofa business property, and the views have
been expressed that a buSiness which is lawful in itselfmay become a nuisance because ofthe
locality in which it is carried on, that. whether or not a particular business is a nuisance depends
entirely upon the character of the neighborhood where it operates, and that a nuisance arises not
so much because of the type offucility involved but, rather, because of the facility's location
Thus, a business otherwise lawful may be a nuisance by reason of its location in an inappropriate
place, as where it is carried on in a populous neighborhood~in a residential district, or in close
proximity to dwelling houses. 58 AmJur2d 805
A residential district is entitled to the benefit of being free from disturbing business
enterprises situated therein, and the courts zealously guard the rights of occupants of
residential districts ill1 this regard. Thus many actsandbusDnesses which, if performed or
conducted elsewhere woulcl not be Duisances, may be declared to .be Iluisances if performed
on conducted in residential districts. Although a business may be lawfulin itself; ifit is
operated in a primarily residential area in such a manner as to impair the enjoyment of homes in
the neighborhood and infringe upon the well-being~ comfort~ repose, ~d enjoyment of the
ordinary individual residing there, the carrying on of such business in such locality becomes a
nuisance and may be enjoined. 58 AmJur2d 806.
Although a :mining operation does not in and of itself necessarily run afoul ofthe public health,
safety and welfare, certain aspects of mining and quarrying which are related to the welfare of
the community (including dust, noise and blasting which imperil public health and welfare), are
clearly subject to regulations enacted pursuant to the police powers. k is true of all uses of
land, a quarry must observe reasonable police regulations and avoid the creation of a nuisance
(Town of North Hempstead v; De Pasquale Bros.).
Ordinances which e:xclude q~g from certain districts frequently are sustained where such
regualtions are designed to protect residential areas of the municipality. (Consolidated Rock
Products v. City of Los Angeles) 83 AmJur 276
In Davison Vi Lill, while a municipality might prohibit blasting as an exercise of its police
powers in the interest of public safety and welfare, qUarrying which does not otherwise involve
blasting might. be conducted.
An accurate expression probably would oblige one to call only some component parts of the
enterprise a nuisance (such as blasting), but the enterprise itself would not be. A municipality
may prohibit blasting as an exercise of public safety and welfare, while operations not
necessarily involving blasting can be conducted.
In Brede v. Minnesota Crushed Stone Co., on appeal it was held that while the defendant might
properly develop the lawful businessit was conducting, it did not necessarily follow that it could
do so ifit thereby maintained a nuisance.
In Associated. Contractors Stone Co. V. Pewee Valley Sanitarium & Hospital, the court held
valid a provision agamstprojected quarrying in non industrial neighborhood as "necessarily"
involving nuisance Bnd material damage where evidence established that dwellings would be
shaken for unlimited period in future to such degree as to constitute material and continuing
annoyance.
In Colonial Aggregates, Inc. v. Town Bd. Of Dover, an application fOf' special use permit to
commence large quarrying operation was properly denied. Zoning board indicated blast noise
would significantly intrude upon residences in neighborhood, and where board found that those
impacts would have long~term effect over life of project.
Certain aspeds. of opetations as a nuisance
It has been held that aouisance was shown to exist wbere as a result of the blasting, one or
more of the following harmful effects were established: noticeable vibrations of buildings,
sometimes cracking walls and plaster; creation of dust from otber activities as weD as
blasting, causing persopal annoyance as well as damage to property; the emission of noises
in addition to explosions, to the disruption of rest 'and sleep, and interfering with ordinary
comforts such as the ability to use their property without the interference from noises.
Generally it has been held that a quarry itself is not a nuisance per se, .but it may become a
nuisance under circumstances relating; to surroundings and methods of operatio~ and, the relation
~tween tbose two factors. Operators bave been ordered to ceQse operating in such a way as
to vibrate houses, or create extraordinarily loud noises.
In Millett v. Minnesota Crushed Stone Co., the court summarized the rules as they might apply
in Cannel. A landowner wbo has a deposit of limestone on bis land may not quarry as he
chooses, but he may be liable for maintaining a nuisance, even th'ough the odors, noise, dust
and tbe like are ordinary incidents of such a quarrying business conducted without
negligence; that the rights of habitation are superior to the tights of trade; and that
wbenever they conflict, the rights oftrade must yield; that such a business must be
"
conducted in sllch a manner as not to offend or intedere materially with the bealth or
ordinary comfort of people living in the neighborhood.
In Blackford v. Heman Construction ~o., the court held that while the defendant had a right to
operate a quarry business, he couId not do so in such manner as to. deprive the plaintiff
homeowner of the enjoyment ofbis home, and where the use of a property for trade or
commercial purposes conflicted with the use of neighboring properties for residential
purposes, the residential purposes would take precedence aDd prevail.
In Barrett v. Vreeland, the Judgement ohbe court was.upbeld enjoining the quarry
operators from operating is'such a way as would disturb the plaintiffs in the enjoyment of
their premises, on the ground that the operations were a public nuisance.
In Adams v. Snouffer, a quarry was found to be a nuisance where the evidence showed that
explosions from it jarred the homes, causing windows to rattle, mirrors and pictures on walls to
shake, plaster to crack and fall, and children to be frighteneg;and intenered with sleep and
conversation in normal tone of voice. The explosions caused further distress because of the
Wlcertainty as to when they might occur. The plaintiffs' residences were :from 610 feet to about
a mile distant from the quarry.
In Beecher v. Dull, the court enjoined the operator from using such heavy charges of dynamite
that the resulting blast wouldjar and vibrate houses and premises so as to cause cracks in the
plaster or otherwise injure the property. The court determined such.results constituted a nuisance
interfering with the rights, comforts, health, and property of plaintiffs.
The fact that the operato_1I" may have been operating his quarry in the optimum way to
prevent it becomIng a nuisance, or may have introduced practices' deliberately designed
toward that end, but to no avaIl, has been a factor convincing the court of the futility of the
operator's attempting to continue operations o~ a curtailed basis.
Public Interest
Sometimes proprietors have claimed that the public interest required the continuance (or
expansion) of their operations even though they may cause some discomfort or inconvenience to
surrounding residential communities. However these contentions have failed where the
operators could not establish there w~re no other locations where operations couId be conducted.
In Carmel's case, the contention is that access to additional reserves is necessary to the growth
and development not only of Carmel, but also of northern Marion County and of Hamilton
County. The implication is that public interest will be harmed if they are not permitted to expand
operations in Carmel.
Based on past statements by American Aggregates, Martin Marietta, and Carmel City officials,
this public interest argument fails. These operators have indicated that they have current
reserves sufficient to operate for fifty years or more. Carmel officials indicate that Carmel will
be built ciut in ten years.
'"
The public interest argument fails on another count. Carmel must assess tbe degree to which it
will subject it's citizens to the "burdens of growth" that will arise from further expansion of
"blasting" in order to support growth outside Carmel.
In Shaw v. Salt Lake County, the court conceded some substance to the operator's claim that the
operation of its quarry, for the purpose of producing construction material for public highways,
was necessary in the furtherance ofpublic welfare. Nevertheless, it enjoined prospective
operation in tbe area involved, near a high-class residential neighborhood, as there was no
clear indication that existing reserves were Dot adequate, or that other equally suitable
areas were not available.
Further, since existing reserves are more tban adequate for Carmel's needs, aggregate operators
should be restricted from removing additional lands from the tax rolls when reserving such lands
for aggregate extraction has not been demonstrated as a justified need. Carmel has a tradition of
balancing commercial. and residential growth in its comprehensive planning. Land set aside for
aggregate extraction is assessed at the lowest tax rates. Therefore in order to continue Carmel's
tradition of managing its tax base, land reserved for aggregate extraction should be justified
based on the needs of the Carmel community, not the aggregate company's need for future
profits.
Restrictions appropriate to abate the. nuisance
In Morton v. Superior Court, even though the existence of a nuisance and the right to relief
against it may be recognized, the commercial rights of the proprietors are entitled to
consideration. However, these should be limited only to the extent necessary to abate the
nuisance.
This leads to consideration of the question, if two different methods of extraction are available,
will the interest of community welfare be best served by restricting the extraction method to the
one which is least offensive to those interests? Since it is well recognized that surface blasting
constitutes a nuisance, but underground blasting may be undetectable under proper
circumstances, the community's and the operator's interests can be balanced by allowing mining,
but only underground and only under proper circumstances.
Prescriptive or prior ri1!bts
PrescriptIve rights. generally involve the issue of "who was there first". The cases do not reflect
any instances in which the operators have been successful in establishing right of a prescriptive
nature to operate pits which have been determined to be nuisances. Nor have the operators
prevailed in this respect even though their business may have occupied the location in question
before the plaintiffs moved into the neighborhood (sometimes described as "coming to the
nuisance").
In Sooy v. Giacomucci, the defendant claimed be !lads right to operate his quarry, found
to be a nuisance, as it had been in existence before the pJaintiffmoved to the neighborhood.
This areument was rejected on the ground that one may not erect a nui~ance upon his land
adjoining lots owned by another, and thus in effect control the uses to which such land
might be put in the future.
THOMAS C. YEDLICK
5053 Sf. Charles Place
Carmel, Indiana 46033
317-844-0141 x253
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October 4, 2004
Michael Hollibaugh
Department of Community Services
City of Carmel
1 Civic Square
Cannel, IN 46032
Re Docket No. 04070020 A: Public Hearioe;onan
AlHleal to Director's determination thatMartin Marietta's operation
Is a leest. nonconformin~ use
Dear Mr. Hollibaugh:
At:tached are the following:
. Eight copies of comments (with attachments) for the record on the above Docket.
o Eight copies of a "white paper" discussing Nuisances - Quarries and Gravel Pits,
along with a cover letter.
Please provide these to BZA members in their agenda packets for the October 13, 2004
special meeting.
Thank you,
~ J!'dL~J!
Thomas Yedlick
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Dobo~,ewicz. Jon C
Subject:
Butler, Angelina V
Thursday, July 15, 2004 11 :35 AM
Tingley, Connie S .
Morrissey, PhYllis G; Pattyn, Dawn E; Babbitt, Pamela A; Hollibaugh, Mike P; Keeling,
Adrienne M; Kendall, Jeff A; Brewer, Scott I; Hancock, Ramona B; Dobosiewicz, Jon C;
Pohlman, Jesse M; Brennan, Kevin S
DoCket No. Assignment: (A) Martin Marietta, Appeal to Director's Determination of (#
04070020 A)
From:
Sent:
To:
Cc:
Connie,
Please print and fax this e-mail to the petitioner identified below and update the file. I have issued the necessary Docket
Number for (A) Martin Marietta, Appeal to Director's Determination of. !twill be the following:
Docket No. 04070020 A
Total Fee:
$125.00
$125.00
Martin Marietta, Appeal to Director's Determination of
The applicant would like to appeal a Director detem1ination that Martin Marietta's
operation is a legal, nonconfonning use:
Docket No. 04070020 A Chapter 28.06 Existence of a Nonconforming Use
The sites are located north of 96th Street and west of Hazel Dell Parkway and/or north of
106tl1 Street and west of Hazel DellParkway. The sites are zoned S-l/Residence - Low Intensity.
Filed by Torn Yedlick.
Petitioner, please note the following:
1. This Item will be not be on anagehda of the Technical Advisory Committee.
2. Mailed and Published Public Notice needs to occur no later than Thursday, July 29,2004. Published notice is
required within the Indianapolis Star (not the Noblesville Ledger),
3. The Proof of Notice will need to oe received by this Depat1ment no later than noon, Friday, August 20. Failure
to submit Proof of Notice by th1s time will result in the tabling of the petition.
4. The Filing Fee and Nine (9) Informational Packets must be delivered to BZA Secretary Connie Tingley no
later than NOON, Friday, August 13. Failure to submit Informational Packets by this time will result in the automatic
tabling ofthe petition to the Monday, September 27,2004, agenda of the BZA.
5. This Item will appear on the August 23, 2004 agenda of the Board of Zoning Appeals under Public Hearings.
6. The petitioner will need to provide a fully filled-out Findings-of-Fact sheets for each petition the night of the
meeting for the Board's use (Sheet 8). On Ballot sheets, only fill out docket number, petitioner, and date (Sheet 7). Ballot
sheets must be collated.
7.) PETITIONER: refer to your instruction sheet for more details.
Petitioner: please complete the Wllowing items:
1.) Provide an up-to-date list of adjacent property owners from the Hamilton County Auditor's office.
2.) Please provide the full legal description of the property.
3.) Please provide a location map.
Please contact Mr. Yedlick at 844-0141 (Fax:~-
Once the file is updated please return it to my office.
or e-mail: tomyed2@yahoo.com) with this information.
Thank you,
Angie
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ICE~~LL{E~
LEGAl. a BUSINESS ADVISORS
August 17, 2004
WRITER'S DIRECT NUMBIiR: (3] 7) 236-2319
DIRECT fAX: (317) .592-4788
[NTERNET: ZefLWeiss@icemilleLcom
VIA E-MAIL AND US MAIL
Department of Community Services
Attn: Jon C. Dobosiewicz
City of Carmel
One Civic Square
District 2
Carmel, IN 46032
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RE: Yedlick v. DOCS
BZA Docket No. 04070020 A
Dear Jon:
Enclosed please find our Appearance and Motion for Intervention and Request for
Continuance of Hearing in the above referenced matter. You will note that I have mentioned in
paragraph 9 thereof that DOCS, the intervenors and Martin Marietta are requesting this
continuance. I believe Tom Yedlick is also in support, although I was a little unclear after I
finished my conversation with him. As such, I did not include him as a party in support.
Please submit the enclosed for filing and return the second copy to me in the enclosed,
pre-addressed envelope after the same has been file-stamped for receipt.
Thank you for your attention to this matter. Please let me know after you have had an
opportunity to poll the members as to whether you believe this request wi 11 be granted in respect
to the continuance.
Very truly yours,
c:
ZAW/sd
Enclosures
cc: John Tiberi (via e-mail w/enc.)
Wayne Phears (via e-mail w/enc.)
Yvonne Bailey (via e-mail w/enc.)
INDY 1413507vl
One American Square I Box 82001 J Indianapolis. IN 46282-0200 I P 317-236-2100 I F 317-236-2219 I www.icemiller.com
Indianapolis I Chicago I Washington, D.C.
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STATE OF INDIANA
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CARMEUCLA Y ADVISORY BOARD OF
ZONING APPEALS
DOCKET NO. 04070020 A
CITY OF CARMEL
Thomas Yedlick,
Appellant,
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pr-~'.';I '1_,...,
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William D. McEvoy, Gregory M. Policka
Susan Becker, Holland Detke, Rex A.
Weiper, Rene Pimentel and Donald K. Craft,
D"C"
v :s
Intervenors,
v.
Department of Community Services
For the City of Carmel, Indiana
NOTICE OF APPEARANCE
COMES NOW Zeff A. Weiss of Lhe firm of Ice Miller, and enters his appearance in the
above captioned matter on behalf of Martin Marietta Materials, Inc.
Respectfully submitted,
ICE MILLER
A tomey No. 2025-49
rtin Marietta Matelials, Inc.
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CERTIFICA TE OF SERVICE
The undersigned hereby certifies that a capy of the foregoing has been deposited in the
U.S. mail, first class postage prepaid, on the J 7;;; Clay of August, 2004, addressed to:
Jon C. Dobosiewicz
City of Carmel
One Civic Square
District 2
Carmel, IN 46032
John R. Molitor
Molitor Grisham & Hester
9465 Counselors Row, Suite 200
Indianapolis, IN 46240
ICE MILLER
One American Square
Box 82001
Indianapolis, Indiana 46282-0002
(317) 236-2319 (direct dial)
(317) 592-4788 (facsimile)
weiss@ icemilleLcom
INDY I413503vl
Mr. Thomas Yedlick
5053 St. Charles Place
Carmel, IN 46033
Phillip C. Thrasher, Esq,
Thrasher Buschmann Griffith & Voelkel, p,c.
Market Square Center
151 N. Delaware Street, Suite 1900
Indianapolis, IN 46204-2505
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STATE OF INDIANA
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)
CARMEUCLA Y ADVISORY BOARD OF
ZONING APPEALS
DOCKET NO. 04070020 A
CITY OF CARMEL
Appellant,
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Thomas Y edlick,
William D. McEvoy, Gregory M. Policka
Susan Becker, Holland Detke, Rex A.
Weiper, Rene Pimentel and Donald K. Craft,
Intervenors,
v.
Depal1ment of Community Services
For the City of Carmel, Indiana
NOTICE OF INTERVENTION AND
REQUEST FOR CONTINUANCE OF HEARING
COrv.rnS NOW Martin Marietta Materials, Inc. ("Martin Marietta"), an interested party,
by counsel, and notifies the Carmel/Clay Advisory Board of Zoning Appeals (the "BZA") of its
interest in the above captioned matter and its desire to intervene therein and to request a
continuance of the August 23, 2004 hearing scheduled herein. Martin Marietta respectfully
shows the BZA as follQws:
1. On June 14, 2004, the Department of Community Services of the City of Cannel
("DOCS ") issued its decision with respect to an inquiry from Mr. Thomas Y edlick pursuant to
his letter dated December 16, 2003, with respect to certain activities of Martin Marietta in
connection with its operation of the so-called Carmel Sand and Gravel Processing Plant (the
"Plant");
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2. Subsequent thereto, Mr. Yedlick requested an appeal of the decision of DOCS to
the BZA, which appeal is presently scheduled to be heard at the regularly scheduled meeting of
the BZA on August 23, 2004;
3. On or about July 19, 2004, William D. McEvoy, Gregory M. Pohcka, Susan
Becker, Holland Detke, Rex A. Weiper, Rene Pimentel and Donald K. Craft (collectively,
"Intervenors") filed a Notice of Intervention in respect of this matter, raising various issues in
respect of the decision of DOCS with regard to Martin Marietta's operation of the Plant;
4. Martin Marietta, as an interested party, has entered its appearance in this matter
for purposes of addressing the decision of DOCS in this regard;
5. The undersigned counsel has reviewed the process and 'procedures with regard to
addressing the decision of DOCS with respect to the Plant before the BZA, and has also
discussed the same with Jon Dobosiewicz of the DOCS, John Molitor, as counsel to the BZA,
and Phil Thrasher, as counsel to the Intervenors, and with Mr. Yedlick;
6. There is a need for the interested parties and the DOCS to meet to discuss the
exact issues to be presented to the BZA and the appropriate process and procedure therefore,
including but not limited to the precise issues to be presented, the time limitations, nature of
evidence Lo be presented, and the allocation of time between the interested parties (i.e. Mr.
Yedlick, the Intervenors, Martin Marietta and DOCS);
7. Certain of the counsel involved with this matter are otherwise unavailable on such
date and proceeding with the hearing on August 23, 2004 would be a hardship; and
8. Martin Marietta respectfully requests that this matter be continued until the parties
have had an opportunity to convene and discuss the foregoing, whereupon DOCS will place the
matter on the agenda of the BZA for hearing either at a special meeting or at the next available
regularly scheduled meeting convenient therefore.
- 2 -
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9. DOCS and counsel to the Intervenors join in this request for a continuance for the
stated purposes.
WHEREFORE, the undersigned respectfully requests that the hearing of the above
referenced matter presently scheduled for August 23, 2004 be continued to a date in the future,
and for all approptiate relief proper in the premises.
Respectfully submitted,
ICE MILLER
CERTIFICA TE OF SERVICE
The undersigned hereby certifies that alfPY of the foregoing has been deposited in the
U.S. mail, first class postage prepaid, on the 11 ~day of August, 2004, addressed to:
Jon C. Dobosiewicz
City of Carmel
One Civic Square
District 2
Carmel, IN 46032
Mr. Thomas Yedlick
5053 S1. Charles Place
Carmel, IN 46033
John R. Molitor
Molitor Gtisham & Hester
9465 Counselors Row, Suite 200
Indianapolis, IN 46240
Phillip C. Thrasher, Esq.
Thrasher Buschmann Griffith & Voelkel, P.c.
Market Square Center
151 N. Delaware Street, Suite 1900
Indianapois, IN 620 -25 5
ICE MILLER
One American Square
Box 82001
Indianapolis, Indiana 46282-0002
(317) 236-2319 (direct dial)
(317) 592-4788 (facsimile)
weiss@ icemi] Ier.com
INDY 1412901 v1
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Page 1 of 1
Dunlap, Susan
From: Weiss, Zeft A.
Sent: Tuesday, August 17, 2004 11 :47 AM
To: 'jdobosiewicz@cLcarmel.in.us'
Cc: 'tomyed2@yahoo.com'; 'jmolitor@ indy. rr.com'; 'th rasher@ indiana-attorneys.com';
'john.tiberi@martinmarietta.com'; 'Yvonne Bailey'; 'h. wayne phears'
Subject: Yedlick v. DOCS
Attached please find a letter, Notice of Appearance, and Notice of Intervention and Request for
Continuance of Hearing in the above referenced matter. A hard copy will follow jn the mail.
Zeff
Zeff A. Weiss
ICE MILLER
One American Square
Box 82001
Indianapolis, IN 46282
(317) 236-2319
(317) 592-4788 (fax)
weiss@icemiller.com
8/1712004
RANAC CORP.
Fa~.:~! ~-:-~4~-:-f~9,~, 1....~,...."I!'l.....,;,JiU9 18 ,'04
9:13
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THOMAS C. YBDLICK
SOS3 St. Charles Place
Cannel, IN 46033
317.844..0141 x253
VIA FAX 571-2426
Michael Iiollibau~
Jon Dobosiewicz
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August 18, 2004
Cc:
VIA E-MAIL
Phil Thrasher
Zeff Weiss
John Molitor
Re: Docket No. 04070020 A Request for Continuance
Gentlemen:
I received Mr. Weiss's request for continuance on behalf of his client. rm confused. because this
is a hearing before the Board of Zoning Appeals, not the Supreme Court.
For the record, I'm stating my objection to granting status as either ftInterested Party' or
l'Intcrvenof'. This is a Hearing before the BZA and the BZA'sroles of procedure apply, not
Indiana Trial Rules. Thiswould appear to be an a.ttempt by remonstrators to fi:ustrate the proces.s
by interfering with a petitioners rights under the BZA's own roles. Should such stQ.tus be
recognized, it would set a precedent where all future petitioners would be subject to having their
petitions wrestled away from them by remonstrators.
However in response to concerns presented by Mr. Weiss, I offer the following:
1. On June 14,2004, the Director issued a Detennmation letter with respect to certain activities of
Martin Marietta in connection with its operation of a Sand and Gravel Processing Plant (the
"Plant'');
2.. Subsequent thereto, the Appellant filed an appeal of the Director's Detennination pursuant to
Chapter 30.01 of the CarmellClay Zoning OrdinBilce;
3. The Appellant's appeal was filed within 30 days olthe Director's Detennination in accordance
with the Board's :Rules~
4. The Appellant has made the requited Public Notices~ Notices to adjoining homeowners and has
meet all requirements, and is entitled to be heatdin accordance with the BZA's Rules. A
continuance would not serve the btlst interests of residents ofK.ingswood and other
remonstrators.
5. The Appellant has meet with Michael Hollibaugh and Jon Dobosiewicz of the DOCS, John
Molitor, as Counsel to the BZA, Phil Thtnsher, as oounsel to the Intervenors. and with Zeff
Weiss, counsel to Martin Marietta Materials, Inc. on August 3,2004 to review matters related to
RANAC CORP.
Fax;317-848-2269
.. Aug 18 '04
9:13
P.02
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the subject matter of this Appeal and the Special Use. Neither Counsel for the Interested Party
nor Counsel for Intervenors raised any concern at that date.
6. Counsel for the Interested Party requests a continuance for the interested parties to discuss the
e?,act issues to be presented and the appropriate process and procedure therefore, including the
a.llocation of time betWeen parties; The Appellant notes that these matters are clearly set forth
in the Appeal, or are within the scope oftha Board's Rules. and are not a matter for the;
Intervenors or Interested Party to determine.
7. The subject of the Appeal is a matter that has been known by the Interested Party and .
Intervenors since the December 1 6. 2003 letter of inquiry from the Appellant, and since July 15,
2004, tht: date the Appeal was filed with DOCS.
8. The Appellant believes the subject matter of the Appeal is of vital importance, as the subject
ma.tter of the Appeal is also involved in five Special Use applications on file with the DOCS.
The outcome of the appeal will have a direct impact on the operations requested in the Mueller
South Special Use. Should the. Processing Pl~t be determined to be an mega} nonconforming
use~ the Mueller South Special Use will not be able to operate as contemplated in the Mueller
Special Use Application.
9. The Appellant believes the request by the Interested Party for a continuance is solely for delay
to allow the Mueller South Special Use to be heard without tbe benefit of a resolution of the
subject matter of the Appeal.
Per phone conversation with Mr. Dobosiewicz this morning. he indicated that the Department is
considering requesting the continuance. For reasons stated above. I believe such an action would be
a disservice to the petitioner and may even be in conflict with BZA Mesas the Department is a
party to this action.
Prior to taking action on a continuance, 11"eqllest a pr17hearing conference to sort out these issues.
~~
Thomas Yedlick
Message
,'i" ' ., .
Page 1 of 1
Dunlap, Susan
From: Weiss, Zeft A.
Sent: Tuesday, August 17, 2004 11.:47 AM
To: 'jdobosiewicz@ci.carmel.in,us'
Cc: 'tomyed2@yahoo.com';'jmoIi1or@indy.rr.com'; 'thrasher@indiana-attorneys.com';
'john.1iberi@martinmarietla.com'; 'Yvonne Bailey'; 'h. wayne phears'
Subject: Yedlick v. DOCS
Attached please find a Jetter, Notice of Appearance, and Notice of Intervention and Request for
Continuance of Hearing in the above referenced matter. A hard copy will follow in the mail.
Zeff
Zeft A. Weiss
ICE MILLER
One American Square
Box 82001
Indianapolis, IN 46282
(317) 236-2319
(317) 592-4788 (fax)
weiss@icemiller.com
8/17/2004
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THOMAS C. YEDLICK
5053 St. Charles Place
Carmel, Indiana 46033
August 12, 2004
To: Board of Zoning Appeals
CC: Michael Hollibaugh, Director
Department of Conmmnity Services
City of Carmel
One Civic Square
Carmel, Indiana 46032
ReDocket No. 04070020 A: Public Hearing on an
Appeal to Director's determination that Martin Marietta's operation
is a legal. nonconformin2 use
Memorandum of Points and Authorities
The purpose of this memorandwn is to provide the basis of an Appeal to the Director's
determination that the current operations being conducted by Martin Marietta are
impermissible uses.
ISSUES
1. Whether the Cannel Sand operation qualifies as a nonconforming use within
Cam1el's Zoning Ordinance for purposes of continuation, expansion, or modification,
2. Whether the processing of off-site material is an impermissible expansion of a sand
and gravel operation nonconfonning use,
3. Whether the conversion of a processing plant from a mineral extraction accessory use
to a manufacturing use (i.e. processing) is permissible,
The processing plant is located on Hazel Dell Road north of 106lh Street, and is zoned
S-1 Residential, low intensity.
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BACKGROUND
Sand and gravel operations have been conducted on Martin Marietta property (refen-ed to
herein as "Carole1 Sand") north of 1 06th StTeet for over 10 years. In 2001 and again in
2002, Martin Marietta sought to expand these mineral extraction operations by means of
a Special Use to extract sand and gravel from the Mueller property (adjoini.ng property).
The 2001 application was withdrawn before a BZA decision, and the 2002 application
was denied. The 2002 denial remains under appeal.
Beginning sometime in late 2002, Martin Marietta exhausted available reserves at their
Carmel Sand quany, and began bringing in off-site material from Noblesville to process
at the Cannel Sand processing plant on Hazel Dell Road. More particularly, the
operations at issue are the processing of minerals extracted from other properties. By
way of description, these operations include washing, grindi.ng, sorting, sizing,
stockpiling, and hauling.
Sand and Gravel Operations Defined
As defined by Martin Marietta in their 2001 and 2002 Special Use Applications, sand
and gravel operations consist of the primary use of extracting sand and gravel minerals
and incidental uses of transporting the extracted minerals to an on-site processing
(finishing) plant through a slurry pipe, washing and sorting the extracted minerals at the
processing plant, and stockpiling thetinished product for sale.
By definition the incidental uses cannot exist without the primary use.
BOARD'S JURISDICTION
Chapter 28.06 of the City of Cannel & Cl.ay Township Zoning Ordinance provides:
"In circumstances where there is question whether or not a nonconform ing use
exists, it shall be considered a question of fact and shall be decided by the Board
following public notice and a public hearing in accordance with the Rules of
Procedure of the Board. "
DEFINITioNS
Carmel's zoning ordinance provides the following definitions applicable to this issue:
MINERAL, SOIL, OR GRAVEL EXTRACTION OPERATIONS. Any process used in
obtaining, from the earth (emphasis added), naturally occurring substances.
USE, CONFORMING. A Use of a Building, land or premises which does conform to all
of the applicable provisions ofthis ordinance.
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USE, NONCONFORMING ILLEGAL. A Use of a Building, land or premises existing
at the time of the passage of this ordinance which does not conform to all of the
applicable provisions of this ordinance nor those of any ordinance superseded by
this ordinance.
USE, NONCONFORMING LEGAL. A Use of a Building, land or premises existing at
the time of the passage of this ordinance whjch does not conform to all of the
applicable provisions of this ordinance but did conform to applicable provisions of
any ordinance superseded by this ordinance.
Chapter 28.01.06. Existing uses eligible for special use approval shall not be considered
legal nonconfonning uses nor require special use approval for continuance but shall
require special use approval for any alteration, enlargement or extension
(empahsis added).
In addition, Indiana Code 36-7-4-1103 (c) provides:
"The advisory planning law does not authorize an ordinance that would prevent,
outside of urban areas, the complete use and alienation of any mineral resources or
forests by the owner or alienee of them."
NONCONFORMING USES ARE TO BE INTERPRETED STRICTLY
"State Code tends to interpret nonconforming uses in strict terms. In view of fact 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. Mishawaka Bd afZoning
Appeals. 395 NE2d, 834
Extent to which change of nonconforming use is permissible depends upon provisions of
zoning ordinance, and nonconforming use cannot necessarily be changed to another
nonconforming use of equal or lesser restriction. Taylor v. Metropolitan Development of
Marion County, 436 NE2d 1157
Generally, nonconforming uses may not be materially altered, modified or expanded
beyond their boundaries at the time they became subject to zoning restrictions.
The operative phrase above is modified. A change from mineral extraction (a special use)
to a manufacturing (processing) use is not only a change in the underlying use, but an
entirely different zone district (manufacturing).
DISCUSSION OF THE ISSUES
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1. Whether the Carmel Sand operations Qualifv as a nonconformin2 use within
Carmel's Zonil12" Ordinance for purposes of continuation. expansion, or
modification.
Carmel Sand is zoned S-l (residential) and has been within Cannel's zoning jurisdiction
under the Joinder Agreement with Clay Township.
Under Cannel's Zoning Ordinance, mineral extraction is a permitted special use in an S- I
DistIict, subject to approval ofthis Board. However the City and Martin Marietta have
always considered Cannel Sand to be outside of an urban area because of 1. C. 36-7-4-
11 03. As a result, Martin Marietta has never sought to obtain confomling use status as a
Permitted Special Use.
Zoning Alternatives
G Mineral extraction cannot be considered a conforming use because it is not
residential (see DEFINITIONS above).
o Mineral extraction is also not a legal nonconforming use because in order to qualify
as a legal nonconforming use, it must either "confonn to all of the applicable
provisions ofthis ordinance", or "confonn to applicable provisions of any ordinance
superseded by this ordinance", or qualify as a Special Use. None of these apply.
I!l Since Cannel Sand operations do not qualify for any conforming or legal
nonconforming use elements, it must be considered as an illegalllonconforming use.
While the City has chosen not to exercise its powers over this nonconforming use, by law
it has not waived them.
2. Whether theprocessin2 of off-site material is an impermissible expansion
of a sand and gravel operation nonconformin2 LIse.
Diminishing Asset Concept.
Mineral extraction operations are defined as "any process used in obtaining, from the
earth, naturally occurring substances". (Chapter 3: Definitions) Therefore by exclusion,
any processing of minerals not obtained from the earth are excluded fTOm the definition
of mineral extraction operations.
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 ofland. 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 ofthe corpus of the land itself as a resource.
Nor is it possible to extend the protection of a permitted nonconforming use
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established on one parcel of land to physically separate, though adjoining, parcels.
SyracuseAggregate Corp v Weise, 414 NE2d 651.
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 of the site is
consummated.
Maxey v Board of Zoning Appeals Court of Appeals of Indiana. Third District 480
NE2d 589 (1985)
Maxey purchased a parcel of property in a residenti al area which had been used by the
Valparaiso Conununity Schools as a bus barn maintenance facility. Maxey intended to
use the facility in much the same way, but as a private, commercial enterprise to
repair commercial vehicles.
After the BZA denied a variance for change in use, Maxey appealed seeking continuation
of school's nonconforming use status. The Indiana Court of Appeals denied the appeal.
"The Court found an important distinction is evident when the character of the
use is examined. Vehicle maintenance garages are not permitted in residential
zoning, however because the school or public uses are permitted, the bus barn
was "permitted" as an accessory school use. It is the character of use as school
or public which qualifies it as a permitted use in residential zoning. It is to
be distinguished from commercial uses ofland. The character of the use changes
when it ceases to be governmental (previous use) and becomes commercial."
A somewhat analogous situation exists with respect to the Carmel Sand processing
plant. The processing plant, as an incidental lise, was exempt from regulation as part of
mineral extraction operations. It is not a permitted use, but the City was merely
prevented from regulating it under I.c. 36-7-4-1103.
However the character of its use changes when it ceases to be part of mineral extracti on
operations and becomes a separate commercial use. Carmel Sands' proposed use as a
stand alone commercial sand and gravel facility, although similar to its incidental use as
mineral extraction, is neither a permitted use under the ordinance nor a continuation of a
nonconforming use. As a separate use, it is not pennitted within this zoning district.
Massachusetts Broken Stone Company v. Town of Weston, 195 NE2d 522 (1964)
The record indicates the petitioner for many years manufactured bituminous concrete,
composed of crushed stone, sand and liquid asphalt. For the most part, the stone used in
this process has come from the petitioner's quarry, but on occasions, to meet demands,
fully crushed stone was brought in from outside sources. Prior to 196 I, the peti tioner has
never brought stone to its premises to be subjected to further crushing operations.
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".
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Further, property owner conducting nonconforming use business of quarrying, crushing
and sell ing stone in limited industrial district had no right to change nonconforming use
through importation of stone to be processed and sold on premises, regardless of whether
it wou] d lighten or intensify use of land.
"The Land Court referred to "the quarrying and crushing of stone for sale" as one distinct
business. On the facts found by the judge he was justified in concluding that the
petitioner does not have a nonconforming use to bring onto the premises stone to be
subjected to further crushing operations." Thc Court held that the importation of stonc to
be processed and sold on the premises as stone would be a change in use, and the
petitioner has no right thereto."
3. Whether the conversion of a processing plant from a mineral extraction
accessory use to a manufacturine use (i.e. processing) is permissible
Processing is an activity that is performed on the raw extracted minerals to ready them as
finished product. This has always been so.
Attempting to treat "proccssing" as a separate, legal nonconforming use fails on two
counts:
1) Prior to 2002, processing of sand and gravel has always been associated with the on-
site quarry. It is only tllis association (as an accessory use) with mineral extraction
from the land that has permitted processing to be conducted in a residential zoned
district.
2) Processing is incidental to the extraction of minerals. Processing standing alone (as a
commercial use for oft':..site material) would be a different zoning classification and
would require a rezone. An accessory use as an incidental use in one zoning district
can not be converted to a permitted use of a different district.
DETERMINATION SOUGHT
The current dilemma arises because Cannel and Martin Mari etta have never sought to
resolve the essence of the use status of Carmel Sand. Even if you accept the theory that
mineral extraction was exempt from zoning regulation under I. C. 36-7-4-11 03, this
exemption only applies in an urban area, and only prevents the city from regulating
mineral extraction. It does not grant zoning status.
Additionally, even if Carmel Sand processing should qualify as a nonconforming use for
mineral extraction purposes, processing of off-site material voids that nonconforming
use. The definition of "MINERAL, SOIL, OR GRAVEL EXTRACTION
OPERATIONS" restricts the use to "any process used in obtaining, from the earth
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(emphasis added), naturally occurring substances". Processing minerals not obtained
from their quarry violates this definition.
Therefore, the current use by Carmel Sand of processing off-site material is illegal and
should be restrained, and Cannel Sand should be required to obtain either a SpeciaJ Use
or a variance of use for tIus operation.
Sincerely,
<f;~ JI~,J
Thomas Yedlick
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THOMAS C. YEDLICK
5053 S1. Charles Place
Cannel, Indiana 4603 3
Office 317-844-0141 x253
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July 26,2004
Michael Hollibaugh, Director
Department of Conununity Services
City of Carmel
One Civic Square
Carmel, IN 40632
Re: Amendment to appeal - BZA Docket No. 04070020 A
Dear Mike:
With reference to the above docket number, I wish to amend the Appeal by deleting
referen ce to Parcel No. 17-14-09-00-00-012.000, which is the site located north of 96th
Street and west of Hazel Dell Parkway.
Also Item 4) of the Appeal Request should read American Aggregates Corporation d/b/a
Martin Marietta Aggregates, with an address of 1337 Dayton Xenia Rd, Xenia, Ohio
45385.
Sincerely,
...
Tom Yedlick
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STATE OF INDIANA
CARMEL/CLAY ADVISORY BOARD OF ZONING
APPEALS
Docket No. 04070020 A
CITY OF CARMEL
Thomas Yedlick,
v.
APPELLANT
William D. McEvoy, Gregory M. Policka,
Susan Becker, Holland Detke, Rex A. Weiper,
Rene Pimentel, and Donald K. Craft
INTERVENORS
Department of Community Services
for the City of Carmel, Indiana
Notice of Intervention
COME NOW William D. McEvoy, Gregory M. Policka, Susan Becker, Holland Detke,
Rex A. Weiper, Rene Pimentel, and Donald K. Craft (the "Intervenors"), by counsel, and
notify the Carmel/Clay Advisory Board of Zoning Appeals that they are intervening in the
captioned action as appellants of the following determinations by the Director (the
"Director") of the Department of Community Services of the City of Carmel (the "DOCS")
in the Director's letter dated June 24. 2004 (the "Director's Determination") addressed to
the original Appellant. Mr. Thomas Yedlick (the "Appellant"):
a. That "[t]he land uses that were established on Martin Marietta's properties
on or about May 17. 2002, constituted legal, nonconforming uses;" and
b. That "[tlhose uses do not appear to have been substantially modified,
expanded, or added to since May 2002;" and
c. That "[t]herefore, 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."
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In support of this Notice of Intervention, the Intervenors allege as follows:
1. Each of the Intervenors is an owner of real property located in the City of Carmel,
Hamilton County, State of Indiana, that is located within not more than one mile of the
land presently owned and occupied by American Aggregates Corporation, d/b/a Martin
Marietta Aggregates, also known as Tax Parcels numbered 171404000007000,
containing approximately 50.53 acres, and 1714040000018000, containing
approximately 71.72 acres (collectively, the "Real Estate").
2. The Real Estate includes a large man-made lake and a large processing plant
presently used for refining raw sand and gravel material into marketable sand and
gravel, which processing plant is commonly k.nown as the "Carmel Sand and Gravel
Plant," 11010 River Road, Carmel, IN 46033, and all of the Real Estate is zoned S-
1/Residence District without any Special Use or variance of use approvals.
3. Each of the Intervenors believes that the original construction and past and
current operation of the Carmel Sand and Gravel Plant was and is illegal because at the
time of commencement of such operations the plant was located within one-quarter mile
of at least eight homes, was in an "urban area," was subject to the Carmel Clay Zoning
Ordinance, was in an S-1/Residence District, and did not receive a Special Use,
rezoning, or variance of use to permit mineral extraction and processing.
4. Each of the Intervenors believes that the further extraction of sand and gravel
material from the Real Estate is illegal because the original operation was illegal and
continued illegal use cannot create a legal use.
5. Each of the Intervenors believes that the processing of raw sand and gravel
material extracted from the Real Estate and processed at the Carmel Sand and Gravel
Plant is illegal because the original operation was illegal and continued illegal use
cannot create a legal use. In addition, even if the Carmel Advisory Board of Zoning
Appeals should find that the former use was a legal nonconforming use, due to the
cessation of on-site mineral extraction for a period of longer than one year, such use
may not be recommenced because of the loss of legal nonconforming use status.
6. Each of the Intervenors believes that the processing of raw sand and gravel
material imported to the Real Estate from other lands and processed at the Carmel
Sand and Gravel Plant is illegal because processing (without extraction on-site) is
defined as a manufacturing use under the Carmel Clay Zoning Ordinance, which is not
permissible in an S-1/Residence zone.
7. Each of the Intervenors believes that the Real Estate, including the Carmel Sand
and Gravel Plant, were intended by the Director to be included within the terms of the
Director's Determination and that such Director's Determination, if unchallenged, would
result in the extraction of minerals from the Real Estate, the processing thereof at the
Carmel Sand and Gravel Plant, and the processing of raw sand and gravel extracted
from other lands, being deemed to be legal.
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8. Each of the Intervenors believes that the continued operation of the Carmel Sand
and Gravel Plant, including the excessive noise associated therewith, constitutes a
nuisance to each of them, interfering with their quality of life and interfering with the
quiet and peaceful enjoyment of their respective properties.
9. None of the Intervenors was a party to any agreement by and between Martin
Marietta Aggregates, American Aggregates Corporation, the City of Carmel, Hughey,
Inc., and/or the Carmel Clay Advisory Board of Zoning Appeals and the Intervenors
hereby allege that any agreements by and among such persons are not controlHng with
respect to whether or not any existing nonconforming uses of the Real Estate are legal
or illegal.
10. Each of the Intervenors believes that the Director's Determination is
unreasonable because it is not supported by any objective evidence or analysis of
known facts, inasmuch as there does not appear to be any information within the files of
the DOCS that would indicate
(a) When the real estate first became subject to the planning and zoning
jurisdiction of the City of Carmel;
(b) When the Carmel Sand and Gravel Plant first commenced operation;
(c) The exact uses of the Carmel Sand and Gravel Plant when it first became
subject to the planning and zoning jurisdiction of the City of Carmel;
(d) Whether or not such uses were "legal" uses under any predecessor
zoning regulations applicable to the Carmel Sand and Gravel Plant;
(e) The exact uses of the Carmel Sand and Gravel Plant as of June 24,2004,
being the date of Director's Determination;
(f) Whether or not the uses on June 24, 2004 were the same as those when
the Carmel Sand and Gravel Plant first became subject to the planning
and zoning jurisdiction of the City of Carmel; and
(g) Whether or not one or more of the nonconforming uses of the Carmel
Sand and Gravel Plant were terminated for one or more years between
the time when the Plant first became subject to the planning and zoning
jurisdiction of the City of Carmel and June 24, 2004.
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WHEREFORE, the Intervenors hereby intervene in the captioned appeal of the
Director's Determination as a matter of right and request that all future correspondence
in this matter be addressed to counsel for the Intervenors.
Respectfully submitted,
THRASHER BUSCHMANN GRIFFITH & VOELKEL, P.C.
attorneys for the Intervenors named above
t
by:
Philip C. Thrasher, Esq.
Thrasher Buschmann Griffith & Voelkel, P.C.
151 N. Delaware St., Suite 1900
Indianapolis, IN 46204-2505
Tel: (317)686-4773
Fax: (317) 686-4777
L:\WP F ILES\021330IAppeaILE NCU 2004\Noticeoflntervention( J uly04), rtf
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THOMAS C. YEDLICK
5053 St. Charles Place
Cannel, Indiana 46033
Office 317-844-0141 x253
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July 26, 2004
Michael Hollibaugh, Director
Department of Community Services
City of Carmel
One Civic Square
Carmel, IN 40632
Re: Amendment to appeal - BZA Docket No. 04070020 A
Dear Mike:
With reference to the above docket number, I wish to amend the Appeal by deleting
reference to Parcel No. 17-14-09-00-00-012.000, which is the site located north of 96th
Street and west of Hazel Dell Parkway.
Also Item 4) of the Appeal Request should read American Aggregates Corporation d/b/a
Martin Marietta Aggregates, with an address of 1337 Dayton Xenia Rd, Xenia, Ohio
45385.
Sincerely,
Tom Yedlick
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THOMAS C. YEDLICK
5053 S1. Charles Place
Carmel, Indiana 46033
Office 317-844-0141 x253
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July 15, 2004
Michael Hollibaugh, Director
Department of Community Services
City of Carmel
One Civic Square
Cannel, IN 40632
Dear Mike:
Attached are an original and one copy of an Appeal Request related to your letter of
Determination on June 24,2004.
Pursuant to the Application Instruction Sheet, I request an appointment with the DOCS
staff to discuss this appeal.
Sincerely,
4~
Tom Yedlick
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City of Carmel
June 24, 2004
Mr. Thomas Yedlick
5053 St. Charles Place
Carmel, IN 46033
Re: Your Letter of December 16, 2003
Dear Mr. Yedlick:
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 tms 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 junsdiction 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 Cannel 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, .
~~r/\-'lj.
Michael Hollibaugh .
Copy: ZeffWeiss
Philip Thrasher
Brian Tuohy
John Molitor
Douglas C. Haney
ONE CIViC SQUARE
CARMEL, INDLA.NA 46032
317 /571-2417
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City of Carmel
FACSIMTl,E TRANSMISSION ONl,Y TO (317) 686-4777
July 20, 2004
Laura Conway
Thrasher Bushmann Griffith Voelkel, P.c.
151 North Delaware Street, Suite 1900
Indianapolis, Indiana 46204-2505
RE: Your vVritten Document Request
Dear Ms. Conway:
I represent the City of Cannel, Indiana. This letter serves as the City's response to your following request.
Reg uest:
"The building permit of the enclosed addresses ~ see attached sheet for Martm Marietta and
American Aggregates for Thrasher, Bushmann, Griffith & Voelkel.
1560 Westwood Dr
5178 "
5186" "
5200 Westwood Dr
5208" "
5257
5245
5237
5223
5209
5195
5175
5161
4969 W oodcreek Dr
4961 11366 11357
4953 11302 11349
4945 11324
4923 11346
4915 11372
4909 11378
4908 11386
4916 11381
4924 11378
4932 11365
4940 (over)
IZ'l".",."",.~,J""","''''O'''HR,'S1H'''''"i"".ri,,,.'7B.i1",.",,",,.~JNI'<uC;IVIC SQUARE C,'\RMEL, INDIANA ~60J2 J 17/571.2'\00
,
/
.;.
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5243 Woodcreek Ct
5235 Woodcreek Ct
5254 W oodcreek Ct
/
11134 Woodbury Dr
11122 Woodbury Dr
1110 Woodbury
All Woodbury Dr.
11109
11129
11119
11139
11149
11159
11167
11179
11170
/11095 Huntington Ct
vll087 " "
/1079
/1078
vi 088
"
"
" "
Response:
Your request is denied to the extent it does not identify with reasonable particularity the documents
you seek. Moreover, the City's records, especially prior to 1996, are not such that I am confident that
copies of all building permits issued by the City from its creation forward were kept. Subject to the
above, your request is granted to the extent it seeks copies of the building permits issued for the
original single family residences located at the above stated addresses between January 1, 1975 and
July 12, 2004. These records, if any exist and are able to be identified based on your above
description, should be available for your review and copying (at $0.05 per page) in my office during
normal business hours on and after 1 :00 p. m. on July 22, 2004. If your request also seeks permits
that may have been issued for building additions, auxiliary buildings, porches, remodeling, pools or
similar constnlction that has taken place at the addresses you identify after the original structure was
built on the address site, please advise and I will respond to such a request under separate cover.
Very truly yours,
DCH/eb
ouglas C. Haney
Carmel City Attorney,
Cc: Michael Hollibaugh, Director of Department of Community Services
Karen Davis, Public Access COllnselor, via facsimile transmission to (317) 233-3091
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STATE OF INDIANA
CARMEL/CLAY ADVISORY BOARD OF ZONING
APPEALS
Docket No. 04070020 A
CITY OF CARMEL
Thomas Yedlick,
INTERVENORS
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Li UC~)
APPELLANT
William D. McEvoy, Gregory M. Policka,
Susan Becker, Holland Detke, Rex A. Weiper,
Rene Pimentel, and Donald K. Craft
v.
Department of Community Services
for the City of Carmel, Indiana "
Notice of Intervention
COME NOW William D. McEvoy, Gregory M. Policka, Susan Becker, Holland Detke,
RexA. Weiper, Rene Pimentel, and Donald K. Craft (the "Intervenors"), by counsel, and
notify the Carmel/Clay Advisory Board of Zoning Appeals that they are intervening in the
captioned action as appellants of the following determinations by the Director (the
"Director") of the Department of Community Services of the City of Carmel (the "DOCS")
in the Director's letter dated June 24, 2004 (the "Director's Determination") addressed to
the original Appellant, Mr. Thomas Yedlick (the "Appellant"):
a. That lC[t]he land uses that were established on Martin Marietta's properties
on or about May 17, 2002, constituted legal, nonconforming uses;" and
b. That "[t]hose uses do not appear to have been substantially modified,
expanded, or added to since May 2002;" and
c. That "[t]herefore, 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."
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..
In support of this Notice of Intervention, the Intervenors allege as follows:
1. Each of the Intervenors is an owner of real property located in the City of Carmel,
Hamilton County, State of Indiana, that is located within not more than one mile of the
land presently owned and occupied by American Aggregates Corporation, d/b/a Martin
Marietta Aggregates, also known as Tax Parcels numbered 171404000007000,
containing approximately 50.53 acres, and 1714040000018000, containing
approximately 71.72 acres (collectively, the "Real Estate").
2. The Real Estate includes a large man-made lake and a large processing plant
presently used for refining raw sand and gravel material into marketable sand and
gravel, which processing plant is commonly known as the "Carmel Sand and Gravel
Plant," 11010 River Road, Carmel, IN 46033, and all of the Real Estate is zoned S-
1/Residence District without any Special Use or variance of use approvals.
3. Each of the Intervenors believes that the original construction and past and
current operation of the Carmel Sand and Gravel Plant was and is illegal because at the
time of commencement of such operations the plant was located within one-quarter mile
of at least eight homes, was in an "urban area," was subject to the Carmel Clay Zoning
Ordinance, was in an S-.1/Residence District, and did not receive a Special Use,
rezoning, or variance of use to permit mineral extraction and processing.
4. ' Each of the Intervenors believes that the further extraction of sand and gravel
material from the Real Estate is illegal because the original operation was illegal and
continued illegal use cannot create a legal use.
5. Each of the Intervenors believes that the processing of raw sand and gravel
material extracted from the Real Estate and processed at the Carmel Sand and Gravel
Plant is illegal because the original operation was illegal and continued illegal use
cannot create a legal use. In addition, even if the Carmel Advisory Board of Zoning
Appeals should find that the former use was a legal nonconforming use, due to the
cessation of on-site mineral extraction for a period of longer than one year, such use
may not be recommenced because of the loss of legal nonconforming use status.
6. Each of the Intervenors believes that the processing of raw sand and gravel
material imported to the Real Estate from other lands and processed at the Carmel
Sand and Gravel Plant is illegal because processing (without extraction on-site) is
defined as a manufacturing use under the Carmel Clay Zoning Ordinance, which is not
permissible in an S~1/Residence zone.
7. Each of the Intervenors believes that the Real Estate, including the Carmel Sand
and Gravel Plant, were intended by the Director to be included within the terms of the
Director's Determination and that such Director's Determination, if unchallenged, would
result in the extraction of minerals from the Real Estate, the processing thereof at the
Carmel Sand and Gravel Plant, and the processing of raw sand and gravel extracted
from other lands, being deemed to be legal.
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8. Each of the Intervenors believes that the continued operation of the Carmel Sand
and Gravel Plant, including the excessive noise associated therewith, constitutes a
nuisance to each of them, interfering with their quality of life and interfering with the
quiet and peaceful enjoyment of their respective properties.
9. None of the Intervenors was a party to any agreement by and between Martin
Marietta Aggregates, American Aggregates Corporation, the City of Carmel, Hughey,
Inc., and/or the Carmel Clay Advisory Board of Zoning Appeals and the Intervenors
hereby allege that any agreements by and among such persons are not controlling with
respect to whether or not any existing nonconforming uses of the Real Estate are legal
or illegal.
10. Each of the Intervenors believes that the Director's Determination is
unreasonable because it is not supported by any objective evidence or analysis of
. known facts, inasmuch as there does not appear to be any information within the files of
the DOCS that would indicate
(a) When the real estate first became subject to the planning and zoning
jurisdiction of the City of Carmel;
(b) When the Carmel Sand and Gravel Plant first commenced operation;
(c) The exact uses of the Carmel Sand and Gravel Plant when it first became
subject to the planning and zoning jurisdiction of the City of Carmel;
(d) Whether or not such uses were "legal" uses under any predecessor
zoning regulations applicable to the Carmel Sand and Gravel Plant;
(e) The exact uses of the Carmel Sand and GraveLPlant as of June 24,2004,
being the date of Director's Determination;
(f) Whether or not the uses on June 24,2004 were the same as those when
the Carmel Sand and Gravel Plant first became subject to the planning
and zoning jurisdiction of the City of Carmel; and
(g) Whether or not one or more of the nonconforming uses of the Carmel
Sand and Gravel Plant were terminated for one or more years between
the time when the Plant first became subject to the planning and zoning
jurisdiction of the City of Carmel and June 24, 2004.
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WHEREFORE, the Intervenors hereby intervene in the captioned appeal of the
Director's Determination as a matter of right and request that all future correspondence
in this matter be addressed to counsel for the Intervenors.
Respectfully submitted,
by:
Philip C. Thrasher, Esq.
Thrasher Buschmann Griffith & Voelkel, P.C.
151 N. Delaware St., Suite 1900
Indianapolis, IN 46204-2505
Tel: (317) 686-4773
Fax: (317) 686-4777
L:\WP F ILES\021330\ll.ppeaILENCU2004\Noticeoflntervention( July04).rtf
City of Carmel
Department of Community Services
One Civic Square
Carmel, IN 46032
317-571-2417
Fax: 317-571-2426
FACSIMILE TELECOPY COVER LETTER
DATE: July 26,2004
TO: Zeff Weiss, Ice Miller
FAX: 592-4788
FROM: Jon Dobosiewicz
Attached hereto are 5 pages, including this cover letter, for facsimile transmission.
Should you experience any problem in the receipt ofthese pages, please call 317/571/2419
and ask for Connie.
NOTES:
Please review the attached Notice of Intervention and give me a call at 571.2417.
Thanks,
Jon
CONFIDENTIALlTYNOTlCE: The matetials enclosed with this facsimile transmission-are private and conndential
and ara the property of the sender. The information contllined in the material is pnVileged and is Intended only for
the use of the individua/(s) or entlly(ies) named above. If you ere not the intended recipient. be advised that any
unauthorized disclosure, copying, distribution or the taking of any action in reliance on the contents of this teleeopied
information is strictly prohibited. ffyou have received this facsimile transmission inerror, please immediately notify
us by telephone to arrange for return of thE! forvvarded documents to us.
,rv-
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Tingley, Connie S
Subject:
Butler, Angelina V
Thursday, July 15, 2004 11 :35 AM
Tingley, Connie S
Morrissey, Phyllis G; Pattyn, Dawn E; Babbitt, Pamela A; Hollibaugh, Mike P; Keeling,
Adrienne M; Kendall, Jeff A; Brewer, Scott I; Hancock, Ramona B; Dobosiewicz, Jon C;
Pohlman, Jesse M; Brennan, Kevin S
Docket No. Assignment: (A) Martin Marietta, Appeal 10 Director's Determination of (#
04070020 A)
From:
Sent:
To:
Cc:
Connie,
Please print and fax this e-mail to the petitioner identified below and update the file. I have issued the necessary Docket
Number for (A) Martin Marietta, Appeal tlJ Diredor's DeterminatilJn of. It will be the following:
Docket No. 04070020 A
Total Fee:
$125.00
$125.00
Martin Marietta, Appeal to Director's Determination of
The applicant would like to appeal a Director determination that Martin Marietta's
operation is a legal, nonconforming use:
Docket No. 04070020 A Chapter 28.06 Existence of a Nonconforming Use
The sites are located north of 96th Street and west of Hazel Dell Parkway and/or north of
l06th Street and west of Hazel Dell Parkway. The sites are zoned S-l/Residence - Low Intensity.
Filed by Tom Yedlick.
Petitioner, please note the following:
1. This Item will be not be on an agenda of the TecJmical Advisory Committee.
2. Mailed and Published Public Notice needs to occur no later than Thursday, July 29, 2004. Published notice is
required within the Indianapolis Star (not the Noblesville Ledger).
3. The Proof of Notice will need to be received by this Department no later than noon, Friday, August 20. Failure
to submit Proof of Notice by this time will result in the tabling of the petition.
4. The Filing Fee and Nine (9) Informational Packets must be delivered to BZA Secretary Connie Tingley no
later than NOON, Friday, August 13. Failure to submit Informational Packets by this time will result in the automatic
tabling of the petition to the Monday, September 27,2004, agenda of the BZA.
5. This Item will appear on the August 23, 2004 agenda of the Board of Zoning Appeals under Public Hearings.
6. The petitioner will need to provide a fully filled~out Findings-of-Fact sheets for each petition the night of the
meeting for the Board's use (Sheet 8). On Ballot sheets, only fill out docket number, petitioner, and date (Sheet 7). Ballot
sheets must be collated.
7.) PETITIONER: refer to your instruction sheet for more details.
Petitioner: please complete the followint!: items:
1.) Provide an up-to-date list of adjacent property owners from the Hamilton County Auditor's office.
2.) Please provide the full legal description of the property.
3.) Please provide a location map.
Please contact Mr. Yedlick at 844-0141 (Fax:_-
Once the file is updated please return it to my office.
or e-mail: tomved2(@.yahoo.com) with this information.
~~
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C':JY
Thank you,
Angie
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City of Carmel
Department of Community Services
One Civic Square
Carmel, IN 46032
317-571-2417
Fax: 317-571-2426
FACSIMILE TELECOPY COVER LETTER
DATE: July 15, 2004
TO: Zeft Weiss
FAX: 592-4788
FROM: Connie
Attached hereto are 14 pages, including this cover letter, for facsimile transmission.
Should you experience any problem in the receipt ofthese pages, please call 317/571/241 9
and ask for Connie.
NOTES:
Attached are the application and filing information for the Appeal to Director's
Determination of Martin Marietta filed by Tom Yedlick.
Please call if you have any questions.
CONFIDENTIALITY NOTICE: The materials enclosed with this facsimile transmission are private and confidential
and are the property of the sender. The information contained in the material is privileged and is intended only for
the use of the individua/(s) or entity(ies) named above. If you are not the intended recipient, be advised that any
unauthorized disclosure, copying, distribution or the taking of any action inreliance on the contents of this telecopied
information is strictly prohibited. If you have received this facsimile transmission in error, please immediately notify
us by teiephone to arrange for return of the forwarded documents to us.
Butler. Angelina V
~
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From:
Sent:
To:
Babbitt, Pamela A
Thursday, July 15, 2004 9:09 AM
Brewer, Scott I; Buller, Angelina V; Dobosiewicz, Jon C; Hollibaugh, Mike P; Keeling, Adrienne
M; Pattyn, Dawn E
newi
Subject:
1t-C:HOJ0020 A
Tomas Yedlick
5053 St. Charles Place
Appeal RequesUMartin Marietta
contact:
Tom Yedlick
844-0141
tomyed2@yahoo.com
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City of Carmel
June 24, 2004
:Mr. Thomas Yedlick
5053 St. Charles Place
Carmel, IN 46033
Re: Your Letter of December 16, 2003
Dear Mr. Yed1ick:
After the pre-hearing conference held on Tuesday, June 22, 2004, I reviewed the arguments submitted by
.Mr. Weiss and Mr. Thrasher (in then-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 fora public 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 all or about May 17, 2002,
constituted legal, nonconforrninguses;
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, .
~b~uA--}/.
Copy: ZeffWeiss
Philip Thrasher
Brian Tuohy
John Molitor
Douglas C. Haney
ONE CIVIC SQUI\RE
CARMEL, INDIANA 46032
317/571-2417
.
,
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AGENDA
Pre- Hearing Conference
DOCS Conference Room
Carmel City Hall
Tuesday, June 22, 2004
9:00 A.M.
Following are the topics that the Department wishes to discuss with interested parties
before the hearing on Docket No. [insert number here]:
1. Scheduling. The Department of Community Services has scheduled a public hearing
for Monday, June 28, 2004, at 7:00 P.M., for the Camlel Board of Zoning Appeals to
decide, pursuant to Section 28.06 ofthe Carmel Zoning Ordinance, whether or not
some of the uses currently maintained by Martin Marietta Materials, Inc., on its
properties in southeast Clay Township are nonconforming uses within the meaning of
the Zoning Ordinance.
Although this hearing is included on the regular monthly agenda for the BZA, the
Department does not anticipate that the Board will be able to conclude the hearing or
take a vote on June 28. It is likely that the BZA will desire to grant the various
interested parties additional time to present evidence and written or oral arguments on
the question. Therefore, the Department desires to schedule a special meeting (or
meetings) of the BZA to accommodate a continuation ofthe hearing, on a weeknight
(or nights) in the month of August 2004. Interested parties should indicate their
availability for such a special meeting (or meetings).
2. Discovery. Pursuant to Trial Rule 28(F), and as discussed by the Court in Hickory
Hills v. Coffman, 699 N.E.2d 1214 (Ind.Ct.App.l998), the interested parties may
desire to use the discovery provisions of the Indiana Rules of Trial Procedure.
Interested parties should be prepared to discuss the scope of discovery to which they
may be willing to agree, and the time frames within which discovery may occur.
3. Arguments, Brieft, and Written Findings. The interested parties may wish to avail
themselves of the opporttmity to make opening arguments to the BZA, before
presenting evidence, and to submit or make closing arguments at the conclusion of
the hearing. Interested parties should be prepared to agree on the length of time that
may be needed for such arguments, including times forrebuttal. In addition, if
interested paliies desire to submit written briefs to the Board for its consideration
before it makes a decision, they should be prepared to agree on deadlines for the
submission ofbliefs to the Department. Finally, interested parties should be prepared
to submit proposed findings of fact to the Board for its consideration before it takes a
vote.
"'i" -~
4. Examination of Witnesses. Under the Zoning Ordinance, the nonconforming use
issue is "considered a question of fact [to] be decided by the Board. ..." It may be
appropriate that all witnesses who intend to testify as to factual matters should be
sworn in and subject to cross-examination at the hearing. The BZA's existing rules of
procedure do not address this subject. Thus, the interested parties should be prepared
to agree on procedures whereby the Board can receive and consider factual evidence.
5. Staff Observation. The Kingswood Homeowners Association, Martin Marietta,
Hughey Inc., the City of Cannel, and the BZA entered into a Settlement and Release
Agreement on May 17, 2002 (the "Effective Date"), which contained several
provisions that may be pertinent to the question before the. Board on June 28. In
particular, both the Kingswood Homeowners Association and the City agreed to
recognize that the uses. established as of the Effective Date on the Martin Marietta
Property constituted "legal, nonconforming uses", while Martin Marietta agreed
generally not to "add uses not existing on the Martin Property as of the Effective Date
without appropriate governmental approvals.. .".
In view of these and other provisions in the Agreement, the BZA may desire to limit
or exclude any evidence that relates primarily to the land uses as they existed before
May 17,2002. The Department would encourage the interested parties to see whether
they can agree to stipulate as to the uses that were existing as of that date.
"f -,
PERTINENT DEFINITIONS (FROM CHAPTER 3)
USE. The employment or occupation of a Building, Structure or land for a person's service, benefit or
enjoyment.
USE, ACCESSORY. A Use subordinate to the main Usc, located on the same Lot or in the same Building
as the main Use, and incidental to thc main Use.
USE, CONFORMING. A Use of a Building, land or premises which does conform to all of the applicable
provisions of this ordinance.
USE, NONCONFORMING ILLEGAL. A Use of a Building, land or premises existing at the time of the
passage of this ordinance which does not conform to all of the applicable provisions of this ordinance nor
those of any ordinance superseded by this ordinance.
USE, NONCONFORMING LEGAL A Use of a Building, land or premises existing at the time of the
passage of tl1is ordinance which does not conform to all of the applicable provisions of this ordinance but
did conform to applicable provisions of any ordinance superseded by tIns ordinance.
TEXT OF CHAPTER 28
Nonconforming Uses and Exemptions
28.01 Legal Nonconforming Use Specifications.
A legal nonconforming use may be continued, although such use does not confonn to all the provisions of
this Ordinance, as hereinafter provided:
28.01.01 A legal nonconforming use may bc extended throughout a building provided no
structural alterations flre madc therein, except those required by law. Existing residences in the
various Business and Industrial Districts may be structurally altered and expanded.
28.01.02 A legal nonconforming use may be changed to another legal nonconforming use of the
same restrictions, provided no structural alterations are made in the building. Whenever a legal
nonconforming use has been changed to a confOlming use, it shall not thereafter be changed to a
legal or an illegal noncoflfonning use.
28.01.03 No building shall be erected upon any premises devoted to a legal nonconforming use,
except in conformance with the applicable provisions of this Ordinance.
28.01.04 Nothing herein contained shall require any change in the plans, construction or
designated use of a building for which a building pcrmit or Improvement Location Permit has
been heretofore issued, and the construction of which has commenced and has been diligently
pursued within one (1) year of the date of issuance of such permit, and which entire building shall
be completed according to such plans within three (3) years from the date of passage of this
Ordinance.
28.01.05 In the event that a legal nonconforming usc of any building or premiscs is discontinued
for a period of one (1) year, the use of said building or premises shall thereafter conform to the
applicable provisions of this Ordinance.
28.01.06 Existing uses eligible for special use approval shall not be considered legal
nonconfomling uses nor require special use approval for continuance but shall require special use
approval fur any alteration, enlargement or extension.
~i' .,
28.01.07 These provisions shall apply in the same manner to any use which may become a legal
noncontorming use due to a later amendment to this Ordinance.
28.02 Illegal Nonconforming Use Specifications. An illegal nonconfomling use shall not be
validated by the adoption of this Ordinance.
28.03 Nonconforming Use in a FP, FW or FF District. A legal or illegal nonconforming use
located in a FP, FW or FF District shall not be expanded or enlarged \vithout a permit for construction from
the Indiana Natural Resources Commission plus adherence to the appropriate restrictions herein.
28.04 Nonconformance Exemptions. A building nonconforrlling oillyas to height, lot area or yard
requirements may be altered or extended, provided that an extension meets all of the height, yard and other
applicable provisions of this' Ordinance.
28.05 Intermittent Use. The casual, intermittent, tempormy or illegal use ofland, buildings or
premises shall not be sufficient to establish the existence of a nonconforming use and the existence of a
nonconforming use on part of a lot or !l'act shall not bc construed to establish a nonconforming use on the
entirc lot or tract.
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 in accordance with the Rules of Procedure of the Board.
28,07 Exemptions. The following structures and uses shall be exempt from the provisions of this
Ordinance:
28.07.01 Wires, cables, conduits, vaults, laterals, pipes, mains, valves or other similar equipment
for the distribution to consumersoftelepholle or other communications, electricity, gas or water
and the collection of sanitary sewage or surface water operated and/or maintained by a
government entity or a public utility, including custommymeter pedestals, telephone pedestals,
dish"ibution transformers and temporary utility facilities required during construction, whether any
such facility is located underground or above ground, but only when such franchised utility
facilities are located in a street right-of-way or in an easement less than twenty-five (25) feet in
width. The provisions ofthis Ordinance shall be complied with on all private property and in
easements twenty-fiv:e (25) feet in width and over.
28.07.02 Railroad tracks, Jights-of-way signals, bridges and similar facilities and equipment
located on a railroad right-of-way, and maintenance and repair work on such facilities and
equipment.
28.07.03 Fanns, as defined herein, are pemlltted in all districts. Dwellings and major (over 400
square feet) accessory buildings are subject to obtaining Improvement Location Pcrmits for
construction.
28.07.04 Nothing in this Ordinance shall prevent thc restoration of a building or structure
destroyed less than fatty percent (40%) of its market value at the time of such destruction
(cxclusive of the value of the lot) by explosion, fire, flood, earthquake, windstorm, act of God, riot
or act of a public enemy, subsequent to the passage of this Ordinance; or shall prevent the
continuance ofthe use, except an illegal nonconfofllllng use, of such building, structure or part
thereof, as such use existed at the time of such impairment of such building, structure or part
thereof. All such restoJation and construction shall be subject to the obtaiillng of an Improvement
Location Permit, with the fees waived for the restoration ora building or structure destroyed less
than forty percent (40%) and restored according to its state of existence prior to destruction. All
restorations resulting in a divergence from oJiginal plans or restoring a building or structure
destroyed fOlty percent (40%) or more shall be subject to obtaining an Improvcment Location
Permit and payment of fees.
28.07.05 All City of Carmel and Clay Township governmental facilities and buildings are exempt
from the zoning requirements and procedures listed herein.
City of Carmel
June 11, 2004
Mr. John Tiberi
Martin Marietta Materials
Carmel, IN 46032
Re: Third paliy sand and gravel processing
Dear John:
Attached with this letter you will find a copy of correspondence from Tom Yedlick regarding issues
surrounding operation of your sand and gravel processing facilities in Carmel.
Mr. Yedlick has presented questions and intormation related to your mineral extraction operation,
particularly regarding the processing of outside materials and whether that importation constitutes an
unlawful expansion of use. Upon review of this information and discussion of its content with legal
cOlillsel, it is my determination that the issue needs to be presented to the Board of Zoning Appeals for
resolution. Pursuant to Section 28.06 ofthe Cam1el Clay Zoning Ordinance, in instances where there
exists a question of use, it shall be considered a question of fact to be decided at a public hearing by
the Board. Such a hearing has been docketed for June 28, 2004, with legal notice made via the
newspaper and to adjoining property owners pursuant to the Board's mles of procedure.
Should you wish to provide the Board with an advanced response to the issues raised by Mr. Yedlick,
you may do so by submitting information to the Board Secretary not later than 12:00 noon on June 18,
2004. Information not received by this deadlme will be distributed to the Board the night of the
hearing.
Additionally, it is the Department's request that you and your legal counsel participate in a pre-hearing
conference to be held at the office of the Department of Community Services at 9:00 AM on Tuesday,
Jooe 22. It is the purpose ofthe conference to discuss ground rules and other procedural matters
related to the Determination hearing.
Should you have any questions, or wish to discuss this, please do not hesitate to contact me at 571-
2422.
Very truly yours,
Michael Hollibaugh
Copy: Zeff Weiss
Thomas C. Yedlick
Philip Thrasher
Douglas C. Haney
.. ~-~ ~
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DRAFT MEMORANDUM
TO:
File
DATE:
April 20, 2004
RE:
Martin Marietta - Carmel Sand
Staff needs an analysis of the past and existing uses of the Carmel Sand operation, as
conducted by Martin Marietta and its predecessors. The operation includes a processing
plant and surrounding land located east of Kings wood subdivision and west of Hazel Dell
Parkway, roughly midway between 106th Street to the south and 116th Street to the north.
1. Background. The Carmel Sand property is located in the 8-1 residential zoning
district (Chapter 5 of our Zoning Ordinance). In this district, property owners have
the right to maintain residential and agricultural uses, but they can also seek approval
from the Carmel Clay Board of Zoning Appeals (BZA) for certain types of "special
uses", for example, churches, golf courses, day nurseries, mineral extraction, private
recreational facilities, riding stables, and schools. No industrial-type uses are allowed
in the 8-1 district, even as special uses. While Martin Marietta and its predecessors
have mined sand and gravel at this location for many (40?) years, without any special
approvals from the BZA, in recent years there has been contentious litigation between
Martin Marietta and the nearby residents of the Kingswood subdivision, with the City
in the middle of the controversy and dodging pot shots from both sides.
2. Legal Considerations Relating to the Mining Use. Since the Cannel Sand property
has been in the City's zoning jurisdiction (Clay Township) for over 40 years, it seems
likely that both City officials and the mine operators believed that the sand and gravel
mining operation was exempt from the Zoning Ordinance because ofIC 36-7-4-1103.
This is the state statute that historically precluded the City from adopting "an
ordinance ... that would prevent, outside of urban areas, the completel:lseand
alienation of any mineral resources...." However, a judge ruled in 2001 that the
Mueller land (which is located to the south of the Kingswood and Carmel Sand
properties) was within Cannel's urban area and thus subject to the Zoning
Ordinance. Then, the City annexed all ofthe land in question in 2003, which
unquestionably makes the Carmel Sand property subject to the Zoning Ordinance
today. Thus, while the mining use may have been lawful at some point in the past, it
continues to be lawful today only if it constitutes a "legal, nonconforming use" under
the Zoning Ordinance.
r ~.....:}.
....
3. Legal Considerations Relating to the Processing Plant. As I understand it, the mine
operators historically used the processing equipment primarily (if not exclusively) to
process the sand and gravel that was mined at the Cannel Sand site. However, Martin
Marietta in recent years has suspended mining operations at the site and appears to be
trucking in minerals for processing which were extracted from mines in other
communities. This raises the question whether the processing plant also would qualify
as a legal, nonconforming lise, even if we assume that the mining operation continues
to be lawful. While the plant may have constituted an "accessory use" to the mine at
some point in the past, it may no longer be an "accessory", and perhaps it should now
be considered an industrial use which would require a rezone or a use variance for
continuation.
4. Recommendation. Sinc.:e there seems to be a budding public controversy as to
whether either or both uses ~emain lawful at this time as legal, nonconforming uses,
the entire factual situation ought to be presented to the Board of Zoning Appeals for
resolution. Under our Zoning Ordinance, the BZA (not staff) is the proper authority to
make this type of determination. See Section 28.06 of the Zoning Ordinance. In
addition, Ie 36-7-4-918.1 clearly authorizes the BZA to hear such cases, subject of
course to judicial review.
... ....~_. ~
,
PERTINENT DEFINITIONS (FROM CHAPTER 3)
USE. The employment or occupation of a Building, Structure or land for a person's service, benefit or
enjoyment.
USE, ACCESSORY. A Use subordinate to the main Use, located on the same Lot or in the same Building
as the main Use, and incidental to the main Use.
USE, CONFORMING. A Use of a Building, land or premises which does conform to all of the applicable
provisions of this ordinance.
USE, NONCONFORMING ILLEGAL. A Use of a Building, land or premises existing at the time of the
passage of this ordinance which does not conform to all of the applicable provisions of this ordinance nor
those of any ordinance superseded by this ordinance.
USE, NONCONFORMING LEGAL. A Use of a Building, land or premises existing at the time of the
passage of this ordinance which does riot conform to all of the applicable provisions of this ordinance but
did conform to applicable provisions of any ordinance superseded by this ordinance.
TEXT OF CHAPTER 28
Nonconforming: Uses and Exemptions
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:
28.01.01 A legal nonconforming use may be extended throughout a building provided no
structural alterations are made therein, except those required by law. Existing residences in the
various Business and Industrial Districts may be structurally altered and expanded.
28.01.02 A legal nonconforming use may be changed to another legal nonconforming use of the
same restrictions, provided no structural alterations are made in the building. Whenever a legal
nonconforming use has been changed to a conforming use, it shall not thereafter be changed to a
legal or an illegal nonconforming use.
28.01.03 No building shall be erected upon any premises devoted to a legal nonconforming use,
except in conformance with the applicable provisions of this Ordinance.
28.01.04 Nothing herein contained shall require any change in the plans, construction or
designated use of a building for which a building permit or Improvement Location Permit has
been heretofore issued, and the construction of which has commenced and has been diligently
pursued within one (1) year of the date of issuance of such permit, and which entire building shall
be completed according to such plans within three (3) years from the date of passage of this
Ordinance.
28.01.05 In the event that a legal nonconforming use of any building or premises is discontinued
for a period of one (I) year, the use of said building or premises shall thereafter conform to the
applicable provisions of this Ordinance.
28.01.06 Existing uses eligible for sp~cial 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.
. .
....1
^,
28.01.07 These provisions shall apply in the same manner to any use which may become a legal
nonconforming use due to a later amendment to this Ordinance.
28.02 Illegal Nonconforming Use Specifications. An illegal nonconforming use shall not be
validated by the adoption of this Ordinance.
28.03 Nonconforming Use in a FP, FW or FF District. A legal or illegal nonconforming use
located in a FP, FW or FF District shall not be expanded or enlarged without a permit for construction from
the lndiana Natural Resources Commission plus adherence to the appropriate restrictions herein.
28.04 Nonconformance Exemptions. A building nonconforming only as to height, lot area or yard
requirements may be altered or extended, provided that an extension meets all of the height, yard and other
applicable provisions of this. Ordinance.
28.05 Intermittent Use. The.casual, intermittent, temporary or illegal use ofland, buildings or
premises shall not be sufficient to establish the existence of a nonconforming use and the existence of a
nonconforming use on part ofa lot or tract shall not be construed to establish a nonconforming use on the
entire lot or tract.
28.06 Existence of a Nonconforming Use. In circ\llllstances where there is question whether or
not a nonconforming use exists, it shall be considered a question offact and shall be decided by the Board
following public notice and a public hearing in accordance with the Rules of Procedure of the Board.
28.07 Exemptions. The following structures and uses shall be exempt from the provisions ofthis
Ordinance:
28.07.01 Wires, cables, conduits, vaults, laterals, pipes, mains, valves or other similar equipment
for the distribution to consumers of telephone or other communications, electricity,. gas or water
and the collection of sanitary sewage or surface water operated and/or maintained by a
government entity or a public utility, including customary meter pedestals, telephone pedestals,
distribution transformers and temporary utility facilities required during construction, whether any
such facility is located underground or above ground, but only when such franchised utility
facilities are located in a street right-of-way or in an easement less than twenty-five (25) feet in
width. The provisions of this Ordinance shall be complied with on all private property and in
easements twenty-five (25) feet in width and over.
28.07.02 Railroad tracks, rights-of-way signals, bridges and similar facilities and equipment
located on a railroad right-of-way, and maintenance and repair work on such facilities and
equipment.
28.07.03 Farms, as defined herein, are permitted in all districts, Dwellings and major (over 400
square feet) accessory buildings are subject to obtaining Improvement Location Permits for
construction.
28.07.04 Nothing in this Ordinance shall prevent the restoration of a building or structure
destroyed less than forty percent (40%) of its market value at the time of such destruction
(exclusive of the value ofthe lot) by explosion, fire, flood, earthquake, windstorm, act ofOod, riot
or act ofa public enemy, subsequent to the passage of this Ordinance; or shall prevent the
continuance of the use, except an illegal nonconforming use, of such building, structure or part
thereof, as such use existed at the time of such impairment of such building, structure or part
thereof. All such restoration and construction shall be subject to the obtaining of an Improvement
Location Permit, with the fees waived for the restoration of a building or structure destroyed less
than forty percent (40%) and restored according to its state of existence prior to destruction. All
restorations resulting in a divergence from original plans or restoring a building or structure
destroyed forty percent (40%) or more shall be subject to obtaining an Improvement Location
Permit and payment offees.
28,07.05 All City of Carmel and Clay Township governmental facilities and buildings are exempt
from the zoning requirements and procedures listed herein.
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AGENDA
Pre- Hearing Conference
DOCS Conference Room
Cannel City Hall
Tuesday, June 22, 2004
9:00 A.M.
Following are the topics that the Department wishes to discuss with interested parties
before the hearing on Docket No. [insert number here]:
1. Scheduling. The Department of Community Services has scheduled a public hearing
for Monday, June 28, 2004, at 7:00 P.M., for the Carmel Board of Zoning Appeals to
decide, pursuant to Section 28.06 ofthe Carmel Zoning Ordinance, whether or not
some of the uses currently maintained by Martin Marietta Materials, Inc., on its
properties in southeast Clay Township are nonconforming uses within the meaning of
the Zoning Ordinance.
Although this hearing is included on the regular monthly agenda for the BZA, the
Department does not anticipate that the Board will be able to conclude the hearing or
take a vote on June 28. It is likely that the BZA will desire to grant the various
interested parties additional time to present evidence and written or oral arguments on
the question. Therefore, the Department desires to schedule a special meeting (or
meetings) of the BZA to accommodate a continuation of the hearing, on a weeknight
(or nights) in the month of August 2004. Interested parties should indicate their
availability for such a.special meeting (or meetings).
2. Discovery. Pursuant to Trial Rule 28(F), and as discussed by the Court in Hickory
Hills v. Coffman, 699 N.E.2d 1214 (Ind.Ct.App.1998), the interested parties may
desire to use the discovery provisions of the Indiana Rules of Trial Procedure.
Interested parties should be prepared to discuss the scope of discovery to which they
may be willing to agree,. and the time frames within which discovery may occur.
3. Arguments, Briefs, and Written Findings. The interested parties may wish to avail
themselves of the opportunity to make opening arguments to the BZA, before
presenting evidence, and to submit or make closing arguments at the conclusion of
the hearing. Interested partjes should be prepared to agree on the length of time that
may be needed for such arguments, including times for rebuttal. In addition, if
interested parties desire to submit written briefs to the Board for its consideration
before it makes a decision, they should be prepared to agree on deadlines for the
submissjon of briefs to the Department. Finally, interested parties should be prepared
to submit proposed findings of fact to the Board for its consideration before it takes a
vote.
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4. Examination of Witnesses. Under the Zoning Ordinance, the nonconforming use
issue is "considered a question of fact [to] be decided by the Board. . .." It may be
appropriate that all witnesses who intend to testify as to factual matters should be
sworn in and subject to cross-examination at the hearing. The BZA's existing rules of
procedure do not address this subject. Thus, the interested parties should be prepared
to agree on procedures whereby the Board can receive and consider factual evidence.
5. Staff Observation. The Kingswood Homeowners Association, Martin Marietta,
Hughey Inc., the City of Cannel, and the BZA entered into a Settlement and Release
Agreement on May 17, 2002 (the "Effective Date"), which contained several
provisions that may be pertinent to the question before the Board on June 28. In
particular, both the Kingswood Homeowners Association and the City agreed to
recognize that tbe uses established as of the Effective Date on the Martin Marietta
Property constituted "legal, nonconforming uses", while Martin Marietta agreed
generally not to "add uses not existing on the Martin Property as of the Effective Date
without appropriate governmental approvals. ..".
In view of these and other provisions in the Agreement, the BZA may desire to limit
or exclude any evidence that relates primarily to the land uses as they existed before
May 17, 2002. The Department would encourage the interested parties to see whether
they can agree to stipulate as to the uses that were existing as of that date.
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PERTINENT DEFINITIONS (FROM CHAPTER 3)
USE. The employment or occupation of a Building, Structure or land for a person's service, benefit or
enj oyment.
USE, ACCESSORY. A Use subordinate to the main Use, located on the same Lot or in the same Building
as the main Use, and incidental to the main Use.
USE, CONFORMING. A Use of a Building, land or premises which does conform to all of the applicable
provisions of this ordinance.
USE, NONCONFORMING ILLEGAL. A Use of a Building, land or premises existing at the time of the
passage of this ordinance which does not conform to all of the applicable provisions of this ordinance nor
those of any ordinance superseded by this ordinance.
USE, NONCONFORMING LEGAL. A Use of a Building, land or premises existing at the time of the
passage of this ordinance which does not conform to all of the applicable provisions of this ordinance but
did conform to applicable provisions of any ordinance superseded by this ordinance.
TEXT OF CHAPTER 28
Nonconforming: Uses and Exemptions
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:
28.01.01 A legal nonconforming use may be extended throughout a building provided no
structural alterations are made therein, except those required by law. Existing residences in the
various Business and Industrial Districts may be structurally altered and expanded.
28.01.02 A legal nonconforming use may be changed to another legal nonconforming use of the
same restrictions, provided no structural alterations are made in. the building. Whenever a legal
nonconforming use has been changed to a conforming use, it shall not thereafter be changed to a
legal or an illegal nonconforming use.
28.01.03 No building shall be erected upon any premises devoted to a legal nonconforming use,
except in conformance with the applicable provisions of this Ordinance.
28.01.04 Nothing herein contained shall require any change in the plans, construction or
designated use of a building for which a building permit or Improvement Location Permit has
been heretofore issued, and the construction of which has commenced and has been diligently
pursued within one (1) year of the date of issuance of such permit, and which entire building shall
be completed according to such plans within three (3) years from the date of passage of this
Ordinance.
28.01.05 In the event that a legal nonconforming use of any building or premises is discontinued
for a period of one (1) year, the use of said building or premises shall thereafter conform to the
applicable provisions of this Ordinance.
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.
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..,
28.01.07 These provisions shall apply in the same manner to any use which may become a legal
nonconforming use due to a later amendment to this Ordinance.
28.02 Illegal Nonconforming Use Specifications. An illegal nonconforming use shall not be
validated by the adoption of this Ordinance.
28.03 Nonconforming Use in a FP, FW or FF District. A legal or illegal nonconforming use
located in a FP, FW or FF District shall not be expanded or enlarged without a permit for construction from
the Indiana Natural Resources Commission plus adherence to the appropriate restrictions herein.
28.04 Nonconformance Exemptions. A building nonconforming only as to height, lot area or yard
requirements may be altered or extended, provided that an extension meets all of the height, yard and other
applicable provisions of this Ordinance.
28.05 Intermittent Use. The casual, intermittent, temporary or illegal use ofland, buildings or
premises shall not be sufficient to establish the existence of a nonconforming use and the existence of a
nonconforming use on part of a lot or tract shall not be construed to establish a nonconforming use on the
entire lot or tract.
28.06 Existence of a N onconfonning 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 in accordance with the Rules of Procedure of the Board.
28.07 Exemptions. The following structures and uses shall be exempt from the provisions of this
Ordinance:
28.07.01 Wires, cables, conduits, vaults, laterals, pipes, mains, valves or other similar equipment
for the distribution to consumers of telephone or other communications, electricity, gas or water
and the collection of sanitary sewage or surface water operated and/or maintained by a
government entity or a public utility, including customary meter pedestals, telephone pedestals,
distribution transformers and temporary utility facilities required during construction, whether any
such facility is located underground or above ground, but only when such franchised utility
facilities are located in a street right-of-way or in an easement less than twenty-five (25) feet in
width. The provisions of this Ordinance shall be complied with on all private property and in
easements twenty-five (25) feet in width and over.
28.07.02 Railroad tracks, rights-oI-way signals, bridges and similar facilities and equipment
located on a railroad right-of-way, and maintenance and repair work on such facilities and
equipment.
28.07.03 Farms, as defined herein, are permitted in all districts. Dwellings and major (over 400
squareJeet) accessory buildings are subject to obtaining Improvement Location Pennits for
construction.
28.07.04 Nothing in this Ordinance shall prevent the restoration of a building or structure
destroyed less than forty percent (40%) of its market value at the time of such destruction
(exclusive of the value of the lot) by explosion, fITe, flood, earthquake, windstorm, act of God, riot
or act of a public enemy, subsequent to the passage of this Ordinance; or shall prevent the
continuance of the use, except an illegal nonconforming use, of such building, structure or part
thereof, as such use existed at the time of such impairment of such building, structure or part
thereof. All such restoration and construction shall be subj ect to the obtaining of an Improvement
Location Permit, with the fees waived for the restoration of a building or structure destroyed less
than forty percent (40%) and restored according to its state of existence prior to destruction. All
restorations resulting in a divergence from original plans or restoring a building or structure
destroyed forty percent (40%) or more shall be subject to obtaining an Improvement Location
Permit and payment of fees.
28.07.05 All City of Carmel and Clay Township governmental facilities and buildings are exempt
from the zoning requirements and procedures listed herein.
...' "i:,-'
STATE OF INDIANA
CARMEL ADVISORY BOARD OF ZONING
APPEALS
Docket No. 04060001 A
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CITY OF CARMEL
Department of Community Services
of the City of Carmel/Clay Township
v.
Martin Marietta Materials, Inc., flk/a
American Aggregates Corporation, a/kJa
Carmel Sand and Gravel
INTERVENORS' BRIEF FOR THE JUNE 28, 2004 HEARING
This brief .is submitted by counsel on behalf of Kingswood Homeowners
Association, Inc., William D. McEvoy, Larry J. Kane, and Greg Policka
(c6l1ectively, the "Intervenors"); who have filed their Motion to Intervene in
the captloned matter as interested and affected citizens and property
owners.
. Defining the Issue. The Carmel Department of Community Services
("DOCS") has requested that the Carmel/Clay Advisory Board of Zoning
Appeals (nSZAJI) hear the issue of whether or not the current use of the
Carniel Sand Plant. owned by Martin Madetta Materials, Inc. ("MM"),
'. located nortt~-G.f-t06th-St~af-ld-west-of-l::Iaz-e!-i)€!~I..gd..witl:lin-the city limits
ef Carmel, Indiana, conforms to the current Carmel City Code, adopted as
Ordinance No. Z-289 by the Common Council of the City of Carmel, as
amended ("Zoning Ordinance"),
. This issue' was raised 'by Thomas Yedlick, a citizen of Carmel who is
directly. atfeded by the use of the Carmel Sand Plant, in his letter to the
DOCS elated December 16, 2003. In his letter, Mr. Yedlick alleges that the
Carmer Sand Plant was once a legally established nonconforming use as
.to the processing of sand and gravel extracted from the MM land upon
.. , which the' processing plant is located, but (3) that it is not a legally
. established nonconforming use with respect to the processing of sand and
gravel material extracted from sites other than the one upon which the
.' processing plant is located and (b) that IS has now lost its legal
. nonconforming use status_el'en~as_to_theup[Qcessing._olsand and gravel
mined on its own site due to the termination of mining activities on the site
for over one year.
~~.~ --'l.....1
The Intervenors believe that the proper procedure under Indiana statutes is
for the DOCS to investigate such allegations and either (a) issue a citation
of zoning use violation, or (b) elect to not issue such citation (i) because
the use. conforms to the Zoning Ordinance or (ii) because the use is a
legally established nonconforming use. However, the DOCS has
apparently made no decision and referred the question of nonconforming
use to the BZA pursuant to an interpretation of Section 28.06 of the Zoning
Ordinance. Counsel for the BZA has agreed with the DOCS and has
agreed to create special rules of procedure for the BZA to follow in making
its determination.
Section 28.06 of the Zoning Ordinance. the interpretation of which is really
at issue, reads as follows:
28.06
Existence of a Nonconforming Use.
In circumstances where there is a question whether or
not a nonconforming use exists, it shall be considered
a question of fad and shall be decided by the. [BZA]
. following public notice and a publiG-heaFiH~-iA
accordance with.th? Rules of Procedure of the [BZA].
!n other words, if the DOCS threatens to issue a citation against a property
. owner for (i) illegal (nonconforming">-use,-or~(iq-mailltainil'"lg-an-iIIegal
development standard, but the defendantlrespondentlproperty owner
.. claims ttlat the use either does not exist, or that if it does exist the use is
legal, then the BZA, according to Section 28.06,-is-l:>8 the body that
d ecid es whett:re-r-=or~not=tl'le-cuse=-exiSts,not:tRe~gQG$~--$e-GtfGR-2-&7Q6-Q08S
not authorize the BZA to make a final determination with respect .to..
whether a use is a "legal nonconforming use," but simply whether or not
the use is nonconforming to the current zoning.ordinancesi::l-fJ~licable to tile
site in question. .
Therefore, the Intervenors-believe that-if-there-isanissue-before the BZA,
that i_sstJe is narrowly defined as whether or not a nonconforming use
. exists, nothing more.
- . Subject Matter Jurisdiction. .In addition to narrowing the scope of the"
. substantive portion of the BZA hearing; the Intervenors believe that the-
BZA lacks the subject matter jurisdiction to hear even the question of
.nonconforming use unless and until the DOCS has made its decision and a -
disappointea party or clfizen h8~-fiIe_a:;;an:;:app.eal:;:to~tne:"Er~~of~sucli;I)Q~e-S-=--~-=-===:-:===-..:--~ ~
.decision. In support of this opinion, the Intervenors would show:the"
following:
'i ..
1. Under Indiana law, - boards of zoning appeals are -not granted
unlimited jurisdiction. Boards of zoning appeals are not -delegated all
authority otherwise not assigned to other tribunals. Rather, boards of
zoning appeals are delegated only the following limited authority:
a. . The _ authority to hear appeals from determinations by an
administrative official, administrative board or other body (except a plan
commission in relation to the enforcement of the zoning ordinance), or
appeals from determinations regarding improvement location permits or
occupancy permits, under Indiana Code Section 36-7-4-918.1;
b. The authority to grant applications for special exceptions,
special uses, contingent uses, and conditional uses, under Indiana Code
Section 36-7-4-918.2;
c. The authority to approve petitions for variance of use, under
Indiana Code Section 36-7-4-918.4; and
d. The authority to approve petitions for variance of
. development standards, under Indiana Code Section 36-7-4-918.5.
2. Based on the above sections of the Indiana Code, the Common
Council for the City of Carmel does not have the power to delegate to the
BZA the authority to declare uses as conforming or nonconforming except
when the issue is imbedded within the appeal of a detennination of an
administrative offiCial, in this case, a DOCS decision. Because the issue of
nonconforming use is not relevant to a petition for special use, special
exception, conditional use, contingent use, variance of use, or variance of
development standards, the only relevant Indiana Code section is 36-7 -4~
918.1, quoted above.
3: Under the BZA's own rules, the BZA has rules--for-hearing appeals,. -
. Sections 30.01 and 30.02 of the Zoning Ordinance, and for hearing
petitions for variances, Sectlons 30.04, 30.05, and 30.08. There are no
rules for hearing determinations of nonconforming use separate from other
proceedings. In fa~t, the DOCS has requested that counsenotfie- BZA
create special rules for the BZA to hear such matters. This is further
i nd ication-that-;-apa rtfrem-the-am big uousreference-to_deteImini nga~_.__ ~.
certain-fact found-in Section 28.06,_ quoted above, neither the Common
Council for the City of Carmel nor the BZA really expects to hear such.
matters as separate questions of fact.
4, This matter was referred to the BZA based on a mere letter from 'a
citizen alleging a zoning violation. The Intervenors do not believe that the
DOCS refers all allegations of zoning violations to the BZA for initial-
:'\ .
determination of nonconforming use and that it should not do so in this
case, either.
5. The DOCS has not issued a citation to MM for violation of the
Zoning Ordinance, so there is no decision of the DOCS from which MM or
the Intervenors may appeal. In fact, Intervenors are not aware of any
formal investigation into the facts necessary to determine whether Or not
the use is nonconforming and whether or not it is legally established,
-leaving the BZA in the position of trying to make a decision based on
uncorroborated testimony and supposition. This the BZA should not do.
_ 6. Therefore, the question of whether or not a nonconforming use
exists should be determined in the first instance by the DOCS, and if a
nonconforming use exists, then the DOCS should issue a citation to MM to--
cease such use. If MM believes there is justification for their continued
nonconforming use, then MM would have the right to appeal the DOCS
decision to the BZA within 30 days. Likewise, if the DOCS determines that
the nonconforming use is legal, then interested neighbors such as the
Intervelllirs would have 30 days within which to file an appeal to the BZA,
. all- pursuant to Section 30.01 of the Zoning Ordinance. TfieBZA: wi"-thell
review the determination by the DOCS to see if it was correct.
7. If the BZA hears this case, it is possible that the DOCS might be
- deemed to have waived its potential right to appeal an adverse decision by
the BZA by bringing this matter to the BZA prior to making its own decision.
'-If so, then a decision by the BZA -regarding the use by MM might not be
appealable by the DOCS or anyparty,- such as the Intervenors, who might
agree with the DOCS on the substantive issues. Therefore, (a) the
Intervenors hereby OBJECT to the hearing on the merits by the BZA of this
matter based on lack of subject mattgr-jurisdiction,_a[1d~(h)_the Intervenors
DO NOJ WAIVE their right-to-appeal-;-olTthe-l3asis-ef-laGk-Gf-subject.matta[
jurisdiction, any decision that the Intervenors believe to be adverse to
them. .
Substantive Issues. In the eVE,mt that the BZA decides to hear this
matter, then without waiving any rights of appeal, the Intervenors submit
the following analysis for the BZA's review:
A. Determination of Nonconforming Use. The first inquiry must be
to determine if the use presently being made of the Carmel Sand Plant ;s a
conforming or nonconformirlg use under the - Zoning Ordinance. The
Intervenors believe that the present use is nonconforming and request that
the_ BZA hold as such. The Intervenors believe: that the processing of sand
and gravel is an industrial use because it is defined as such in the Zoning
Ordinance.
!o.
For instance, at Section 3.07 of the Zoning Ordinance, are found the
following Definitions:
"Borrow Pit" is defined as follows:
An area of land from which earth is removed for use on another site
and a permanent or temporary irregular terrain is created.
"Manufacturing, Heavy" is defined as folloWs:
The manufacture or compounding process of raw materials, These
activities or processes would necessitate the storage of large
volumes of highly flammable, toxic materials or explosive materials
needed for the manufacturing process. These activities may include
disposal of radioactive materials, fertilizer manufacturing, leather
curing and tanning, lime, cement, asphalt, and gypsum refining and
manufacturing, petroleum' refining and manufacturing, reclaiming
processes involving materials and/or chemicals that are considered
.. 'dangerousto the health, safety and welfare"of the general public as
determined by the State of Indiana, Board of Health, or the City of
Carmel, slaughtering, stock yards, wood preservatives refining and
manufacturing; and the manufacture of flammable liquids or gases.
'''Manufacturing', Light" is defined as follows:
The manufacture, predominantly from previou~ly prepared.
iTlaterials, of finished products or parts, including processing,
fabrication, assembly, treatment and packaging of such products,
and incidental storage, sales, and distribution of such products, but
excluding basic industrial processing and custom manufacturing..
This may include a lithographing establishment
"Mineral Extraction" is defined as
Any process" used in obtaining, from the earth, naturally occurring
. substances.
In Appendix A of the Zoning Ordinance is a comprehensive Schedule of
Uses for all zoning districts in the City of Carmel and Clay Township. The
land: upon which the Carmel Sand Plant is located is presently zoned .8-
1/Residence District. Under the S-1 classification, there are a variety of
uses permitted, including single family dwelling, model home, public
service facility, general agriculture, publiC park, and 'collocated antenna.
Neither any type of manufacturing nor mineral extraction is included as a
permitted use in S-1.
~.l ..
The Intervenors submit that the use being made of the Carmel Sand Plant,
being the processing of raw aggregate materials into particular grades of
sand and gravel, is a manufacturing process, more particularly defined as
"Manufacturing, Heavy," and as further defined in the Special Uses that are
permitted following BZA approval under the M-1/Manufacturing District. As
such, this manufacturing use is not a permitted use in the S-1/Residence
District, and therefore such use of the Carmel Sand Plant is
nonconforming. Being a nonconforming use, the BZA should determine it
to be such and refer the matter to the DOCS for enforcement of the Zoning
Ordinance, particularly Section 2.01 thereof.
B. Determination of Illegality of the Nonconformity. Assuming
that the BZA elects to make a determination as to the illegality of the
Carmel Sand Plant importation and processing of off-site material, and
without waiving any rights to appeal, the Intervenors submit the following
analysis for the BZA's review:
Once the use of the Carmel Sand Plant is determined to not conform to the
S-1/Residence District requirements, the BZA (provided it has subject
matter jurisdiction) must then determine if there is some ground upon
which such nonconforming use should not be prohibited (provided thE:
Section 28.06 gives the BZA such authority).
Carmel Zoning Ordinance. The first source of authority regarding
legal establishment of nonconforming uses will always be found in the
applicable Zoning Ordinance. In this case, the Zoning Ordinance defines
those types of nonconforming uses that may, in certain instances,
nevertheless be permitted. In Section 3.07, Definitions, the following terms
are defined:
USE, CONFORMING. A Use of a Building, land or premises which
does conform to all of the applicable provisions of this ordinance.
USE, NONCONFORMING ILLEGAL. A Use of a Building, land or
premises existing at the time of the passage of this ordinance which
does not conform to all oLtbe 8flrlir.rlh1f'! rrovisions of tl,is ordinance.
nor those of any ordinance superseded by this ordinance.
USE, NONCONFORMING LEGAL. A Use of a Building, land or
premises" existing at the time of the passage of this ordinance which
does not conform to all of the applicable provisions of this ordinance
but did conform to applicable provisions of any ordinance.
superseded by this ordinance.
In Chapter 28, Nonconforming Uses & Exemptions; the Common Council
for the City of Carmel has defined those uses that may be allowed to
^~ i
continue notwithstanding their nonconformity to current zoning. Relevant
subsections of Section 28.01 of the Zoning Ordinance are set forth below:
28.01 Legal Nonconforming Use Specifications.
A legal nonconforming use may be continued, although such
use does not conform to all the provisions of [the Zoning
Ordinance], as hereinafter provided:
28.01.01 A legal nonconforming use may be extended
throughout a building provided no structural alterations are
made therein, except those required by law. Existing
residences in the various Business and Industrial Districts
may be structurally altered and expanded.
28.01.02 A legal nonconforming use may be changed to
another legal nonconforming use of the same restrictions,
provided no structural alterations are made in the building.
Whenever a legal nonconforming use has been changed to a
conforming use, it shall not thereafter be changed to a legal
or an illegal nonconforming use.
28.01.03 No building shall be erected upon any premises
devoted to a legal nonconforming use, except in conformance
with the applicable provisions of this Ordinance.
28.01.05 In the event that a legal nonconforming use of any
building or premises is discontinued for a period of one (1)
year, the use of said building or premises shall thereafter
conform to the applicable provisions of this [Zoning]
Ordinance.
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.
28.01.07 These provisions shall apply in the same manner to
. any use which may become a legal nonconforming use due
to a later amendment to this [Zoning]-Ordinance.
28.02 Illegal Nonconforming Use Specifications.
An illegal nonconforming use shall not be validated by the
adoption of this Ordinance.
.'
28.05 Intermittent Use.
The casual, intermittent,' temporary or illegal use of land,
buildings or premises shall not be sufficient to establish the
eXIstence of a nonconforming use and the existence of a
nonconforming use on part of a lot or tract shall not be
construed to establish a nonconforming use on the entire lot
or tract.
Facts to be Proved by MM. It appears, therefore, that for MM
to continue using the Carmel Sand Plant as a manufacturing facility for the
processing of sand and gravel delivered to the Plant from land other than
the land to which it is attached, the following facts must be proved:
1. The effective date for the applicability of the Zoning Ordinance to the
operation of the Carmel Sand Plant (the "Effective Date").
2. . The zoning ordinance that applied to the Carmel Sand Plant
immediately prior to the Effective Date (the "Old Zoning Ordinance").
3. ' The zoning ordinance that applied to the Carmel Sand Plant
immediately following the Effective Date (the "Effective Date-Zoning
Ordinance").
,,' 4. Sand and gravel were being delivered to the Carmel Sand Plant
from off-site on and prior to the Effective Date.
5. The quantity of such sand and gravel deliveries at and prior to the
Effective Date, taken in the context of the capacity of the Plant, was been
more than casual, intermittent, temporary or illegal.
6. . ,Immediately prior to the Effective Date, processing of sand and
, ,gravel' frem-off-site-miAes__6onfor-med-t()-the-applica ble-provis1ons-of-any---
ordinance superseded by the Zoning Ordinance.
7.. Since the Effective Date, the importation of sand and gravel to the
Carmel Sand Plant has not been "discontinued" for a perIod of one year or
longer. This element should be, proved by more than mere casual,
intermittent, temporary or illegal importafion of sand and {jravel, based on- --
the fact that the same cannot be used to establish the use at all.
8. The processing of sand and gravel at the Carmel Sand Plant does
not constItute a nuisance. A BZA should not authorize the use of property
as a nuisance and pre-existing nuisances may not be "grand fathered"
';" ~
through a zoning ordinance. On the contrary, the Plan Commission has
the authority to enjoin nuisances. Indiana Code Section 36-7-4-1012.
9. No changes in the importation or processing of sand and gravel,
including enlargement of storage areas, changes in the nature of the
aggregate (e.g., importation of stone for crushing instead of sand and
gravel for processing), or significant changes in the nature of the business
have occurred since the Effective Date.
10. No change has been made to the building or other above-grade
improvements since the Effective Date.
11. No building has been added to the premises of the Carmel Sand
Plant since the Effective Date without being in conformity with the
applicable provisions of the Zoning Ordinance.
Zoning ordinances are to be strictly construed against the party attempting
to show that its use of property is a legal use. Further, once the
nonconforming use has been established. the burden of proof is on the.
property owner to demonstrate by a preponderance of the evidence that
the use is entitled to be treated as a legal nonconforming use. Therefore,
.unless MM can prove by a preponderance of the evidence each of the
above elements, it will not have sustained its burden of proof and the
.Carmel Sand Plant m.ust be held to be an illegal nonconforming use.
Effective Date of Ordinance. The first fact to be determined, or
decided, is the date upon which the use of the Carmel Sand Plant became
nonconforming. The Intervenors believe that the Effective Date is
approximately June 30, 1983. for the following reasons.
(a) Preemption by Indiana Law. Since before 1980 Indiana has
had a statute that prohibited municipalities, counties, or plan commissions
from adopting ordinances "that would prevent, outside of urban areas, the
complete use and alienation of any mineral resources or forests by the
owner or alienee~of-~them.~'-Indiana. Cede -Section .36-7-4-11 03(c}. . - "fhis"
statute has been construed to prevent local government from controlling
mining operations if they are outside of an "urban area." Uhl v. Liter's
Quarry of Indiana, Inc., App. 1 Ois1.1979, 384 N.E.2d 1099, 179 Ind.App.
178.
The definition of "urban area," however, includes all land within the city
limits and "any other lands or lots used for residential purposes where
there are at least eight (8) residences within any quarter mile square area,
and other land or lots that have been or are planned for residential areas
contiguous to the municipality." The quarter mile square area has been
held to be a square having 1,320 feet on each side and adjacent to the
~l~ .. ~
quarry site in question. Clark County Bd. Of County Commissioners v.
King, App.1974, 310 N.E.2d 560,160 Ind.App. 152.
There appears to be no further restriction on the definition of "urban area"
and there appears to be no date fixed for measuring the number of
residences within the quarter square mile area other than the date of
adjudication by the fact-finder. Therefore,all homes located in Wood
Creek, Kingswood, and other subdivisions within 1,320 lineal feet of the
property line of the MM land upon which the Carmel Sand Plant is situated
would be includable in the "eight (8) residences" for purposes of
determining whether or not part of the Carmel Sand Plant site was located
in an "urban area."
A literal reading of the definition of "USE, LEGAL NONCONFORMING,"
indicates that the time when the nonconforming use must have been
operative is the date of adoption of the zoning ordinance that first caused
the nonconformity, whether or not there was a prior ordinance that was
superseded. The fact that there may have been an Indiana statute that did
"not authorize an ordinance or .action~of-a plan commlsson"marhave-----
prevented the Common Council for the City of Carmel from adopting an
.ordinance that had the effect of interfering with MM's mining operation
,outside,an "urban area," but it had no effect on the zoning ordinance to the
exient MM's land is located within an urban area. . Thus, the inquiry also
needs to be as to when the Carmel Sand Plant became "urban area."
(b) Loss of Preemption Protection. The Intervenors would argue
that th.e effective date for determining the applicability of the Zoning
Ordinance to the Carmel Sand Plant would be the later of the adoption of
the ordinance that created the nonconformity or the date when one quarter
mile square of land adjacent to the Carmel Sand Plant site first had eight or
more residences located within it.
A review of the building:-p.e1+Pit=r~ds-Qf=t_R~inalcates-tAat_t_Re
subdivision known as Wood Creek was platted and homes were being built
'tberein in 1982, with the eighth home beIng completed by approximately
June 30, 1983. Wood Creek adjoins the land owned by MM and used by
the Carmel Sand- Plant, 'so virtually all of Wood Creek is included in the
. ,land used to test whether or not the Carmel Sand Plant is in an "urban
' , ,
area." Aerial photographs obtained from the Hamilton County Surveyor
substantiate this fact by showing far more than eight (8) homes in Wood
Creek as of 1984. '
Extent of Nonconformity. Per Section 3.07 of the Zoning
Ordinance, the Effective Date would be "the time of the passage of [the
Zoning Ordinance]" if such passage created a nonconformity by virtue of
superseding a prior ordinance or if there was no ordinance to be
"
superseded. The predecessor zoning ordinance, Ordinance Z-160, was
adopted effective January 21, 1980, and remained unamended, so far as
this inquiry is concerned, as of June 30, 1983. The terms of Ordinance Z-
160 are similar to those of the current Zoning Ordinance, Z-289, in that the
Carmel Sand Plant area was zoned S-1 Residence District and mineral
processing was prohibited. The definitions of "Borr:ow Pit," "Mineral
Extraction," "Legal Nonconforming Use," and "Illegal Nonconforming Use"
in Ordinance Z-160 are the same as in Ordinance Z-289.
Conclusion. Based on the above facts and law, the Intervenors
submit that as of the adoption of the Old Zoning Ordinance, Z-160, the
Carmel Sand Plant was in nonconformity, except that such nonconformity
did not become actionable until the Carmel Sand Plant site became "urban
area." The Carmel Sand Plant became "urban area" on or about June 3D,
1983 and thereafter the Zoning Ordinance applied to it. Because the
Carmel Sand Plant does not conform to the uses permitted in the S-
1/Resldence District now, and did not conform to the S-1 Residence
District on June 30, 1983, the Carmel Sand Plant is an illegal.
nonconforming use. Whether or not the Carmel Sand Plant could return to
operation to serve additional sand and gravel mining on its original site,
and whether such mining would be a permitted use, depends on the time
during which the mining has been discontinued. .
Recommendations. Because of the questions raised concerning the
subject matter jurisdiction of the BZA, the Intervenors offer three choices of
recommended actions for the BZA:
1. If the BZA believes that it has jurisdiction to decide whether or not
the use by of the Carmel Sand Plant for processing of off-site material is or
. is not an illegal nonconforming use, then the Intervenors request that the
BZA direct the DOCS to issue a cease and desist order to MM with respect
to the importation of sand and gravel to the Carmel Sand Plant.
2. Should the BZA determine that it does not have the authority to . .
decide whether or not the nonconformity is illegal, then the Intervenors
request that the BZA direct the DOCS to investigate the matter and make a
.written determination as to whether or not the nonconforming use is legal.
3. Should the BZA determine that it does not have the authority to
determine whether or not the use of the Carmel Sand Plant is a
nonconforming use, then the Intervenors request that the BZA direct the
DOCS to make such determination, then determine if the use is legal, and
then issue its written determination so that MM or the Intervenors will have
a right of appeal to the BZA
4. In any event, the Intervenors request that the BZA direct the DOCS
to investigate the length of time that the mining operation at the Carmel
Sand Plant has been discontinued and then to determine if such mining is
or is not a legal nonconforming use as of the date of such determination.
The Intervenors wish to express their appreciation to the members of the
BZA for this opportunity to set forth the above opinions and suggestions for
your review.
Respectfully submitted,
THRASHER BUSCHMANN GRIFFITH & VOELKEL, P.C.
attorneys for the Intervenors
..~ C~1M/~
hilip C.. hrasher, attorney no. 1075-49
by:
Thrasher Buschmann Griffith & Voelkel, P.C.
1 51. N. ge!awafe-St~ite-1-geO
Indianapolis, IN 46204-2505
Tel: (317) 686-4773
Fax: (317) 686-4777
--~ ...
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing has been served on all parties listed below
by first-class United States mail, postage pre-paid, on this
If/A daYOf~~e/,
! .
2004:
Zeff A. Weiss, Esq.
Ice Miller, LLP
One American Square
P.O. Box 82002
Indianapolis, IN 46282-0002
THRASHER BUSCHMANN GRIFFITH
& VOELK ,PI C.
by:
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STATE OF INDIANA.
CARMEL ADVISORY BOARD OF ZONING
APPEALS
Docket No. 04060001 A
CITY OF CARMEL
Department of Community Services
of the City of Carmel/Clay Township
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v.
Martin Marietta Materials, Inc., flk/a
American Aggregates Corporation, a/'KJa
Carmel Sand and Gravel
Motion to Intervene
COMES NOW Kingswood Homeowners Association, Inc., William McEvoy, Larry Kane,
. and Greg Policka (the "Intervenors"), by counsel, and request that they be granted the
. -right to intervene in the captioned matter, and in support thereof provide the following
information:
, 1"., Each of the Intervenors is an owner of real property' located in the Kingswood
subdivision, Carmel, Indiana, which subdivision is adjacent to the land presently
occupied by the Cannel Sand Plant, the continued use of which is the subject of the
captioned matter.
2. The 'Intervenors believe that the resolution of the issues to be decided in the
captioned matter are of great importance' to them with respect to property values,
nuisances, and enjoyment of life.
. 3. The Intervenors wish to raise issues and provide information to the BZA that may
. not. be raised or presented by the respondent. Martin Marietta Materials, Inc. or any
other person.
4. The Intervenors desire to receive copies of all further pleadings, motions, and
filed correspondence in this matter.
5. The Intervenors desire to have rights of appeal in the event the decision of the
BZA is deemed not to be favorable to the Intervenors.
6. The Intervenors reserve the right to file a Brief, additional information and
exhibits, and further requests for other persons to join them as intervenors in the future.
7. The Intervenors desire to have an opportunity to present evidence and argument
before the BZA at its scheduled June 28, 2004 hearing and at all future hearings on the
captioned matter.
WHEREFORE, the Intervenors request that the BZA vote to admit them as intervenors
in the captioned matter.
Respectfully submitted,
THRASHER BUSCHMANN GRIFFITH VOELKEL, P.C.
attorney for the Intervenors named above
by: C
Philip C. Tlafasher, attorney number 1075 -49
Philip C. Thrasher, Esq.
Thrasher Buschmann Griffith Voelkel, P.C.
151 N. Delaware St., Suite 1900
Indianapolis, IN 46204 -2505
Tel: (317) 686 -4773
Fax: (317) 686 -4777
,r#
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing has been served on all parties listed below
--
by first-class United States mail, postage pre-paid, on this / f'fJ, day of Ij?t 11 tY-,
2004:
Zeff A. Weiss, Esq.
Ice Miller, LLP
One American Square
P.O. Box 82002
Indianapolis, IN 46282-0002
THRASHER BUSCHMANN GRIFFITH
& VOELKE ,P. .
by:
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ICEt1~LLER
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LEaA~ El SUSIRE55 ADVIS:OP,~
June 18,2004
WllJTI!k.'S tll~f NUMJlI!lC (317) :us..D:19
DIIU!CT PLoX: (S 17) 5111--171111
lH'I'IIRNB'l'l Zcn:wdS!l@ieellll'l~r.com
VIA FACSIn\W...E: (317) 571-Z426
RE: Letter from Thomas C. Yedlick
Mr. Michael HoIh"baugb
Department of conununitySemces
City of Cannel
One Civic Square
Carmel, IN 46032
Dear Mike:
This is in response to Mr, Yedlick's letter to you. of December 16, 2003. in which he
asserts that certain activities carried on by Martin Marietta Materials, Inc. ("Martin Marietta") .on
its Cannel Sand and Gravel site do not comply with tbe CarmeL/Clay Zoning Ordinance.
Your letter of June 11) 2004, asks Martin Marietta to address questions "regarding the
processing of outside materials aIld whether that importation constitutes an unlawful expansion
of use." Tli.e short answer is that there is an Indiana Court of Appeals case on point that is
contrary to :Mr. Yedlick's "source" ofmaterials analysis. ItreJects a change in source as a change
in or expansion of a nonconforming :use. In light of this case and the other matters set forth
herein, we do not believe there is anything for the Board of Appeals to address. Thus, we
respectfUlly.ask that MI. Yedlick'sinquiry be dismissed.
We ,Ite also compelled to comment on why Martin Marietta must currently import
material ftOrtl its Noblesville site. The original plan, of course, was for Martin Marietta. to mine
Mueller North and relocate its plant to the east side of Hazel Dell Parkway. It thought it had
IGngswood's support in that endeavor. As you knowthowever, that support evaporated and
Martin Mari,~tta's applicatioD was turned down. Had it been approved, Martin Marietta's plant
would have been moved. it would be :mining the Mueller North property, and this issUe would
never have arisen. Indeed, Martin Marietta would probably be within five years or so of being
through witb mining, sand and gravel on the Mueller North property and would be moving the
dredge and implementing some pian to make.the resulting lake an amenity foral1 concerned.
Like'\visc, if LOria! cU-cUIILStances had not interfered with the consideration of Martin
Marietta's other applications, jncluding: its subsequent application for a.. special use permit on
Mu.eller North, the plant wou1d have been moved and MI. Y cdlick's issue would never have
arisen.
InsteEItt Martin Marietta now must bring this material in from Noblesville, at a cost of
several dollars .per t01; solely so that it can preserve an area east of Hazel Dell Parkway for the
One Ame.riUln SqUiiltc I BllJCS:ZOOl I Indianapolis. IN 48282..0002 I P 317-236.2700 I ~ 317-236-2218 I www.lcemlllcr..ecm
Indillllapofis f Chicago I Washing-ton, D.C.
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June 18,2004
Page 2 of6
relocation 0 fits plant site, as the Kingswood neighborhood has-requested. I thirik you know the
effort Martie. Marietta has made to preserve that plant site, bu,t it could end up all being for
nothing if the Yed1icklKingswood position were to prevail. Intb~ event, Martin Marietta wOllld
have little choice but to mine the plant site east of HazeL Dell Parkway. John Tiberi has said on
many occasions that he does not want to do that, and his decision to bring material in at great -
cost to Martin Mari~ shows his desire to preserve the plant relocation option despite actions by
Kingswood neighbors that make mini.ng that area its only rea.listicoption. We hope that aU
involved wirh this, esp~ia11y the KingsWQod community, understand the implications of Mr.
Yedlick's position.
If the Kingswood neighbors now move to keep Martin Mmiettafrom bringing in material
to continue its aggregate busin~s on this site, that will make it clear that Kingswood places little
value on preserving the plant site east of Hazel Dell and its real intention all along has been to
put this comgany out ofbusfuess. If the neighborhood no longer values that optio~ there is little
reason for Martin Manetta to do so, especially as it costs several million dollars for Martin
Ma.rietta to implement iL Martin Marietta will continue to do all in its power to presenre the
option ofreloca.tiD.g the plant, but at some point there will simply be no other reasonable option.
That will be an 11llfortunateresUlt.
Mr. Yedlick's Clai~
According to .Mr. Yedlick's letter, the Cannel/Clay Zoning Ordinance allows Martin
Marietta to ~rocess sand and gravel taken from its site under what Mr. Yedlick describes as the
"alienation ofmineral resources:"
Specifically, when Carmel Sand is completing the alienation of mineral resources from
its propeny. i.e. fram the Cannel Sand location, then clearly this is alienation of mineral
resources. HoweVer when existing plant facilities are converted to processing sand and gravel
from otb.erlocations, it fails the source test. Thus, precessing sand and gravel from other
locations c~mot be consideredaJienation ofminera1 resources.
Mr. Yed!ick further states. nit is clear that when the processing of sand and gravel follows
the extraction of"1:hese mineral resources, the processing cm be considered as an intragaI ($i~)
part of the 'complete use of alienation of any mineral resources.'"
Thus) to paraphrase Mr. YedIick, Martin Marietta is entitled to process sand and gravel
extracted from the Carmel site. but cannot bring materials in from any other location and process
them there.
Mr. Yedlick is correct that processing is an integral part ofthe business of extracting and
selling sand nnd gravel at the Carmel Sand and Gravel location. He is incorrect. however, that
processing is limited to material obtained on site.
We also note that Mr. Yedlick'spremise that Carmel Sand and Gravel is a non-
confomting use is incorrect. Section 28.1.6 of the Carmel Clay Zoning Ordinance expressly
.. . \j
~ '. .
June 18) 2004
Page 3 of6
provides tha.r "existing u.ses eligible for special use approval shall not be considered legal non-
conforming uses nor require special use approval for continuance. . . . n Martin Marietta's uses
are thus correctly analyzed as existing. permitted uses, and not as non-confurming uses. That
alone is rf)3S0n to dismiss Mr. YedIick's complaint, premised as it is on an incorrect
understanding of the Qrdinance.
F1ut:'ef, even ifMi:-. Yedlick were.conect and this matter presented a nonconforming use
question, he would still be wrong as 10 his conclusio~ Mr. Yedlick's premise, albeit an incorrect
one, is that processing and extraction are separate uses. If that werescl, Section 28.1.2 s<tys that
Martin Marl etta could change to another legal nonconforming, use of the same restric.tion.
Extraction and Sale of Sand and Gravel Inclu.des PrDeessin~
The Cannel zoning OTdinance does not contain a definiti~m of mineral extraction, or
mining and qumying. However, Section 20B.2 contains the following special use: ":Mineral
extraction operations including sand, grave~ soil, aggregate and all related processing
operations." We also note that, the mining regulation ordinance previously adopted by the City
of Cannel expressly defined mining to include processing, as does the new ordinance currently
under consideration. These proposed and present ordinances recognize that the use of the
property is- fOr mining P'UIPoses,and that processing is !1Imply oneef the activities that make up
the use. It i!~ not a separately defined'use itself. Indeed, the Cannel Zoning Ordi1\21rtc:e does not
contain a ~ting for processing as a separate Husell in any district. We thus agree with Mr.
Yedlick's cO:lclusion that processing is a part of the use conducted on the site.
The Source oftbe Materialis lrreleva.nt
:Mr. Yedlic~ letter is grounded on the assumption that a.law:f\il use orland can ~omehow
become unlawful because the materials processed and sold on it arc'not sourced from the land
itself, but r.3.ther come from elsewhere. Mr. Yedlick cites no Indiana authority for this
proposition End Indiana law is~ in fact, to the contrary.
In Day v. Ryan, 560 N.E~2d 77 (lnd. App., 199.0), the landowners we~ engaged in
farming activities. Among other things, they dealt in livestock, and at some point began bringing
in livestock that were notraised .on theirproperty. Later, the activities expandedyet again to the
point that the landowners were effectively operating a stockyard business. Some neighbors then
complained.; arguing that both the operation of the stockyard business and the sale of animals that
had not becn.r.aised OIl site, were .unlawful. As:Mr. Yedlick does here. they complained that the
sale of livestock raised elsewhere changed the underlying use to something other than its
pennitted agricultural use. The Court of Appeals explicitly rejected that contention, holding that
the "trading of livestock raised eIs'ewhere. . . . did not work a transformation of the basic
a.gricultural nature of the Ryans' use of the property. n
Like\l.rise~ in 81lother case, Cooper v. Calandro. 581 N.E.2d 443 (Ind. App., 1991), an
owner of a septic taIlk company wanted to put waste from his business on his fatm, rather than
having to pa:/to dispose of it. He argued that the spreading of this waste as fertilizer was an
~""'. I". ___..
June 18,2004
Page 4 of6
agriculmral use, but his neighbors argued that it wasn't because the waste came from off site.
Once again, the Court of Appeals held that the source of the material was ixrelevant~ and that The
use was a.gricultural.
In this case, the use of Martin Marietta's Carmel Sand and Gravel property is for the
extraeti~ processing and sale of sand and gravel. Ea.ch of those is a compon.ent of the use
knoWl1 as mining ai1d is, therefore, apart of the use. There is no requirement that each and evf:f:'j
component I)f a use be carried on in order for other components of-the use to be allowed. Indeed,
were this a site where blasting ha4 been done to extractmaterialst One can envision tIle neighbors .,
being thrilled that exlTaction (blasting) was no longer being done. The elImination of one aspect
of a use doe:3 not change the use.
Martin Marlett&. Has ACQu.ired Stato.torv and Contract BiEhn that Entitle It to Continue
Its Uses
Mr. Yed1ick's letter fails to take into account 1he considerable rights Martin Marietta
acquired byvirtne of its stamsas a law1lll use under Ie 36-t-4-1103. the agreement entered into
between tht:: City and Martin Marietta in connection with Hazel Dell Parkway, and the
subsequent Kingswood agreement.
You will recall that prior to 2000, the Carmel Sand and Gravel operation was loca.ted
entirely outside of Carmel's ml,Inicipal boundaries. Puring some or all of that time it was
outside an Ulban area. It was subsequently annexed into the City of Carmel. The predecessor to
IC-36-7-4-1I03 'Was Ie 18-7~S-61, which prohibited a local.goyernment from interfering "by
law. rule or regulation.. .outside of urban areas, [with] the complete use and alienation of any
mineral reSOiJI'Ces. . . .by theo"HIlet or alienee thereof.1I The Indiana Court of Appeals made it
plain in Uhl v. Liter's Ouarrvof Indiana. Inc., 384 N.E.2d 1099 (Ind. App. 1979), that when a
quarry is out:;idean urban.area it has the right to engage in any activity furthering the flcomplete
use and alienation .of any mineral resourcesl1 on its property. There is nO requirement that its
uses be broken down inro principal or accessory, as nothing related to the complete use and
alienation of the mineral resources can be prom'bited, no matter how characterized.
The fact that local governments have subsequently been' authorized by 'statute to regulate
quarriesm f]1;lod plains does not affect this result. Hamilton County did not enact any regulation
applicable to the quarry, flood plain or otherwise~ that would have divested it of any rights prior
to theann.ex~Ltion of the Carmel Sand and Gravel property by the. City of Carmel. Hence, when
Cannel tooK that property into its jurisdiction it was with all of tbe rights that had accrued to
Martin Mari.:tta prior to annexation under I.e. 36m7-4-1103. Those rightS, by definition.
included everything relating to "complete use and alienationlf of mineral "resources, including the
processing ofmatenal. .As Day v. Rvan makes clear, the source of that material is irrelevant.
"
~{
,
Martin Marietta was careful to protect its rights in its various agreements with the City
and with the Kingswcod n~ighborhood. For example, in the 1997 Hazel Dell agrccmlmt, the
City "acknowlcdge(dJ that [.Martin Marietta] will continue to conduct mining operations 011 all of
its remaining real estate in Clay Township. . ..11 Furthert the City undertook a broad obligation
. "
June 1812004
Pa.ge 5 of 6
not to "initiate any proceediui or take 811Y action, or participate in any proceeding or action to
limit, prohibit or restrict [Martin Marietta's] mining operations or the operatiorJs of the related
industries on [Martin Marletta's] real estate whatsoever. including, but not limited to nuisance or
1respass." The term proceeding was defined to include II civil, Griminal. aiJm1nlstrative or
investigativ~1P proceedings and "formal or imormal" maftex's. Importantly, these undenakings by
the City we:e covenants' that expressly ran with the land and a breach of them may thus have far-
reaching consequences,
The Hazel Den a~eement also acknowledges, the City's desire to annex certain teal estate
then owned by American, Aggregates. The City expressly agree~ however. that such
"anne;ti:ation shall not divest American of its mining rights. . . ."
In t;b.e subsequent May 2002 agreement between Manin Marietta7 the City and
Kingswood. among others, the City expressly "recognize[dJ that the uses now established on the
Martin property. , . constitUte l~gal non-conformmguses." There is no question that all of the
activities in which Martin Marietta is currently engaged on this prop~rty, including sand md
gravel ex1ra(~tian, processing, stock piling, sale~ and all related Operations) were being conducted
on the property at the time. It is also worth noting that Kingswood made the same
representation.
1n li,5ht of the above referenced Indiana code provision and the various agreements
between MM:inMarietta,the CitY and Kingswood, the oIlly question that can be raised is
whether the importation ofmater.ial to the site is somehow a change in tlSe. The decision in Day
v. Ryan makes it plain that processing and sale of materials is not made a different use or activity
simply because the material comes from a different location. This is consistent with the general
rule that a change in the way a particular Don-confonning use is carried out does not alter its
statuS IUlless the change is so fundamental as to alter the underlying nature of the use.
CONCLUSION
Martin Marietta acquired broad rights while it was operating in a rural area before
annexation. Those broad rights include all operations relating to the complete use and alienation
ofits minerai resources. mcluding processing of those resources. Martin Marietta was careful [0
pr~serve those rigbts in its various agreements with tbe City of Carmel and to make some of
them run witb. the conveyance of its property to the City. Indiana case law makes it clear that its
rights are not lost beeause it imponssome material to its site tor processing.
We trust that the foregoing responds adequately to Mr. YedJick's letter.
Lastly~ as we have conveyed many times to YO'L1t as well as to representatives of the
Kingswood Neighborhood. Association7Martin Marietta remains committed to working towards
a. mutually ac:cepeable resolution of aU pending issues. That resolution would, by its very nature7
acknowledge the concerns of the Kinsswood Neighborhoo~ as well as legitimate rights and
interests of lv.rartin Mariena. Our attempts to meet with representatives of the Kingswood
Homeowners Association have been rebuffed on several occasions. Nonetheless, we will
... ..:' -
June 18, 2004
Pa.ge 6 of 6
continue to work with you and members of your staff in order to pursue this goal of :finding a
reasonable resolution to the issues that confront us. We look fOlW'ard to continuing to work with
you toward!l this goal.
Please do not hesitate to contact me if you desire furlherinformation.
Very truly yours.
ZAW/sd
cc: John Tiberi (via e~mail)
Y VOlme Bailey (via eRmail)
Way.i1e Phears (via e-mail)
\,
INDY 1384487"\12
THOMA.S C. YEDLICK
5053 St. Charles Place
Cannel, Indiana 46033
Office 317-844-0141 x253
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June 17, 2004
To: Board of Zoning Appeals
cc: Michael Hollibaugh, Director
Department of Community Services
Re: Docket No. 04060001. A Public Hearing on an Appeal of
a determination bv the Director that there is a Question
whether nonconformine: uses exist on certain
vrouerties owned bv Martin Marietta
The purpose of this memorandum is to provide comments to the Board of Zoning
Appeals pursuant to Notice of Public Hearing on June 28, 2004. The basis for the
Hearing is a determination by the Director that there is a question "whether or not
nonconforming uses exist on certain properties" o"WIled or controlled by Martin Marietta.
These comments supplement my letter dated December 16,2003 (copy attached) to Mr.
Hollibaugh, which is incorporated herein by reference.
More specifically, the issue is whether the processing of third party sand and gravel by
Martin Marietta at their Hazel Dell Road processing plant constitutes a "new business"~
whether it constitutes an impermissible modification of their existing nonconforming use,
and therefore whether it is an impermissible use in tbis zoning district.
SUmmary
Kingswood neighbors seek the Board's determination that Martin Marietta is in violation
of the Zoning Regulations by establishing mineral processing as a new and separate use
not permitted in this zoning district. As such it seeks a resolution ohhis Board of Zoning
Appeals ordering Martin Marietta to cease and desist the processing of any sand and
gravel at the Hazel Dell plant if it is not obtained from the Hazel Dell quarry.
Further, pursuant to Carmel/Clay Zoning Ordinance (Chapter 28.1.5), the Board is
permitted to require Martin Marietta to conform to the applicable provisions of the
Zoning Ordinance. Chapter 28.1.5 reads, "In the event that a legal nonconforming use of
any building or premises is discontinued for a period of one (1) year, the use of said
building or premises shall thereafter conform to the applicable provisions of this
Ordinance," i.e. Special Use Permit.
The importation of third party sand and gravel has heen occurring for more than one year.
Further the importation of sand and gravel has been to the exclusion of their legal use of
extracting sand and gravel. Indeed, no significant extraction has occurred from the Hazel
Dell quarry for more than one year. As such, their legal nonconforming use is deemed
"discontinued for a period of one year". Should Martin Marietta wish to resume the
extraction of sand and gravel reserves at the Cannel Sand quarry, pursuant to the
Ordinance, they should be required to obtain the necessary Special Use Permit required
by 8-1 Zoning District.
Back2ronnd
Sand and gravel operations have been conducted on Martin Marietta property (referred to
herein as "Carmel Sand'') north of 106th Street for over 25 years. Although this property
is classified as 8-1 Residential, these sand and gravel operations have been exempt from
Carmel's zoning regulation as a legal nonconforming use.
A legal nonconfonning use is one which existed and was lawful when the restrictions
became effective, and which continued to exist since that time. Metropolitan
Development Com 'n of Marion County v. Schroeder, 727 N.E.2d 742 (Ind. Ct. App.
2000).
Derming sand and gravel operations
ForpUIposes of this discussion, sand and gravel operations (also known as "alienation
of mineral resources") are defined as the process of removing sand and gravel as raw
material from the ground and then processing the raw material by washing, crushing,
sorting, and stockpiling as finished product for sale. ''The quarrying and processing of
sand and gravel for sale is one distinct business" (Massachusetts Broken Stone Co. v
Town of Weston).
As such, processing operations are an extension of the extraction process, not
independent of it. The Hazel Dell Road processing plant acts as a factory for the raw
sand and gravel from the Hazel Dell quarry, and as part of a nonconforming use, is
subject to the same restrictions as the quarry itself
Third party sand and gravel is defined as raw sand and gravel obtained from other
quarries for processing at the Cannel Sand processing plant.
Diminishin2' asset concept.
There is a fundamental principle of zoning that, while it is deemed necessary to permit
the continuance of sand and gravel nonconforming uses that existed when the zoning
ordinance became effective, the aggregate extent of such uses is to be reduced
(eliminated) as the supporting mineral reserves are exhausted. 56 ALR4th 788.
Since the processing plant is only an extension of extraction of the minerals themselves,
once the minerals are exhausted, the use of the plant is also exhausted. "When a site no
longer yields minerals, the use is consummated." Fredal v Forster, 156 NVl2d 606.
State Code tends to define nonconforming uses in strict terms. In view of fact 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. Jacobs v. Mishawaka Bd of Zoning Appeals, 395 NE2d,
834.
Generally, nonconforming uses may not be materially altered, modified or expanded
beyond their use at the time they became subject to zoning restrictions. The operative
phrases above are "modified" and "expanded". A change in the core source of raw
material from extraction to sourcing from an outside third party is a material change
("modification") in the character of a sand and gravel operation. Further, the processing
of sand and gravel from other quarries is an "expansion" beyond that peTInitted by their
nonconforming use.
Carmel Sand exPands and becomes a new business
Sometime after the year 2000, Carmel Sand's 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 oithis processing plant by obtaining raw sand and
gravel from other quarries for processing at the Hazel Dell plant.
This was done .by trucking in raw sand and gravel from a quarry in Noblesville and from
a gravel quarry south of 96th Street. These raw materials have been, and continue to this
date, to be processed into finished product at the Carmel Sand processing plant.
This a clear violation of Cannel Sand's nonconforming use status for these reasons:
1. The "use" which is protected as legal nonconforming is the process of extracting
and fInishing sand and gravel from the Hazel Dell Road quarry. Finishing is only
an extension of the extraction process, not a separately established use.
2. The processing oftbird party sand and gravel independent from quarrying is
clearly a different use. This changes the character of the processing operations
from mineral extraction to commercial processing.
The test of whether processing of sand and gravel by Carmel Sand is permitted is based
on meeting the source test. Specifically, when Carmel Sand is completing the
processing of the raw mineral resources from its own property, i.e. from the Carmel Sand
quarry, then clearly tbis is part of sand and gravel operations. However when the existing
plant is converted to processing sand and gravel from other quarries, it fails the source
test. Thus processing of sand and gravel from other locations cannot be considered as
part of sand and gravel operations.
Processin{!' of Third-partv sand and .gravel is a new use and is not protected as a
nonconforming use.
If Carmel Sand's commercial processing of third-party sand and gravel does not qualify
as a sand and gravel nonconforming use, then it is a change in character to a use not
permitted in this zoning district.
In Maxey v. Board of Zoning Appeals (480 NE2d 589), the Court determined that a
change in the character of a nonconfonning use, although a similar use, to a use of higher
intensity was not permitted. In this case, a bus bam used by schools was sold affto
Maxey who intended to convert its use to a commercial vehicle maintenance facility.
The Court upheld the BZA's decision that the new proposed use of the school's bus
barn, although similar to the schools' use when broadly characterized as a vehicle
maintenance garage, is neither a permitted use under the ordinance nor a
continuation of a nonconforming use.
The court found "an important distinction is evident when the character of the use
is examined". The Court found that the character of use as a school bus barn was
substantially different than a commercial vehicle maintenance facility. The Court
identified excessive noise in close proximity to a residential neighborhood as one of
the key factors giving to a change in character of use.
The situation here is identical. The character of use by Martin Marietta previously was
for processing of extracted sand and gravel from the on-site quarry. Although processing
third party sand and gravel is similar to processing extracted sand and gravel, it is a
change in character of use because the materials are no longer being obtained from the
on-site quarry. The increase in vehicular traffic resulting from trucking in the material to
this residential zoned district rather than obtaining it on-site creates a significant increase
in noise injurious to the adj oining residential neighborhood.
In Massachusetts Broken Stone Co. v Town of Weston (195 NE2d 522), the Court ruled in
a manner similar to Maxey. The record shows that Massachusetts Broken Stone had
established a nonconforming use for the manufacture of concrete. For the most part, the
stone used in this process has come from the petitioner's on-site quarry, but on occasions,
to meet demand, fully crushed stone (i.e. finished product) was brought in from outside
sources. However Massachusetts had never brought raw stone to its premises to be
subjected to further processing.
The Court found that the quarrying and crushing of stone for sale is one distinct business,
not separate businesses (i.e. uses). The Court further found that the quarrying
company does not have a nonconforming use to bring onto the premises stone from
outside quarry sources to be further processed.
. '
-,
A nonconformine: use is limited to the area in use as of the date of the restrictive
ordinance.
Courts have stated that the rationale of the diminishing asset concept is that the very
nature of a sand and gravel operation is based upon the continuing use of the land, and
that this use is what is endorsed by the nonconfonning use concept. The diminishing
asset doctrine will normally not countenance the extension of a use beyond the
boundaries of the tract on which the use was initiated when the applicable zoning law
took effect. Stephan &Sons. Inc. v Anchorage Zoning Board, 56 ALR4th 761.
Nor is it possible to extend the protection of a permitted nonconforming use established
on one parcel of land to physically separate parcels, even if adjoining.
At issue with the Hazel Dell processing plant is that the processing plant has been
extended not simply to an adjoining parcel, but to an entirely separate quarry in another
jurisdiction.
Respectively submitted.,
~~
Tom Yedlick
Copy: James Brainard
Douglas C. Haney
Philip Thrasher
Bill McEvoy
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LEG A laB U 5' I N E 5 5 A DV I 5 0 R 5
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I June 8, 2004
WRITER'S DIRECT NUMBER: (317) 236-2319
DIRECT FAX: (J 17) 592-4788
INTERNET: ZetIWeiss@icemjller,com
RE: Martin Marietta Materials - Retail Sales
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; Via E-Mail -idobosiewicz(iiJ.ci.carmel.in.us
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! City of Carmel
[Department of Community Services
I Attn: Jon C. Dobosiewicz, Plamling Administrator
: One Civic Square
ICam1el, IN 46032
iDear Jon:
This is in response to the inquiry of the Department of Community Services in respect of
;the retail sales activities of Martin Marietta Materials, Inc. ("Martin Marietta") at its Retail
: Center located on the east side of Hazel Dell Parkway, just north of 1061h Street in Carmel,
:Indiana. Please accept this letter as Martin Marietta's response as to why the same is penl1itted
: in the S-l Zoning District.
I .
I
As I believe you know, Martin Marietta, and its predecessor, American Aggregates, have
Ibeen engaged in mineral extraction and processing at this location for more than 50 years. The
I commencement of these activities predates the adoption of a zoning ordinance by the City of
~Cannel. The activities of Martin Marietta and its predecessor at this location have always
iincluded the extraction, processing and retail sale of minerals, including sand, stone and other
I aggregate materials.
I
, As you also know, a Non-Confonning Legal Use
ICarmel/Clay Zoning Ordinance (the "Zoning Ordinance").
:Legal Use is defined as follows:
is defined in Chapter 3 of the
Specifically, a Non-Conforming
A Use of a Building, land or premises existing at the. time of the
passage of this ordinance which does not confonl1 to all of the
applicable pro\risions of this ordinance but 'did confor'rh to
applicable provisions of any ordinance superseded by this
ordinance.
I
:The activities of Martin Marietta were commenced and undertaken at the time of the adoption of
Ithe Zoning Ordinance. Thus, pursuant to the above-referenced definition, retail sales by Martin
:Marietta are a Non-Conforming Legal Use in the S-l Zoning District.
I
I
lOne American Square I Box g2001 I Indianapolis, IN 46282-0002 I Phone: (317) 236-2100 I Fax: (317) 236-2219 I wwwicemiller.com
~Illdianapolis I Chicago I Washington DC
,
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IJune 8, 2004
,Page 2
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We trust that this answers your question with regard to the propriety of the operation of
;Martin Marietta's Retail Center under and pursuant to the applicable laws of the City of Carmel.
~Please do not hesitate to call if you have any comments or question in respect of this matter.
Very truly yours,
ICE MILLER
Zeff ft. WeISs
Zeff A. Weiss
I
IZA W:msd
Ice: John Tiberi (via e-mail)
! Wayne Phears (via e-mail)
Yvonne Bailey (via e-mail)
Mike Hollibaugh (via e-mail)
,
IINDY 1377026vl
G SALE ON Delivery Available .
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il &MulCh
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Delivery Available
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at our new customer friendly Retail Center just '.
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I 'SAVE I
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-----.1.----.1
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DRAFT MEMORANDUM
TO:
File
DATE:
April 20, 2004
J
RE:
Martin Marietta - Cannel Sand
Staff needs an analysis of the past and existing uses of the Carmel Sand operation, as
conducted by Martin Marietta and its predecessors. The operation includes a processing
plant and surrounding land located east ofK.ingswood subdivision and west of Hazel Dell
Parkway, roughly midway between 106th Street to the south and 116th Street to the north.
1. Background. The Cannel Sand property is located in the S~ 1 residential zoning
district (Chapter 5 of our Zoning Ordinance). In this district, property owners have
the right to maintain residential and agricultural uses, but they can also seek approval
from the Carmel Clay Board of Zoning Appeals (BZA) for certain types of "special
uses", for example, churches, golfcoUIses, day nurseries, mineral ex~action, private
recreational facilities, riding stables, and schools. No industrial-type uses are allowed
in the S-l district, even as special uses. While Martin Marietta and its predecessors
have mined sand and gravel at this location for many (40?) years, without any special
approvals from the BZA, in recent years there has been contentious litigation between
Martin Marietta and the nearby residents of the Kingswoodsubdivision, with the City
in the middle of the controversy and dodging pot shots from both sides.
2. Legal Considerations Relating to the Mining Use. Since the Carmel Sand property
has been in the City's zoning jurisdiction (Clay Township) for over 40 years, it seems
likely that both City officials and the mine operators believed that the sand and gravel
mining operation was exempt from the Zoning Ordinance because ofIe 36-7-4-1103.
This is the state statute that historically precluded the City from adopting "an
ordinance ... that would prevent, outside of urban areas, the cOl1}plete use and
alienation of any mineral resources....n However, a judge ruled in 2001 that the
Mueller land (which is located to the south of the Kingswood and Carmel Sand
properties) was within Carmel's urban area and thus subject to tbe Zoning
Ordinance. Then, the City annexed all of the land in question in 2003, which
unquestionably makes the Carmel Sand property subjectto the Zoning Ordinance
today. Thus, while the mining use may have beenlawful at some point in the past, it
continues to be lawful today only if it constitutes a "legal, nonconforming usel) under
the Zoning Ordinance.
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3. Legal Considerations Relating to the Processing Plant. As I understand it, the mine
operators historically used the processing equipment primarily (if not exclusively) to
process the sand and gravel that was mined at the Cannel Sand site. However, Martin
Marietta in recent years has suspended mining operations at the site and appears to be
trucking in minerals for processing which were extracted from mines in other
communities. This raises,the question whether the processing plant also would qualify
as a legal, nonconforming use, even if we assume that the miIDng operati on continues
to be lav.ful. \Vhile the plant may have constituted an "accessory use" to the mine at
some point in the past, it may no longer be an "accessory", and perhaps it should now
be considered an industrial use which would require a rezone or a use variance for
continuation.
4. Recommendation. Since there seems to be a budding public controversy as to
whether either or both uses remain lawful at this time.as legal, nonconforming uses,
the entire factual situation ought to be presented to the Board of Zoning Appeals for
resolution. Under our Zoning Ordinance, the BZA (not staff) is the proper authority to
make this type of determination. See Section 28.06 of the Zoning Ordinance. In
additionj Ie 36-7-4.,918.1 clearly authorizes the BZA to hear such cases, subject of
course to judicial review.
"
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PERTINENT DEFINITIONS (FROM CHAPTER 3)
USE. The employment or occupation of a Building, Structure or land for a person's service, benefit or
enjoyment.
USE, ACCESSORY. A Use subordinate to the main Use, located on the same Lot or in the same Building
as the main Use, and incidental to the main Use.
USE, CONFORMING. A Use of a Building, land or premises which does conform to all of the applicable
provisions of this ordinance.
USE. NONCONFORMING ILLEGAL. A Use of a Building, land or premises existing at the time of the
passage of this ordinance which does not conform to all of the applicable provisions of this ordinance nor
those of any ordinance superseded by this ordinance.
USE, NONCONFORMING LEGAL. A Use of a Building, land or premises existing at the time of the
passage of this ordinance which does not confonn to all of the applicable provisions of this ordinance but
did confonn to applicable provisions of any ordinance superseded by this ordinance.
TEXT OF CHAPTER 28
Nonconforming Uses and Exemptions
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:
28.01.01 A legal nonconforming use may be e>.1ended throughout a building provided no
structural alterations are made therein, except those required by law. Existing residences in the
various Business and Industrial Districts may be structurally altered and expanded.
28.01.02 A legal nonconfonning use may be changed to another legal nonconforming use of the
same restrictions, provided no structural alterations are made in the building. Whenever a legal
nonconforming use has been changed to a conforming use, it shall not thereafter be changed to a
legal or an illegal nonconforming use.
28.01.03 No building shall be erected upon any premises devoted to a legal nonconforming use,
except in conformance with the applicable provisions of this Ordinance.
28.01.04 Nothing herein contained shall require any change in the plans, construction or
designated use of a building for which a building permit or Improvement Location Permit has
been heretofore issued, and the construction of which has commenced and has been diligently
pursued within one (1) year of the date of issuance of such permit, and which entire building shall
be completed according to such plans within three (3) years from the date of passage of this
Ordinance.
28.01.05 In the event that a legal nonconforming use of any building or premises is discontinued
for a period of one (1) year, the use of said building or premises shall thereafter conform to the
applicable provisions of this Ordinance.
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.
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28.01.07 These provisions shall apply in the same manner to any use which may become a legal
nonconforming use due to a later amendment to this Ordinance.
28.02 lllegal Nonconforming Use Specifications. An illegal nonconforming use shall not be
validated by the adoption of this Ordinance.
28.03 Nonconforming Use in a FP, FW or FF District. A legal or illegal nonconforming use
located in a FP, FW or FF District shall not be expanded or enlarged without a permit for construction from
the Indiana Natural Resources Commission plus adherence to the appropriate restrictions herein,
28.04 Nonconformance Exemptions. A building nonconforming only as to height. lot area or yard
requirements may be altered or eXtended, provided that an extension meets all of the height, yard and other
applicable provisions of this Ordinance.
28.05 Intermittent Use, The casual, intermittent, temporary or illegal use ofland, buildings or
premises shallllot be sufficient to establish the existence of a nonconforming use and the existence of a
nonconforming use on part of'a lot or tract shall not be construed to establish a nonconforming use on the
entire lot or tract.
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 in accordance with the Rules of Procedure of the Board.
28.07 Exemptions. The following structures and uses shall be exempt from the provisions of this
Ordinance:
28.07.01 Wires, cables, conduits, vaults, laterals, pipes, mains, valves or other similar equipment
for the distribution to consumers of telephone or other communications, electricity, gas or water
and the collection of sanitary sewage or surface water operated and/or maintained by a
government entity or a public utility, including customary meter pedestals, telephone pedestals,
distribution transformers and temporary utility facilities required during construction, whether any
such facility is located underground or above ground, but only when' such franchised utility
facilities are located in a street right-of-way or in an easement less than twenty-five (25) feet in
width. The provisions of this Ordinance shall be complied with on all private property and in
easements tvventy"five (25) feetin width and over.
28.07.02 Railroad tracks, rights-of-way sigJ.1als, bridges and similar facilities and equipment
located on a raih'oad right-of-way, and maintenance and repair work on such facilities and
equipment.
28.07.03 Farms, as defined herein, are permitted in all districts. Dwellings and major (over 400
square feet) accessory buildings are subject to obtaining Improvement Location Permits for
construction.
28.07.04 Nothing in this OrdiD.ance shall prevent the restoration ob building or structure
destroyed less than forty percent (40%) of its market value at the time of such destruction
(exclusive of the value of the lot) by explosion, fire, flood, earthquake, windstorm, act of God, riot
or act of a public enemy, subsequent to the passage of this Ordinance; or shall prevent the
continuance of the use, except an illegal nonconforming use, of such building, structure or part
thereof, as such use existed at the time of such impairment of such building, structure or part
thereof. All such restoration and construction shall be subject to the obtaining of an Improvement
Location Permit, with the fees waived for the restoration of a building or structure destroyed less
than forty percent( 40%) and restored according to its state of existence prior to destruction. All
restorations resulting in a divergence from original plans or restoring a building or structure
destroyed forty percent (40%) or more shall be subject to obtaining an Improvement Location
Permit and payment of fees.
28.07.05 All City of Carmel and Clay Township governmental facilities and buildings are exempt
from the zoning requirements and procedures listed herein,
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THOMAS C. YEDLICK
5053 81. Charles Place
Cannel, IN 46033
April 6, 2004
'J' ).P"-'~
Off 844-0141 x253
Home 580-1614
Michael Hollibaugh
Depaliment of Community Services
City of Carmel
One Civic Square
Carmel; IN 46032
Re: Processin2: of Third-party Sand and Gravel at Hazel Dell Road
Dear Mike:
U On December 16, 2003, I provided you with notice of zoning- via latioD by Martin
Marietta on Hazel Dell Road. A copy of that noti ce is enclosed for reference. Again in a
conference meeting on March 15, 2004, this subject was discussed in some detail. .
Under the Land Use Regulations of Carmel, the Director has the' responsibility to enforce
the zoning regulations of Carmel. Since this subj ect has been a matter oflong standing
concem to both,the City and citit.ens ofKlngswood, I would appreciate a response to this
complaint in ten days so an appeal can be processed if appropriate.
Yours truly, tj ". f7
42~ . f/'QJ!~,;::Jf
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Tom Yedlick
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THOI\1AS C. YEDLICK
5053 St. Charles Place
Carme4 Indiana 46033
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December 16,2003
Michael Hollibaugh
Department of Community Services
City of Carmel
One Civic Square
Carmel, Indiana 46032
Mayor James Brainard
City of Cannel Mayor
Re: Processing of Third~party Sand and Grave) at Hazel Dell Road
Dear Mike:
u
This letter is provided per your request to memorialize our prior conversations on the
above subject.
Beginning sometime in late 2002, after Martin Marietta was denied a special use pennit
to extract sand and gravel from the Mueller property, they began bringing in outside
material to process at the Carmel Sand processing plant on Hazel Den Road. More
particularly, the operations at issue are the "processing operations" which occur after
sand and gravel has been extracted. By way of description, these operations include
washing, grinding, sorting, sizing, stockpiling, and hauling.
These processing facilities have been the source of nuisance complaints for years from
nearby Kingswood residents. Specifically these processing operations bave not been able
to operate 'Without spillover ofnoise affecting residential neighbors. This constant state of
noise has prevented neighbors from the full and complete use and enjoyment of their
property.
This condition is now magnified by almost constant hauling onto the premises of Third-
party sand and gravel from other locations. Third-party sand and gravel is not within the
scope permitted by "alienation of mineral resources", which has been the Wlderlining
theory ofland use previously relied upon.
Enforcement of Zonin2 Re2,ulations
The City has the authority to enforce existing zoning regulations. As outlined below,
U Martin Marietta's processing ofThird~party sand and gravel is not in compliance with
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Carmel's land use regulations. Therefore, the City can and should enforce the City~s
zoning regulations and require Third.party sand and gravel processing be suspended.
Further, as the City embarks on revising the mining ordinance, the matter of non-
conforming uses needs to be specifically addressed. While the ordinance will be the
basis on which future expansion of mining activity will be judged, it also can serve the
community by defining whether uses previously engaged in are within the concepts of
legal non-conforming uses. It has been too long accepted that~ since Martin Marietta's
activities have long existed vvithout challenge, they are "grandfathered". This is far from
reality.
State law supercedes local ordinances and land use re2ulations outside an urban
area
While Cannel Sand is zoned S-1 (residential), the extraction of sand and gravel has been
going on for over 25 years. The extraction of mineral resources has been an exempt
activity under Ie 36-7-4-11 03(C). Specifically, this chapter does not "authorize an
ordinance or action of a (municipality) that would prevent, outside of urban areas, the
complete use and alienation of any mineral resources.
In effect, alienation of~eral resources is exempt from local regulation only when it is
done outside an urban area.. The purpose of this chapter is to protect the owner of mineral
resources from interference from realizing the full benefit of mineral resources from his
property .
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Non-conformiog use and "vested interest"
It is clear that a change in the underlining zoning of property cannot deprive the owner of
a vested interest that he has established iAI the use of ills property. "Vested interest" is a
code phrase for maintaining a non-conforming use.
Several cases in Indiana help define a nonconforming use. A "nonconforming use" is a
use of property that lawfullv existed prior the enactment of a zoning ordinance, and
which is allowed to continue after the effective date of the ordinance even though it does
not comply with the applicable use restrictions. The use ofland or buildings may be
protected from existing zoning restrictions if the use is one which existed and was lawful
when the restrictions became effective, and which continued to exist since that time.
Metropolitan Development Com 'n of Marian County v. Schroeder, 727 N.E.2d 742 (Ind.
Ct. App. 2000).
It is clear from above that those uses must be legally established prior to a change in
zoning restriction in order to be allowed to continue as non-conforming. Carmel Sand
first came within the scope of an "'urban area" (i.e. contiguous to a municipality) when
Carmel annexed the Kingswood subdivision. Therefore only those uses legally
established at that time can qualifY as legal non-conforming uses. The use at that time
was Ualienation of mineral resources~'.
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Processing operations at Carmel Sand can not qualify as a legal nonconforming use ifno
extraction activity is associated with the processing?
Carmel Sand operations constitute a public nuisance
It has been stated that whatever obstructs free use of property, interfering with the
comfortable enjoyment of life and property by an entire community or neighborhood, is a
public nuisance. It is no defense to an action that the plaintiff built his residence close to
an existing structure alleged to be a nuisance. A municipality may define. prevent, abate,
and suppress nuisances. I.L.E. Municival Corvorations ~ 341.
A business otherwise lawful may be a nuisance by reason of its location in an
inappropriate place, as where it is carried on in a city or populous neighborhood, in a
residential district, or in close proximity to dwelling houses.
The processing facilities on Hazel Dell Road have been the source of complaints for
years from nearby Kingswood residents. Specifically these processing operations have
not been able to operate without spillover of noise affecting residential neighbors. The
EP A requirement for back-up alanns on material hauling equipment is the most egregious
offense. Likewise, the "banging'" of falling rocks has been problematic. This constant
state of noise has prevented neighbors from the full and complete use oftbeir property.
Transition
It can be said that the transition to regulation of mining has not been a smooth one. The
issue herein of defining a legal non-conforming use as it relates to only sand and gravel is
microcosmic of issues to be faced in the final ordinance adoption. It would be in
everyone's best interest to take on that challenge now as a basis for the ordinance to
come.
Thank you for your consideration.
Sincerely.
~~
Tom Yedlick
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THOMAS C. YEDLICK
5053 St. Charles Place
Carmel, Indiana 46033
December 16, 2003
Michael Hollibaugh
Department of Community Services
City of Carmel
One Civic Square
Carmel, Indiana 46032
Mayor James Brainard
City of Carmel Mayor
Re: Processine: of Third-party Sand and Gravel at Hazel Dell Road
Dear. Mike:
This letter is provided per your request to memorialize our prior conversatiollB on the
above subj ect.
Beginning sometinie in late 2002, after Martin Marietta was denied a special use permit
to extract sand and gravel from the Mueller property, they began bringing in outside
material to process at the Cannel Sand processing plant on Hazel Dell Road. More
particularly, the operations at issue are the ''processing operations" which occur after
sand and gravel has been extracted. By way of description, these operatiollB include
washing, grinding, sorting, sizing, stockpiling, and hauling.
These processing facilities have been the source of nuisance complaints for years from
nearby Kingswood residents. Specifically these processmg operations have not been able
to operate without spillover of noise affecting residential neighbors. This constant state of
noise has prevented neighbors from the full and complete use and enjoyment of their
property.
This condition is now magnified by almost constant hauling onto the premises of Third-
party sand and gravel from other locations. Third-party sand and gravel is not within the
scope permitted by "alienation of mineral resources", which has been the underlining
theory of land use previously relied upon.
Enforcement of Zoilinl! Ret!ulations
The City has the authority to enforce existing zoning regulations. As outlined below,
Martin Marietta's processing of Third-party sand and gravel is not in compliance with
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Cannel's land use regulations. Therefore, the City can arid should enforce the City's
zoning regulations and require Third-party sand and gravel processing be suspended.
Further, as the City embarks on revising the mining ordinance, the matter of non-
conforming uses needs to be specifically addressed. While the ordinance will be the
basis on which future ex:pansion of milling activity will be judged, it also can serve the
community by defining whether uses previously engaged in are within the concepts of
legal non-conforming uses. It has been too long accepted that, since Martin Marietta's
activities have long existed without challenge, they are "grandfathered". This is far from
reality.
State law suuercedeslocal ordinances and land use re2ulations outside an urban
area
While Cannel Sand is zoned S-1 (residential), the extraction of sand and gravel has been
going on for over 25 years. The. extraction of mineral resources has been an. exempt
activity under Ie 36-7-4-11 03 (C). Specifically, this chapter dQes not "authorize an
ordinance or action of a (municipality) that would prevent, outside of urban areas, the
complete use and alienation of any mineral resources.
In effect, alienation of mineral resources is exempt from local regulation only when it is
done outside an urbat).area. The purpose of this chapter is to protect the owner of rriineral
resources from interference from realizing the full benefit of mineral resources from his
property.
N on-conformin2 use and "vested interest"
It is clear that a change in the underlining zoning of property cannot deprive the owner of
a vested interest that he has established is the use of his property. "Vested interest" is a
code phrase for maintaining a non-conforming use.
Several cases in Indiana help define a nonconforming use. A "nonconfoiming use" is a
use of property that lawfullv existed prior the enactment of a zoning ordinance, and
which is allowed. to continue after the effective date of the ordinance even though it does
not comply with the applicable use restrictions. The use of land or buildings may be
protected from existing zoning restrictions if the use is one which existed and was lawful
when the restrictions became effective, and which continued to exist since that time.
Metropolitan Development Com 'n of Marion County v. Schroeder,727 N.E.2d 742 (Ind.
Ct. App. 2000).
It is clear from above that those uses must be legally established prior to a change in
zoning restriction in order to be allowed to continue as non-conforming. Cannel Sand
first came within the scope. of an "urban area" (i.e. contiguous to a municipality) when
Cannel annexed the. Kingswood subdivision. Therefore only those uses legally
established at that time can qualify as legal non-conforming uses. The use at that time
was "alienation of mineral resources".
"
The processine of outside material is a different. separate use from alienation of
mineral resources
By defuiition, only activities comprising the alienation of mineral resources can qualify
as preexisting uses, and therefore eligible for legal non-confonning use status. Alienation
of mineral resources starts with where the mineral resources are located and is completed
when they are in condition for the end user.
Beginning in late 2002, after Martin Marietta was denied a special use permit for the
Mueller property, Martin Marietta began using the Carmel Sand processing plant to
process "third-party sand and gravel". Third-party sand and gravel is used to describe
sand and gravel minerals that are extracted from other locations, but delivered to Carmel
Sand for processing. These locations are both outside Carmel Sand property limits as
well as outside the City of Carmel and Hamilton County.
The test of whether processing of sand and gravel by Carmel Sand is permitted is based
on meeting the source test. Specifically, when Carmel Sand is completing the alienation
of mineral resources" from its own property, i.e. from the Carmel Sand location, then
clearly this is alienation of mineral resources. However when existing plant facilities are
converted to processing sand and gravel from other locations, it fails the source test.
Thus processing of sand and gravel from other locations cannot-be considered alienation
of mineral resources.
Processine of Third.,.party Sand and Gravel is not protected as a nonconforming use.
rfCarmel Sand.'s commercial processing of third-party sand and gravel does not qualify
as alienation of mineral resources based on the source test, then it is subjectto existing
land use restrictions. It is clear that an S-l zoning district is residential. It is also well
settled that mineral extraction is a permitted special use, requiring a Special Use Penuit.
But the processing operations fail this test also. The commercial activities of processing
third-party sand and gravel, without extraction, have never been legally established.
Under Carmel zoning, processing alone is neither the extraction of mineral resources, nor
a permitted Special Use. In order to bea legal use, Carmel's land use regulations would
require that the property be properly rezoned.
It is clear that when the processing of sand and gravel follows the extraction of these
mineral resources, the processing can be considered as an intragal part of "the complete
use and alienation of any mineral resources". However, when the minerals are not
extracted but merely imported for processing, the processing cannot be considered part of
the "complete use and alienation of mineral resources". To state this in another way, in
order for processing to be permitted, it must be part and parcel of extracting the minerals.
Martin Marietta- is in violation of existine land use reeulations
Martin Marietta has modified their Carmel Sand operations so as to no longer be
eligible to be classified as "mineral extraction". Specifically, Martin Marietta has
suspended extracting minerals from the Carmel Sand site, and has "converted" the
processing facilities to process sand and gravel extracted from other locations.
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Processing operations at Carmel Sand cart not qualify as a legal nonconforming use if no
extraction activity is associated with the processing?
Carmel Sand operations constitute a public nuisance
It has been stated that whatever obstructs free use ofproperty, interfering with the
comfortable enjoyment of life and property by an entire community or neighborhood, is a
public nuisance. It is no defense to an action that the plaintiff built his residence close to
an existing structure alleged to be a nuisance. A municipality may defme, prevent, abate,
and suppress nuisances. IL.E. Municival Corporations ~ 341.
A business otherwise lawful may be a nuisance by reason of its location in an
inappropriate place, as where it is carried on in a city or populous neighborhood, in a
residential district, or in close proximity to dwelling houses.
The processing facilities on Hazel Dell Road have been.the source of complaints for
years from nearby Kingswood residents. Specifically these processing operations have
not been able to operate without spillover of noise affecting residential neighbors. The
EP A requirement for back-up alarms on material hauling equipment is the most egregious
offense. Likewise, the "banging" of falling rocks has been problematic. This constant
state of noise has prevented neighbors from the full and complete use of their property.
Transition
It can be said that the transition to regulation of mining has not been a smooth one. The
issue herein of defining a legal non-conforming use as it relates to only sand and gravel is
microcosmic of issues to be faced in. the final ordinance adoption. It. would be in
everyone's best interest to take on that challenge now as a basis for the ordinance to
come.
Thank you for your consideration.
Sincerely,
Tom Yedlick
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SETTLEMENT AND RELEASE AGREEMENT
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Tills SETTLEMENT AND RELEASE AGREElVIENT is entered into as of the 17th day
of May, 2002 by and among Kingswood Homeowners Association, Inc., an Indiana not-for~
profit corporation ("Kingsw6od"); Martin Marietta Materials, Inc., a North Carolina
corporation; (''Martin Marietta"); Hughey, Inc., an Indiana corporation ("Hughey"); the City
'. of Carmel, Indi~a, an Indiana municipal corporation (the "City"); and the City of Carmel
and Clay Township Board of Zoning Appeals (the "BZA"). This Agreement is effective
when executed by all parties and is premised on the following recitals which are incorporated
. into the Agreement
RECITALS
A. Martin Marietta and the Helen M. Mueller Conservatorship ("Mueller") are
parties to a certain lease dated January 1, 2000 with respect to certain real estate located
in Hamilton County, Indiana, comprising 237 acres, more or less, and more particularly
described on Exhibit A attached hereto and made a part hereof(the "Mueller Property").
B. Martin Marietta is the owner of certain real estate located in Hamilton
County, Indiana, located north of 96th Street and south of l06th Street, depicted on
Exhibit B attached hereto and made a part hereof (the "Martin Property").
C. Martin Marietta and Hughey are parties to a certain agreement and lease dated
August- 8, 1998 with,respect toa portion of the Martin Property comprising 8.18 acres,
more or less, and more particularly described on Exhibit C attached hereto and made a .
part hereof (the "Hughey Premises"). Martin Marietta leased the Hughey Premises to
Hughey for the purpose of operating a ready mix concr.ete plant andrelated activities (the
''Hughey Operatio~s").
D. In an agreement with American Aggregates. Corporation, the predecessor in
interest to Martin Marietta. dated November 5, 1997 with respect to construction of Hazel
Dell Parkway (the "Hazel Dell Agreement"), the. City agreed that the operations on the
Martin Property (i) were outside an "urban area" as defined by I~C. ~ 36-7-4-1103; and
(ii) constitute existing; legal non-conforming uses pursuant to case law and as defined in
Carmel's .current zoning ordinance. .
E. On May 30, 20QO, Klngswood brought suit against (i) the City; (ii) Steven
Engleking as Director of the Department of Conimunity Services of the City of Carmel;
(ui) the BZA, consisting. of members Charles Weinkauf, Pat Rice, Leo Dierckman,
Michael Mohr and Earlene Plavchak ("Board Members"); (ivY Martin Marietta; and (v)
Hughey in the Hamilton Superior Court, docketed as Cause No; 29D05-0110-CP-2169
(the "Lawsuit"). The Lawsuit sought declaratory and mandatory relief, and alleged, inter
alia. that the mining of the Mueller Property by Martin Marietta and the Hughey
Operations were undertaken without obtaining. appropriate lari.duse approval from the
City.
F. The City, the BZA, Martin Marietta, and Hughey (together, the "Defendants")
denied and continue to deny the claims of Kingswoad in the Lawsuit, and are entering
into this Agreement to avoid the expense and uncertainty of further litigation.. ~either
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this Agreement, nor the consideration for it, shaJl be construed as an admission of fact or
of any liability by the Defendants.
G. The Defendants and Kingswood have participated in lengthy consultation and
negotiations through their respective counsel to resolve the issues in the Lawsuit and
have concluded it would be in their best mterests to settle and compromise their disputes
on ther terms and in the manner provided in this Agreement. Steven Engelking and the
Board Members were joined in their official capacity, not individua.1ly, and are not
necessary to resolution ofllie LawsUit and the agreements contained herein.
AGREEMENTS
NOW, THEREFORE, Kingswood, the City, the BZA, Ma.rtiD. Marietta, and Hughey, iri
consideration of the mutual covenants in: this Agreement and the acts to be. performed
pursuant to this Agreement, hereby agree as follows:
A. Agreements of the City
L Subject to Section A.3 below, the City s~all not object to Martin Marietta's
application to the BZA for special use approval for sand and gravel extraction an the
Mueller Property, inchiding a variance of setback requirements to reduce the required
buffer to 150 feet where abutting Kingswood subdivision and to 100 feet where abutting
other property not owned by or subject to mining rights in favor of Martin Marietta (the
C<Special Use and Variance"), subject to the Commitments (as hereinafter defmed).
2. Subject to Section A.3 below, the City shall not object to Martin Marietta's
appli.cation to tb,e BZA for a variance of use to permit the processing plant presently
located west of Hazel Dell Parkway and north Of 106th Street to be relocated to the east
side of Hazel Dell Parkway, at a location farther froTI!- any home in Kingswood than at
present (the "Use Variance").
3.. The City has retained Spectra Environmental Group ("Spectra") to review
Martin Marietta's Special Use and Variance and Use Variance applications (together,.the
"Applications") aIld advise the City whether they meet the Indiana Mineral Aggregates
Association's guidelines for reclamation and the City's standards for buffer area
landscaping. The City's Department of Community Services (the "Department") shall
recommend that the applications be approved only if they meet those guidelines and
standards and Martin Marietta makes the Comniitments as part of its applications. The
City shall also review and consider the Applications in accordance with its ordinances
and procedures.
4. The City, with the assistance of Spectra, shall conduct a study, of the
southeastern part of Clay Township, including specifically the Mueller Property as well
as all existing Martin Marietta parcels in Clay Township. The study shall describe in
detail all existing land uses and ,suggest appropriate development standards for those uses
and, if appropriate, new regulations covering noise and blasting in the vicinity. The
study, which should be considered for incorporation into the Carmel Clay Comprehensive
Plan, shall include a policy, subject to Paragraph's A.8 and C.3 below, on the suitability
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of allowing mining uses on property in Carmel and Clay Township.
5. The City shall work with Martin Marietta to draft and submit to the Plan
Commissien for consideration and recommendation to the City Council a Mineral
Resource Overlay Zone Ordinance (the "Overlay Ordinance") and a change in the official
zoning maps pursuant to which the Mueller Property would be rezoned to the MR
Mineral Resource Overlay Zone, with Martin Marietta making the Commitments. The
Commitments shall be consistent with, and no less restrictive than, the commitments -that
Martin Marietta has made in cOIll1ection with any roiriing permit application in any other
jurisdiction in Indiana. The City shall be specifically authorized to enforce the
Commitments.
6. . The City shall exp'edite the Overlay Ordinance adoption process so. that 'all
required public hearings are held by the Plan Commissign and City Council within 4
months of the Effective Date (as hereafter defmed), with the intent that the Overlay
Ordinance and the ordinance rezoning the Mueller Property to the MR Mineral Resource
Overlay Zone become effective within 6 months of the Effective Date. However, failme
to accomplish these goals by the specified dates shaH not affect any other provision of
this Settlement Agreement.
7. The City shall not prejudge, during the ordinance-adoption process, the issue
of whether mining uses. other than sand and gravel extraction by dredging if the
Applications are approved, should be allowed on aU or any part of the Mueller Property.
8. The 'City recognizes that the uses now established on the Martin Property,
including but not limited to the Hughey Operations, constitute legal, nonconforming uses.
However, the City also recognizes that existing non-conforming uses may not be
. substantially modified, expanded, or added to without a change of zoning classification or
BZA approval of a special use or variance. The City also recognizes that upon approval
of the Applications, Martin Marietta shall have a vested right to commence and complete
sand and gravel extraction on the Mueller Property as requested in such Applications.
9. The City shall pay reasonable attorney's fees that have been incurred. by
'Kingswood in: connection with the Lawsuit in the amount of$7,500.00.
B. Agreements of Martin Marietta
1. Martin Marietta shall not assert that the Mueller Property is outside an urban
area.
2. Martin Marietta shall seek approval of the Applications to conduct sand and
gravel extraction, subject to the Commitments, on the Mueller Property; and shall not
conduct any mining or related operation on the Mueller Property, other than sand and
gravel extraction by means of a dredge if the Applications are approved, without
obtaining a change in zoning classification or other zoning approval.
3. Martin Marietta shall not permit Hughey or any other related industry to
expand its operations beyond the Hughey Premises or add uses not existing on the Martin
Property as of the Effective Date without appropriate governmental approvals, except
Hughey may, provided it has entered into valid lease or other agreements with Martin
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Marietta, (i) continue to utilize the area between the Hughey Prerpises and the existing
benn along the south right-of-way line of 106th Street, as depicted on Exhibit C attached
hereto and made a part hereof for outside product storage and (ii) expand the ground floor
square footage of the existing structure on the Hughey Premlses by up to twenty percent
(20%).
4. Upon approval of the Applications, Martin Marietta shalT execute written
commitments providing that its sand and gravel extraction on the Mueller Property north
of '106th Street shall be subject to the following conditions and restrictions (the
"Commitments'I):
(a) If Martin Marietta is permitted to commence sand and
gravel extraction on the Mueller Property by June 1, 2002 and
is not precluded from continuing such extractiQI1, Martin
Marietta shall, subject to approval by the BZA and the Indiana
Department of Natural ResoUrces, move the processing plant
located north of 106th Street west of Hazel Dell Parkway and
adjacent to the Kingswood Subdivision to a new location just
east of Hazel Dell Parkway and north of 106th Street. Such
new location shall be farther from any home in the Kingswood
Subdivision than at present. Subject to obtaining the required
governmental approvals, Martin Marietta shall start the plant
relocation no later than January 31, 2004 with completion of
such move to occur no later than March 31, 2004. Martin
Marietta sl:ui11 terminate all processing operations at the current
site of the processing plant as soon as the relocation of the
plant is completed.' Martin Marietta shall install and maintaih
noise abatement features at the relocated plant which are no
less effective than those now utilized, including the use of on-
. site berms and aggregate piles as buffers, a,nd the use of strobe
light signals at night instead of a-ydible signals, for all
equipment as permitted by applicable legal requirements. The
existing tree buffer on~azel Dell Parkway shall be maintained
and shall not be disturbed. Subject to obtaining any required
permits and approvals from applicable governmental
authorities, Martin Marietta shall recycle waste water froni the
relocated processing plant from the. east side of HazeL Dell
Parkway to the lake(s) Qn the Mueller Property and Martin .
Property west of Hazel Dell Parkway and north of 106th Street.
(b) All overburden removal on the Mueller Property north
of ,l06th Street shall be comPleted during daylight hours
(bet'Neen one half hour after ,sunrise and one half hour before
sunset), during the months of November through March, and
only on days other than Saturday or Sunday. Martin: Marietta
shall also cause any operations under its control to be
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undertaken and conducted in a manner so as to minimize noise,
dust, light or smoke impa9t on surrounding properties.
(c) No surface operations shall be undertaken on the
wooded portion of the Mueller Property north of l06th Street
located directly south of the existing park at the northeast
comer of Gray Road and 106th Street.
(d) All trucks entering public streets from operations
conducted by Martin Marietta in Clay Township north of 96th
Street shall bave covered beds.
(e) Martin Marietta. shall reclaim' the Mueller Property
north of l06th Street (except the wooded portion of the Mueller
Property north of 106th Street located airectly south of the
existing park at the, northwest corner of Gray Road and l06th
Street) and the Martin Marietta property between i061h and
1 16th Streets abutting the Kingswood Subdivision and west of
Hazel Dell Parkway as a lake with (i) slopes no steeper than 3
to 1, (ii) a waterline not less than 150 feet from the nearest
property line in the Kingswood Subdivision, assuming that the
normal pool elevation, subject to seasonal variation~, is 722
above mean ,sea level, and (iii) domestic grass coverage of not
less than eighty,percent per square yard. Martin Marietta shall
submit a recla~ation plan to. .the City's consultant before the
City makes. any . recommendation for' approval of the
Applications. Reclamation shall begin on the northern portion
of the Mueller Property and move in a southerly direction.
(f) Subject to approval of the co-conservators of Mueller
and the court overseeing it, Martin Marietta shall cause to be
conveyed to Hamilton County or the City, as tbecase may be, a
forty-five foot half right of way along the northern edge of
106th Street measured :from the existing center line of 106th
Street.
(g) All reclamation shall comply generally with the
reclamation guidelines adopted by the Indiana Mineral
Aggregates Association, a current copy of which shall be
provided to the Director annually, and shall be done in
accordance with the Mining and Reclamation Plan' submitted
by Martin Marietta in connection with the Applications, as last
revised and approved in connection with the Applicatons (the
"Plan").
(h) Martin Marietta agrees that it as part of sand and gravel
extraction it shall not pump water from the Mueller Property,
except as necessary to convey sand and gravel through a pipe
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to the processing plant,. and will utilize a closed loop system
pursuant to which water .pumped. from the Mueller Property to
the processing plant is returned. to the Mueller Property (except
as may be lost naturally through evaporation or in the
processing activity. Upon co"mpletion of the sand and gravel
extraction, Martin. Marietta shall take no actions to drain the
lake created, or to reduce the water level below 722 above
mean sea level, subject to seasonal variations and natural
fluctuations.
. (i) From the overburden removed during sand and gravel
extraction, Martin Marietta shall construct an earthen landscape
berm six (6) feet ill height on the north side of 106th Street on
the Mueller Property (except the wooded portion of the
Mueller Property located directly south pf the existing park at
the northwest comer of Gray Road. and 106th Street).
(j) Martin Marietta shall be responsible for all
environmental matters arising from its operations and shall
indemnify and hold harmless the adjacent landowners in the
Kingswood Subdivision with respect to any losses, claims or
costs arising therefrom.
(k) Sand and gravel shall be extracted only through the use
... of a floating dredge. , Such extraction will be done in th~..
sequence depicted in the Plan submitted by Martin Marietta in '.
connection with the Applications. Martin Marietta agrees that
once it hasco1Dll1enced sand and gravel. extraction on the
Mueller Property, no sand and gravel from any source other
than Mueller property north of i 06th Street will be processed
through the Processing Plant until extraction on the Mueller
property north ofl06th Street is complete.
(1) Any other c9~tments required by the BZA in its
approval of the Applications including, but not limited to, a
perimeter buffering landscape plan approved by the
Department.
S. Martin Marietta shall pay the City's reasonable attorney's fe.es incurred in
connection with the Lawsuit, and the fees for its qualified mIning engineer, geologist or
consultant, to ana,ggregate maximum of$25,000.00.
6. Martin Marietta shailpay KirIgswood's reasonable attomey'sand experts fees
incurred in connection with the Lawsuit, upon receipt of documentary evidence of the
work performed and time expended, to a maximum of$21,750.00. Such amount will be
due thirty (30) days after the Effective Date.
7. For each calendar year or part thereof that Martin Marietta is extracting sand
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and gravel from the Mueller Property-north ofl06th Street, it shall pay th~ City $5,000.00
to monitor Martin Marietta's compliance with the Commitments. Such payment shall be
due on the first day of the second month following approval of the Applications and on
each anniversary thereof. -
8. For each calendar year or part thereof that Martin Marietta is extracting sand
and gravel from the Mueller Property north of 106th Street, it shall pay the Kin.gswood an
amount to be used for publication of a Kingswood directory, maintenance of common
areas in Kingswood or social events for the entire Kingswood neighborhood. The first
such payment shall in tb,e amount of $26,750.00 and shall be due on the first day of the
second month following approval.of the Applications. Each subsequent payment shall be
in the amount of $5,000 and shall be_ due on each anniversary of the fjrst day of the
sec()nd month following approval of the Applications.
9~ Once a year, at the invitation of Kingswood, and for so long as Martin
Marietta is conducting sand and gravel extraction or performing reclamation on the
Mueller Property, Martin Marietta WIll send a representative to- a meeting of Kingswood
to report on Martin Marietta's activities on the Mueller Property.
C. Agreements of Kings wood
1. Kingswood shall cause the Lawsuit to be dismissed with prejudice.
Kingswood shan and .does hereby RELEASE .i\ND FOREVER DISCHARGE the
Defendants and tlu::ir r~spective corporate parents and affiliates, all of their present or
former. officers or _ elected officials, employees~ representatives, agents and directors,
from any and all claims, demands, losses, damages, injuries, actions or causes of acti-on.
with respect to, on account of, arising out of or in any way connected with the allegations
of Kings wood in tbe Lawsuit. .
2. Kingswood recognizes that the uses now established on the Martin Marietta
parcels property, including but not limited to the Hughey Operations, constitute legal,
nonconforming uses. However, Kingswood also recognizes that, except as provided in
Section D below, existing non-conforming uses may not be substantially modified,
expanded, or added to witho.ut a change of zoning classification or BZA approval of a
special use or variance. Kingswood also recognizes that upon approval of the
Applications, Martin -Mariettq. shall have a vested right to commence and complete sand
and gravel extraction on the Mueller Property as requested in such Applications.
3. Kingswood shall not oppose the - enactment of an Overlay Ordinance
pennitting sand and gravel extraction on the Mueller Property.
D. Agreements of Hughey
1. Hughey shall not expand its operations at or beyond the Hughey Premises
without appropriate governmeIltal approvals, except the parties agree that Hughey may,
provided it has entered into valid lease or other agreements with Martin Marietta, (i)
continue to utilize the area between the Hughey Premises and the existing berm along the
south right-of-way line of 106th Street, as depicted on Exhibit C attached hereto and made
a part hereof for outside product storage and (ii) expand the ground floor square footage
7-
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. ,
of the existing structure on the Hughey Premises by up to twenty percent (20%).
2. Hughey shall pay reasonable attorney's fees that have been incurred by
Kingswood in connection with theLawsuit'in the amount of$7;500.00.
E. General Agreements of the Parties
1. Neither the Lawsuit nor anything contained in this Agreement shall be
deemed to have determined that the Mueller Property is in an "urban area" as that term is
defIned by I.C. S 36-7-4-1103.
2. In making this Agreement, each party hereto has relied solely on its own
judgment, belief and lmowledge of the nature oHhe matters described herem.
3. This Agreement constitutes the parties' entire agreement with respect to this'
matter, and it supersedes all prior negotiations, representations or agreements. either
written or oral between the parties.
4. This AgreerJ;1ent shall become effective and binding upon the parties upon the
date (the "Effective Date") upon which the last party hereto executes this Agreement,
provided that if this Agreement is not fully executed by all the parties on or before May
17, 2002, it shaH terminate and shall not bind any parties that have executed this
Agreement prior to such date.
5. Notwithstanding anythip.g herein to the contrary, the provisions of paragraphs
B.7 and'B. 8 of this Agreement shall become effective and binding upon the parties only
upon approval by tb,eBZA of the Applications provided~ however, that such. approvals
. are granted nbt later than June 1, 2002. .
6. Each of K.jn.gswood, Martih Marietta and Hughey represents that it has. taken
all necessary and appropriate corporate action to make this Agreement its legal, valid and
binding obLIgation. The City represents that it has taken all necessary and appropriate
municipal actiQn to make this Agreement the legal, valid and binding obligation of the
City: IGngswood, Martin Marietta, Hughey at:l<1 the City recognize that this agreement is
for the.purp6se of settlement of the' Lawsuit and is not binding on the HZA., the' Carmel
Clay PLan Commission or the Common Council of the City in the exercise of their
responsibilities for land use and zoning of ClaY-Township and the City of Carmel.
7. This Agreement shall be go:verned by the laws of the State ofIndialia.
8. This Agreement may be modified only by a written agreement executed by
Kingswood and Defendants, provided that nothing herein shall be deemed a restraint
upon the police power of the City.
9. Each of the covenants contained in this Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors, and assigns,
10. This Agreement ~ay be executed in any number o( counterparts, each of
which sh~ll be an original but all of which together shall constitute one and the same
instrument.
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IN' WITNESS WHEREOF~ this Agreement has been executed as of the date fIrst
set forth above.
:GHE2:P~
(sigiiature)
J;;o7t" f) ,/.IJ/..'J
(printed name)
Its
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INDSOl DRW 49084lv10
KrnGSWOOD HOMEOWNERS
ASSOCIATION~ INC.
By: <:f1~ c- t/L-dJj;.......A
(signature) {;/
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(printed name) .
Its: . r?A~5/DrE,d(
. . OF CARMEL, INDIANP9
By. . ~rU-,z..u~
ames A. Brainard~ Mayor
Attest:
By:
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(printed name .
~ ~ -A4 d..~
(title) '-
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EXHIBIT A
Legal Description 01 Mueller Property
PARCEL A: Part of the North Half of Section 9, and part of the South Half of Section 4, all
in Township 17 North, Range 4 East, of the Second Principal Meridian in Clay Township,
Hamilton County, Indiana, described as follows:
Beginning atfue Northwest comer of Section 9, Township 17 North, Range 4 East oftbe
Second Principal Meridian in Clay Township, Hamilton County, Indiana;. thence South 89
degrees -55 minutes 56 seconds East (assumed bearing) on the North line of said Section 9, a
distance of 1336.18 feet to the Northwest comer- ofllie East half of the Northwest quarter of
said Section 9; thence South 00 degrees 11 minutes 12 seconds West on the West line of said
East halfl716.00 feet; thence South 89 degrees 55 minutes 56 seconds East parallel with the
North line of said Section 9, a distance of 1336.01 feet to the West line of the East half of .
said Section 9; thence South 00 degrees 11 minutes 33 seconds West on th~ West line of said
East half 156.75 feet~ thence South- 89 degrees 55 minutes 56 seconds East parallel with the
North line of said Section 9, a distance' of 919.68 feetto the Westerly line of real estate
conveyed to the City of Carmel, Indiana, by a docUment titled "Certificate of Clerk" recorded
in the Office ofllie Recorder of Hamilton County, Indiana, as Instrument Number
9709754848; (the following fifteen courses being on the Westerly line of said real estate) 1.)
thence North 08 degrees 36 minutes 31 seconds East 885.22 feet; 2.) thence North 02 degrees
53 minutes 53 seconds East 201.00 feet; 3.) thence North 08 degrees 36 minutes 11 seconds
East 660.61 feet; 4~) thence Norl1l29 degrees 48 minutes 29 seconds West 55.59 feet;
,5.) thence North 80 degrees 51 minutes 37 seconds West 303.34 feet~ 6.) thence North 89
degrees 51 rrrinutes 37 seconds West 148.00 feet; 7.) thence North 60 degrees 14 minutes 56.
seconds West 57.55 feet; 8.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet
to the North line of said Section 9, being also the South line of Section 4, Township 17
North, Range 4 East, said point being 3302.24 feet South 89 degrees 55 minutes 56 seconds
East oftbe Southwest corner of said Section 4; 9,) thence continuing North 00 degrees 04
minutes 04 seconds East 16.50 feet; 10.) thence North 60 degrees 23 minutes 05 ,seconds East
57.55 feet; 11.) thence North 89 degrees 50 minutes 43 seconds East 254.47 feet; 12.) thence
South 81 degrees 22 minutes 39 s'econds East 198.24 feet; 13.) thence North 25 degrees 45
minutes 13.seconds East 826.18 feet; 14.) thence North Zl degrees 15 minutes 23 seconds
East 576.29 feet~ 15.) thence North 01 degrees 37 minutes 09 seconds East 180.00 feet to a
point on a line that is paraliel with the South line of said Section 4, and extends Easterly from
a point on the East line of the Southwest Quarter of said Section 4 that is 154.10 feet North of
the Southeast comer of the North Half of said Southwest Quarter; thence North 89 degrees
55 minutes 56 seconds West on said line 1718.86 feet to the aforesa~d point on the East line
of said Southwest Quarter, being also the East line of KINGS WOOD SUBDMSION,
SECTION THREE, a subdivision in Hamilton County, Indiana the Secondary Plat of which)
as amended December 22, 1988, is recorded in said Recorder's Offic.eas Instrument Number
8900204 on pages 111 and 112 of Plat Book 15; thence South 00 degrees 07 ininutes 43
seconds West on the East Ime of said Southwest Quarter 154.10 feet to the Southeast corner
of the North Half of said Southwest Quarter; thence North 89 degrees 51 minutes 18 seconds
West on the South line of the North Half of said Southwest Quarter 1521.03 feet to the
N ortheastcomer of real estate conveyed to the City of Carmel, Indiana, per a Deed recorded
in the Office of the Recorder of Hamilton County, Indiana on page 865 of Deed Recprd 329,
- . .
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said corner being 1146.65 feet East of the Northwest comer of the South Half of said
Southwest Quarter; thence South 00 degrees 27 minutes 42 seconds West on the East line of
said real estate 918.75 feet, per the aforesaid deed, (919.89 feet by measurement) to the
Southeast comer of said real estate, said comer lying on a line that extends South 89 degrees
51 minutes 29 seconds East, measured parallel with the North line of South Half of said
Southwest Quarter from a point on the West line of said Southwest Quarter that is 406.45
feet North of the Southwest comer of said Section 9; thence North 89 degrees 51 minutes 29
seconds West on said line and the Westerly prolongation thereof, a total distance of 1145.58
feet, per the aforesaid deed, (1144.55 feet, by measurement) to the aforesaid point on the
West line of said Southwest Quarter, said point being also the Southwesterly corner of real
estate conveyed tothe City of Carmel, Indiana, by a Warranty Deed recorded in said
Recorder's Office as Instn.unent Number 8726638; thence South 00 degrees 19 minutes 51
seconds West on the West .line of the Southwest Quarter of said Section 9, a distance of
406.45 feet to the place of beginning, containing 202.902 acres, more or less. (105.981 in
Section 9, and 96.921 in Section 4).
Subject to all legal easements and rights-of-way.
PARCEL B: Part of the Northeast Quarter of Section 9, Township 17 North, Range 4 East of
the Second Principal Meridian in Clay Township, Hamilton County, Indiana, described as
follows:
Beginning at the Northeast comer of the Northeast Quarter of Section 9, Township 17 North,
Range 4 East ofllie Second PriI,lcipal Meridian in Clay Township, Hamilton County, Indiana;
thence North 89 degrees 55 minutes 56 secondsWest (assUlpedbearing) on the N-orth line of
. said Section 9, a distance of1189.27 feet to the Easterly line of real estate conveyed to the
. City of Carmel, Indiana, ,by a document titled "Certification of Clerk" recorded in the Office
of the Recorder of Hamilton County, Indiana, as Instrument Number 9709754848; (the
following five courses being on the Easterly line of said real estate) 1.) thence'South 11
degrees 50 minutes 53 'seconds West 131.07 feet; 2.) thence South 86 degrees 32 minutes 20
seconds West 102.72 feet; 3.) thence South 01 degrees 00 minutes 13 seconds West 348.8~
feet; 4.) thence South 12 degrees 02 minutes 32 seconds West 250.45 feet; 5.) thence South'
08 degrees 36 minutes 31 seconds West 1159.69 feet to a point on a line that is parallel with
the North line of said Section 9, at a point that is 1872.75 feet South 00 degrees 11 minutes
33 seconds West measured parallel with the West line of said Northeast Quarter; thence
South 89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a
distance of284 feet, more or less to the Westerly edge of water of Wbite River; thence
Northeasterly with the meandering of said edge of water to the East line of said Section 9;
thence Northerly on said East line 107 feet, more or less, to the place of beginning,
containing 29.628 acres, more or less. .
Subject to all legal easements and rights~of-way
0.
EXHIBIT B
Depiction of Martin Property
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EXHIBIT C
Description and D~piction of Hughey Premises
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EXHIBIT B
. ' . f Martin Property
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