HomeMy WebLinkAboutYedlick Motion to Dismiss
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STATE OF INDIANA
HAMILTON COUNTY SUPERIOR COURT NO.5
COUNTY OF HAMIL TON
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Thomas Yedlick
Petitioner,
v.
MIchael Hollibaugh, Director of the
Department of Community Services of
the City of Carmel,
and
Kent Broach, Leo Dierckman, James
Hawkins, Earlene Plavchak, and
Madeleine Torres, as Members of the
Carmel/Clay Board of Zoning Appeals,
Respondents
and
Martin Marietta Materials, Inc.
Intervenor.
CAUSE NO. 29D05-0602-MI-307
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MOTION TO DISMISS-
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Thomas Yedlick (herein "Yedlick"), Petitioner in this matter, hereby moves the Court to
dismiss this action, and in support represents the following:
This action is for Declaratory Judgement regarding Martin Marietta Materials, Inc.'s
("Martin Marietta") Application to expand existing nonconforming mining operations
In 2002, all of Martin Marietta's mining operations were declared to be
nonconforming uses by Respondent Michael Hollibaugh ("Hollibaugh") in his capacity as
Director of the Department of Community Services ofthe City of Carmel ("Director").
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In December 2003, Martin Marietta filed an application to geographically expand its existing
nonconforming surface limestone mining operations in a S-l Residential zoning district by a
seamless and continuous expansion to newly acquired property (the "Mueller property"),
also in a S-l Residential zoning district.
Martin Marietta's Application was unanimously denied by the BZA on April 24,
2006. Martin Marietta appealed the denial in. United States District Court.
SETTLEMENT BETWEEN MARTIN MARIETTA AND THE CITY OF CARMEL
On or about July 17, 2008, Martin Marietta and the City of Carmel concluded a
settlement which, among others, essentially granted Martin Marietta special use status to expand
its existing nonconforming mining operations, granted Martin Marietta the right to open pit mine
the same Mueller South property for which it was denied a special use permit in 2006, and
essentially established a new category of special use under Carmel's Land Use Regulations for
"Related Industries" for industrial uses in a residential district.
The settlement agreement was presented by the City as a compromise in lieu of existing
zoning ordinances and mining regulations to settle a multi-million dollar claim by Martin
Marietta that the City had breached a provision in a 1997 agreement not to regulate Martin
Marietta's operations in any manner. This settlement agreement was presented to the Board of
Zoning Appeals ("BZA") for ratification rather than the legislative body.
Y edIick believes the settlement agreement does not resolve the right of existing
nonconforming mining operations to expand, and is an improper procedure by which to add a
new use to residential zoning for "Related Industries". Nor is the settlement agreement the
proper approach to remand the denial of the 2006 special use application for reconsideration by
the BZA.
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However, while Y edlick was not a party to the settlement agreement, he believes that
further litigation of these matters is not likely to provide a significant improvement to the
compromises contained therein.
WHEREFORE, Petitioner Thomas Yedlick prays for an order of this Court dismissing this
action,
Respectfully submitted,
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Thomas Y edlick, P~t'
5053 St Charles PI' e
Carmel, IN 46033
August 26, 2008
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CERTIFICATE OF SERVICE
The undersignecl hereby certifies that a copy of the foregoing Motion to Dismiss was
forwarded by United States mail, postage prepaid, this 26th day of August, 2008, upon the
following persons:
Thomas E. Mixdorf, Esq.
Abigail B. Cella, Esq.
ICE MILLER LLP
. One American Square, Box 82001
Indianapolis, IN 46282-0002
Jo1m R. Molitor
9465 Counselors Row, Suite 200
Indianapolis, IN 46240
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Thomas YedIick
5053 St. Charles
Carmel, IN 46033
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