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HomeMy WebLinkAboutFindings of Fact CARMEL/CLAY BOARD OF ZONING APPEALS Carmel, Indiana Docket No. :. 08030032 SU Petitioner: Martin Marietta Materials, Inc. 1. ~if ~~}E~~~ 2. 3. 4. 5. 6. DATED TH IS /7 DAY OF n20~~~ Board Membetl Page 7 of 6 - z-:\shared\forms\BZA 3pplicolions\ Special Use Application ~ev, 01/i 1/2098 CARMEL/CLAY BOARD OF ZONING APPEALS Carmel, Indiana Docket No. : 08030032 SU Petitioner: Martin Marietta Materials, Inc. FINDINGS OF FACT - SPECIAL USE (Ballot Sheet) 1. 2. 3. 4. 5. 6. DATEDTHIS /77&4AYOF ,9U~ cJO tJ? ~ ~~k" ',. 'tU2k~ Boar Member Page 7 of 8 - z:\shared\fonns\BZA applicalionsi Special Use Application rev. 0111112006 CARMEL/CLAY BOARD OF ZONING APPEALS Carmel, Indiana Docket No. : 08030032 SU Petitioner: Martin Marietta Materials, Inc. FINDINGS OF FACT - SPECIAL USE (Ballot Sheet) 1, 2. 3. 4. 5. 6. DATED THIS /7- I DAY OF ,2od Board Member Page 7 ,nf 8.- z.:\shmed\forrlls\BZA applications\ Special Use Applir-.aHon reI!. Dtff 1/2008 CARMEL/CLAY BOARD OF ZONING APPEALS Carmel, Indiana Docket No. : 08030032 SU Petitioner: Martin Marietta Materials, Inc. FINDINGS OF FACT - SPECIAL USE (Ballot Sheet) 1. 2. 3. 4. 5. 6. DATED THIS I ,:{+" DAY DF "':S-Ul ( _.~ l~~~__ B~-Member v P3ge 7 of 8 - "\sharedllormsIBZA applica1ioes\ Special Use Application rev. 01/11/2000 CARMEL/CLAY BOARD OF ZONING APPEALS Carmel, Indiana Docket No. : 08030032 SU Petitioner: Martin Marietta Materials, Inc. FINDINGS OF FACT - SPECIAL USE (Ballot Sheet) 1. 2. 3. 4. 5. 6. DATED THIS )( DAY OF -..J VI ('-7 ~~ BO~ ember Page 7 of B- z:\snaredlforrnslBZA epplicslions\ Special Use ApplicatiOn rev. 01/1112006 -,' , ~ '.' Comparison of Commitments (INDY 16229666v.6) to Mining Ordinance (4/18/05) Subject '!GlrJet;pJ..t;,~: :~., ' Overburden 1.- D. removal hours of operation Mining, hauling and I-E. processing hours of operation "~'q~t;n(JtetpdIC?S~ ' Surface blasting Notification of blast outside normal times to Director Surface blasting distances from houses Stemming of blast holes 11,-A.2. II.-A.5. II.-A.7. II.-A.1O. Frequency levels of II.-A.l!. blasts 7am -8pm M-F, November-March, except for barriers, berms 7am-8pm M-F, 8-2 Saturday, no work on Sundays, holidays ;.. . ~ . .'. .." llam-2pm,M-F As soon as possible for blasts occurring outside specified hours. No closer than 1780 feet from structure Follow Vibra Tech recommendations, a Ilow review by DOCS Blast designs to increase frequencies above None specific to overqurden removal 6am-8pm M-F, 8am- 2pm Saturday for mining and processing; no work on. Sundays and holidays [6-174 (b)) Commitment is stricter than ordinance. Commitment matches ordinance. Hauling not specifically prohibited under ordinance. -. ":", ,; ,.;._.",-". ;Ir Commitment is stricter than ordinance. 10am-3pm, M-F [6- 17S(b)(l)1 At least two hours before the blast[6- 175(b)(4)] No closer than 500 feet of property line of structure[6-175(b)(7)] No specific requirement No specific requirement Depending on time of notification, could be stricter or less strict than ordinance. Commitment much more restrictive. Good commitment by MM. Excellent commitment by MM that should significantly reduce complaints. 1 .~ 20 hz, follow Vibra Tech recommendations Peak pa rtide II.-B.l. 0.5 ppv measured Same [6-17S(c)(2)]. Commitment matches ordinance. velocity limit at property line of (ground vibration) residential structure Maximum air' II.-B.2. Consistent with Bureau of Mines, hut Commitment matches ordinance overpressure limits Bureau of Mines. every effort to reduce airblast to 120 dB or less [6-175(c)(4) Self monitoring of 11.-C.1. Airblasts to be All blasts monitored by MM proposes some relief to self-monitor. airblasts monitored by third party who reports Vibra Tech; to Administrator however, if MM (DOCS) but paid by achieves on operator[6-175(d)(1)] average during a calendar 12-mo. period no more than 2 blasts per mo. w/air overpressure exceeding 120 db or less for a period of 3 yea rs, may submit a plan for self-monitoring. Blasting annual II.-C.5. Annual report to Annual report to DOCS, Commitment is valuable to DOCS. Opportunity to discuss and report DOCS on blasting, includes complaint log review blasting practices and community concerns. including review listing blasting of blasts below 20 complaints and claims hz frequency and for damages[6- 2 above 120 dB airblast Any blast that exceeds 0.2 ppv or 120 dB airblast triggers reporting to DOCS, agrees to cooperate for solution Five or more reportable events triggers consulta nt review, meeting with DOCS for resolution Reportable events 11.-D~1. Ongoing reportable 11.-D.4. events 175(d)(8)] Violation of permit, penalty for the exceeding 0.5 ppv[6- 176(e)] Administrator may require studies by" Operator to assess impact, resolve problems[6-17 5( a)(4)] No direct reporting of violation in Ordinance, although DOCS can request data. Positive approach to resolution of problems in commitment. {i~~~~~M~j:;i:t;~~:r~~:~;J Additional studies III. or monitoring Director requests study, M M makes proposal within 45 days, undertakes study Conduct investigations, obtain data, assess fees to applicant for inspection, monitoring, assessment[6- 167(dl(4)&(9)] Reasonable compromise and commitment. i')Mqtii;IM9m.tQii;!1gjp;~;. ?;IX~14\,,:',: Cooperate with City IV. Utilities Department M M agrees to work with Department, assist in monitoring, agrees to pay for mining-related monitoring costs No specific provision for hydrogeology, but provision within Mining Plan for studies[6-171(jll and above under Additional studies and monitoring Good commitmentand recognition of needed cooperation with Utilities Department. &:e'iif}fliJlfrJj.ij~.()its;" ";~~Jt'j,.' VI.-A. M M to provide Similar to certain 3 'i~e.c{~fr/(l~iaf1t{".:'" ;:~',f ;;~Vll~~I;:;":, ' . Submittal of VIII.-D reclamation bond Mine Plan consisting of Operations Plan, Mine Plan Map, Reclamation Plan every 2 years requirements far Mining Plan for new operations[6-171(a )] Good commitment, but not as complete as Ordinance, no Annual Report as in Ordinance except for blasting. Provide bond accepta ble to Director, update as appropriate Similar to requirements[6-170- (~}) No provisions for cancellation, calling bond for failure to reclaim, but can be addressed in bond language. 4 CARMEL BOARD OF ZONING APPEALS MARTIN MARIETTA'S APPLICATION FOR SPECIAL USE PERMIT MUELLER SOUTH PROPERTY - UNDERGROUND LIMESTONE Docket No: 08030032 SU .~iNDINGS OF FACT AND CONCLUSIONS OF LAW 1. Martin Marietta Materials, Inc. ("Martin Marietta") has filed an application with the Carmel Board of Zoning Appeals (BZA) for approval to mine underground limestone on propelty that it leases from the E. and H. Mueller Development, LLC ("Mueller Development"). The entirety of the tract for which a special use permit is sought is south of 106th SL and is more particularly described on Exhibit "A" hereto. For convenience, the tract will be referred to as "Mueller South" or the "MueHer South Property." 2. The Mueller South Property is bounded on three sides by property owned and/or leased by Martin Marietta and currently used for mineral extraction. The property is bounded on the east by a major thoroughfare, Hazel Dell Parkway, on the north by East 106th St. and, across that, by propel1y also owned by Mueller Development and mined by Martin Marietta. No property currently used for single family residential purposes is adjacent to the Mueller South Property. 3. The Kingswood subdivision residence nearest to the Mueller South Property is approximately 1,300 feet from the closest point of mineral extraction proposed by Martin Marietta pursuant to the application that is the subject of this Docket No. 08030032 SUo 4. Martin Marietta's application was found to be appropriate and complete by the Department of Community Services ("DOCS") and thereafter was the subject of Technical Advisory Committee ("T AC") reviews. 5. As a result of comments during the T AC process, Martin Marietta made various changes to its application and related materials submitted in support thereof, a summary of which is listed on Exhibit "B" hereto. 6. In addition to T AC review, the City's mining consultant, Spectra Environmental Group, Inc. ("Spectra"), reviewed Martin Marietta's application and all related submittals. 7. Martin Marietta has submitted to the DOCS of the City aU of the materials and information required by Sections 21.02 and 21.03 of the Carmel/Clay Zoning Ordinance. 8. Martin Marietta's application is for underground limestone extraction upon Mueller South Property. Lel!al Framework in Which the Board's Decision Must Be Made: 9. The Mueller South property is zoned S-1. Under Section 5.02 of the Carmel/Clay Zoning Ordinance, mining is a "Special Use" in the S-1 district. 10. According to Section 21.01 of the Zoning Ordinance: "Special uses shall generally be considered favorably by the Board, except in cases where the Board tinds the proposed Special Use obviously inappropriate as a result of the special and unique conditions determined as a result of the review procedure established herein." 11. A Special Use is a use permitted upon a showing that the conditions specified in the ordinance for the issuance of a permit have been met. Town of Mer!illville Bd. Of Zoning Appeals v. Public Storage, Inc., 568 N.E.2d 1092, 1095, (Ct. App. Ind. 1991), trans. denied. 12. A board hearing an application for a special use permit is obligated to apply the criteria established in the ordinance. Town of Merrillville, infL'a. The Board does not have discretion to apply different criteria from those set forth in the ordinance. - 2 - 13. The Board's decision in this matter must be based on evidence taken at a quasi- judicial hearing. Network Towers. LLC v. Board of Zoning Appeals of LaPorte County, 770 N.E.2d 837 (eL App. Ind. 2002). Speculation, unsupported opinions, generalized expressions of fear or concern, and irrelevant matters are not evidence on which this Board can rely. This Board is not permitted to decide a special use permit application on the basis of such concerns or speculation. Compliance with the Ordinance's Special Use ReQuirements: 14. Section 21.04 of the Zoning ordinance sets forth the criteria to be applied by this Board in granting or denying a special use permit. They are discussed below: A. "The particular, physical suitability of the premises in question for the special use." a. This standard is met. The Mueller South Property has a valuable underground limestone deposit located on it and is contiguous to a large, long established open pit quarry. Specifically, the Staff of the DOCS observed in its Department Report, dated July 17,2008, that "the soil composition is that favorable for mining, with high percentages of sand, gravel, limestone. Mining operations are adjacent to this site, or in close proximity." Thus, the operations on Mueller South will be able to share facilities with the existing adjacent quarry, including access roads, parking, equipmen~ maintenance, and offices, among other things. This will result in an efficient use of land and lessen any irnpact to nearby residences, while still enabling recovery of the limestone minerals on Mueller South. b. The use sought pursuant to this appLication IS a "seamless progression" or continuation of mining activities commenced long ago to the south of Mueller South. This use - 3 - was long ago intended by Martin Marietta and its predecessor to extend north on and across MueUer South. B. The economic factors related to the VI'oposed special use. such as cost/benefit to the community and its anticipated effect on sunoundine property values: a. This standard is met. Mining the underground limestone deposit on Mueller South provides a needed material with the least impact on the community. Mmtin Marietta submitted a study of property values in the Kingswood neighborhood, which showed that they have not been adversely affected by the existing mine activities to the south and east of the Kingswood Neighborhood. The City's consultant, Spectra, previously described the original study by Integra Realty Resources as "very comprehensive" and "agree[d] with the conclusion that Mining at Martin Marietta has not negatively impacted property values." Further, DOCS has found in respect of this issue that "[T]he materials mined from the site will be used within the City as well as within the state in a positive manner for construction of homes, roads, etc." b. No one presented any evidence that approval of this application would adversely affect property values. C. The SociallNei!!hborhood Factors Related to the Proposed Special Use Such as Compatibility With the Existin1! Uses and Those Permitted tInder Current ZoniD!! in the Vicinity of the Premises Under Consideration and How the Proposed Special Use Will Affect Nei2:hborhood Inte2ritv: a. This standard is met. The Zoning Ordinance adopted by the Carmel City Council expressly allows mineral extraction as a special use in the 5-1 District. The Carmel City Council has zoned the Mueller South Property S-l, thus finding it to be compatible with the uses allowed in that district The Carmel City Council has further directed that "Special uses shall generally - 4 - be considered favorably by the Board, except in cases where the Board finds the proposed Special Use obviously inappropriate as a result of the special and unique conditions determined as a result of the review procedure established herein." In Section 21.01, the DOCS has previously noted in a Department Report that "A mineral extraction use includes blasting, .. .". b. No one offered any evidence that the property is "obviously inappropriate as a result of special and unique conditions," This is particularly so given the fact that the property owned by Martin Marietta immediately to the south is presently used in an identical fashion, and that the closest point of underground mineral extraction proposed on Mueller South Property and the nearest residence in the Kingswood Neighborhood is approximately 1,300 feet. c. The evidence before the Board is that Mueller South is contiguous to an existing, large quany. It is obviously compatible with such use. D. The adequacy and availability of water. sewa2e. and storm drainage facilities and police and tire protection: a. This standard is met. The proposed operation does not impose any additional burdens on water, sewage or storm drainage facilities, nor does it implicate any additional police and fire protection. The plan has been reviewed by all appropriate departments of the Cannel City government in the T AC process, by the City's mining consultant, Spectra, and by the City Utilities Department and its consultants. No one identified any inadequacy in the items specified by this criterion. E. The effects of the proposed Special Use on vehicular and pedestrian traffic in and around the premises upon which the Special Use is proposed: a. This standard is also met. This special use application proposes to use the existing access points to the quarry in operation to the immediate south of the Mueller South Property. - 5 - No additional entrances are proposed or allowed by this permit. Dump trucks, concrete trucks, other heavy trucks, and normal sized vehicles already use the roads applicant proposes to use and there is no evidence that they are inadequate for the proposed special use. b. Pedestrian traffic will not be allowed on the MueUer South Property. The property will be protected and screened by berms and fencing as described in the application submittals and the Statement of Commitments offered by Martin Marietta. c. The DOCS has previously specifically noted tllat "there will be minimal vehicular or pedestrian impact, as long as the haul roads use the mine to the south of the property for ingress/egress. The installation of the pedestrian pass along 1061h & Hazel Dell will be a positive impact for pedestrian access along these roads. Public pedestrian & vehicular access will not be allowed within the site, for safety reasons." Commitments 15. Martin Marietta has tendered its Statement of Commitments to the Board for its consideration if the Board finds that, based on the foregoing and the tendered Statement of Commitments, the standards in Section 21.04 are met. 16. The commitments offered by Martin Marietta reasonably mitigate any adverse impacts from the proposed special use and assure it will be operated in compliance with aU local, state, and federal laws. - 6 - Conclusion The Board finds that the criteria set forth in Section 21.04 for the issuance of the special use permit requested by Martin Marietta in respect of underground mining of limestone upon Mueller Property South are met and, accordingly, directs the issuance of the permit, as limited by the Statement of Commitments. . - 7 - EXHIBIT A Legal Description Part of the North Half of Section 9, Township 17 NOlth, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana, described as follows: Commencing at the Northwest corner of Section 9, Township 17 North, Range 4 East of the 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 1,336.18 feet to the Northwest corner of the East Half of the NOlthwest Quarter of said Section 9, said corner being the PLACE OF BEGINNING of the within described real estate; thence South 00 degrees 11 minutes 12 seconds West on the West line of said East Half 1,716.00 feet; thence South 89 degrees 55 nlinutes 56 seconds East parallel with the North line of said Section 9, a distance of 1,336.01 feet to the West line of the East Half of said Section 9; thence South 00 degrees 11 nlinutes 33 seconds West on the West line of said East Half 156.75 feet; thence South 89 degr~es 55 minutes 56 seconds' East parallel with the North line of said Section 9, a distance of 919.68 feet to the Westerly line of real estate conveyed to the City of Carmel, Indiana, by a document titled "Celtification of Clerk" recorded in the Office of the Recorder of Ha11lilton County, Indiana, as Instrument Number 9709754848 (the following eight 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 31 seconds East 660.61 feet; 4.) thence North 29 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 03 minutes 10 seconds West 148.00 feet; 7.) thence NOlth 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, said point being 3,302.24 feet South 89 degrees :i5 minutes 56 seconds East of the Southwest corner of said Section 9; thence North 89 degrees 55 minutes 56 seconds West on said North line 1,966.06 feet to the place of beginning, containing 96.921 acres, more or less. ..l I 'II EXHIBIT B Summary of Maior Submittals (maps and studies) III Area Map Il1 Zoning Map III Mine Plan Map fil Reclamation Plan Map e L,mdscaping Plan Map I\) Cross Section Map . Erosion and Sediment Control Report . Spill, Prevention, Control, and Countermeasure (SPCC) Plan El Project Site Layout III Grading Plan Q Cross Section Vi.ews 1/2184044. 1 (Dated March 20, 2008) (Dated March 20, 2008) (Dated March 20, 2008) (Dated March 20, 2008) (Dated March 20, 2008) (Dated March 20, 2008) (Dated September, 2005) (Dated March 19,2008) (Dated September 6, 2005) (Dated September 6, 2005) . (Dated April 3, 2008) CARMEL BOARD OF ZONING APPEALS ON REMAND FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, CAUSE NO. 1:06-CV-00825-DFH-TB, REGARDING SETTLEMENT OF LITIGATED MATTERS, INCLUDING MARTIN , ' MARIETTA'S APPLICATION F'OR SPECIAL USE PERMIT MUELLER SOUTH PROPERTY - SURFACE LIMESTONE Docket No: 05090003 SU FINDINGS OF FACT AND CONCLUSION OF LAW 1. Martin Mari~tta's petition has been pending on appeal to the United States District Court for the Southern District of Indiana ("Court") as part of a larger litigated 'matter involving additional parties and claims titled Martin Marietta Materials, Inc. v. Brainard et at., Cause No. 1 :06-cy-00825-DFH- TB ("the Federal Lawsuit"). 2. Martin Marietta's petition has been remanded by the Court for the limited purpose of evaluating whether the Board should accept a negotiated settlement agreement, which includes a Statement of Commitments by Martin Marietta, a copy of which is, attached hereto ("Settlement Agreement"). Findin2S 3. The Settlem~nt Agreement is the product of multi-party negotiations facilitated by United States District Magistrate Judge, Tim A. Baker. Throughout the negotiations the Board has had the advice of its counsel and special litigation counsel retained to represent it in the Federal Lawsuit. 4. The Board has reviewed the proposed Settlement Agreement and held an open meeting as part of its deliberations and consideration of the matter. Public comment was invited and admitted into the record. 5. The Settlement Agreement 'has been found to be appropriate by the City's Executive, Mayor James Brainard, and duly executed by him on behalf of the City. 6. The Settlement Agreement has been endorsed by members of the public, including representatives of the Kingswood Homeowners Association and individual residents from the Kingswood neighborhood. 7. The Board's Staff has found all technical aspects of the Settlement Agreement and the associated Statement of Commitments to be appropriate and complete. 8. There has been no remonstrance in opposition to the Settlement Agreement. 9. The Board, by unanimous vote, finds that the Settlement Agreement is in the best interest of the Board and the City of Carmel and its citizens, and in furtherance of the goals and requirements of the Carinel Zoning Ordinance, palticularly Section 21 thereof, which governs the Board's review and approval of special use permits. - 2 -