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HomeMy WebLinkAboutMinutes BZA 05-08-01 BOARD OF ZONING APPEALS SPECIAL SESSION MARTIN MARIETTA MAY 8, 2001 Board Members present: Leo Dierckman; Michael Mohr; Earlene Plavchak; Pat Rice; Charles Weinkauf. Michael Mohr moved to suspend the rules to allow one hour for the petitioner's presentation; 15 total minutes of time for individuals wishing to speak in favor of the petition; one hour of organized remonstrance in opposition to the petition; 15 minutes total time for those individuals in opposition to the petition; and 15 minutes for rebuttal from the petitioner. The motion was seconded by Leo Dierckman. APPROVED 5-0. Public Hearing: Martin Marietta (SU-40-01) 1h. To Establish a Mining Use on 105.981 acres, on the northwest corner of East th 106 Street and HazdelDell Parkway. 2h. Martin Marietta (V-41a-01; V-41b-01) Approval of Developmental Standards Variances of Section 5.2.2 and Section 22.3.1(4) in order to establish a mining use within 150 feet of the Kingswood Subdivision and within 100 feet of property lines abutting or adjoining residentially zoned and use property for the remainder of the site. Presenter: Martin Marietta by John Schuler, Director of Governmental Affairs and Public Relations for Martin Marietta Aggregates, 5040 Mallard View Drive, Indianapolis. Mr. Schuler introduced the presenters for Martin Marietta and gave a brief overview of the civic activities and voluntary implementations of public safety for Martin Marietta. Bob Furlong, Vice President and General Manager of the Indiana District; Max Williams, Indiana District Engineer; and Howard Pugh, District Employment Relations and Safety Manager. Also attorneys Tom Engle and David Warshauer from the law firm of Barnes & Thornburg were present. Martin Marietta has donated several parcels of land over the last few years that have become recreational areas and important arteries for the traveling convenience of the citizens of Carmel. These are the Flowing Well Park; Founders Park; Hazel Landing Park; Towne Run Trail Park; and conveyance of land for the Hazel Dell Parkway and additional land for the sewage treatment plant--approximately 87 acres. Martin Marietta has assisted in many developments in the area and has adopted Hazel thth Dell Parkway from 96 Street to 116 Street for care and maintenance as well as a portion of Allisonville Road in the 8900 block. Martin Marietta was the first company in s:\\bza2001may8 1 Hamilton County to require its customers to haul legally. Theproperty inside the gates is dust free with regular applications of water. The customers are required to cover their load prior to leaving and have lost business due to this requirement. Martin Marietta is going the extra mile to be good neighbors. Each person indirectly consumes 15 tons of aggregate annually, whether through the improvement of roads, home construction, commercial development, infrastructure activities, and even for a child's sandbox. Martin Marietta pays property taxes, withholding taxes, sales tax, county option income tax, inventory tax, fuel tax, and the list goes on. This is the last deposit of aggregate in Clay Township that has not been covered by other development. Since this is a non-renewable resource, it should be mined. Materials produced at this location are consumed within 20 miles. Martin Marietta is involved in numerous philanthropic activities. Martin Marietta is a major supporter of the Farmers Market; a contributor to Conner Prairie, and the Hamilton County Leadership Academy. Martin Marietta has supported Janus Development and Gleaners Foodbank; various schools such as Noblesville, Decatur Township, Waverly, and the Carmel Schools. Doreen Squire-Ficara, 776 Hawthorne Drive, Carmel, Executive Director of the Carmel Arts Council, spoke in support of Martin Marietta's petition. Martin Marietta is a good corporate partner who supports the arts and other great programs in Carmel. Ms. Ficara asked that the Board approve Martin Marietta's petition. th Allen Davis, 5233 West 15 Street, Indianapolis, Executive Director of the Carmel Symphony Orchestra, agreed with Ms. Ficara as to the important role that Arts plays in the economic growth and development life of any community. Martin Marietta Aggregates is a wonderful corporate friend who supports the Carmel Community. Every th two years, the Carmel Symphony plays a concert in the quarry at 96 and Hazel Dell; this allows the community to hear the orchestra and see the operation of Martin Marietta. Mr. Davis asked the Board to approve Martin Marietta's petition. Jeff Byrd, president of the Hamilton County Alliance, 10333 North Meridian, spoke in support of Martin Marietta. The Alliance is the economic development corporation that serves Carmel and all of Hamilton County. Martin Marietta has shown itself to be a leading and dependable corporate citizen. Everyone in the Carmel community has benefited from the involvement of Martin Marietta and its personnel. Mr. Byrd asked that the Board support the petition of Martin Marietta. John Schuler submitted a letter of support from Conner Prairie. "Mo" Merhoff, Executive Director of the Carmel Clay Chamber of Commerce, 41 East Main Street, Carmel, appeared before the Board to say that the Chambers' experience with Martin Marietta spans the last 15 years. Martin Marietta's involvement in the community represents a public and private partnership for the benefit of the community. Ms. Merhoff asked that the Board approve Martin Marietta's petition. s:\\bza2001may8 2 Robert Furlong, 10927 Valley Forge Circle, Carmel, vice president and general manager of Martin Marietta, responsible for operations in Indiana and central Illinois. Mr. Furlong gave a brief history of the company. Martin Marietta purchased American Aggregates in May, 1997. Prior to 1964, American Aggregates purchased the Grable farm, (now the Flowing Well) the Marburger Farm, the location of the present processing plant, the th Kitchen property located south of 96 Street, the Clark Farm (present location of the stone processing plant along Hazel Dell.) The mining began on the Clark farm property in 1967; sand mining on the Marburger property east of Kingswood has been continuous since 1977. In the 60's, 70's and 80's, American Aggregates made offers to purchase the Efroymson Farm, the current location of Kingswood Subdivision. American Aggregates also made offers to purchase the Mueller Farm. Since that time, part of the property has been developed as Kingswood Subdivision, platted in 1987. In 1988, the first homes in Kingswood were built that were contiguous to the mining. The Mueller Farm continued to be farmed until 2000, at which time Martin Marietta entered into a lease to mine sand, gravel and limestone. Tom Engel, attorney with Barnes & Thornburg, 11 South Meridian Street, Indianapolis, gave an overview or main points of Martin Marietta's petition for the Special Use and the Variances. The petitioner submitted an application for Special Use and Variance in November 2000 for the entire Mueller Farm which includes property north as well as th south of 106 Street. Due to the fact that Blue Wood Creek flows through the property, approval is required from the Department of Natural Resources, currently pending. In order to move forward, the application was re-submitted in two parts; this evening's th petition involves only the portion of the Mueller property north of 106 Street. The th petition for the Mueller property south of 106 Street is pending until approval is received from the Hamilton County Drainage Board, the Hamilton County Surveyor, and the Department of Natural Resources. The Special Use portion of the application is in two parts. S-1 Residence district requires Special Use for mineral extraction, the floodway fringe requires a Special Use as well. There is no requirement for any portion th of the Mueller property north of 106 Street and DNR has so stated in a letter provided to the Department of Community Services. Tom Engel went on to say that the Marburger Farm is a sand and gravel dredging operation, in the midst of which is the processing plant. Martin Marietta is requesting to conduct the same operation on the Mueller property, excluding the woods next to the Carmelot Park, for a sand and gravel dredge operation. It is anticipated that this will take anywhere from 8 to 10 years to accomplish, demanding upon demand for the material. There is no processing on any part of the Mueller property, so there will be no truck traffic from that parcel of ground. There will be no blasting activities involved in the surface operation regarding the sand and gravel. The second aspect of the Mueller property involves underground limestone mining. The time line for this activity would not begin until the year 2025, and there are specific commitments in that regard. In regard to drainage, there will be an artificial lake created on the property; all drainage will be contained within the site. Martin Marietta has implemented noise reduction features at its current locations, and these would also apply to this property. In regard to the dust, the "overburden," 3 to 5 feet of soil material on top, will be removed only s:\\bza2001may8 3 between the months of November and March, only during daylight hours, and not on the weekends. The sand and gravel dredging is a water operation and would not produce dust. In conjunction with the approval of the Special Use and the Variances, the processing plant would be re-located behind a wooded area along Hazel Dell and kept intact. The processing plant will be buffered by the woods currently in existence, and a berm created along the edge. Carmel's zoning ordinance requires a 300 foot natural open space buffer between this type of operation and any residential district or area. The abutting residential area is the Kingswood property. Variances are being requested for the surface operations as well as underground operation to reduce the 300 foot buffer to 150 feet, and a commitment will be given to either convey the 150 foot strip to the adjacent land owners, the Kingswood Homeowners Association, or the City of Carmel. Martin Marietta will stay 100 feet away from the Carmelot Park where it is adjacent. Where there is underground mining, there will be no setbacks on adjacent properties. Robert Furman reported that Martin Marietta had attempted to work out an agreement with the Kingswood Homeowners Association that would allow them to support Martin Marietta's position before the BZA this evening. Mr. Furman gave a history of some of the meetings and contacts with the board of Kingswood Homeowners Association, exclusive of luncheons and telephone conversations. October 10, 1999 Martin Marietta submitted a commitment letter to the Kingswood Board, later modified October 18, 1999. December 12, 1999, a modified Letter of Intent was sent to the Kingswood Board addressing concerns of Board members; this letter was rejected. After numerous contacts, meetings, and a 10 hour mediation session led by Mayor Brainard, an agreement was signed. July 12, 2000, a new blasting proposal was submitted to the Kingswood Board and it was rejected. The Kingswood Board requested demand of consideration of a linear park that was opposed by the adjacent property owners. November, 2000, Martin Marietta applied for zoning variances on the entire Mueller property, and in December, 2000, the proposal was reviewed by the Technical Advisory Committee. January, 2001, variances were re-submitted and application made for a public hearing. To date, Martin Marietta has not been able to reach a firm agreement with either the adjacent property owners or the Kingswood Homeowners Board. Bernard Lally, 11087 Huntington Court, Kingswood, said he lives so close to Martin Marietta that when they sneeze, he gets a cold! Mr. Lally was on the Kingswood Board for a number of years and has learned a lot about mining in Indiana. Martin Marietta offered a 150 foot buffer to the Kingswood property owners, and this was thought to be preferable over a 300 foot strip that homes could be built on. The Board decided that the land behind the homes would make a great linear park, and the homeowners were not in support of that idea. As a result, the adjacent property owners lost faith in the Kingswood Board, and began dialogue of their own with Martin Marietta. The three entities, Martin Marietta, the Kingswood Board, and the adjacent property owners, met in conference in the Mayor Brainard's office, and an agreement was reached as to what Martin Marietta thth could do south of 106 Street, and north of 106 Street, and three members of the Kingswood Board signed the agreement. This agreement was ultimately rejected by the s:\\bza2001may8 4 Kingswood Board. The feeling of the adjacent homeowners is that mining is preferable to lower quality homes on this tract. Underground mining is a sticky point. Although th Mr. Furlong said he will not mine north of 106 street for 25 years, we have no idea what this experience will be. It may be a non-even, and then again, it may be a terrible event. We are all in a quandry with no one to turn to. We don't know if underground blasts are better or worse than above ground. There are few resource materials available to pursue. All of us rely on the Board of Zoning Appeals to make a fair and equitable decision that is best for the entire neighborhood. Underground mining is a "horse of a different color." Tom Engel said Martin Marietta is willing to forego the relocation of the processing plant directly east of the Kingswood neighborhood; there will be no open pit limestone mine on the former Marburger property east of Kingswood--there would only be the lake; there th will be no underground mining north of 106 Street prior to 2025 and the 150 foot buffer area would be conveyed to either the property owners or the Homeowners Association. The wooded area south of the Carmelot Park would be intact--it would not change on the th surface, and Martin Marietta would be dedicating right-of-way along 106 Street. The hours of operation currently observes are larger than the 10:00 AM to 5:00 PM than is being suggested. There is an agreement with the City which permits blasting from 9:00 AM to 6:00 PM or sunset, with restrictions regarding lunch hour, 11:00 to 1:30 and from 2:30 to 6:00, evening rush hour, only pertaining to the flow of traffic on Hazel Dell. The two elements generally discussed during blasting are airblast, just the noise, and the ground vibration or peak particle velocity. The petitioner agrees to a maximum of 125 decibles in any individual shot, and an annual average of not more than 110 decibles. This will be measured at a monitoring station located at the edge of Kingswood neighborhood. In addition, the Federal guidelines for airblasts are considerably higher, 129 to 134. Regarding ground vibration, Martin Marietta has committed to nothing greater than point 5 (inches per second) in any individual shot and an annual average of 0.1 inch per second. These numbers would be measured at the monitoring station and submitted annually to the director and made available to the Kingswood Board. At any location in the country comparable to this facility, if more stringent blasting standards are adopted, Martin Marietta would agree and amend commitments here to match other Indiana guidelines. Mr. Engel felt that most of the neighbors' concerns relate to the open air blasting and those concerns would be minimized with the underground blasting. The artificial lake will be 150 feet from the Kingswood property with grass landscaping within the 150 feet. The first 50 feet will be flat, there will be a fence installed immediately, and then it would slope to the edge of the lake for the remainder of the 150 feet. Again, this property would be conveyed to either the adjacent homeowners, the Kingswood Board, or the City of Carmel. A 45 foot right-of-way is to be dedicated along th 106 Street, with a berm and a 150 foot setback. In regard to the reclamation, Martin Marietta is committing to follow the Indiana Mineral Aggregates Association guidelines. Mr. Engel explained the Findings of Fact that were submitted with this proposal and asked that these Findings of Fact be incorporated into the formal record of this meeting. s:\\bza2001may8 5 In closing the presentation, John Schuler urged the Board for a favorable vote on Martin Marietta's application. Members of the public were invited to speak in favor of the petitions: Janet Tin, 5083, St. Charles Place, Kingswood adjoining property owner, said the majority of persons in Kingswood will be very little impacted by what happens in her back yard. Martin Marietta has been responsive to her calls and request for information, even though the answer was not what she wanted to hear. At the end of St. Charles Street is a substantial tree line that adds 50 feet to the back of her property, although it is not useable space. At the end of the 50 feet, will be a slope down to whatever water line is there. Ms. Tin wants Martin Marietta located there--the dredge, the lake--it is her back yard. St. Charles Place is at the back of Kingswood, it is not a through street, very few people use this street. Again, the majority of the residents in Kingswood will not feel any impact from this proposal--Ms. Tin will. If Ms. Tin feels she can live with Martin Marietta in her backyard, then her opinion should count for something. Organized Remonstrance: Bill Wendling, attorney, Campbell, Kyle & Proffitt, 650 East Carmel Drive, appeared before the Board together with Bob Campbell. Christopher Booher, president of the Kingswood Homeowners Association was in attendance as well as Tom Yedlick, Kingswood resident. The following persons will be speaking: Mike Kaspar, senior geologist for AugustMack, Environmental; John Gasper, president of Enviro Restore, engineer with expertise in mining engineering, abandoned mine, land reclamation design and geotechnical engineering; and Nick Talema, real estate expert, discussing the negative impact on the Kingswood real estate. . Mr. Wendling said there have been numerous contacts with Kingswood and dialogue with Martin Marietta. One of the main components of the dialogue and discussion is the requirement that the Kingswood Board felt Martin Marietta should submit to the zoning regulations and ordinances of Carmel and Clay Township. There should be some regulatory body to review what Martin Marietta is proposing. Since Martin Marietta would not submit to zoning ordinances, Kingswood asked the City to step in, and the City sided with Martin Marietta. Kingswood then filed suit. The mining of the expansion property encroaches on the Kingswood neighborhood and Kingswood wants hard facts as to what will control the mining, what specific plan is in place, what guidelines or regulations will be followed. The appropriate remedy is for the Board to deny Martin Marietta's petition. Martin Marietta should then put together a proposal that follows guidelines, regulations, and ordinances that exist throughout the country that will help establish guidelines under which Martin Marietta will operate. The Board's decision will affect property owners for 50 years to come and the situation is deserving of more time and attention than has been presented. Mr. Wendling contended that Martin Marietta's application is deficient; there are no maps, no site plans, no commitments. The application is not filed by the owner, the s:\\bza2001may8 6 ownership is in a conservatorship. The petitioner does not have authority to commit under the conservatorship--it is a lease--the owner is Helen Mueller. Also, the Department of Community Services has not provided the Board with a comprehensive analysis of what is being requested. The Department does not have any expertise in mining, blasting, geo-technical operations. Mr. Wendling respectfully requested a denial of Martin Marietta's petition. The Special Use application contains a map, but there are no setback lines; the owner is not making commitments, rather the petitioner, Martin Marietta. If a Special Use is approved, Martin Marietta will commence work immediately--they are already pushing dirt and moving materials. In regard to the commitments, there are 2 1/2 pages of commitments for 50 years of mining, surface and sub-surface, blasting, dredging, transporting, creating a lake, reclamation, environmental issues, DNR issues. Commitments tendered today for 25 years in the future present a problem with policing. During this 25 year time period, what advances in mining and technology will there be that might be prove helpful to the neighbors that Martin Marietta may not want to use. In regard to the reclamation and sub-surface and surface excavation, Martin Marietta says that the Indiana Mineral Aggregates Association has a current copy, yet this has not been seen or produced. Mr. Wendling made comparisons to Martin Marietta's current application to Carmel and a previous application made by Martin Marietta to Boone County Kentucky Plan Commission that was thorough and extensive and included numerous studies and information regarding their operations. Martin Marietta should be more accountable. Environmental Issues: Mike Casper of the environmental consulting and engineering company of August Mack Environmental, Indianapolis, and a resident of Carmel at 1039 Princeton Gate, spoke on the environmental issues affecting Martin Marietta's applications for a special use. Mr. Casper is also a senior manager for all of the work his company does for the City of Carmel. Mr. Casper pointed out concerns of the neighborhood association that have not been addressed. The application as submitted contains insufficient data for the Board to make a decision. Martin Marietta's commitments are deficient. There is a large list of environmental issues that both the Kingswood neighborhood and other Carmel residents are concerned about. The environmental issues are ones that cause damage to the quality of life rather than damage to human health and the environment. The environmental issues should be broken down into three responses: surface mining; reclamation or the lake that will be developed; and underground mining. There are no plans or drawings that show the following: How the surface or underground mine will be operated; How the lake will be built and maintained; Processing equipment and operations; How the minerals will be cleaned; What will happen with the sediment and waste materials; and Are there any secondary operations associated with the mining that are not addressed? The sequence of operations also needs to be addressed as well as the life expectancy of the mine. There should be a schedule of extraction, and a site plan showing dimension and extraction area. Operational considerations associated with surface mining, air emissions, ground water, surface water, noise pollution, waste disposal, de-watering impacts, erosion control, traffic--all of s:\\bza2001may8 7 these issues need to be addressed. There is also a City waterwell adjacent to Carmelot Park and nothing has been shown as to how the extraction of aggregate and limestone will affect the water supply for the City of Carmel. Noise pollution is another factor--for the equipment used as well as the blasting. Truck traffic onto Hazeldell Parkway has not been addressed either. Is the lake going to be an attractive nuisance; what is the slope? John Gasper, registered mining engineer in the State of Indiana, employed with Enviro Store Engineering, Indianapolis appeared before the Board to talk about regulatory responsibilities, how they apply, and how other jurisdictions take on that particular responsibility. Briefly, the Board is being put in the position of being the regulatory authority over the mining industry as it encroaches into residential areas because none of the other agencies that might normally regulate the mining industry have been able to put these operations into their backlog. The DNR regulates the coal mining industry as well as numerous other agencies. What has been presented by Martin Marietta this evening offers no enforcement mechanism and no penalty. Protection of the environmental resources is a consideration; groundwater is an issue. Most regulators want to see what the end product will be and whether that meets engineering principles and practices. There should be a plan in place for re-vegetation of the area, i.e. number and species, what rates of application, how survival will be guaranteed, etc. Contemporaneous reclamation, as the pit is advanced for the quarry operation, are they going to go back and re-seed--they will probably wait until the final advancement of the quarry operation. There is no process for oversight, and again, no penalties recited. There is no mechanism in place to resolve disputes. In other jurisdictions, some of the criteria for denial are adverse effect on existing infrastructure; consistency with adjacent land uses; attractive nuisance; large equipment, heavy blasting, and no margin of error. Nick Tillema, Lake Stonebridge, Fishers, manager of the Forestall Group in Indiana, spoke to the Board as to the value impact on those properties in Kingswood if the current mining proposal should be approved. The Forestall Group is a consulting firm regarding values and losses based on previous situations. There are several mining operations in thst Indiana--Mars Hill, 96 Street, 161 and Cherry Tree, and Kokomo. Blasting is not the issue, but rather vibrations from the blasting. In determining market value of homes, Mr. Tillema has talked with other appraisers, brokers, realtors in the community, etc., in terms of the value of existing property if the mining came into effect. One of the persons in Cherry Tree Subdivision said the lights on the "crusher" light up the sky, and even though the area is bermed, you can still see the lights, and the incessant "beeping" of the trucks as they are backing up is a constant irritation. A market study was done of the homes selling 8/9 years ago as opposed to now, and the number has doubled. The appreciation of homes in Cherry Tree Farms compared to the rest of the community---it is half. As far as Mr. Tillema is concerned, the inclusion of any kind of mining and blasting in any given area will certainly impact the market value of the homes in the immediate area. Bob Campbell, 12103 Crestwood Drive, Carmel, briefly summed up the remonstrance presented this evening. The petitioner's presentation falls far short in giving minimal information required to allow the Board to make an informed judgment on the petition. The late filing of their supplementary commitments is recognition of that fact. The s:\\bza2001may8 8 commitments are not specific enough to protect the residents of Kingswood and the community. There are some real issues involved--there is a question as to whether or not there will be a cost benefit to the community as required by the Special Use. During the years of active mining, it is believed that there will be a negative effect on surrounding property values to the residents of Kingswood. There are potential, adverse evironmental effects that will compromise the neighborhood integrity. Mr. Campbell suggested that the Board look very carefully at the written commitments and statements of Martin Marietta; it is hopeful that the Board will agree that they are too vague to justify approval of Martin Marietta's petition. The only statement as to suitability offered by Martin Marietta is that the adjacent and adjoining properties are used for mining operations--it ignores the Kingswood Subdivision, it ignores the public park, and their position as to suitability is to be addressed by local officials. Until this evening, Martin Marietta's position has been that it is "None of our business." The mining operations along White River, Hazel Dell, Gray Road, etc have been a source of concern and complaint from the residents for many years. The noise, truck traffic, and dust represent real issues for those who live, work, and travel in the affected areas. The only economic factor cited by Martin Marietta is a proposed finding that the lake resulting from the reclamation activities will increase the property values. Mining activities, both above and below ground, will have a negative effect on property values. As to the value of the lake, there is nothing on file, no landscape plan, no designs, that gives any particular result from Martin Marietta's proposal. Martin Marietta is asking the Board to find that the mining operation and the reclamation of the land will be consistent with Carmel's Zoning Plan and Comprehensive Plan. Martin Marietta is also asking the Board to find that the mining activities will have no adverse effect on vehicular or pedestrian traffic because there will be no trucking of minerals or aggregate by means of adjacent roads. In fact, there will be thousands of tons trucked out of this area during the lifetime of the operation. Finally, the Board is being asked to find that there are no other matters designated in the ordinance that would prevent the granting of the Special Use. The remonstrators disagree. Enforceable standards must be identified and made a part of the findings. It seems apparent that Kingswood represents the first group with any legal standing to question the relentless approach of these activities and to the neighborhoods, parks, school zones, and other areas. Mr. Campbell asked the Board to protect the community and the neighborhood by the current proposal and deny this Special Use Application. Luci Snyder, Councilwoman District 5, spoke on behalf of concerned residents in Blue Creek Woods, Williamson Run, and Carolina Commons. The residents of Carmel are very concerned about this issue and are relying on the Board's judgment to protect their homes and property values. Bob Gossman, Carolina Commons, said the Master Plan and Zoning Areas had not been addressed according to use that ranges from individual residential to light and heavy commercial, and light and heavy industrial use. Mr. Gossman said he had never seen heavy industry allowed in a residential zone. Mr. Gossman asked the Board to use common sense in addition to the technical arguments, pro and con. s:\\bza2001may8 9 David Ezell, Kingswood Homeowners Association, said he is opposed to blasting within 150 feet of the subdivision. Mr. Ezell submitted a copy of a contract made in 1997 between the City and Martin Marietta in which the City has agreed not to assert any zoning ordinances against Martin Marietta. There has been a lot of resistance in getting this matter before the Board of Zoning Appeals. Mr. Ezell displayed photos taken of Founders Park after which mining occurred, and the condition of the ground left for the City of Carmel to clean up--it will take millions of dollars to clean up!! Quality of water is an issue; it is outrageous to have this type of operation immediately adjacent to a residential neighborhood. Mr. Ezell said Martin Marietta has continued with their mining and blasting operations within 300 feet of the Kingswood Subdivision, in spite of the fact that the Board has the authority to stop them. Dan Borba, 15445 Howard Drive, Carmel, Williamson Run Homeowners Association, said the proposal is more than a Kingswood issue, it is a southeast quadrant of Carmel issue. Blasting at the present site occurs daily at 3:00 PM. While it is true that the mining operations existed prior to the construction of the adjacent subdivision, it is also true that the homeowners did not expect the mining operations to be expanded for at least 50 years. Blasting averages should not be considered, rather number of incidents should be considered as far as blasting tremors. Mr. Borba asked the Board to protect the quality of life for the residents of Carmel, especially in the southeast quadrant. Janet Rodriguez, Williamson Run, Carmel, said this is not just about the immediately adjacent homeowners. There is evidence of the underground blasting every day at 3:00 PM and there are a number of people that know what the impact is. The Parks in the area are heavily used, and these need to be considered as well. Russ Sven, 11109 Woodberry Drive, Kingswood, read a statement signed by him and 8 adjacent property owners. They are in agreement and support of the proposed dredge mining, and the end result of a man-made lake. However, the residents are appealing to the Board to ensure that reasonable, interim aesthetics are maintained and that reasonable precautions are taken to assure long-term aesthetics. This issue is being entrusted solely to the Board of Zoning Appeals. David Causs, 5088 Kingswood Drive, currently director of quality for a company that specializes in noise, shock, and vibration motion control. To say that mining does not have a negative impact in an urban environment is completely incorrect. Mining can work within an urban area, but it must be done with the proper guidelines and regulations. Mr. Causs presented to the Board a finding of fact--one of the issues is that a special use will not injuriously or adversely affect the adjacent land or property values. The Hamilton County Board and the State Board of Tax Commissioners has already reviewed the impact on property values in the Kingswood development and found that it has a negative 10% influence factor on the property value due to current mining operations. If the mining is allowed to move even closer, the property values will diminish even further. s:\\bza2001may8 10 Don Kraft, 4988 St. Charles Place, member of the Board of Kingswood Homeowners Association, said that Martin Marietta will now be required to get a special use permit for mining, since urban area does apply, in stark contrast to the City's approach. Martin Marietta will also have to come before the Board for a Special Use Permit for the area thth south of 106 Street and that area north of 96 Street where manufacturing operations are occurring. Any standard the Board sets is a basis for future applications. Information given to the Board of Zoning Appeals by the Department of Community Services is deficient and insufficient for the Board to make a decision. Martin Marietta has not submitted details, commitments, or information necessary to understand their proposal. Martin Marietta submitted seismographic records for 1999 and Kingswood requested a level of blasting no greater than levels in 1999. It was determined that the 1999 levels could not be held to because the underground mining is being moved closer to Kingswood. Mr. Kraft said the Board needs help in making a determination and they should demand help from the City. Lindell Tragger, 5059 Huntington Drive, Kingswood homeowner and a realtor for F.C Tucker, said she has sold 21 of the 221 homes in Kingswood and would urge the Board to deny Martin Marietta's petition. There are already problems with resale of homes, and current sales have fallen through because of the mining situation. Keith Johns, Huntington Drive, Kingswood Homeowners Association, said he checked the zoning, wetlands, comp plan, etc. before they purchased their home. Mr. Johns was amazed that a city with the esteem of Carmel did not have rules and regulations in place regarding the current issue. Mr. Johns asked that the Board take the time and discipline to plan this appropriately for not only Kingswood, but the entire community. Rick Small, Huntington Drive, Kingswood, said he could put a number on the 10% negative influence factor--between 5 and 10 million dollars. Mr. Small said he could live without the current mining proposal. At this point, the Board took a ten-minute recess. Rebuttal: Tom Engle began by addressing some of the earlier comments made by Mr. Wendling. Martin Marietta has always known that at least portions of the Mueller property are within the jurisdiction of this Body and Carmel's Zoning Ordinances in general. Certain portions were not under the City's jurisdiction, and this brought about the law suit. th Again, this petition only pertains to the portion of the Mueller property north of 106 th Street and not south of 106 Street. In regard to definitive commitments, setbacks, and the inadequacy of materials submitted by Martin Marietta, this is not a developments in terms of a subdivision, plans, etc. No structure is being created; materials are being removed from the site. Documentation is simply of a different nature; however, definitive commitments have been submitted. There are a number of exhibits and attachments submitted with the application. There are signed affidavits from the conservators of Helen Moffitt Mueller conservatorship giving their consent to these s:\\bza2001may8 11 applications. State Statute does provide that the Board of Zoning Appeals can require conditions or request commitments related to land use approvals and to the extent that that is legislatively set forth, the BZA does have the authority to address the issues that were brought up. There is a dirth of legislation on these points. Earth work currently being done on the Mueller property relates to areas outside of what th the City defined as an urban area. DNR issues—there is none north of 106 Street, no flood way and no flood plain on the property. The draft commitments were submitted in November and copies provided to Mr. Wendling at that time. As negotiations continued, additional commitments have been made and the wording has been changed. In regard to the processing plant--DNR approval has been received to relocate the processing plant. Martin Marietta's position is that they are giving up something now (the current processing plant location and the right to open pit mine limestone), so it is appropriate to tie those things together in commitment form now, even though they do not occur for 25 years. David Warshauer, Barnes & Thornburg, 11 South Meridian Street, Indianapolis, spoke to the Boone County, Kentucky Regulations. Boone County had no mining operations at the time Martin Marietta located there. Boone County did adopt some very stringent regulations and requirements. At that time, the Plan Director asked for evidence of performance requirements; Dave Warshauer read some of the language from the requirements. "Since underground mining is much less disruptive to the surroundings than surface mining, there seems to be little justification for very restrictive requirements, (setback requirements from adjoining property owners.) The Boone County, Kentucky experience is not seen as a comparable to the situation in Carmel where there have been aggregate and mining operations on-going for more than 30 years on this side of town. Mr. Warshauer asked that the Board not confuse what is there currently, what has been there and will continue to be there with what is being requested this evening. In response to Mr. Caspar's comments, Mr. Warshauer does not deny that quality of life is an important aspect of the environment, but these issues are ordinarily considered as part of the Board's jurisdiction. These are not issues dealing with human health and the environment outside the scope of the Board's normal scope of review. The Technical Advisory Committee considered this matter several months ago and much of that input was taken into account in the commitments. Various states have regulatory requirements for mining and quarrying operations. There are performance standards in Maine, and a natural buffer strip at least 100 feet wide is required between excavation and a property boundary. Martin Marieta has offered 150 feet. The performance standards in Carmel's Ordinances are similarly vague. It has not yet been fully articulated all that needs to be done; sometimes standards have to set a target. In Maine, they refer to "best management practices" to control dust. There is an opportunity for an evolution of technology as it progresses. In Maine, the maximum allowable air blast at any inhabited building not owned or controlled by the developer may not exceed 129 decible peak. What is proposed is more restrictive than currently in force in Maine. s:\\bza2001may8 12 Referring to Mr. Gasper's comments regarding 200 foot high walls, Martin Marietta is not asking for that--what is being requested is to extract sand and gravel with a dredge to a processing plant. There will not be 200 foot high walls. Underground mining is not going to be the attractive nuisance and some of those comments betrayed a lack of understanding regarding the petition. Mr. Warshauer also responded to Mr. Tilema's assessment of the property values. River Ridge homes are between $400/,800,000 and th are close to mining operations. Brenwick Development is developing Lockhaven at 146 and Cherry Tree in which part of the homes will be built around the lake that Martin Marietta is creating through the same process of sand and gravel extraction as is next to Kingswood. Brenwick has determined that the dredge operation would not be intrusive to people buying in Lockhaven and in fact, the operation creates a valuable amenity. This activity has occurred in this area for a long time. Martin Marietta is offering to perform under very stringent regulations and guidelines that provide the Board sufficient latitude to approve this petition and protect the legitimate interests of those persons who live adjacent to the operations. Bob Furman said that Indiana does not have the regulations and guidelines that some other states do. The commitments made are commitments that pretty well cover the concerns of the Kingswood Homeowners. Mr. Furman is asking the Board for a favorable recommendation. Chuck Weinkauf offered a number of comments regarding binding commitments and regulations. The expansion of the mining will have a major effect not only on the Kingswood Subdivision but also the surrounding areas and the entire community. Laurence Lillig said there would be no Department Report given this evening, however, given the length of the oral presentations, the Department requests copies of any and all prepared statements from the remonstrators. Martin Marietta is requested to submit legible exhibits presented this evening, 11X17 drawings and 8 1/2X11 text. Copies of statements from the adjoining property owners and the letters from Mr. Tilema are also requested. Earlene Plavchak said she was completely overwhelmed at what she needed to know and doesn't. Earlene suggested that the City hire someone to evaluate regulations, guidelines and requirements on file with the Department regarding the mining operations and report back to the Board. There needs to be more information about the lake--drawings, dimensions, etc. Pat Rice said she had taken pages of notes and she, too, was overwhelmed. Ms. Rice read the following comment: "This has raised to a very poignant level the whole issue of the rightful expectations of residents of the Township and City, to not only have our quality of life protected but to have a voice in the process. I accepted appointments to both the Plan Commission and Board of Zoning Appeals because I believe this is of utmost importance. Citizens should not have to pay thousands of dollars and untold hours and emotional distress to try to protect what our ordinances and government should protect. We must not compromise our integrity which for me has to do with promises s:\\bza2001may8 13 made and kept, justice and honesty. Integrity is both individual and corporate and it also means taking a hard look at what ultimately is motivating us. As a member of this Board, I will give much thought to everything I have heard tonight." Michael Mohr concurred with Pat Rice's comments and added…."Details, details, details." There is a serious lack of details surrounding this petition. There is a lack of details as to what the impact will be on Kingswood and the surrounding subdivisions. Mr. Mohr agreed that the City should hire a consultant to help the Board work through this issue. Michael Hollibaugh, Department Director, confirmed that there is money available in the budget for consulting. However, the process to bring someone on board is not always quick to do, but the process could be put into motion. Leo Dierckman, requested copies of all correspondence between the Kingswood Homeowners Association and Martin Marietta. It would also be helpful for the Board to tour the site and view the dredging operations and experience the blasting and tremors at 3:00 PM. Much more information is needed from the petitioner regarding their current operations and how those are taking place; there also needs to be a better understanding of why we need to approve now for 25 down the road. More information is requested on the timing of the lake, the timing of the process. Leo suggested a Tabling for at least 30 days and in the interim, create a list of information to be requested, schedule a site visit, and two weeks from the site visit, meet again after time to review all of the information. Perhaps the City could be in a position to suggest a consultant at that time. Mr. Weinkauf commented that 30 days is not really adequate. It was Pat Rice's understanding that Martin Marietta is continuing its operations on the expansion site while the Board is going through the review process, and Ms. Rice was not comfortable with that situation. Mr. Weinkauf suggested that as a part of the tabling, the work would cease and desist until such time as the Special Use Application is approved or denied. Mr. Weinkauf suggested that perhaps Martin Marietta could withstand the cost of an analyst, since they are the ones to benefit, and compare with the Department's consultant. The commitments would need to be looked at Questions would then need to be answered Suggestion by Weinkauf, perhaps MM could withstand the cost of an analyst since they are the ones to benefit, and compare with the Department's consultant. Questions need to be answered such as are the commitments enforceable and binding, what type of financial support in terms of bonds, etc, is needed, and whether or not the commitments are binding upon the successors of Martin Marietta if they are purchased by another company. Chuck Weinkauf said he would entertain a motion to continue the public hearing aspect of Martin Marietta's petition, in special session, to be scheduled within the next 45 days. s:\\bza2001may8 14 Prior to the Board's approval or denial of the Martin Marietta petitions, operations on the property involved should cease immediately. Bill Wendling said he is appreciative of the Board's efforts regarding a continuance or tabling; however, denial would also accomplish the cease and desist. Tom Engel said the petitioner has no objection to the continuation. Leo Dierckman re-stated the motion: To continue SU-40-01 and V-41a-01 and V-1b-01, Martin Marietta, for at least 45 days, to be heard in a special session; in the interim, a tour of the site is to be held, and copies of all correspondence between Kingswood HOA and Martin Marieta, copies of prepared statements by the remonstrators, and legible copies of all exhibits and dawings are to be furnished to the Board and the Department. This motion was seconded by Earlene Plavchak. Dave Warshauer wanted to be sure that this item was being continued and another publication of notice was not necessary. This was confirmed Mr. Molitor was confident that it would be possible to arrange a tour within the standards of the Open Door Law. The vote on Leo Dierckman's motion, with conditions, was 5 in favor none opposed, MOTION APPROVED. L:aurence Lillig said the additional information requested would be put in packets and mailed to the Board later this week. There being no further business to come before the Board, the meeting was adjourned at 11:00 PM. ______________________________ Charles W. Weinkauf, President _________________________ Ramona Hancock, Secretary s:\\bza2001may8 15