CITY OF BLOOMINGTON
TO: Mark Kruzan, Mayor
FROM: Margie Rice, Corporation Counsel
RE: Review of Zoning Issues for Proposed Vernal Pike
Solid Waste Processing Facility
DATE: April 5, 2013
A permit to operate a solid waste processing facility, commonly known as a “transfer station,” was submitted by Indiana Recycling Resource, LLC, to the Indiana Department of Environmental Management (“IDEM”) Office of Land Quality. It was received by IDEM on November 7, 2012, and proposes to operate the facility at their location on Vernal Pike. In conjunction with outside counsel, staff attorneys in the City of Bloomington Legal Department reviewed certain zoning issues surrounding the possible establishment of the facility. This memo, which represents only a brief summary of the analysis performed by staff and outside counsel, outlines the key issues and addresses the most important question, “Can the applicant operate a transfer station on the site as it is presently zoned?” We believe the answer to that question is “no”, given the facts known at this time.
The Vernal Pike property in question, on which a salvage yard is currently operated, is located in a residential zoning district. In order for the salvage yard to operate in a residential district, use variances were previously requested and granted. Subsequently, the City repealed and replaced its zoning ordinance. As such, the Vernal Pike property is a lawful nonconforming use and is subject to the rules, policies and regulations contained in Chapter 20.08 of the Bloomington Municipal Code (“BMC”). Outside Counsel at Faegre Baker Daniels confirmed the City’s analysis that BMC sections 20.01.120 and 20.01.130 make clear that, if a use lawfully existed on the effective date of the new ordinance, the use may continue but is classified as a lawful nonconforming use and is subject to the restrictions found in BMC 20.08.
Indiana case law consistently states that nonconforming uses are generally not favored under the law and are subject to local restrictions because they detract from the general purpose of a zoning ordinance, which is to “confine certain classes of uses and structures to certain areas.” Berkey v. Kosciusko County Bd. Of Zoning Appeals, 607 N.E.2d 730,732 (Ind. Ct. App, 1993).
Our local code does, in fact, place certain restrictions on nonconforming uses. Section 20.08.050(a) of the BMC states, in part, that a “lawful nonconforming use … shall not be intensified, expanded, enlarged, extended or relocated to another portion of the lot or another part of the structure, nor may any structure containing or associated with such use be expanded, enlarged, extended, or relocated …”. In addition, subsection (c) of that section provides that, “No building or structure shall be constructed in connection with an existing lawful nonconforming use.”
The local restrictions noted above would require the Vernal Pike property owner to petition for a variance or a rezoning of the site in order to construct any building or structure in which to operate the proposed transfer station or any other aspect of their business. Current buildings or structures also could not be expanded, enlarged, extended or relocated without such a petition and further approvals. Documents submitted by the property owner to IDEM reveal that a building or structure will be built to accommodate the transfer station. If that is the case, local review and approval will be required before zoning compliance could be demonstrated.
In addition to the restrictions regarding buildings and structures, the use itself could not, without further variance, be “expanded, enlarged, extended or relocated.” Those terms would preclude the property owner from using parts of the property not currently in use for its operations. Of course, to make such a determination would require a careful review of current and proposed operations in order to understand exactly how the transfer station would impact the property. The same is true for the issues of intensification and whether the transfer station could constitute an altogether different use, other than that of a salvage/scrap yard. Only a thorough review of an operations plan and related documents, combined with an opportunity to talk with the property owner, would allow us to determine whether or not the proposed operation would result in intensification or a change in use. Those documents and additional information must be provided to the City by the property owner in order for the review to occur, but have not been provided to date.
Again, it is critical to note the generally held position that deviations from an established zoning district are not desirable and these deviations should be restricted and gradually eliminated. The Indiana Supreme Court has specifically held that “the ultimate purpose of zoning regulations is to confine certain classes of uses and structures to certain areas … the policy of zoning ordinances is to secure the gradual or eventual elimination of non-conforming uses and to restrict or diminish rather than increase such uses”. Jacobs v. Mishawaka Board of Zoning Appeals, 395 N.E.2d 834 (1979). Since the overall purpose of zoning is to achieve conformity of uses within certain areas of a city, staff believes that any argument which indicates the variances previously granted for the property somehow continue to render the property conforming, despite the 2007 repeal and replacement of the City’s zoning code, is the antithesis of general zoning principals and established law.
In summary, local zoning compliance appears to be a prerequisite to the granting of a permit by IDEM. The addition of a solid waste processing facility on the current property, as outlined by the property owner in its application to IDEM, must be thoroughly analyzed upon submission of information to the City by the property owner. Based on the information submitted thus far to IDEM, however, local zoning compliance could not be demonstrated and further, local review and approvals would be required.
 The first variance, UV-93-84, was granted in order to allow the expansion and renovation of the salvage yard, which had been in operation for 33 years. The second variance, UV-50-95, was granted to relocate the office at 1803 W. Vernal to 1905 W. Vernal Pike.
 The terms “building” and “structure” are defined in BMC 20.11.020. Building means any structure having a roof supported by columns, walls or air pressure. Structure means anything constructed or erected which requires location on the ground or attachment to something having a location on the ground, including but not limited to buildings, sheds, detached garages, mobile homes, manufactured homes, above-ground storage tanks, freestanding signs, and other similar items.