Update on proposed Trash Transfer Station at JB Salvage

H-T article June 20, 2013
http://www.heraldtimesonline.com/stories/2013/06/20/news.trash-transfer-project-seeks-more-time.sto 

And if you want to read the letter they refer to, it's here:
http://nearwestside.org/wp-content/uploads/2013/06/7D6772A5-2ED8-4CE6-8720-F31D65E59E8F.pdf

The 1 line summary: JB's wants an 18-24 month extension on their permit deadline to try to go through the legal process to change the zoning of the site and get the transfer station permit approved.


Article in the H-T about City Council's letter to IDEM against the proposed WTS, 29 March 2013
http://www.heraldtimesonline. com/stories/2013/03/29/news. city-council-tells-idem-it- opposes-new-trash-transfer- station.sto
(Notably, the Council's letter includes a statement that they “would not support the use of this facility by the city.”! good news)

Story on WFHB about connection with the Mo Co Solid Waste District BoD, 28 March 2013
http://www.wfhb.org/news/ daily-local-news-march-28- 2012-0

Story in the H-T, Trash transfer site losing city support, 8 March 2013:
http://www.heraldtimesonline. com/stories/2013/03/08/news. trash-transfer-site-loses- city-support.sto

Story on WFIU, City Changes Mind on Support of Waste Transfer Project, 12 March 2013:
http://indianapublicmedia.org/ news/city-mind-support-waste- transfer-project-46433/

Related story in the H-T, with update on WTS permit progress, 13 March 2013:
http://www.heraldtimesonline. com/stories/2013/03/13/news. profits-from-selling- recyclables-could-pay-for- trash-barker-says.sto
Article in the H-T, Mayor: City will check legality of transfer station, 18 March 2013:
http://www.heraldtimesonline. com/stories/2013/03/18/news. mayor-city-will-check- legality-of-transfer-station. sto
A long feature on WFHB's daily news, 5 March 2013:
http://www.wfhb.org/news/ daily-local-news-march-05-2013

H-T article on WTS and Steve Volan's proposal to open a public WTS at Anderson location instead of on Vernal Pike.
http://www.heraldtimesonline. com/stories/2013/03/05/news. public-trash-transfer-station- proposed.sto

Memo to Mayor Kruzan from Margie Rice, Corporation Counsel

CITY OF BLOOMINGTON

LEGAL DEPARTMENT

MEMORANDUM

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[1]. 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.”[2]

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.

---

[1] 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.

[2] 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.

Email from Mayor Mark Kruzan and Link to HT article

Hello,

As you know, City Legal has been researching Board of Zoning Appeals history, local ordinance provisions, state statute, and state case law in reference to the proposed transfer station.  The City also reached out to independent legal counsel to review our work and to gain additional expertise on the issue.

Our determination is that the proposed transfer station, based on all we now know about it, would not be allowable.

I've attached two documents for you.  First is my letter to IDEM for the case file.  Second is the legal memorandum written by City Legal and reviewed by the Indianapolis law firm.  Both of these documents have been submitted to IDEM.

TWO IMPORTANT NOTES:

1. We discovered, just yesterday, that John Hale is no longer overseeing this case for IDEM.  Cara Kitchen is now the permit manager for the area including Monroe County and is the contact for the Vernal Pike Transfer Station application.

2. IDEM has granted a request from the petitioner to allow 60 more days for submission of materials for the application, so the new deadline in June 1.

We are continuing and will continue to have conversations with IDEM staff about the proposal.

Please let me know if you have any questions or thoughts.

Thanks again,

Mark

Link to HT article  ( http://www.heraldtimesonline.com/stories/2013/04/11/news.city-using-zoning-issue-to-challenge-trash-transfer-plan.sto ).

More media: H-T and WFHB

Article in the H-T about City Council's letter to IDEM against the proposed WTS, 29 March 2013
http://www.heraldtimesonline.com/stories/2013/03/29/news.city-council-tells-idem-it-opposes-new-trash-transfer-station.sto

(Notably, the Council's letter includes a statement that they “would not support the use of this facility by the city.”! good news)

Story on WFHB about connection with the Mo Co Solid Waste District BoD, 28 March 2013
http://www.wfhb.org/news/daily-local-news-march-28-2012-0

Link to Bloomington Common Council's letter of opposition regarding trash transfer station to IDEM

www.trashtransfertruth.info/home/media_coverage/h-t_03_29_13

The Trip Your Trash Makes - IU Office of Sustainability

http://iusustain.wordpress.com/2013/02/26/the-trip-your-trash-makes/

You Tube Video by Gene DeFelice

http://www.youtube.com/watch?v=x3ZHlugR8CA

Check it out!!!!

B-Line Trash - "Bringing Solid Waste to Your Neighborhood Since 2013"

www.b-linetrash.org/

Latest HT article by Rick Seltzer MAYOR: City will check legality of transfer station

Link to article

Article in the H-T, Mayor: City will check legality of transfer station, 18 March 2013:
http://www.heraldtimesonline.com/stories/2013/03/18/news.mayor-city-will-check-legality-of-transfer-station.sto 

Examples: Letters to John Hale, Permit Manager, IDEM

March 9, 2013

John Hale, Permit Manager

Indiana Department of Environmental Management Solid Waste Permits MC 65-45, IGCN 1101

100 North Senate Avenue

Indianapolis, IN 46204-2251

Dear Mr. Hale,

I am writing to voice my concerns about the proposed Vernal Pike Transfer & Recycling facility located on Vernal Pike in Bloomington, Indiana.  In my opinion I do not understand why anyone would want to live in close proximity to a trash transfer station since according to the Carbondale, Colorado study this is considered a “noxious” land use.   The location of this proposed facility makes it completely unacceptable considering the following facts.

1)      The present business at JB Salvage is completely surrounded by a RS zone.  The surrounding properties are not only residential, but they are also low income, high density residential with compact urban form.  There are 3 gov’t subsidized housing developments in close proximity to the proposed facility.

2)      There are three schools and a fourth (dance school) also within close proximity

3)      The City of Bloomington has denied City Transit bus services to this area because of the “geometry of the infrastructure in the area”.  Because of two railroad crossings and low train trestles X 2, the City felt the buses would not be able to maneuver through this area.  At the same time, large semi-trucks with long wheel bases would be unable to get over the two railroad crossings without bottoming-out.

4)      When I-69 changes take place, the Vernal Pike exit to now Hwy. 37 will be closed.  The ONLY exit will be through a core neighborhood with inadequate infrastructure (2 street lights, few sidewalks, narrow streets).  People often walk in the road/street because there are few places to even get off of the street and at night, because we don’t have street lights, it is nearly impossible to see pedestrians.

5)      Our neighborhood will likely experience depreciation of property values.  The Carbondale study states properties within 1 mi of the facility will be depreciated.

6)      We are concerned with the exhaust fumes from diesel trucks moving the trash and from other trucks delivering the 100 tons per day of solid waste to the facility.

7)      We fear that there will be lots of litter/road trash blowing from uncovered or unsecured materials going to the station.

8)      We choose not to deal with the extra accidents that will certainly occur in front of our homes on W. 17^th where there is a blind intersection (Lindburgh & W.17^th St.) at the bottom of a steep hill.  There are always many accidents on this hill especially in inclement weather.

9)      We invested lots of money in our home and property this summer.  We own 3.4 acres within city limits and  two homes.  We have a pond and our back yard looks as if we live in the country.  We want to be able to enjoy our yard and natural sounds such as birds, without the sounds of reverse alarms on trucks dumping trash, clanging and banging of materials hitting the floor of the trash and recycling facility, the stench and increase in particulate matter in the air which is harmful to our health, increase risk of vectors and even accidental spills that might be environmentally harmful.

Bottom line……we do not want to live next to a trash transfer station and experience all of the detrimental side effects that will certainly come from this noxious land use.  Please do not approve this permit……..we BEG you.  We feel that this proposed facility will be detrimental to our health and safety as well as that of our neighborhood residents.

Respectfully,

March 10, 2013

John Hale, Permit Manager
Indiana Department of Environmental Management
Solid Waste Permits
MC 65-45, IGCN 1101
100 North Senate Avenue
Indianapolis, IN 46204-2251

                                                                                                                   

Dear Mr. Hale,

I am writing to you today with my deep concern about the proposed Waste Transfer Station on Bloomington’s Near West Side.

My wife and I are currently living on the near west side, within a half mile from the proposed JB Salvage WTS expansion.  We have built a LEED Platinum certified (2010) home here, in the spirit of revitalizing this neighborhood that has a history of suffering environmental abuse, including super-fund sites such as Fell Iron and Metal.  The history of using economically and racially diverse distressed neighborhoods  as a dumping ground for waste is well documented.  In fact, the EPA has studied this problem, and there are materials that address this issue, such as,

A Regulatory Strategy for Siting and Operating Waste Transfer Stations:

A Response to a Recurring Environmental Justice Circumstance:

The Siting of Waste Transfer Stations in Low-Income Communities and Communities of Color 

http://www.epa.gov/environmentaljustice/resources/publications/nejac/waste-trans-reg-strtgy.pdf

My wife and I, along with the Near West Side Neighborhood Association,  Crescent Bend Neighborhood Association, Prospect Hill N.A., Maple Heights N.A., Mayor Mark Kruzan and the City Council of Bloomington, all oppose the proposed location of a WTS in our residential neighborhood.  We strongly support recycling and progressive solutions that will eventually create a zero-waste Bloomington, however, and look forward to the design and future deployment of creative strategies for this goal.

Thanks for all of your great work!

David Gulyas  ASID,  LEED AP

908 West 8^th Street

Bloomington, IN  47404

davidgulyasdesign@gmail.com

 

Example of letter to former Commissioner Mark Stoops

Dear Mr. Mark Stoops,                                                                                      March 9, 2013

As a responsible citizen of Bloomington and owner of property in close proximity to the proposed Vernal Pike Transfer and Recycling facility, in Bloomington, I am very disappointed that you would, as former County Commissioner, send a letter of recommendation to IDEM for this proposed facility.  We feel that in doing so, you were obviously either misled by the present owners into thinking this was singularly a recycling facility or your priority was with saving the City money in trash transportation costs and recommending yet another recycling facility (within a few blocks of City Hall’s recycling station) without any consideration to  1) the placement of this facility within city limits  2) the fact that this facility is surrounded by low-income, high density affordable housing projects with compact urban form which City gov’t has reinforced  3) the fact that this facility will compromise quality of life for surrounding neighborhoods and the health and safety to the public as well as school children and B-line trail users  4) the inability of large trucks to access this facility due to inadequate infrastructure and only one possible exit route which will be THROUGH a core neighborhood  5) the sale of this facility, which is highly likely, which may compromise the existing contract the District has with Hoosier/Republic which may also INCREASE dumping/tipping costs to the City  6) further reduced property values of an already depressed area for up to a 1 mi radius  7) the mission statement of District Solid Waste Management. 

We, Crescent Bend Neighborhood Association, respectfully request that you rescind your letter of recommendation and that you make it perfectly clear to IDEM that your interpretation of the proposal/application was for primarily a recycling center and not a trash transfer station located in a densely populated part of town.   We also request that you point out that you are concerned that this noxious land use (according to a BBC study done for Carbondale, CO) will definitely affect the quality of life as well as health and safety of the surrounding neighborhoods and that the existing infrastructure, which cannot feasibly be changed (ie: railroad crossings situated on inclines and low train trestles) will not support the required large truck traffic with defined exit routes through local neighborhoods.  Thank you for your prompt attention to this matter.

Respectfully,