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Subsequently, the City repealed and replaced its zoning ordinance.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.
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