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Based on evidence presented during the Warsaw Board of Zoning Appeals meeting, mineral extraction should not have been granted in the former Haines gravel pit.
Jack Birch, representing petitioner Marta Hopkins, who is an area resident, cited county and city codes, saying the gravel pit had been out of operation from August 1998 through 1999.
The Haines sent letters to former clients announcing the closing and a sign was erected to this effect. At that time the property was in the county and was zoned agricultural.
To reopen the gravel pit a special exception would have to be granted within six months of the closing, Birch said, reading from county code. This was not done.
In November 1999, according to Birch, Bill Bibler and a partner took title to the Haines property.
In January 2000 the city annexed the land, rezoning it residential, type 2. Gravel pits are not allowed in R-2 zones either.
Bibler allowed Cripe Excavating to remove fill dirt on three occasions in 2000.
"The question is not is this a legal or illegal non-conforming use," Birch said. "The gravel pit was closed. There is no non-conforming use. And now it's substantially larger than it's ever been."
Noffsinger's letter, dated Feb. 1, indicated to Niblock Excavating it would be OK to do mineral extraction.
Noffsinger said he conferred with county area plan director Dan Richard in the matter.
BZA member Richard Keeven asked who should have found out about about operating the gravel pit - the seller or the buyer.
City attorney Mike Valentine cautioned the board that due diligence was not the issue but that Noffsinger made a decision based on fragmented facts.
Edward Chester stepped forward representing Rich Niblock, who was present, and his brother Gary Niblock, who own Niblock Excavating.
He said a community development was planned at the site and the gravel pit would be turned into a lake. He indicated a subdivision plat map with the "lake" outlined.
"The Niblocks are sorry if it disrupted the neighbors," Chester said of the 20-hour-a- day operation that recently took place, "but the work is substantially done."
Fill dirt from the site is being used as a foundation for the Wal-Mart development north of U.S. 30, east of Ind. 15.
Chester also said the Niblocks closed on the purchase of the property from Bibler earlier Monday.
Bibler spoke on his own behalf saying a closed sign was on the property when he bought it but he said it was "up to stop people taking dirt."
"We made three trips to the planning department with the best intentions," he said. "We have a right to trust the city."
Larry Coplen, sitting with Hopkins, said the subdivision plat map on display hasn't been approved.
"I don't know if it will be a subdivision or not," he said.
Valentine clarified the board's action on the item.
"There will be a bad practical result whichever way you go. I say as your lawyer and as a citizen this isn't going to resolve itself," he said.
He cautioned the board to base their decision on evidence presented during the meeting.
"Richard should have submitted his opinion in writing," said new board member Tom Heuer. "It seems like a lot of conversation goes on between officials."
Dan Hampton commented that what Noffsinger did was appropriate based on the facts he knew at the time, but the decision ought to be reversed based on the evidence.
In a unanimous vote Hopkins was granted her appeal.
A request by Marty Stephens to appeal another determination by Noffsinger was denied, also by unanimous vote.
The affected property is at 133 Enterprise Drive. Stephens was seeking an expansion of the buffer zone and questioned the proposed uses for Lot No. 5. The property, under construction by COBRA Development, will house retail offices and warehousing for CINTAS Uniform Co., Berry - Berry and Fastenal Tool Co.
In other business the board:
• Denied a request by Renee Walsh, 214 Funk St., regarding a sign variance in a residential area.
• Approved a request by Julie Garber, 2432 Sally St., for an 11-foot rear yard setback.
• Heard that Shawnika Biddle's variance for a beauty salon at 1836 Lavista Dr., is in compliance.
Board of Zoning Appeals members are Alan Clingman, president, Bruce Woodward, Dan Hampton, Richard Keeven and Tom Heuer. Meetings are the fourth Monday of each month at 7:30 p.m. in city council chambers.
