from the Marion Superior Court The Honorable Cynthia J.
Ayers, Judge Trial Court Cause No. 49D04-1308-OV-31452
ATTORNEYS FOR APPELLANT George M. Plews Jonathan P. Emenhiser
Plews Shadley Racher & Braun LLP Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Donald E. Morgan Melissa Hayden Kramer
Office of Corporation Counsel Indianapolis, Indiana
This case has been here before, in a different guise, on
multiple occasions. FLM, LLC (FLM), leased property to
International Recycling, Inc. (IRI). IRI proceeded to amass a
veritable mountain of over 100, 000 tons of sand on the
property, in violation of multiple ordinances, and then went
out of business and abandoned the sand. The mountain of sand
is over fifty feet high, covers two acres, and is leaching
multiple toxic chemicals into the ground beneath it. It has
been looming over neighboring properties, polluting the City
of Indianapolis, and violating multiple ordinances for
over fourteen years. We are concerned, as the citizens
of Indianapolis should be, that it took the City so long to
step in more forcefully and that, despite winning a nearly $2
million judgment from IRI's insurer, FLM has not done
what needs to be done to remedy the situation.
The Metropolitan Development Commission of Marion County,
Indiana (the City), eventually filed a claim against FLM in
an attempt to require FLM to abate the ordinance violations
on the property. FLM and the City filed cross-motions for
summary judgment, and the trial court granted summary
judgment in favor of the City. FLM now appeals, arguing that
it did not cause, suffer, or allow its tenant's ordinance
violations and should not, therefore, be held liable for
them. It also contends that the City is empowered to enter
the property and abate the violations for itself. Finding
that FLM allowed the violations, we affirm and remand.
Creation of Black Mountain
FLM owns a property located at 3515 East Washington Street in
Indianapolis (the Property). On May 14, 1999, IRI leased the
Property from FLM. Pursuant to the Lease, IRI was permitted
to use the Property for the "storage, mixing and
removal" of sand. Appellant's App. Vol. III p. 175.
The Lease required IRI to "comply fully with all
federal, state and local environmental, health or safety
statutes, rules, regulations, or ordinances."
Id. at 179.
At some point, IRI entered into an agreement with Daimler
Chrysler Corporation (Chrysler), pursuant to which IRI
collected and transported foundry sand from Chrysler's
foundry to the Property. The Chrysler Agreement provided that
Chrysler paid IRI to remove the sand and that IRI was
required to find beneficial reuses or other appropriate
disposal for the sand.
After executing the Lease with FLM, IRI began depositing
Chrysler's foundry sand onto the Property. Its right to
do so was contingent on IRI's compliance with the Lease.
For a period of time, IRI mixed the foundry sand with
aggregate and then removed it from the Property for use as
structural backfill for construction projects, but at some
point, IRI stopped removing the sand from the Property. FLM
did not authorize IRI to store the sand permanently on the
Property. In June 2002, an environmental consultant reported
that IRI was in compliance with applicable environmental
At some point, the stored foundry sand reached 105, 000
tons-the "Black Mountain" it is known as today.
Id. at 142. It is undisputed that Black Mountain
surpassed twenty feet in height, was stockpiled without a
required drainage permit, and altered the land in a manner
that does not conform to existing topography. Id. at
In the fall of 2002, Chrysler-IRI's only customer and
only source of revenue-stopped paying IRI. Once Chrysler
stopped paying IRI, IRI could no longer continue its
operations or remove the foundry sand from the Property. It
stopped paying rent to FLM, abandoned the foundry sand on the
Property, and eventually ceased all operations.
Around the time that Chrysler stopped paying IRI, the Indiana
Department of Environmental Management (IDEM) began receiving
complaints about Black Mountain; for example, one neighboring
property owner complained that the sand was migrating onto
its property and clogging drainage pipes. On May 17, 2004,
IDEM issued a notice of violation to FLM and IRI and ordered
them to remove the foundry sand.
By early 2004, the City had also learned of Black Mountain.
In January 2004, the City issued a notice of municipal code
violation under a sediment control ordinance, ordering FLM
either to comply with drainage requirements or to remove the
Pursuit of Insurance Proceeds and Cost of Removal
After FLM received notices of violations from IDEM and the
City, including orders to remove Black Mountain, FLM sought
indemnification from IRI and IRI's insurer for the
substantial amount of money it would cost to remove the sand
from the Property. That litigation occupied the better part
of the next decade, reaching this Court twice. See FLM,
LLC v. Cincinnati Ins. Co., 24 N.E.3d 444 (Ind.Ct.App.
2014), on reh'g, 27 N.E.3d 1141 (Ind.Ct.App.
2015), trans. denied; FLM, LLC v. Cincinnati Ins.
Co., 973 N.E.2d 1167 (Ind.Ct.App. 2012), trans.
On July 16, 2013, the trial court overseeing the insurance
litigation released to FLM $1.7 million in
damages. FLM recouped a portion of the award for
its own damages, including funds for lost rent (totaling
$495, 000), attorney fees (totaling $686, 741), and
environmental consultant fees (totaling $9, 243.50).
FLM has done extensive research into the cost of removal of
Black Mountain. It has learned the following:
• If contractors and/or projects willing to take the
sand for reuse could be found, the removal would cost
approximately $1.2 million. Despite intensive efforts, FLM
has been unable to locate anyone willing to take the sand for
• Removal by disposal in a landfill will cost at least
$2.3 million. This cost would require a commitment to dispose
of all the sand-and pay the full $2.3 million-at once.
• Load-by-load removal of the sand would cost over $3.5
recouping its own fees, FLM does not have sufficient funds to
dispose of all the sand at a landfill or to remove it on a