Scott Roberts for www.theindianalawyer.com

A builder must seek a special exception to mine in a flood plain zone after the Indiana Court of Appeals found that ordinance enforceable under state statute. However, an ordinance that doesn’t allow mining within two miles of a residential area is not enforceable because it was not enacted in accordance with Indiana’s zoning statutes.

Rogers Group Inc. wants to operate a quarry in Tippecanoe County, but the land is on a flood plain and within two miles of a residential area. Two ordinances would make it more difficult for the group to build, one that prohibits construction within two miles of a residential area and one that requires a party to seek an exception when mining in a flood plain. Rogers challenged the ordinances in court, saying both were not enacted using correct procedures.

Both Rogers and the county filed motions for summary judgment, and the trial court found in favor of the county. Rogers appealed the ruling.

Rogers argued that the ordinance banning mining within two miles of a residential area is a zoning ordinance, and should have been enacted as such, but is invalid because it was not. The COA agreed, finding the mining ordinance is a zoning ordinance, but was not enacted properly under Ind. Code 36-7-4-601 though 616. The COA relied on the Indiana Supreme Court’s decision in City of Carmel v. Martin Marietta Materials, Inc. 883 N.E.2d 781 (Ind. 2008), which set out the definition of a zoning ordinance.

The Carmel decision said the purpose of zoning ordinances is to confine certain classes of uses and structures to designated areas, and the COA said this ordinance does that, confining quarries to more than two miles from residential areas. As such, it was subject to the 600 Series Procedures.

The COA said the flood plain ordinance was enforceable. Rogers Group argued that it was not centered around an amendment to Section 36-7-4 of Indiana Code, and the amendment eliminated the flood plain exception previously identified in case law.  In 1999, the Indiana General Assembly amended Section 1103(c) by changing “advisory planning law” to “this chapter” and adding “or action of a plan commission” after ordinance.

The COA said that was not a correct interpretation. It said the General Assembly’s intent was not to remove the flood plain ordinance as Rogers claims.

“If Rogers Group believes that the legislature had a contrary intent, its remedy lines in the legislative process, not in this Court,” Chief Judge Nancy Vaidik wrote in the opinion.

The case is Rogers Group Inc. v. Tippecanoe County, Board of Commissioners of Tippecanoe County and its commissioners, et al., 79A02-1506-PL-694