FILED
Mar 28 2016, 8:27 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Christopher D. Shelmon Jay Seeger
Andrew S. Gutwein Seeger and Forbes
Michael R. Hartman Lafayette, Indiana
Gutwein Law
Lafayette, Indiana Ryan C. Munden
Robert C. Reiling
Reiling Teder & Schrier, LLC
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rogers Group, Inc., March 28, 2016
Appellant-Plaintiff, Court of Appeals Case No.
79A02-1506-PL-694
v. Appeal from the Tippecanoe
Superior Court
Tippecanoe County, Board of The Honorable Randy J. Williams,
Commissioners of Tippecanoe Judge
County, and its commissioners, Trial Court Cause No.
Tracy Brown, David Byers, and 79D01-1501-PL-01
Thomas Murtaugh, in their
official capacities, the Area
Board of Zoning Appeals of
Tippecanoe County, Steve
Clevenger, President, in his
official capacity; the Area Plan
Commission of Tippecanoe
County, Tim Shriner, President
in his official capacity; and the
Tippecanoe County Building
Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016 Page 1 of 14
Commissioner, Ken Brown, in
his official capacity,
Appellees-Defendants.
Vaidik, Chief Judge.
Case Summary
[1] Rogers Group, Inc., which seeks to build and operate a quarry on certain land
in Tippecanoe County, filed a lawsuit challenging two county ordinances: one
that prohibits new quarries within two miles of residential areas, and one that
requires parties seeking to mine in a flood plain to first obtain a special
exception from the board of zoning appeals. We conclude that the quarry ban
is a zoning ordinance under our Supreme Court’s decision in City of Carmel v.
Martin Marietta Materials, Inc., 883 N.E.2d 781 (Ind. 2008), and that it is void
because it was not enacted in accordance with Indiana’s zoning statutes.
However, the county’s requirement of a special exception to mine in a flood
plain is valid and enforceable under state statute and this Court’s precedent.
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Facts and Procedural History
[2] Rogers Group wants to develop a quarry on certain land in an unincorporated
area of Tippecanoe County. However, the county has enacted an ordinance
that prohibits the construction or operation of a new quarry on any site in the
county which has 100 or more residential homes within a two-mile radius. See
Code of Ordinances of Tippecanoe County, Chapter 162 (“Prohibition
Ordinance”). This restriction, we are told, would preclude the Rogers Group
project. Even if it would not, the land at issue is zoned “Flood Plain,” and a
separate county ordinance requires a party seeking to mine in such a zone to
obtain a “special exception” from the Area Board of Zoning Appeals of
Tippecanoe County (“Area BZA”). See Tippecanoe County Unified Zoning
Ordinance, § 3-2-3.
[3] As part of its effort to develop the quarry, Rogers Group filed suit against
various Tippecanoe County agencies and officials (collectively, “the County”),
asking the trial court to declare both ordinances invalid. Rogers Group
claimed, among other things, that the Prohibition Ordinance is a zoning
ordinance, that zoning ordinances can only be enacted using the procedures set
forth in Indiana Code sections 36-7-4-601 through 616 (“600 Series
Procedures”), that the Prohibition Ordinance was not so enacted, and that it is
therefore illegal and unenforceable.1 Rogers Group also alleged that the special
1
Rogers Group also made two claims based on the fact that the Prohibition Ordinance was not passed until
after Rogers Group had leased mineral rights and made significant investments on the project. First, it
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exception requirement was enacted pursuant to Indiana Code chapter 36-7-4
and that it is therefore invalid under Indiana Code section 36-7-4-1103(c),
which provides, “ADVISORY—AREA. This chapter does not authorize an
ordinance or action of a plan commission that would prevent, outside of urban
areas, the complete use and alienation of any mineral resources or forests by the
owner or alienee of them.”2
[4] On cross-motions for summary judgment, the trial court ruled in favor of the
County. Specifically, the trial court concluded that (1) the County’s enactment
of the Prohibition Ordinance was a valid exercise of its “police power” and “did
not require authority pursuant to Article 7, Chapter 4[,]” Appellant’s App. p.
11, and (2) the special exception requirement is permissible under our 1997
decision in Irving Materials, Inc. v. Board of Commissioners of Johnson County, 683
N.E.2d 260 (Ind. Ct. App. 1997), in which we recognized a “flood plain”
exception to a previous version of Indiana Code section 36-7-4-1103(c).
Discussion and Decision
[5] Rogers Group contends that the trial court erred by granting summary
judgment in favor of the County. Under Indiana Trial Rule 56(C), summary
alleged that even if the Prohibition Ordinance is generally valid, it cannot be applied to Rogers Group under
the doctrine of vested rights. See, e.g., City of New Haven v. Flying J, Inc., 912 N.E.2d 420, 424 (Ind. Ct. App.
2009), trans. denied. Alternatively, it asserted that applying the Prohibition Ordinance to halt its project
would constitute a taking for which just compensation must be paid. The trial court rejected these claims.
Because we hold that the Prohibition Ordinance is invalid and unenforceable, we need not address them.
2
We address the significance of the “ADVISORY—AREA” heading below.
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judgment “shall be rendered forthwith if the designated evidentiary matter
shows that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Where, as here, the relevant
facts are undisputed and resolution of the case turns on questions of law, a
grant of summary judgment is particularly appropriate. See Clem v. Watts, 27
N.E.3d 789, 791 (Ind. Ct. App. 2015). On appeal from a grant of summary
judgment, however, we address the issues de novo, giving no deference to the
trial court’s decision. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009); Ind.
Dep’t of Correction v. Swanson Servs. Corp., 820 N.E.2d 733, 736-37 (Ind. Ct. App.
2005), reh’g denied, trans. denied.
I. Prohibition Ordinance
[6] Rogers Group first argues that the Prohibition Ordinance is a zoning ordinance,
should have been enacted as such, and is invalid because it was not. The
County does not claim that it enacted the Prohibition Ordinance in accordance
with the 600 Series Procedures (Ind. Code §§ 36-7-4-601 through 616), nor does
it dispute that we would have to invalidate the ordinance if we conclude that it
is a zoning ordinance. Its sole argument is that the Prohibition Ordinance is
not a zoning ordinance. We disagree.
[7] Our Supreme Court addressed a very similar issue in its decision in City of
Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781 (Ind. 2008). The City
of Carmel had enacted an ordinance “that regulated many aspects of mining
within the City,” including water and air pollution, lateral support to prevent
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collapse of underground tunnels, uncontrolled movement of loose material,
perimeter fencing to keep out unauthorized persons, and blasting practices and
the handling of explosives to minimize the risk of injury or property damage.
Id. at 783. However, it did not ban mining completely or restrict mining to
specific areas in the city. Nonetheless, a mining company sued to enjoin
enforcement of the ordinance, arguing that it was a zoning ordinance that
should have been, but was not, created using the 600 Series Procedures.
[8] In rejecting the mining company’s argument, our Supreme Court emphasized
that the Carmel ordinance merely regulated how mining was to be conducted,
whereas a zoning ordinance “dictat[es] what type of land use is permitted and
where[.]” Id. at 786-87 (emphasis added). In other words, “‘The ultimate
purpose of zoning ordinances is to confine certain classes of uses and structures
to designated areas.’” Id. at 787 (quoting Ragucci v. Metro. Dev. Comm’n of
Marion Cnty., 702 N.E.2d 677, 679 (Ind. 1998)). Because the Carmel ordinance
did not ban or permit mining citywide or confine it to particular parts of the
city, it was not a zoning ordinance, and the city’s noncompliance with the 600
Series Procedures was irrelevant. Id.
[9] Here, on the other hand, the Prohibition Ordinance would most definitely
confine a certain class of use (quarries) to designated areas (two miles from
“residential areas”). This, as our Supreme Court said in Martin Marietta, is
“quintessential zoning.” Id. at 787.
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[10] In urging us to hold that the Prohibition Ordinance is not a zoning ordinance,
the County relies on two post-Martin Marietta decisions. In the first, Uniontown
Retail #36, LLC v. Board of Commissioners of Jackson County, 950 N.E.2d 332 (Ind.
Ct. App. 2011), trans. denied, we held that a licensing ordinance that prohibited
the operation of a sexually oriented business within 1,000 feet of any residence
was not a zoning ordinance and therefore was not subject to the 600 Series
Procedures. In the second, BBL, Inc. v. City of Angola, No. 1:13-CV-76-RLM,
2014 WL 26093 (N.D. Ind. Jan. 2, 2014) (unpublished), the U.S. District Court
for the Northern District of Indiana relied on our decision in Uniontown Retail
#36 in holding that a very similar licensing ordinance was not a zoning
ordinance. In both cases, however, the local governments had adopted separate
zoning ordinances that included buffer requirements identical to the buffer
requirements in the challenged licensing ordinances. Uniontown Retail #36, 950
N.E.2d at 335, 338; BBL, 2014 WL at *2, *5. Therefore, the conclusions that
the challenged licensing ordinances were not also zoning ordinances were
unnecessary to the opinions and lack precedential effect. See, e.g., Trabucco v.
Trabucco, 944 N.E.2d 544, 560 n.5 (Ind. Ct. App. 2011), trans. denied; Oshinski v.
N. Ind. Commuter Transp. Dist., 843 N.E.2d 536, 545 (Ind. Ct. App. 2006). In
fact, on appeal in the BBL case, the Seventh Circuit said as much:
The City maintains that the licensing ordinance doesn’t qualify
as a zoning ordinance under Indiana law. The judge agreed. We
don’t see how the classification matters for purposes of BBL’s request
for a preliminary injunction. The same 750–foot buffer zone was
included in the November 2012 amendments to the zoning
ordinance, and BBL doesn’t challenge the City’s process for
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adopting these amendments. So a preliminary injunction against
the same provision in the licensing ordinance would be pointless.
BBL, Inc. v. City of Angola, 809 F.3d 317, 329 (7th Cir. 2015) (emphasis added).
[11] In any event, the Prohibition Ordinance is plainly a zoning ordinance under the
test set forth by our Supreme Court in Martin Marietta. In holding that a zoning
ordinance is one that “dictates what type of land use is permitted and where,”
the Court cited as examples the landfill ordinances at issue in Board of
Commissioners of LaPorte County v. Town & Country Utilities, Inc., 791 N.E.2d 249
(Ind. Ct. App. 2003), trans. denied, and Pro-Eco, Inc. v. Board of Commissioners of
Jay County, Indiana, 776 F. Supp. 1368 (S.D. Ind. 1990), aff’d, 956 F.2d 635 (7th
Cir. 1992). The ordinance challenged in Town & Country prohibited the
development of a landfill absent prior written approval from the local solid
waste district board. The ordinance in question in Pro-Eco imposed a
countywide moratorium on the location, construction, or operation of any new
landfill. Our Supreme Court unambiguously classified these ordinances as
zoning ordinances. Martin Marietta, 883 N.E.2d at 787.
[12] Because the Prohibition Ordinance, even more clearly than the ordinances in
Town & Country and Pro-Eco, purports to dictate what type of land use is
permitted and where, it is a zoning ordinance under our Supreme Court’s
analysis in Martin Marietta. As such, the County was required to comply with
the 600 Series Procedures. Since it did not, the ordinance is invalid and
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unenforceable, and Rogers Group is entitled to summary judgment on this
issue.3
II. Special Exception Requirement
[13] Rogers Group also challenges the requirement that it obtain a special exception
from the Area BZA before mining in a Flood Plain zone. Rogers Group
contends that this requirement is invalid under Indiana Code section 1103(c),
which, again, provides, “ADVISORY—AREA. This chapter does not
authorize an ordinance or action of a plan commission that would prevent,
outside of urban areas, the complete use and alienation of any mineral
resources or forests by the owner or alienee of them.” The trial court rejected
this argument, ruling that there is a “flood plain” exception to Section 1103(c).
We agree with the trial court.
[14] In order to understand Section 1103(c) and the trial court’s interpretation of it,
we must first address the overall structure of Indiana Code chapter 36-7-4 and
the specific language and history of Section 1103(c). Chapter 36-7-4 provides
for three different types of local planning: advisory planning, area planning, and
metropolitan development. Those provisions of the chapter with headings that
include “ADVISORY” apply to advisory planning. Ind. Code § 36-7-4-101.
3
Focusing on our Supreme Court’s statement in Martin Marietta that a zoning ordinance “dictates what type
of land use is permitted and where,” 883 N.E.2d at 787 (emphasis added), the County suggests that the
Prohibition Ordinance cannot be a zoning ordinance because it would prohibit mining in certain areas, not
permit mining in certain areas. This is an arbitrary distinction that has no basis in the actual holding in Martin
Marietta. The ordinances in Town & Country and Pro-Eco were also prohibitive, not permissive, and our
Supreme Court did not hesitate to conclude that they were zoning ordinances.
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Those provisions with headings that include “AREA” apply to area planning.
Ind. Code § 36-7-4-102. Those provisions with headings that include
“METRO” apply to metropolitan development. Ind. Code § 36-7-4-103. Those
provisions without headings apply to all three types of planning. Ind. Code §§
36-7-4-101, 102, and 103.
[15] In 1997, we addressed Chapter 36-7-4, including a prior version of Section
1103(c), in Irving Materials, 683 N.E.2d 260. At the time, Section 1103(c)
provided, “ADVISORY. The advisory planning law does not authorize an
ordinance that would prevent, outside of urban areas, the complete use and
alienation of any mineral resources or forests by the owner or alienee of them.”
Ind. Code § 36-7-4-1103(c) (1997). Both the heading and the language of the
provision made clear that, at the time, it applied only to advisory planning
jurisdictions. See Ind. Code §§ 36-7-4-101, 102, and 103. Johnson County was
such a jurisdiction, and it had a zoning ordinance that, like the Tippecanoe
County ordinance at issue here, required a party seeking to mine on land
located in a flood plain to first obtain a special exception from the board of
zoning appeals. Irving Materials, 683 N.E.2d at 261. A mining company
claimed that the requirement was invalid under Section 1103(c). Id. The trial
court rejected this argument and ruled in favor of Johnson County. Id. at 262.
[16] On appeal, we acknowledged that Section 1103(c) generally “prevented the
local zoning board from restricting the excavation of minerals on real estate
located in a non-urban area.” Id. at 263. However, we held that our legislature
“created an exception” to this general rule when it enacted other provisions of
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Chapter 36-7-4—specifically, Sections 201, 503(2)(I), and 601(c)(1) and
(d)(2)(D)—that “empowered counties to regulate land use in flood plains[.]” Id.
We reached this conclusion notwithstanding the fact that Sections 201,
503(2)(I), and 601(c)(1) and (d)(2)(D) had no headings and therefore were part
of “the advisory planning law” and were explicitly subject to Section 1103(c).
See Ind. Code § 36-7-4-101. In light of this reading of Chapter 36-7-4 in its
entirety, we held that “Johnson County possesses the statutory authority to
require a special exception to extract mineral resources located in a flood plain
even when the property lies in a non-urban area.” Irving Materials, 683 N.E.2d at 264
(emphasis added).
[17] Two years after we decided Irving Materials, the General Assembly amended
Section 1103(c) by (1) adding the “AREA” heading to the “ADVISORY”
heading, (2) changing “The advisory planning law” to “This chapter,” and (3)
adding “or action of a plan commission” after “ordinance.” See Pub. L. 216-
1999, § 5. In other words, before the amendment, Section 1103(c) applied only
to ordinances in advisory planning jurisdictions. As a result of the amendment,
the provision now applies to both ordinances and actions of plan commissions
in both advisory and area planning jurisdictions. Tippecanoe County is an area
planning jurisdiction and is therefore subject to Section 1103(c).
[18] Rogers Group contends that in addition to extending the reach of Section
1103(c) to area planning jurisdictions, the amendment eliminated the flood
plain exception that we identified in Irving Materials. Specifically, it argues that
the effect of the change of the opening phrase from “The advisory planning
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law” to “This chapter” was to preclude any possible exception based on other
parts Chapter 36-7-4, including the flood plain exception. We cannot agree.
[19] As Rogers Group itself observes, we presume that when our legislature amends
a statute, it is aware of the history of the statute, including court decisions
construing it. Appellant’s Br. p. 23 (citing Security Trust Corp. v. Estate of Fisher
ex rel. Roy, 797 N.E.2d 789, 793-94 (Ind. Ct. App. 2003), trans. denied). As such,
we presume that the General Assembly was aware that, in 1997, we upheld a
flood plain special exception ordinance based on Sections 201, 503, and 601,
even though the then-existing version of Section 1103(c) provided that “The
advisory planning law” (including Sections 201, 503, and 601) did not authorize
such ordinances. That being the case, we cannot say that the legislature
evinced an intent to eliminate the flood plain exception simply by changing
“The advisory planning law” to “This chapter,” since Sections 201, 503, and
601 are part of “This chapter,” just as they were part of “The advisory planning
law” in 1997. Therefore, the 1999 amendment changed very little about the
substantive effect of Section 1103(c).
[20] Rogers Group also argues that the General Assembly must have intended to
abrogate our holding in Irving Materials because “the amended statute now
expressly addresses actions as well as ordinances.” Appellant’s Br. p. 25.
However, the only “actions” that the amended Section 1103(c) addresses are
actions “of a plan commission.” Because Irving Materials involved a
requirement to obtain a special exception from a BZA, one would certainly
think that if the legislature intended to override our holding in that case, it
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would have referenced BZA actions instead of, or at least in addition to, actions
of plan commissions.
[21] We conclude that the legislature did not abolish or otherwise alter the flood
plain exception when it amended Section 1103(c) to add the “AREA” heading
and to change “The advisory planning law” to “This chapter.” If Rogers
Group believes that the legislature had a contrary intent, its remedy lies in the
legislative process, not in this Court. For now, because Section 1103(c)
continues to be subject to a flood plain exception, we affirm the trial court’s
ruling that Rogers Group must obtain a special exception from the Area BZA if
it wishes to mine in a Flood Plain zone.4
Conclusion
[22] We reverse the trial court’s determination that the Prohibition Ordinance is not
a zoning ordinance and therefore did not have to be passed in accordance with
the 600 Series Procedures. We remand with instructions to enter summary
judgment in favor of Rogers Group on this issue. However, we affirm the grant
of summary judgment in favor of the County regarding the validity and
enforceability of the special exception requirement.
4
Rogers Group notes that the factors to be considered under Tippecanoe County’s special exception
ordinance do not specifically address flooding or flood prevention and that it is therefore possible that the
Area BZA would deny a special exception for reasons having nothing to do with flood control, contrary to
the rationale underlying our decision in Irving Materials. If Rogers Group is denied a special exception for
what it believes are invalid reasons, it can seek judicial review of that denial. See Ind. Code § 36-7-4-1601 et
seq.
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[23] Affirmed in part and reversed and remanded in part.
Bailey, J., and Crone, J., concur.
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