Rogers Group, Inc. v. Tippecanoe County

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

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 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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