Agenda - Planning Commission - 01/06/1998

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Z.B. November 25, 1997 -- Page 7 Cleland's ~?peal was not moot. In addition to seeking a court order prohibiting the county from issuing a certificate of occupancy, Cleland sought attorney fees for stubborn litigiousness and damages to the value of her property. These claims survived the issuance of the certificate of occupancy. see also: DeKalb County v. J:ost Properties, 263 S.E. 2d 905 (1980). Special Exception -- Mining company says zoning ordinance conflicts with state mining law Irving Materials' Inc. v. Board of Commissioners of Johnson Cou~zty, 683 N.E. 2d 260 (Indiana) 1997 Irving Materials Inc. bought 250 acres of land in Johnson County, Ind., planning to excavate the underlying minerals. The property was next to a river and near a lake. The Indiana Natural Resources Commission had designated the prop- erty as a floodway, and the county zoning maps designated the land as a flood plain. A county zoning ordinance required a special exception for mineral extraction in a flood plain. Thus, the county board of zoning appeals had to approve before Irving could begin excavating. Irving applied to the county board of zoning appeals for a special exception to mine its property. It also requested a permit from the state commission, which had to issue a permit before anyone could excavate in a floodway. The commission granted Irving permission to mine its land. Irving then withdrew its application for a special exception from the zoning board and sued the county. Irving asked the court to determine whether it had the right to mine the portions of its property located in a "non-urban" area. Irving claimed state taw precluded the county from requiring a speciaI exception on that part of its property that was also in a non-urban area. It pointed to a statute that provided, "the [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." Irving relied on a number of cases in which the court interpreted the statute in favor of the owner and prevented the local zoning board from restricting the excavation of minerals on property in a non-urban area. This, Irving argued, meant that requiring a special exception was an unlawful prohibition against its complete use of mineral resources. Irving asked for judgment without a trial. The court denied its request and awarded the county judgment. Irving appealed. DECISION: Affirmed. The county had the authority to regulate mineral extraction in a flood plain even if the property was in a non-urban area. The county's ordinance did not conflict with the statute that protected mining operations in non-urban areas. When the state Legislature empowered counties to regulate lxnd use in flood plains, it created an exception to the rule that prohibited counties from regulating mining in non-urban areas. Whether a flood plain was in an urban or non-urban area, the interests of the community as a