Agenda - Planning Commission - 01/31/2013 - Special

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Zoning Bulletin October 10, 2012 I Volume 6 I Issue 19 ing involved a unique land use, to which many other jurisdictions applied the "diminishing assets doctrine." That doctrine provides "that reserves yet to be mined, quarried, or excavated are nonetheless preexisting uses in the event of a more restrictive zoning change." Still, here, the court was "neither prepared to adopt the diminishing assets doctrine in these circumstances nor hold that merely owning property with proven reserves and a history of mining is enough to establish a preexisting use." Instead, the court held that "the evi- dence of reserves and the nature of the mining industry are appropriate considerations in the factual determination of whether activities prior to a zon- ing change are sufficient to establish operations and, therefore, invoke the protections of the statute." The court looked at the record, and found that it established that ALC had: applied for permits necessary for quarrying activities; scouted and cleared the Property; moved equipment onto the Property; and completed a blast shot on the Property, expending approximately $80,000 to $100,000. The court concluded that these measures by the company were "substantial steps" in construction of mining operations. And the court found ALC's actions aimed at turning the Property into an active mine illustrated a commitment or devo- tion of the Property towards mining. The combination of the measures taken by the ALC, the proven reserves, and the mining history on the property, lead the court to conclude that ALC's mining business was "in operation" at the time the County passed its zoning ordinance. As such, ALC/Ready Mix's mining operations were entitled to the protections of § 13-7-208; it could continue those operations despite the County zoning change. See also: Smith County Regional Planning Com'n v. Hiwassee Village Mobile Home Park, LLC, 304 S. W.3d 302 (Tenn. 2010). See also: Rutherford v. Murray, 2004 WL 1870066 (Tenn. Ct. App. 2004). Case Note: In finding that ALC/Ready Mix was not required to exhaust administrative remedies prior to bringing the declaratory judgment action, the court noted that ALC had pre- sented a challenge to the applicability of the zoning ordinance. The court said that an administrative appeal to the board ofzoning appeals "would have afforded no review" over that issue. It was a question of law, which did not require the exhaustion of administrative remedies. Zoning News from Around the Nation MARYLAND Under the new Sustainable Growth and Agricultural Preservation Act, which was passed this year by the Maryland General Assembly, by December 31, 2012, Harford County "must create a map with four land use tiers, which are based on specific criteria and identify where major and minor subdivisions can be established, as well as what type of sewage systems can serve them." In ©2012 Thomson Reuters 11