Agenda - Planning Commission - 06/06/2013

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April 25, 2013 I Volume 7 I Issue 8 Zoning Bulletin In 2007, Midwest challenged the public water condition, and the trial court removed the condition. The BZA did not appeal that decision. In July 2009, Midwest filed a complaint against the BZA and the Board of Commissioners of Vigo County (collectively, the "Boards"). Midwest alleged that the public water condition constituted a taking without just compensation under Article I, § 21 of the Indiana Constitution. In particular, Midwest as- serted that the BZA's actions in imposing the public water condition consti- tuted a "complete deprivation of [Midwest's] property interest" from the time that the public water condition was issued, February 8, 2006, until the trial court ruled that the public water condition was invalid, on July 2, 2007. Midwest argued that during those 17 months, Midwest was unable to begin construction of the molecular gate processing unit. As such, Midwest claimed that it was therefore denied all economically beneficial or productive use of the land and was entitled to damages. The trial court entered judgment for the Boards. The court held that the Boards' actions did not constitute a taking of Midwest's Property. Midwest appealed. DECISION: Affirmed. The Court of Appeals of Indiana held that the Boards' actions did not con- stitute a taking (i.e., inverse condemnation) of Midwest's Property because Midwest was not deprived of all economic or productive use of the Property due to the public water condition. The court explained that "inverse condemnation" "is a process provided by statute to allow persons to be compensated for the loss of property interests taken for public purposes without use of the eminent domain process." It provides a remedy for takings of property that would otherwise violate Article I, § 21 of the Indiana Constitution and the Fifth Amendment of the United States Constitution as made applicable to the states by the 14th Amendment. Specifically, Indiana Code 32-24-1-16 provides the statutory remedy for inverse condemnation. It provides that if a person's property is taken for pub- lic use without legal procedures followed, that person may be entitled to damages. The court further explained that a "taking" includes any substantial interfer- ence with private property that "destroys or impairs one's free use and enjoy- ment of the property or one's interest in the property." If a regulation goes "too far," it will be recognized as a taking. In that regard, regulations that amount to takings include: regulations that require the property owner to suf- fer a physical "invasion" of his or her property; and regulations that deny all economically beneficial or productive use of land. Here, Midwest had contended that, though zoned M-2 industrial, its Prop- erty had only one viable economic use: the molecular gate processing unit. The court rejected this contention. The court found that, while "not cost effec- tive, it may be possible to remove and transport the methane gas [to be puri- fied elsewhere] by pumping it into a truck." Thus, Midwest may have been able process gas offsite. Moreover, the court found that the Property was avail- able for other uses including warehousing, recreational use, forestry, or a con- servation club. Accordingly, the court concluded that Midwest had not been deprived of all economic or productive use of the property. 6 ©2013 Thomson Reuters