Again with Eroding Local Control of Mining

Flood schmud. If I want a strip mine in my backyard, the nanny state government shouldn’t be able to tell me “no.”

Rep. Jeff Ellington has introduced HB 1531 which renews his efforts to limit local control on mining. Readers of this blog might remember his efforts last year to pass legislation which likely would have had an impact on the efforts of our folks here in Tippecanoe County — particularly near the town of Americus — to resist efforts of Rogers Group to place a mine near their homes. The language in his current HB 1531 isn’t so broad as last year but would likely have the same effect. Of particular interest to Americus is the following effort to amend IC 36-7-4-1103(c):

(c) ADVISORY—AREA. This chapter does not authorize an ordinance or action of a: (1) plan commission; or (2) board of zoning appeals; that would prevent, outside of urban areas, including flood plains, the complete use and alienation of any mineral resources or forests by the owner or alienee of them.

The key addition here is, “including flood plains.” This legislation seeks to overturn the Indiana Court of Appeals decision in Irving Materials v. Johnson County which held, “when the General Assembly empowered counties to regulate land use in flood plains, it created an exception to the rule that prohibits a county from regulating mineral extraction in non-urban areas.” When Rogers Group challenged the need to request a special exception from the Tippecanoe County Board of Zoning Appeals, the Indiana Court of Appeals held that “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.”

If the statute were to pass, it would likely eliminate the ability of Tippecanoe County to require that a mining operation in a flood plain obtain a special exception demonstrating that its operations wouldn’t, among other things, negatively impact the flood plain. In Irving Materials, the court reasoned, “Our goal in Indiana is to prevent the loss of lives and property caused by floods and to limit the effects of floods on the life, health and convenience of the people. ?Ind.Code §?14-28-1-1. ? Whether a flood plain lies in an urban or non-urban area, the interests of the community as a whole outweigh the interests of an owner or alienee of mineral resources.” Rep. Ellington’s bill would change that balancing of interests such that the interests of the owner of mineral resources would outweigh the interests of the community as a whole.