                                                                        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

Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016                    Page 1 of 14
      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.




      Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016      Page 2 of 14
                             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

      Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016                     Page 3 of 14
      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.


      Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016                             Page 4 of 14
      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


      Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016   Page 5 of 14
      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.




      Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016   Page 6 of 14
[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

       Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016     Page 7 of 14
               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




       Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016    Page 8 of 14
       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.

       Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016                             Page 9 of 14
       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

       Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016   Page 10 of 14
       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

       Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016   Page 11 of 14
       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

       Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016    Page 12 of 14
       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.

       Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016                            Page 13 of 14
[23]   Affirmed in part and reversed and remanded in part.

       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1506-PL-694 | March 28, 2016   Page 14 of 14
