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Company loses inverse condemnation claim

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The 17-month period beginning when a Terre Haute Board of Zoning Appeals ordered a company seeking a special exception to provide public water to surrounding homes and ending when that condition was overturned by a judge did not constitute inverse condemnation, the Indiana Court of Appeals held Wednesday.

In Midwest Minerals, Inc. v. Fred L. Wilson, Rick Jenkins, Joseph Kenworthy, Michael Tewell, and James Clayton, et al., 84A04-1205-MI-258, Midwest Minerals Inc. argued that the trial court erred when it applied the doctrine of collateral estoppel to support a conclusion of law, and it claimed that a regulatory taking occurred with respect to real property owned by the company. Midwest Minerals’ efforts to build a molecular gas processing unit on property zoned for heavy industrial use in West Terre Haute has been litigated several times since 2002.

In 2005, Midwest sought the special exception that the Board of Zoning Appeals of the Area Plan Commission of Vigo County said it needed to build the plant, which the BZA granted under certain conditions in February 2006. At issue in this appeal is the public water condition, requiring Midwest to provide public water to any residential use within ½ mile of any wells associated with coal mine methane processing.

Seventeen months later, a judge overturned that decision, removing the public water condition. The BZA didn’t appeal that decision and Midwest has been free to begin construction on the processing unit, but has not. Instead, it sued the BZA and the Board of Commissioners of Vigo County, alleging the public water condition constituted a taking without compensation under Article I, Section 21 of the Indiana Constitution and sought damages.

The trial court ruled in favor of the boards, finding the doctrine of collateral estoppel applied with respect to an issue determined in a prior declaratory judgment action – whether Midwest proved the boards prevented Midwest’s “complete” use of a mineral resource outside of an urban area. The judge also found there was no inverse condemnation.

The Court of Appeals affirmed, pointing out that while the question of whether a taking occurred wasn’t raised in the previous declaratory judgment action, whether the boards prevented the complete use of the gas found on the property had been fully litigated and determined, so it cannot be relitigated here.

Regarding the inverse condemnation claim, the boards’ actions did not constitute a taking. During those 17 months, evidence showed that Midwest could have removed the gas from the land by pumping it into trucks and taking it to another area to purify, Judge Edward Najam pointed out. In addition, Midwest didn’t purchase the property with the intent of harvesting and processing the gas, but had it for years before entering into a contract with another company to explore and develop the gas interests in the land.

Finally, Midwest and the company it contracted with have yet to start construction on the processing unit, even though it’s been more than five years since the court struck down the public water condition.

 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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