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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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