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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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