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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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