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Justices find statute doesn't apply to landfill facility

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The Indiana Supreme Court has ruled on a 30-year fight between the owners of a proposed landfill and neighbors, ruling that a new law doesn’t apply to the facility or require it to get a new permit.

In Killbuck Concerned Citizens Association v. J.M. Corporation and Ralph Reed, No. 48S00-1003-PL-158, a group of Madison County residents, some who own land close to the proposed landfill of J.M. Corporation, appealed the approval of the landfill’s permit for construction. The Madison County Board of Zoning Appeals granted the zoning petition in 1981.

Over the years, JMC had been granted an operating permit by the Indiana Department of Environmental Management, but because of an appeal by the citizens association, the issue went back before the Indiana Office of Environmental Adjudication. JMC and IDEM have met several times to attempt to finalize the operating permit, but their efforts failed and the matter was appealed again.

The appeal was resolved when the Office of Environmental Adjudication ruled in October 2004 that an operating permit had been issued to JMC in 1998 and IDEM improperly denied JMC’s permit renewal application and request for extension of time. But a new law passed in March 2008 says a facility that didn’t accept waste before April 1, 2008, had to return to county zoning authorities for a new permit. JMC installed and operated a collection container system on its property and at the end of March 2008, it had received household trash from paying customers.

The citizens association sought a declaratory judgment in June 2008 that Indiana Code 13-20-2-11 applied to JMC so it had to seek current zoning approval. The trial court granted JMC’s motion for summary judgment and denied the association’s motion for summary judgment. The trial court held that the statute violated the Indiana Constitution because it was a special law that could have been made to apply generally. It also ruled the collection container system didn’t constitute accepting waste.

The Supreme Court didn’t address the constitutional issue and instead focused on the application of the statute to JMC. The justices, in applying the recognized definitions of “facility,” “accept,” and “waste,” unanimously held that the statute doesn’t apply to JMC because the landfill accepted waste before April 1, 2008.

In addition, the facility was only required to have “accepted” waste before the applicable deadline and the waste was not required to be deposited or disposed of as it would be in a landfill, wrote Justice Frank Sullivan.

The justices reversed the trial court and remanded for further proceedings consistent with the opinion.

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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