Not in My Backyard: A Critique of Current Indiana Law on Land Use Moratoria

Indiana Law Journal

Volumn 72, Issue 3, 1997, Pages 809-828

  Ailes, Thaddeus R ^a,b  

^a INDIANA UNIVERSITY   (United States)

^b BUTLER UNIVERSITY   (United States)

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EID: 1842690767     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (143)

1. Although there were just three cases, there were actually five decisions: three at the district court level and two on appeal to the Seventh Circuit.
2. For a more complete discussion of the facts in each of the three cases, see infra part I.B.
3. 776 F. Supp. 1368 (S.D. Ind. 1990), aff'd, 956 F.2d 635 (7th Cir. 1992), aff'd, 57 F.3d 505 (7th Cir. 1995) (affirming denial of further relief on subsequent appeal), cert. denied, 116 S. Ct. 672 (1995).
4. 774 F. Supp. 528 (S.D. Ind. 1991), aff'd, 977 F.2d 287 (7th Cir. 1992).
5. 885 F. Supp. 1146 (S.D. Ind. 1994).
6. Because the local government entities which issue moratoria are sometimes counties, sometimes towns, and sometimes cities, this Note will often use the general term "municipalities" to include all three possibilities.
7. Even if the possibility of this land use does occur to local government officials before the application for a permit, as it did in the three Indiana cases, this "advance notice" still does the local government no good, under the courts' rulings, unless it is so far in advance that the local government has time to create a comprehensive plan (if one does not exist already) and enact a zoning ordinance.
8. Telephone Interview with Thomas A. Jensen, Attorney, McHale Cook & Welch, Indianapolis (Oct. 3, 1995).
9. 482 U.S. 304 (1987).
10. IND. CODE § 36-7-4-601(a) (1993).
11. DONALD G. HAGMAN & JULIAN CONRAD JUERGENSMEYER, URBAN PLANNING AND LAND DEVELOPMENT CONTROL LAW § 2.9 (2d ed. 1986).
12. Id.
13. DANIEL R. MANDELKER, LAND USE LAW § 3.01 (3d ed. 1993).
14. Id.
15. Id. § 3.02.
16. HAGMAN & JUERGENSMEYER, supra note 11, § 2.10.
17. Id.
18. Id.
19. Indiana law requires the plan commission to give notice and hold one or more public hearings on the plan before the plan commission can approve a comprehensive plan. The commission must publish a schedule stating the time and place of each hearing, and the entire plan must be on file and available for examination by the public for at least ten days before the hearing. IND. CODE § 36-7-4-507 (1993).
20. HAGMAN & JUERGENSMEYER, supra note 11, § 2.10.
21. MANDELKER, supra note 13, § 3.01.
22. Id. § 1.03.
23. Id.
24. Id. In addition to going through the process of determining the substantive nature of the zoning ordinance, a plan commission in Indiana must give notice and hold a public hearing before the commission certifies a proposed zoning ordinance to the local legislative body. IND. CODE §§ 36-7-4-602(a)(4), -604 (1993).
25. Michael J. Volpe, Comment, Stop-Gap and Interim Legislation, a Device to Maintain the Status Quo of an Area Pending the Adoption of a Comprehensive Zoning Ordinance or Amendment Thereto, 18 SYRACUSE L. REV. 837, 837 (1967).
26. Id. at 837-38.
27. 3 PATRICK J. ROHAN, ZONING AND LAND USE CONTROLS § 22.01[1] (rev. 1996).
28. Id.
29. HAGMAN & JUERGENSMEYER, supra note 11, § 9.5.
30. 3 ROHAN, supra note 27, § 22.01[1].
31. 776 F. Supp. 1368 (S.D. Ind. 1990), aff'd, 956 F.2d 635 (7th Cir. 1992), aff'd, 57 F.3d 505 (7th Cir. 1995) (affirming denial of further relief on subsequent appeal), cert. denied, 116 S. Ct. 672 (1995). All three of these cases (Pro-Eco, Triple G, and Sagamore Park) were in federal court, as opposed to state court, because the plaintiffs in all three cases also alleged violations of federal constitutional law provisions, such as the Due Process Clause, the Commerce Clause, the Takings Clause, and the Equal Protection Clause. In all three cases, however, the courts decided the cases on state law grounds.
32. Pro-Eco, 956 F.2d at 635.
33. Id. at 636.
34. Id.
35. Id.
36. Pro-Eco, 776 F. Supp. at 1368. The district court and the Seventh Circuit also used the term "moratorium" to refer to the ordinance.
37. Id. 1371.
38. Id.
39. Pro-Eco, 956 F.2d at 636.
40. 774 F. Supp. 528 (S.D. Ind. 1991), aff'd, 977 F.2d 287 (7th Cir. 1992).
41. Triple G, 977 F.2d at 288.
42. Triple G, 774 F. Supp. at 529.
43. Triple G, 977 F.2d at 288. 44. Id. Although Fountain County, unlike Jay County, did not call its ordinance a "moratorium," the Seventh Circuit held that it was effectively a moratorium on all landfill development in Fountain County. Id. at 292. This author agrees with the court's determination that this regulation is effectively a moratorium and should therefore be treated as such. However, this author disagrees with how the court decided to treat moratoria.
44. Triple G, 774 F. Supp. at 530.
45. See supra text accompanying note 10.
46. Triple G, 774 F. Supp. at 532. The district court also held that the ordinance was preempted by state law, but the Seventh Circuit only addressed the issue on which this Note speaks: whether the ordinance was a zoning ordinance. Triple G, 977 F.2d at 291.
47. Triple G, 977 F.2d at 288.
48. 885 F. Supp. 1146 (S.D. Ind. 1994).
49. IND. CODE § 4-31 -1 (1993).
50. Id. § 4-31-5.5-1 (1993). Satellite wagering facilities are recreational facilities which have a minimum seating capacity of 400 persons, receive and display on multiple screens simulcast pari-mutuel horse races from live horse-racing facilities in Indiana and elsewhere, have full dining service available to all patrons, and display other sporting events on multiple screens during those times when pari-mutuel horse races are not being broadcast. Patrons can engage in pari-mutuel wagering at satellite facilities. Sagamore Park, 885 F. Supp. at 1148. Satellite wagering is often also referred to as "off-track betting."
51. Sagamore Park, 885 F. Supp. at 1148.
52. Id. An improvement location permit is required prior to the alteration of any structure. IND. CODE § 36-7-4-801(b) (1993); Improvement Location Permit Ordinance of Marion County, Indiana, City-County Council General Ordinance No. 134. The purpose of the ILP requirement is to ensure that the new or renovated structure will comply with applicable zoning regulations. Sagamore Park, 885 F. Supp. at 1149.
53. Id.
54. Id.
55. Id.
56. Id. at 1150. A key difference between Sagamore Park and the two earlier cases, ProEco and Triple G, is that the municipality in Sagamore Park had a comprehensive plan. Thus, Sagamore Park actually takes the courts' anti-moratoria doctrine a step further than the prior two cases had, as it demonstrates that even having a comprehensive plan is not enough to save a municipality from having its temporary moratorium crumpled up and thrown away by the federal courts; the municipality has to follow all the steps laid out in the 600 series of Indiana Code 36-7-4 to be left alone, not just the comprehensive planning part.
57. Webster's Third New International Dictionary defines "moratorium" as "a suspension of activity; a temporary ban on the use or production of something." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE (Philip Babcock Gove ed., 1986). Although the term "temporary moratorium" may therefore seem redundant, as the word "temporary" is already included in the definition, this Note will nevertheless use these two words together on occasion in order to make clear that the type of measure this Note is supporting is of an interim, not permanent, nature.
58. The phrase "the courts' rulings," when used in this Note, refers to the decisions of the federal courts in Pro-Eco, Triple G, and Sagamore Park.
59. 3 ROHAN, supra note 27, § 22.01[1].
60. Id. Under the law of nonconforming uses, those uses that preexist changes in the law are permitted to continue. Id. § 22.01[1] n.2.
61. Id. § 22.01[1].
62. Robert H. Freilich, Interim Development Controls: Essential Tools for Implementing Flexible Planning and Zoning, 49 J. URB. L. 65, 66 (1971).
63. Id. at 95.
64. 3 ROHAN, supra note 27, § 22.01[1].
65. Id.
66. Freilich, supra note 63, at 66.
67. Volpe, supra note 25, at 839.
68. 3 ROHAN, supra note 27, § 22.01[1].
69. Id.; see also Volpe, supra note 25, at 838.
70. Volpe, supra note 25, at 839.
71. If there were not any arguments against allowing temporary moratoria, it would seem likely that the courts would not have struck them down in Pro-Eco, Triple G, and Sagamore Park.
72. The Seventh Circuit adopted this argument in Pro-Eco, 956 F.2d at 638.
73. The plaintiffs in Pro-Eco, Triple G, and Sagamore Park alleged violations of the Takings Clause of the Federal Constitution, the Due Process Clause, the Equal Protection Clause, and the Commerce Clause, as well as that the defendants' moratoria were preempted by state law. Pro-Eco, 776 F. Supp. at 1368; Triple G, 774 F. Supp. at 530; Sagamore Park, 885 F. Supp. at 1149. A landowner can argue that a regulation or control as applied to his land is a taking of property because it does not allow him a reasonable use of his land. MANDELKER, supra note 13, § 1.03. The courts will also strike down interim controls that clearly serve improper regulatory purposes. DANIEL R. MANDELKER, LAND USE LAW § 6.07 (2d ed. 1988). Morales v. Haines, 349 F. Supp. 684 (N.D. Ill. 1972), held, for example, that a one-year suspension of building permits for subsidized housing was an equal protection violation.
74. See supra text accompanying note 72 for initial discussion of this argument.
75. The planning is premature, and thus inefficient, if the costs of creating a comprehensive plan at this time outweigh the benefits of having a plan. In making this determination of whether costs or benefits are greater, one should not include in the "benefit" category the fact that having a comprehensive plan will protect the county from being selected by a developer due to lack of a comprehensive plan. Whether this incentive to plan is good or bad depends on whether there are sufficient reasons to plan other than the reason provided by the incentive itself.
76. See supra note 57.
77. The requirements are listed in the 600 series of Indiana Code 36-7-4. See also supra note 24.
78. See Freilich, supra note 63, at 80.
79. The term "interim ordinance" refers to moratoria and other temporary land use controls.
80. Freilich, supra note 63, at 80.
81. 245 N.W.2d 819 (Minn. 1976).
82. The length of time a moratorium should last will vary with the needs of the community in each particular case. Courts in other states have invalidated four- and five-year freezes, but courts have generally upheld periods of three years or less. 3 ROHAN, supra note 27, § 22.02[2].
83. Almquist, 245 N.W.2d at 826. One modification which would improve the Almquist five-part test is that the "purpose" requirement (part four) should also include the enactment of a zoning ordinance. Including the enactment of a zoning ordinance as a permissible purpose for a moratorium would allow a municipality which already has a comprehensive plan, such as the defendant in Sagamore Park, to use a moratorium to protect the effectiveness of a subsequent zoning ordinance.
84. Pro-Eco, 776 F. Supp. 1368; Pro-Eco, 956 F.2d 635; Triple G, 774 F. Supp. 528; Triple G, 977 F.2d 287; Sagamore Park, 885 F. Supp. 1146.
85. The moratorium in each case "regulated" land use by prohibiting a particular use. Indiana Code § 36-1-2-15 defines "regulate" as "license, inspect, or prohibit."
86. The 600 series of Indiana Code 36-7-4 provides the requirements with which zoning ordinances must comply.
87. 135 N.E.2d 243 (Ind. 1956).
88. The ordinance involved a "rezoning" of real estate from residential to business uses for the proposed establishment of a wholesale grocery warehouse. Id. at 244. Thus, the ordinance classified property and regulated it by district, which is what "zoning" is. See infra text accompanying notes 92-95.
89. See supra text accompanying note 10.
90. IND. CODE § 36-7-1-22 (1993).
91. 30 IND. L. ENCYCLOPEDIA Zoning § 1, 635 (1960) (emphasis added).
92. 83 AM. JUR. 2D Zoning and Planning § 2 (1992) (emphasis added) (footnotes omitted).
93. 6 ROHAN, supra note 27, § 37.01[1]. This definition, too, is cited by the Seventh Circuit in Pro-Eco, 956 F.2d at 638.
94. 367 S.W.2d 568 (Mo. 1963).
95. Id. at 572 (quoting BLACK'S LAW DICTIONARY 1793 (4th ed. 1957)).
96. 91 A.2d 353 (N.J. App. 1952).
97. Id. at 355 (quoting Collins v. Board of Adjustment, 69 A.2d 708, 710 (N.J. 1949)).
98. 433 A.2d 366 (Me. 1981).
99. Id. at 372 n.9 (quoting Benjamin v. Houle, 431 A.2d 48 (Me. 1981)).
100. See also Proffett v. Valley View Village, 123 F. Supp. 339, 343 (N.D. Ohio 1953), rev'd on other grounds, 221 F.2d 412 (6th Cir. 1955); Karp v. Zoning Bd., 240 A.2d 845, 850 (Conn. 1968); Stephans v. Board of County Comm'rs, 397 A.2d 289, 292 (Md. App. 1979), aff'd in part andrev'd in part, 408 A.2d 1017 (Md. 1979); 101A C.J.S. Zoning and Land Planning § 2 (1979); 1 KENNETH H. YOUNG, ANDERSON'S AMERICAN LAW OF ZONING § 1.13 (4th ed. 1996).
101. See also Proffett v. Valley View Village, 123 F. Supp. 339, 343 (N.D. Ohio 1953), rev'd on other grounds, 221 F.2d 412 (6th Cir. 1955); Karp v. Zoning Bd., 240 A.2d 845, 850 (Conn. 1968); Stephans v. Board of County Comm'rs, 397 A.2d 289, 292 (Md. App. 1979), aff'd in part andrev'd in part, 408 A.2d 1017 (Md. 1979); 101A C.J.S. Zoning and Land Planning § 2 (1979); 1 KENNETH H. YOUNG, ANDERSON'S AMERICAN LAW OF ZONING § 1.13 (4th ed. 1996).
102. In Barefield v. Davis, 251 So. 2d 699, 700 (Fla. Dist. Ct. App. 1971), the court said that a resolution by the board of county commissioners prohibiting additional mobile home parks in a particular area and providing for extension of existing mobile home parks in this area only by a board-issued permit was not a zoning ordinance and was not governed by any general law of municipal zoning. In City of Astoria v. Nothwang, 351 P.2d 688, 691 (Or. 1960), the court said that an ordinance relating to the parking of trailer houses, auto homes, and camp cars was not a zoning ordinance where its primary purpose was to promote public health, safety, and sanitation by forbidding the use of parked vehicles as living quarters.
103. 743 F.2d 1086 (5th Cir. 1984).
104. The Fifth Circuit held that the city's action did not deprive landowners of due process or deny them equal protection. Id. at 1090.
105. Id. at 1087.
106. Id. at 1090.
107. Id.
108. The court called this the "critical difference." Pro-Eco, 776 F. Supp. at 1372.
109. Id.
110. In 1970, the city adopted a comprehensive zoning ordinance permitting the landowners' property in the particular area at issue and other property in the same area to be used for a variety of commercial purposes, including operation of fast-food restaurants. Schafer, 743 F.2d at 1087-88. In 1984, the city adopted the moratorium at issue, which prohibited the issuance of building permits for fast-food restaurants in this area. Id. at 1088.
111. See id. at 1089 nn. 1-2.
112. These words come from the Indiana Law Encyclopedia definition of "zoning," which the courts cite in all three cases. 30 IND. L. ENCYCLOPEDIA, supra note 92, § 1, at 635.
113. Interestingly enough, the use of these two particular football positions, quarterback and offensive lineman, allows a further analogical comparison between football and land use. Just as an offensive lineman protects the quarterback and gives him time to do his job, a temporary moratorium protects a pending zoning ordinance from having its purpose frustrated while it is in the process of being enacted. Thus, the moratorium allows the zoning ordinance to "do its job."
114. Sagamore Park, 885 F. Supp. at 1150.
115. See Pro-Eco, 776 F. Supp. at 1371; Pro-Eco, 956 F.2d at 638; Triple G, 774 F. Supp. at 532-33; Triple G, 977 F.2d at 291.
116. Pro-Eco, 776 F. Supp. at 1371.
117. Pro-Eco, 956 F.2d at 638.
118. IND. CODE § 36-7-4-601 (d)(1) (1993).
119. Triple G, 977 F.2dat 291.
120. Id.
121. For example, under the courts' definition of zoning, municipalities could be prohibited from enacting ordinances preventing parking on certain streets, because such ordinances would "regulate the use of a piece of property." Brief and Appendix of Appellants at 27, Triple G Landfills, Inc. v. Board of Comm'rs, 977 F.2d 287 (7th Cir. 1992) (No. 91-3507).
122. IND. CODE §§ 36-1-3-1 to -9 (1993).
123. Pro-Eco, 776 F. Supp. at 1371.
124. IND. CODE § 36-1-3-4(b)(2) (1993).
125. Id. § 36-1-3-5(a) (1993).
126. Id. § 36-1-3-6(a) (1993).
127. Pro-Eco, 776 F. Supp. at 1372. The Seventh Circuit also held that the Home Rule Act did not apply to the moratorium issued by Jay County. Pro-Eco, 956 F.2d at 639.
128. See supra text accompanying note 10.
129. Pro-Eco, 776 F. Supp. at 1372.
130. Id. at 1371.
131. U.S. CONST, amend. V.
132. 482 U.S. 304 (1987).
133. Id. at 318. In First English, a flood destroyed a church's campground buildings. In response to the flood, Los Angeles County adopted an interim ordinance prohibiting the construction or reconstruction of any building or structure in an interim flood protection area that included the land on which the church's buildings had stood. Shortly after the ordinance was adopted, the church sued the county, alleging that the ordinance denied the church all use of its property and seeking to recover monetary damages for this loss of use. Id. at 304.
134. Id. at 318, 322.
135. See id. at 318, 321, 322.
136. MANDELKER, supra note 13, § 8.25.
137. Edward H. Ziegler, Jr., Interim Zoning and Building Moratoria: Temporary Taking Claims After First English, 12 ZONING & PLAN. L. REP. 97, 102 (1989).
138. First English, 482 U.S. at 321. The Court also stated, in prefacing its holding, that "[hjere we must assume that the Los Angeles County ordinance has denied appellant all use of its property for a considerable period of years." Id. at 322 (emphasis added).
139. Ziegler, supra note 137, at 99.
140. Id.
141. Id.
142. 543 A.2d 863 (Md. App. 1988).
143. Ziegler, supra note 137, at 100.