[CITE: Classic Coal Co. v. DNR, 5 CADDNAR 158 (1990)]
[VOLUME 5, PAGE 158]
Cause #: 89-225R
Caption: Classic Coal Co., v.
DNR
Administrative Law Judge: Teeguarden
Attorneys: Bodkin; Law; Lueken, Jr.
Date: November 30, 1990
ORDER
The
September 26, 1989, action of the Delegates of the Natural Resources Commission
granting permit S-00230 to allow surface coal mining in Spencer County is
reversed. The application for permit S-00230 is denied due to a lack of
compliance with local zoning ordinances.
FINDINGS OF FACT
1.
The Department of Natural Resources (DNR) is an agency within the meaning of IC
4-21.5.
2.
The DNR is the agency charged with the regulation and permitting of surface
coal mining inside Indiana.
3.
Classic Coal Company (Classic) conducts surface coal mining operations in
southwestern Indiana.
4.
IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to this
action.
5.
The Natural Resources Commission (NRC) is the ultimate authority within the
meaning of IC 4-21.5 in these proceedings.
6.
On or about September 26, 1989, Classic was notified by the DNR that permit
application S-00230 to conduct surface coal mining operations in Spencer
County, Indiana, was approved subject to certain conditions.
7.
On October 23, 1989, Classic filed a request for administrative review of
condition number 10, which reads as follows:
This
permit (shall) not be issued and no mining operations occur until such time
that Classic Coal Corporation receives approval from the Spencer County Board
of Zoning Appeals for a Special Exception Permit. Proof of this approval shall
be submitted to the Division of Reclamation on receipt.
8.
This condition was placed on the permit because of IC 36-7-4-1103(a) which was
passed in 1989 and reads as follows:
a.
This section does not apply to a plan commission exercising jurisdiction in a
county with population of at least nineteen thousand, three hundred and fifty
(19,350) and not more than nineteen thousand, six hundred (19,600).
b.
(Not relevant)
c.
The advisory planning law does not authorize an ordinance that would prevent,
outside of urban areas, the complete use and alienation of any mineral
resources or forests ....
9.
The net effect of IC 36-7-4-1103 is to exempt any county meeting the population
window from a statute which otherwise prohibits a county from regulating the
use of mineral resources.
10.
Coal is a mineral resource.
11.
Spencer County enacted an ordinance requiring county permits for new surface
coal mining operations in May of 1989.
12.
Classic contends that IC 36-7-4-1103 is unconstitutional and that there is no
evidence that Spencer County meets the population window.
13. Nothing
in IC 36-7-4-1103 specifies the date on which a county must meet the population
requirements.
14. Sunshine Promotions v. Ridlen
(1985), 483 N.E. 2d 761 disposes of any constitutional argument that might be
raised. This case clearly holds an administrative law judge cannot find a
legislative act unconstitutional.
15.
IC 13-4.1-14-1(a)(6) provides in part: " ... no
surface coal mining may exist ... which will violate any local zoning
ordinance."
16.
310 IAC 12-2-1(h) Provides in part: " ... no
surface coal mining operations shall be conducted,..which
will violate existing local zoning ordinances."
17.
310 IAC 12-2-2(b)(1) requires the director to reject
any application if the proposed operation will violate local zoning ordinances.
18.
In the absence of any legislative statement the population date which must be
used is the most recent official census figure. That figure for Spencer County
is the 1980 US census number of 19,361. See IC 1-1-4-1.
19.
In the prior case of Classic Coal v. DNR
(cause number 89-062R)(Classic I) the NRC on September 24, 1990, found that a
surface coal mining permit in Spencer County could not be approved by the DNR
until local zoning approval was obtained.
20.
Spencer County qualifies as an exempt county under IC 36-7-41103.
21.
Because of Classic I, IC 13-4.1-14-1(a)(6), 310 IAC
12-2-1(h), and
[VOLUME 5, PAGE 159]
310
IAC 12-2-2(b), the DNR should have rejected the application and as such, the
NRC delegates should not have "approved" the permit.
22.
Accordingly, the decision of the NRC delegates to approve the surface coal mine
permit in question subject to conditions is reversed and the permit application
is denied.