City of Carmel v. Martin Marietta Materials

Citation883 N.E.2d 781
Decision Date03 April 2008
Docket NumberNo. 29S04-0611-CV-469.,29S04-0611-CV-469.
PartiesThe CITY OF CARMEL, Indiana, Appellant (Defendant below), v. MARTIN MARIETTA MATERIALS, INC., Appellee (Plaintiff below).
CourtSupreme Court of Indiana
883 N.E.2d 781
The CITY OF CARMEL, Indiana, Appellant (Defendant below),
MARTIN MARIETTA MATERIALS, INC., Appellee (Plaintiff below).
No. 29S04-0611-CV-469.
Supreme Court of Indiana.
April 3, 2008.

[883 N.E.2d 782]

Alan S. Townsend, Paul D. Vink, Indianapolis, IN, Attorneys for Appellant.

Thomas E. Mixdorf, Zeff A. Weiss, Abigail B. Cella, Indianapolis, IN, H. Wayne Phears, Norcross, GA, Attorneys for Appellee.


SULLIVAN, Justice.

The City of Carmel enacted an ordinance regulating mining within the City. The trial court prohibited enforcement of the ordinance based on the argument of Martin Marietta Materials, Inc., a mining concern, that the City did not follow the statutory requirements applicable to enacting zoning ordinances. We find that the City was not required to utilize the zoning process in order to regulate mining in this way.


Martin Marietta Materials, Inc. has mined, processed, and sold sand, gravel, and limestone within the corporate limits of the City of Carmel for several decades. Martin Marietta's operations in Carmel consist of a quarry, an underground mine, and sand and gravel pits. As nearby residential development has increased in recent years, a growing number of complaints have been lodged with the City about Martin Marietta.

In 2005, following a failed attempt two years earlier,1 the Carmel Common Council enacted Ordinance No. D-1686-04 As

883 N.E.2d 783

Amended ("Ordinance")2 that regulated many aspects of mining within the City. At Martin Marietta's request, the trial court entered a temporary restraining order prohibiting the City from enforcing the Ordinance and subsequently granted Martin Marietta's request for a preliminary injunction to the same effect. City of Carmel v. Martin Marietta Materials, Inc., 849 N.E.2d 1197, 1202 (Ind.Ct.App.2006). The Court of Appeals affirmed. Id. at 1212. Carmel petitioned for, and we granted transfer, 860 N.E.2d 597 (Ind. 2006) (table), thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A).


The Ordinance's preamble sets forth the following purposes for its enactment:

Whereas, mining and the processing of mineral resources should give due regard to (1) the protection of the health, safety and general welfare of the people, (2) the prevention of erosion, stream pollution, water, air and land pollution; and (3) the prevention of negative impact to the City's water supply and other injurious effects to persons, property, wildlife and natural resources; and

Whereas, the Common Council of the City of Carmel finds that, for the protection of the public health, safety and welfare of the citizens of Carmel, to mitigate the negative impacts of mining and processing of mineral resources on those citizens who reside adjacent to or near such operations, and to maintain an environmentally sound and stable mining and processing industry, it is reasonable and necessary to regulate mining operations as provided in this Ordinance.

(Carmel, Ind., Ordinance No. D-1686-04 As Amended (2005), Pl.'s Ex. # 3 in Volume of Exhibits.)

The substantive sections of the Ordinance are consistent with the preamble's stated intent. Among many other regulations, the Ordinance addresses water and air pollution (id. § 6-171(h)(11)), lateral support to prevent collapse of underground tunnels (id. § 6-173(a)), uncontrolled movement of loose material (id. § 6-173(c)), perimeter fencing to keep out unauthorized persons (id. § 6-173(d)), and blasting practices and the handling of explosives to minimize the risk of injury or property damage (id. § 6-175).

As noted supra, Martin Marietta filed this lawsuit to prevent enforcement of the Ordinance. The argument on which the company prevailed in the trial court and in the Court of Appeals is a fairly technical one: while the City has the authority to adopt an ordinance regulating mining, this Ordinance is invalid because it was not adopted in the manner required by the General Assembly.

Understanding Martin Marietta's position requires saying a few words about the legal authority of municipalities in Indiana. In 1980, the General Assembly codified many of the provisions of Indiana law governing the authority and operation of local units of government—counties, cities, towns, and townships—into a new title 36 of the Indiana Code.3 1980 Ind. Acts,

883 N.E.2d 784

Pub.L. No. 211, § 1 (codified at Ind.Code tit. 36 (1980)).

As we have observed elsewhere on several occasions, one of the most noteworthy aspects of this recodification was its granting to local units "home rule," I.C. §§ 36-1-3-1 to -9 (1980), explicitly "abrogat[ing]" the long-standing "Dillon Rule" that "any doubt as to the existence of a power of a unit shall be resolved against its existence." Id. § 3. From that point forward, the General Assembly mandated, "[a]ny doubt as to the existence of a power of a unit shall be resolved in favor of its existence." Id. § 3(b). In fact, this rule is to be applied "even though [the power has] not [been] granted by statute," id. § 4(b)(2), and "even though a statute granting the power has been repealed," id. § 3(b). "We believe this statutory scheme demonstrates a legislative intent to provide counties, municipalities, and townships with expansive and broad-ranging authority to conduct their affairs." City of N. Vernon v. Jennings Nw. Reg'l Utils., 829 N.E.2d 1, 5 (Ind.2005).

Nevertheless, the General Assembly has set forth a number of explicit procedural requirements for local units of government to exercise its powers and Martin Marietta is certainly correct that the mandates of the statutes as to the enactment of ordinances must be followed for those ordinances to be valid.

Indiana Code § 36-8-2-4 (2004 & Supp. 2007) provides that "[a] unit may regulate conduct, or use or possession of property, that might endanger the public health, safety, or welfare." In reliance on that authority, the City's Common Council passed the Ordinance, the City's Mayor approved it, and the City's Clerk-Treasurer certified it, all as required by law. Ordinance at 27; See I.C. § 36-4-6-12 to -18. The Ordinance provides that the director of the City's Department of Community Services is given powers and duties to administer and enforce the Ordinance. Ordinance § 6-167(d). The Ordinance further provides that decisions of the director are subject to review by the City's Board of Public Works,4 id. § 6-177, and that final actions of the Board of Public Works are subject to judicial review, id.

Article 7 of title 36 governs the exercise of a local government unit's planning and development powers, including zoning. City zoning ordinances (and amendments to them) adopted under article 7 are subject to special procedures set forth in I.C. § 36-7-4-601 to 616 (2004 & Supp.2007) ("600 Series Procedures"). See I.C. § 36-7-1-22. While a zoning ordinance amendment is ultimately passed by a city's Common Council, subject to mayoral review, the 600 Series Procedures dictate that the city's plan commission5 must first review and make a recommendation with respect thereto. Once an amendment to a city zoning ordinance is passed, appeals from the application or enforcement of its terms are subject to review by the city's Board of

883 N.E.2d 785

Zoning Appeals.6 I.C. § 36-7-4-918.1. Ex parte communications to members of a Board of Zoning Appeals are prohibited. Id. § 920(g). Final actions of a city's Board of Zoning Appeals are subject to judicial review. I.C. § 36-7-4-1003.

Indiana Code § 36-7-2-6 (2004 & Supp. 2007) provides that "[a] unit may regulate excavation, mining, drilling, and other movement or removal of earth below ground level." Because of its location in article 7 of title 36, Martin Marietta contends that the exercise of this authority is subject to (a) the requirements described in the preceding paragraph—the 600 Series Procedures—prior to adoption of any ordinance regulating mining, and (b) Board of Zoning Appeals review of any appeals from the application or enforcement of such an ordinance's terms.7

In summary, the City has enacted the Ordinance in a general exercise of its authority to "regulate conduct, or use or possession of property, that might endanger the public health, safety, or welfare" as authorized by I.C. § 36-8-2-4 without complying with the special requirements applicable to zoning ordinances mandated by the 600 Series Procedures. Martin Marietta believes that a city ordinance regulating mining may be enacted only by complying with the 600 Series Procedures. The trial court agreed and entered a preliminary injunction prohibiting enforcement of the Ordinance on this basis. The Court of Appeals affirmed on this basis as well.


We do not agree with Martin Marietta's view that the language of title 36, article 7 indicates that the General Assembly intended to subject the regulation of mining exclusively to the zoning process.

First, the language of I.C. § 36-7-2-6 that "[a] unit may regulate excavation, mining, drilling, and other movement or removal of earth below ground level" supports a reading that the General Assembly's intent here was simply to make clear that the zoning power of a unit of local government covers not only surface land uses but extends to subterranean uses as well. While Martin Marietta takes the position that this language covers both surface and subterranean uses, the legislative history of this provision suggests otherwise. Prior to the recodification of local government law into title 36 referred to in Part I, supra, municipal law was largely contained in title 18. In 1971, the General Assembly recodified sections of title 18 in what appears to have been an effort to modernize the language and organize more logically the provisions governing the powers and authority of mayors and city councils. 1971 Ind. Acts, Pub.L. No. 250, § 1 (codified at I.C. tit....

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