Uhl v. Liter's Quarry of Indiana, Inc.
| Decision Date | 22 January 1979 |
| Docket Number | No. 1-478A87,1-478A87 |
| Citation | 179 Ind.App. 178,384 N.E.2d 1099 |
| Parties | Jude J. UHL, Mary Jean Uhl, Francis M. Stum, Helen Stum, Larry E. Fraze, Karen Fraze, Karl E. Eggenspiller, Jr., Robert Macy, Linda Macy, Charles E. Graninger, Jr., Mary Graninger, Oscar Elliott, Barbara Elliott, Carlyst O. Simuel, Geneva Simuel, Carl J. Uhl, Mary Uhl, Robert Jackson, Imogene Jackson, McGlenon Rone, Bonnie Rone, Robert W. Smith and Norman Smith, Plaintiffs-Appellants, v. LITER'S QUARRY OF INDIANA, INC., Eugene Liter, Robert T. Liter, Liter's Quarry, Inc. and Board of Commissioners of the County of Clark, Defendants-Appellees. |
| Court | Indiana Appellate Court |
Edward A. Pollen, Montgomery, Elsner & Pardieck, Seymour, for plaintiffs-appellants.
Theodore L. Sendak, Atty. Gen. of Indiana, Robert C. Swain, Deputy Atty. Gen., Indianapolis, Allen R. Brown, Robb L. Smith, Louisville, Carlo B. Coleman, Jeffersonville, for defendants-appellees.
Plaintiff-appellant Jude J. Uhl (Uhl) and certain other residents of Clark County appeal from a partial summary judgment order in favor of defendants-appellees Liter's Quarry of Indiana, Inc., Eugene Liter, Robert T. Liter, Liter's Quarry, Inc. (collectively referred to herein as Liter), and the Board of Commissioners of the County of Clark (Board).
Uhl brought suit in four counts to enjoin the operation of Liter's stone quarry in Clark County, and sought damages and injunctive relief for common law nuisance. After the filing of cross-motions for summary judgment, the trial court ruled in favor of Liter on all but the nuisance count. The trial court expressly directed an order pursuant to Ind.Rules of Procedure, Trial Rules 54(B) and 56(C), and this appeal followed.
Uhl first asserts error in the trial court's failure to make special findings of fact in accordance with his motion praying therefor. However, "(f)indings of fact are inappropriate when there are no issues of fact, which is the case when summary judgment is granted." Sekerez v. Lake County Board of Commissioners, (1976) Ind.App., 358 N.E.2d 140, 144.
Uhl next alleges error in four interrelated issues which will be considered together as they all deal with the applicability of Clark County Ordinance Number 10 (Ordinance) to the facts at bar. The crux of Uhl's contention is that the quarry operation in issue is located in an urban area within the terms of Ind.Code 18-7-5-61, which in relevant part provides:
Nothing in this act (18-7-5-1 18-7-5-99) shall be deemed to authorize an ordinance by law, rule or regulation which would prevent, outside of urban areas, the complete use and alienation of any mineral resources or forests by the owner or alienee thereof * * *
The Ordinance, which was promulgated pursuant to the authority in IC 18-7-5-1 Et seq., apparently requires a stone quarry operator to obtain a permit as a prerequisite to the commencement of operations. The argument, therefore, is that since the quarry is within an urban area, the Ordinance is applicable to Liter and his failure to obtain a permit renders his operation illegal. Conversely, if the quarry is outside an urban area, IC 18-7-5-61 applies, and Liter need not comply with the permit requirement.
In a closely related case, we defined "urban areas" as
(1) all lands or lots within the limits of incorporated cities and towns; (2) lands or lots used for residential purposes where there are eight (8) or more residences within any quarter mile square area; and (3) lands or lots as have been or are planned for residential areas contiguous to incorporated cities or towns.
Clark County Board of County Commissioners v. King, et al., (1974) 160 Ind.App. 152, 158-9, 310 N.E.2d 560, 564. Also, we have held that if a tract of land is partially in an urban area, operations are protected by IC 18-7-5-61 if located only on that portion of the tract that is not in the urban area. Board of Zoning Appeals of the City of Plymouth v. Heyde, et al., (1974) 160 Ind.App. 165, 310 N.E.2d 908. In the case at bar, Uhl makes no contention with respect to the second category set forth in Clark County, supra. With respect to the third category, the record reveals that the Board had declared two miles outside of the city limits of Jeffersonville, Indiana, as reserved for residential growth. Therefore, the Ordinance would apply if Uhl's operations were located within two miles of the Jeffersonville city limits.
Resolution of this issue is controlled by the following stipulations of fact which were read into the record in the court below:
It is further admitted and stipulated that said tract (upon which Liter's quarry is located) is not within the corporate limits of the City of Jeffersonville, Indiana. It is further admitted and stipulated that a part of said tract (3.8 acres) is within the two mile zone outside the City Limits of the City of Jeffersonville, Indiana * * * The Plaintiffs will stipulate that at the time of the filing of this lawsuit . . . the additional acreage of approximately three point eight (3.8) acres was not then being used for quarrying purposes.
"Stipulations of fact which have neither been set aside or withdrawn by the parties are conclusive both upon the parties and the court." Matter of Estate of Miller, (1977) Ind.App., 359 N.E.2d 270, 273 (citations omitted). Uhl does not claim the stipulations were expressly withdrawn or set aside. As such, they were binding on Uhl and properly foreclosed the inquiry of whether the quarry was located within two miles of the Jeffersonville city limits. See Clark County and Board of Zoning Appeals of the City of Plymouth. 1
Notwithstanding this finding, Uhl contends that the Ordinance is not rendered inoperative by IC 18-7-5-61 because the Ordinance is merely Regulatory and does not Prevent the free use of land outside of urban areas. We first note that Uhl has neglected to quote the relevant portions of the ordinance in his brief. The Ordinance comprises approximately sixty pages of the record, and we are unwilling to search for that which should be provided. See Ind.Rules of Procedure, Appellate Rule 8.2(B)(4). Such a failure may preclude review. See Tomlinson, et al. v. Marion County Plan Commission (1954) 234 Ind. 88, 122 N.E.2d 852. Nevertheless, we feel the Legislature amply expressed their intent in IC 18-7-5-61:
Nothing in this act shall be deemed to authorize (a) . . . Regulation which would prevent . . . The complete use and alienation of Any mineral resources * * * (Emphasis added).
In this case, the denial of a permit would preclude Liter from operating a stone quarry. Additionally, when the Legislature has expressed their interest in an area, local regulations in conflict therewith must fall. See Graham Farms, Inc. v. Indianapolis Power & Light Co., (1968) 249 Ind. 498, 233 N.E.2d 656.
Uhl next asserts that IC 18-7-5-61 establishes invalid classification schemes in contravention of the equal protection clause of the Fourteenth Amendment to the United States Constitution. 2 Statutes are presumptively valid, and in the absence of a suspect classification or fundamental rights (of which no contention is made), a statute will survive an equal protection attack if the scheme has a rational basis and bears a substantial relationship to legitimate state purposes. Johnson County Rural Electric Membership Corp. v. Public Service Company of Indiana, Inc., (1978) Ind.App., 378 N.E.2d 1; Sidle v. Majors, (1976) 264 Ind. 206, 341 N.E.2d 763; Board of Commissioners of Howard County v. Kokomo City Plan Commission, (1975) 263 Ind. 282, 330 N.E.2d 92. Uhl carries the burden of establishing the lack of a rational basis, or that the scheme is arbitrary. Kokomo City Plan Commission, supra.
Initially, we believe the Purpose of the statute in issue serves a substantial state interest. IC 18-7-5-1 declares:
It is the object of this legislation to encourage local units of government to improve the present health, safety, convenience,...
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