John Frey | Journal Review | www.journalreview.com
Several citizens have asked commissioners why zoning is the only way to control the development of wind turbines. Specifically, many citizens have wondered why an ordinance under the Home Rule Act, like the one adopted by the town of Darlington, which prohibits wind farms within four miles of the town, wouldn’t be a better alternative than zoning.
Let’s take a look at a couple of cases which illustrate why it isn’t a viable option.
The Indiana Home Rule Act (Indiana Code 36-8-2-4) authorizes local governments to regulate the use of property that might endanger the public health, safety and welfare. Two Indiana counties, Jay County and Fountain County, attempted to ban or prohibit sanitary landfills by using the Act. At the time, neither county had a comprehensive plan or a zoning ordinance (both do now). In both cases, the Federal Circuit Court (7th Circuit) held that the counties could not rely on the Home Rule Act because the exclusive means of regulating land use in Indiana was the Indiana zoning law. And the court held that because neither county had adopted a comprehensive plan, neither could regulate land use.
In the Jay County case, the county adopted a moratorium ordinance which barred development of sanitary landfills for a three-year period. The landowner filed a lawsuit in federal court challenging the ordinance as illegal because Jay County had not adopted a comprehensive plan. The federal district court ruled in favor of the landowner, and Jay County appealed. The Seventh Circuit Court held that the moratorium was a zoning ordinance, that Jay County could not adopt a moratorium because it had not adopted a comprehensive plan, and that the Home Rule Act could not be used where another law governs the subject matter of the ordinance – in this case, Indiana’s zoning law. Pro Eco v. Board of Commissioners of Jay County, 956 F.2d 635 (7th Cir. 1992).
In the Fountain County case, Fountain County adopted an ordinance designed to restrict sanitary landfill construction. The sanitary landfill operator filed suit challenging the ordinance. The Seventh Circuit held that the ordinance was a zoning ordinance and that the ordinance was illegal because Fountain County had not adopted a comprehensive plan. Triple G Landfills Inc. v. Board of Commissioners of Fountain County, 977 F.2d 287 (7th Cir. 1992).
In both of these cases, commissioners were faced with the challenge of trying to prevent land use without a comprehensive plan and a zoning ordinance. Despite their best efforts to protect citizens from unwanted land use, commissioners were unable to successfully rely upon the Home Rule Act. The Seventh Circuit ruled that the only way to regulate land use is to adopt a comprehensive plan and a zoning ordinance. In these cases, the courts tell us what the law is. Even if we disagree with the rulings, that does not change what the law is.
Montgomery County is moving forward. We have a comprehensive plan. We must adopt a zoning ordinance in an effort to protect ourselves from unwanted development. It’s the only way to attain the planned growth the citizens of our community have clearly stated they want.
John Frey is a Montgomery County Commissioner and can be reached at email@example.com. And check out the Commish Facebook page @montgomerycountycommish.
URL to article: https://www.wind-watch.org/news/2019/05/15/home-rule-act-not-guaranteed-protection/