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Pro-Eco, Inc. v. Board of Comm'rs of Jay County

ELR Citation: 26 ELR 20445
Nos. No. 93-3566, 57 F.3d 505/(7th Cir., 06/06/1995)

The court holds that a county ordinance that imposed a moratorium on landfills did not exact a taking from a landowner or violate the landowner's substantive and procedural due process rights. The court invalidated the ordinance in a prior ruling. The court first holds that it reviews the district court's denial of the landowner's challenge to the county's landfill moratorium ordinance de novo. The court next holds that the ordinance did not exact a taking of the landowner's property under the Fifth Amendment to the U.S. Constitution. At the time the ordinance was enacted, the landowner did not have a recognized property interest at the time the government entity acted, but rather only had an option to buy the property. Further, the landowner had no interest in the land at the time the ordinance passed, because Indiana law neither creates an interest in the property to be purchased nor recognizes an option as a contract. The court next holds that even if the landowner's option could be construed as property under the Due Process Clause of the U.S. Constitution and that the county's action somehow deprived the option of value, the landowner was not deprived of due process. The county did not deny the landowner a permit or variance; rather it enacted a generally applicable ordinance. Moreover, the landowner has already obtained relief for the county's violation of state procedure. The court also rejects the landowner's substantive due process claim. The right to dispose of garbage is not a fundamental right, and corporations do not have fundamental rights. Further, in trying to protect health, safety, and welfare, the county acted rationally. The court also holds that county did not violate the Equal Protection Clause in enacting the landfill moratorium. Prohibiting development of a landfill in the county seems a fairly straightforward, rational way of protecting the health, safety, and welfare of the county. Further the landowner has not stated facts to support its claim that the county engaged in unequal enforcement of the ordinance. Finally, the court holds that the landowner may not proceed with a tort claim alleging that the county interfered with the landowner's right to engage in lawful business. Indiana law provides immunity for local government entities from liability for loss resulting from the adoption and enforcement of, or failure to adopt and enforce a law.

Counsel for Plaintiff
David V. Miller
Bowers, Harrison, Kent & Miller
25 NW Riverside Dr., Evansville IN 47706
(812) 426-1231

Counsel for Defendant
Peter J. Rusthoven
Barnes & Thornburg
1313 Merchants Bank Bldg.
11 S. Meridian St., Indianapolis IN 46204
(317) 638-1313

Before WOOD, Jr., COFFEY, and KANNE, Circuit Judges.