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ATTORNEYS FOR APPELLANT Alan S. Townsend Paul D. Vink Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Thomas E. Mixdorf Zeff A. Weiss Abigail B. Cella Indianapolis, Indiana H. Wayne Phears Norcross, Georgia

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 29S04-0611-CV-469

FILED
Apr 03 2008, 3:29 pm
of the supreme court, court of appeals and tax court

CLERK

THE CITY OF CARMEL, INDIANA, Appellant (Defendant below), v. MARTIN MARIETTA MATERIALS, INC., Appellee (Plaintiff below). _________________________________ Appeal from the Hamilton Superior Court, No. 29D03-0310-PL-939 The Honorable William J. Hughes, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 29A04-0506-CV-358 _________________________________ April 3, 2008 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.

Background

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 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).

Discussion

I

The Ordinance's preamble sets forth the following purposes for its enactment:
In 2003, the Carmel Common Council had enacted an ordinance imposing regulations and reporting requirements on mining activity. At Martin Marietta's request, the trial court entered a temporary restraining order prohibiting Carmel from enforcing the ordinance. Carmel repealed the ordinance in 2004, and the trial court dissolved the restraining order.
2 1

The full title of the Ordinance is "Ordinance No. D-1686-04 As Amended: An Ordinance of the Common Council of the City of Carmel, Indiana, to Regulate Mining Operations Within the Corporate Boundaries of the City of Carmel."

2

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.

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