Planning and zoning seems, at least at first, like a purely local issue. This idea is called Home Rule. But in most states, including here in Indiana, state (and federal) statutes limit a local government’s power. These are the numerous exceptions to Home Rule (and then of course there are exemptions to the exceptions). I recently gave a presentation to a group of certified planners and others involved in local government planning and zoning decisions. The great conversations we had about the limitations of local planning and zoning convinced me this was a topic worth exploring further.
First, a baseline. States generally follow Dillon’s Rule (local governments only have the powers specifically granted to them by the state) or Home Rule (local governments generally have all powers necessary to govern their jurisdiction, except for those areas specifically prohibited by statute). Indiana is a Home Rule state. Local governments have all powers they need for effective government, except do not have the powers listed in Indiana Code 36-1-3-8(7). One of the big carve outs is that local governments cannot regulate conduct already regulated by the state. What does this have to do with planning and zoning? In short, county commissioners cannot pass a zoning ordinance that conflicts with a state regulation. We see this come up over and over again with landfills, wind turbine farms, solar energy farms, livestock farms, and other developments.
For example, in 1991, the Fountain County Commissioners passed an ordinance establishing a local permitting procedure in addition to the state (IDEM) approval process. All the subjects of the ordinance were also covered by IDEM regulations, but some of the county ordinance requirements differed from IDEM’s requirements. For example, the county imposed greater setbacks, prohibited construction in migratory habitats, required different environmental protection systems, and eliminated some of the waivers available at the state level. The courts held the local ordinance was invalid because it contradicted the state regulation.
On the other hand, in 2003, the courts upheld a LaPorte County ordinance that required landfills to obtain a letter of need from the local solid waste department. What was the difference? In the LaPorte County case, the Court found the need letter did not contradict any state regulations, and served the purpose for which the state created solid waste departments.
What does this mean for agricultural operations? More and more local governments are enacting ordinances that restrict wind farms, solar energy developments, or confined feeding operations. Some restrictions are ok, but counties can’t enact any ordinance which conflicts with the state regulations. Contact your attorney to discuss further if you have questions.