1973, July, Pg. 27. Zoning Against Mining.

• Author: by Donald H. Sherwood

2 Colo.Law. 27

The Colorado Lawyer

1973.

1973, July, Pg. 27.

Zoning Against Mining

27Vol. 2, No. 10, Pg. 27Zoning Against Miningby Donald H. SherwoodIt has become fashionable in recent years to oppose new or expanded mining operations, and the tenacity of resistance seems to vary inversely with the distance between the mine-site and neighboring residents. Increasing population and decreasing supplies of metals, minerals, fuels, and industrial raw materials have put mining, particularly for sand, gravel, and stone, on a collision course with spreading residential areas and growing concern for an aesthetically pleasing environment. Legislatures, courts and lawyers are therefore finding their time spent more and more on attempts to prevent or at least control mining. The intent here is to outline recent developments useful to lawyers involved in such controversies in the courts. To date, zoning laws have been at the heart of these cases, and for that reason the use of such laws to restrict or prevent mining will be considered here, while the much more recent and rapidly developing mined-land reclamation and land-use planning laws will not be covered, primarily because the shape these laws will take ultimately in Colorado is not yet clear.(fn1) A closely related topic---mining as a nuisance (real or imagined)---is likewise excluded from coverage here, even though there are several interesting cases in Colorado dealing with that topic.(fn2)

Fencing Mining Out of the NeighborhoodUntil recently, zoning has seldom been of much concern to mining lawyers. The reason for this is simple: Zoning has been traditionally a matter of local concern, legislated at the community level and seldom used on even a county-wide basis.(fn3) At the municipal level zoning has little effect upon mining, but outside cities and towns new zoning regulations will increasingly restrict new mining operations, and it is safe to predict that efforts will be made through zoning to restrict extension and expansion of existing mines in the future. However, the means is not well suited to those ends.

To illustrate, let us first consider some of the basic principles of zoning applicable in a typical case not involving a mine. A junkyard or auto-wrecking yard is a typical example,(fn4) even though a necessary business which serves society. An auto-wrecking yard attracts rats and pests, and is dangerous to and attracts children. These

28and similar evils can, of course, be controlled by regulation under police powers. Auto-wrecking yards are unsightly, and such an eyesore reduces neighboring property values. Zoning is the means appropriate to the protection of neighboring values and community aesthetics, and the exclusion of auto-wrecking yards from certain areas is reasonable because such a necessary business need not be conducted everywhere so long as it can be conducted somewhere. Good zoning permits auto-wrecking yards to be located where such eyesores can be tolerated and where the neighbors will not have their property values hurt by the yards' existence. So long as auto-wrecking is permitted somewhere within the jurisdiction, auto-wreckers can locate their businesses there rather than elsewhere, and all benefit. However, if auto-wrecking is prohibited in all zones within the jurisdiction, zoning becomes intolerable. To meet the needs of the community, the zoning authority must at least have the power to grant variances under certain circumstances. The variance, then, is one means of avoiding totally prohibitory zoning.

What about the junkyard established before the zoning ordinance was adopted and in business when the new zoning prohibited such uses in the zone involved? To avoid unconstitutional deprivation of property without compensation, an existing but non-conforming use is allowed to continue. The non-conforming use cannot be expanded, cannot be extended to additional land, and cannot be suspended more or less permanently and then resume business. The same principles apply to accessory uses, that is, uses incidental to the use of land, whether the principal use is permitted in the zone or is a non-conforming use allowed to continue in the zone.

So, in the case of auto-wrecking yards, once a zone has been established within which such uses are prohibited, no new auto-wrecking yard can be established there, and no existing auto-wrecking yard can be expanded, extended to additional land, suspended more or less permanently and later resumed, or made worse by change in use or in accessory uses. Now, how can these principles be applied to mining?

In the first place, it must be recognized that zoning is intended to separate incompatible uses, and the basic principle that justifies zoning for this purpose and permits the use of zoning rather than condemnation is this: He who wants to go into the auto-wrecking business can do so, where that business is appropriate to the zone. No one is put out of business at an existing location by new or changed zoning. However, mining is not auto-wrecking. Nature, not Man, selects the mine-site, and mining has therefore generated some of the bitterest of zoning disputes. Where zoning prohibits mining, the property owner cannot move his mineral deposit to some other zone, and even if the mine would be a temporary use, the loss to the property owner is permanent if a variance is not allowed. If mining is permitted through the granting of a variance---often on the ground that the mine will be temporary---zoning can be accommodated to mining, but the miner will find that many of his neighbors consider mining no different than auto-wrecking yards. Even if the miner can satisfy applicable health and safety standards, meet all building codes, and do what he can to make his mine and mine plant aesthetically pleasing, he will often be regarded by his neighbors as a nuisance whether his operation is a nuisance in law or not, and his application for a variance will usually be denied. If variances are allowed, he must apply for one; if amendment of the zone is permitted, he must seek to have it amended.(fn5) If his application is denied, the courts will commonly protect him against discriminatory and unreasonable denials,(fn6) but the cases are by no means unanimous, particularly where mining is concerned. Mines for common substances such as sand and gravel, which can be obtained just as readily in other zones, are often prohibited in some zones. Quarries also are often prohibited, either on the same ground or on the ground that they

29would constitute a nuisance or a danger to nearby residents. Underground mines, however, have generally not been prohibited in the few cases involving such mines, particularly if the mine plant and entry can be located outside the zone.

Within these parameters, zoning is a method of directing enterprise to appropriate localities. When a prospector knows in advance where he should not search for minerals---and where the landowner...