JurisdictionUnited States
Rights of Access and Surface Use
(Nov 1984)


Jerry R. Fish
Stoel, Rives, Boley, Fraser & Wyse
Portland, Oregon


Zoning and land use planning have long been the nemesis of mineral extraction industries within urban areas. However, until the last twenty years mineral operators were relatively free from zoning restraints in the rural portions of sparsely populated western counties. That has changed. Many counties are imposing development controls on every acre of land, whether populated or remote, fertile or barren. Increasingly, cities are reaching beyond their borders to control development. What began as urban attempts to abate nuisances has grown into a comprehensive land use planning ethic. City and county governing bodies, with or without binding statutory guidelines, and with or without professional help, are attempting to chart the economic future for all of the land.

This paper will examine modern zoning and land use planning as it affects mineral development from three perspectives. First, the evolution of zoning and its constitutional and statutory bases will be set forth briefly. Second, procedural tips to help obtain a conditional use permit for mineral development will be presented. Third, the paper will survey recent zoning decisions affecting mineral development to see what legal tools are available to the attorney whose client has been denied a conditional use permit.1

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The ancestor of the modern zoning ordinance was the common law nuisance suit.2 Where A and B lived side-by-side and A's use of his land "unreasonably interfered with" B's use and enjoyment of his land, B sued A for an injunction and/or damages. If A quartered pigs in a residential neighborhood and the flies and stench spilled over into B's yard, B would sue.3

However, courts found the nuisance doctrine to be imprecise and inefficient as the scenarios grew more complex. Is it fair for a developer to build houses around a previously isolated cattle feed lot and then to seek an injunction because of the flies and stench?4 How should a court deal with dust from cement plants that damages farmers' crops? May the court balance the effects of closing the plants (loss of jobs for entire towns) against the economic damage to the farmers' crops and deny an injunction or must one party win absolutely?5 Courts find these issues difficult to deal with on an ad hoc

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basis and have noted that legislative solutions might be more efficient.

Early zoning cases involving mineral extraction can be seen as legislative solutions to perceived public nuisances.6 Instead of jousting in court two-by-two to vindicate their property rights, the citizens, through their representatives, passed ordinances to settle nuisance issues in a more generic fashion. Factories here, quarries there, houses over there, and so on.

However, even the earliest urban zoning ordinances went beyond traditional nuisance problems, and such ordinances soon encompassed other objectives such as the protection of public morals, public control over the aesthetic character of a community, and, eventually, centralized economic planning.7 This rapid expansion of the zoning concept can be attributed largely to the freedom of cities and counties to legislate concerning economic development with few substantial constitutional restraints.

Beginning in the 1920's, states began delegating broad legislative authority to counties and cities, many following the Standard State Zoning Enabling Act prepared by the U.S. Department of Commerce.8 While constitutional protection of personal freedoms such as freedom of religion, freedom of speech and

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freedom from racial discrimination has been very strict, constitutional protection of individual economic and property rights has been much more relaxed, giving way to the perceived needs of a legislative majority at any point in time.9 The seminal zoning case set a very low constitutional threshold for counties and cities desiring to regulate private property. In Village of Euclid, Ohio v. Ambler Realty Co.,10 the court held that

"...before [a zoning] ordinance can be declared unconstitutional, [it must be shown to be] clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare."11

Once the United States Supreme Court established this low constitutional threshold, the stage was set for the evolution of comprehensive land use planning. By 1930, 35 states had passed zoning enabling acts. At present all states have passed such acts. Since the 1960's a few states have moved to implement land use planning systems in which the state government itself has considerable control over the goals and implementation of the planning process.12 Not only have state and local

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governments expanded their efforts at land use control by enactment of new zoning laws, but they have enacted numerous environmental and industry-specific regulatory programs as well. The result is that anyone contemplating a mineral development of significant magnitude will have to obtain a plethora of permits from federal, state and local authorities.13

The day may be fast approaching when mineral development is a conditional use on all private land. The ability to mine a deposit increasingly depends on the ability to convince a county or a city governing body that mining is compatible with the goals of its land use plan and the specific criteria of its zoning ordinance.

We now turn to a brief sketch of the legal bases for zoning. Footnotes are omitted here for brevity since the concepts described below are examined at greater length in the discussion of recent cases in the last part of this paper.14

Local governments have no inherent legislative power to regulate land use. They derive their zoning authority

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primarily from the zoning enabling acts discussed above. A second source of authority is home rule provisions of state constitutions which confer legislative authority directly upon local governments. Third, local governments derive legislative authority from state statutes related to specific activities, such as Colorado's Preservation Act, discussed later in this paper.

The primary limitations on local zoning are constitutional and statutory. The federal constitutional protections of individual rights such as freedom of speech, religion, press, the right to due process and equal protection under the law limit zoning to some degree. Constitutional protection of private property under the due process clause of the Fifth Amendment is surprisingly impotent. Local governments may greatly diminish the utility of private property through zoning restrictions. So long as some use of the property is left to the owner, zoning will not be considered a taking without just compensation in violation of the Fifth Amendment due process clause.15 Finally, the Supremacy Clause in Article VI of the Constitution provides that federal laws preempt inconsistent state and local laws. This concept will be discussed in some detail below.

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State constitutional provisions and state statutes also "trump" inconsistent local zoning ordinances. As with federal preemption, the trick is in discerning when state and local laws are inconsistent. This point will also be discussed below in the context of a specific case.

If the previous paragraphs give the impression that local governments have little discretion, do not be misled. The police power delegated to local governments under zoning enabling acts is very broad. Despite the modern explosion of federal and state laws, local governments have plenty of room to regulate. Even where the federal government has undertaken comprehensive planning for the public lands, local governments may also regulate public land use so long as inconsistency is avoided. Local regulation may likewise overlap state regulations absent conflict. Thus, rather than separate spheres of influence, federal, state and local regulations result in layers of regulation on the same or similar subjects. Under the guise of local land use review, the mineral developer will find himself addressing many of the same environmental, safety, and economic questions addressed by federal and state agencies.16

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The next section of this paper will examine practical approaches to obtaining a conditional use permit for a mineral development.


This section of the paper presents practical tips gleaned from CLE publications, law review articles, other practitioners and personal experience.17 Many of the points will seem elementary to the experienced practitioner, but, occasionally, even large mining companies have stubbed their toes over elementary matters. This section assumes that a conditional use permit must be obtained from a county. Mineral exploration, including exploratory drilling, is a conditional use in many western counties. If a permit is required and is not obtained, the mineral developer may be subject to fines and an injunction, and will have created a negative image which may hinder future permit proceedings. Further, since permitting procedures may take many weeks or even months, an entire field season may be lost if necessary land use permits are not obtained well in advance.

1. Start Early. Assume that a "simple" permit to conduct exploratory drilling will take several months to obtain. Permits for larger endeavors may involve years of proceedings. You

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may be pleasantly surprised by a rapid approval process, but that is much easier to countenance than the loss of a field season waiting on that county permit you thought would be "automatic."

2. Prepare a Complete...

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