Local Land Use Regulation of Extractive Industries: Evolving Judicial and Regulatory Approaches

Counties, long the weak sister of sub-state governmental units, are now being given the full panoply of police powers. Population trends show an increase in rur-urban development, bringing people into contact with existing mineral development. The ensuing conflicts are resolved at both the political and judicial levels.

This paper will explore how these conflicts have been traditionally resolved and how they are being resolved in today's environment. Part I discusses the basic land use regulatory system, including early attempts at regulating mineral extractors. Part II analyzes how mineral operators have fared under the traditional zoning game-looking first at the rezoning process, then at the discretionary permit procedure, and finally at the specialized problems raised by the non-conforming use status given many existing mineral operations. Doctrines especially created for the mineral development, including the diminishing asset doctrine, are also discussed in Part II. Part III discusses the unique problems caused by local regulation of oil and gas development. Part IV analyzes the general problem of multi-layered regulation of mining operations. Mining operators must often receive development permission from both the state and a sub-state unit. Issues relating to preemption of sub-state powers by state statutory or regulatory authority are analyzed. Part V reviews several recent cases reflecting innovative legislative and judicial responses to resolving the conflicts between mineral users and their neighbors. Finally, Part VI reaches several conclusions about where the future lies in the local regulation of the mineral extraction industry.