Ordinance Banning Industrial Mineral Mining Not A Regulatory Taking – But What About Palazzolo?

Challenging an ordinance that the court characterizes as an "even-handed" zoning regulation, even if it outlaws an existing conditional use, is going to be a tough one for a plaintiff. In theory, it need not be, given the right conditions. But any zoning lawyer will tell you that it is tough to overcome most courts' presumption that these things are ok. That's just the way it is.  The Minnesota Court of Appeals' opinion in Minnesota Sands, LLC v. County of Winona, No. A18-0090 (July 30, 3018), confirms that vibe. There, the county adopted an ordinance that banned all "industrial-mineral mining, including silica-sand mining." Slip op. at 1. If that sounds oddly specific, the backstory is that this is the stuff used in fracking.  Mr. Frick (and here you might think we'd try to work in both "Frick" and "frack" into this post's title) owned leases to mine silica-sand on several properties in the county,…

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