Content-Type: text/html 00-161c.v9.html

CADDNAR


[CITE: Alexander v. Oak Park Conservancy District, 9 CADDNAR 9 (2001)]

[VOLUME 9, PAGE 9]

Cause #:00-161C
Caption: Alexander v. Oak Park Conservancy District
Administrative Law Judge: Lucas
Attorneys: Czajka; Gillenwater; Jensen
Date: December 8, 2000

FINAL ORDER OF DISMISSAL

A final order of dismissal is now entered in favor of Oak Park Conservancy District and against Charles N. Alexander for the reasons stated in the Findings. The dismissal is based on lack of subject matter jurisdiction by the Natural Resources Commission to provide the relief sought. The dismissal is without prejudice to Charles N. Alexander should he determine to seek relief from the Clark Circuit Court or another court of general jurisdiction. A person who wishes to seek judicial review of this order must file a petition within 30 days in an appropriate court and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.

FINDINGS

1. On August 28, 2000, Charles N. Alexander ("Alexander") initiated this proceeding when he filed correspondence with the Natural Resources Commission (the "Commission") seeking relief from the Oak Park Conservancy District ("Oak Park CD"). More particularly, Alexander alleged that in 1998 Oak Park CD: agreed to me as developer and to the builder of a home in my development to borrow a sewer tap from an unbuilt lot next to the house under new construction and use said tap for the construction due to a reconfiguration of the lot design, and for this privilege I agreed to post a Five Thousand Dollar ($5,000) letter of credit to ensure that the sewer tap would be replaced or redirected within the two year period of time. During this two year period, I have resold the borrowed tap lot to the residents that the tap was borrowed for, in effect I sold the residents the vacant lot next to them that doesn't have a tap with the agreement that the lot can be built upon and that if they do sell it or build upon it they would pay me an additional Nine Thousand Dollars ($9,000) of which I would use to replace the tap. This was agreed upon by Oak Park and then without notice Oak Park called the letter of credit and has been paid the $5,000 and refuses to return the money. My company considers this an act of theft, and I would like to request an Administrative Law Judge to determine the legality of their actions.

2. Alexander CD is a conservancy district established under IC 14-33 (formerly IC 13-3) in Clark County, Indiana.

3. This proceeding is governed by IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA") and 312 IAC 3-1, a multi-section rule adopted by the Commission to assist in its administration of the AOPA.

4. A prehearing conference was held on November 8, 2000 during which Oak Park CD, by counsel, expressed an intention to move to dismiss the proceeding for lack of subject matter jurisdiction. The parties agreed Oak Park CD would file its motion by November 15, 2000, and Alexander would file his response by December 1, 2000.

5. Oak Park CD filed its "Motion to Dismiss" on November 14, 2000, and Alexander filed his "Response to Respondent's Motion to Dismiss."

6. Oak Park CD contends in its motion to dismiss that Alexander is not aggrieved by a determination of an entity described in 312 IAC 3-1-1 and so is not entitled to administrative review by the Commission.

7. Alexander responds that "it is clear that the creation of conservancy districts is a delegation of the duties initially placed with the Department."

8. The process for establishing a conservancy district is set forth within IC 14-33-2. Multiple stages are provided by the Indiana General Assembly to assure support by most freeholders for the establishment of a district, an opportunity for consideration of the views of remonstrants, and technical and economic feasibility for the purposes of the proposed district. In

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this process, the Commission serves an important fact-finding and advisory role for the local court. The Commission makes a fact-finding report, and the fact-finding report is prima facie evidence of the facts pertinent to establishment of a district. Yet the circuit court holds a hearing following the receipt of the Commission's fact-finding report, during which the court may makes substitute findings that supplement or are contrary to those of the Commission. Ultimately, the court determines whether a conservancy district is to be established and for what purposes. See particularly IC 14-33-2-26. Authority for the duties and functions of a conservancy district flows from the circuit court (here the Clark Circuit Court) and not the Commission.

9. Alexander also looks outside the statutes governing conservancy districts in an effort to establish subject matter jurisdiction in the Commission. Reference is made to IC 14-11-1-1 and IC 14-11-1-2 that outlines the general powers of the department of natural resources (the "Department"), but this authority is on its face limited to the dissemination of information, to making recommendations, and to encouraging cooperative arrangements with other governmental organizations and with non-governmental organizations. No decision-making or regulatory authority is conferred on the Department.

10. Alexander cites Hoosier Environmental Council v. RDI/Caesars Riverboat Casino, LLC, 8 Caddnar 48, 57 (1988) as standing for the proposition "[w]ater quality is a consideration which cannot be divorced be divorced from the responsibilities of the Department... ." The statement is accurate standing alone. Yet Hoosier Environmental Council does not confer subject-matter jurisdiction in the Commission to review a dispute where the agency has no legal responsibility over the dispute.

11. A state administrative agency has only the powers conferred on it by the Indiana General Assembly. Powers not within the agency's legislative grant of authority may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 615 N.E.2d 816, 819 (Ind. Tax Ct. 1995), citing Fort Wayne Education Association, Inc. v. Aldrich, 527 N.E.2d 201, 216 (Ind. Ct. App. 1988); Dyer Baptist Church v. Town of Dyer and DNR, 8 Caddnar 79 (1998); Michigan City Historical Societ v. DNR and Francik, 5 Caddnar 169 (1990).

12. The Commission has no subject-matter jurisdiction over the substance of the grievance claimed by Alexander. Relief must be sought from a civil court.