Content-Type: text/html Cause #: 01-231w.v9.html

CADDNAR


[CITE: Nora Northside Community Council, Inc. v. Pinnacle Media, LLC and DNR, 9 CADDNAR 105 (2003)]

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Cause #: 01-231W
Caption: Nora Northside Community Council, Inc. v. Pinnacle Media, LLC and DNR
Administrative Law Judge: Wilcox
Attorneys: Fisher (Nora); McInerny (Pinnacle); Baird(DNE)
Date: April 11, 2003

DEFAULT JUDGMENT AND FINAL ORDER OF DISMISSAL

The parties having had a full opportunity to brief the issues, and the Administrative Law Judge being duly advised, a Final Order of Dismissal is entered. The reasons for the dismissal are stated more particularly in the attached findings. A person who wishes to seek judicial review must file a petition for judicial review in an appropriate court within 30 days of this order 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. Having reviewed the Motion for Default Judgment, and being duly advised, the motion is denied.

BACKGROUND

The Department of Natural Resources, "Department," is the Indiana State agency responsible for the regulation of flood control activities under IC 14-28. The Natural Resources Commission ("Commission") is the ultimate authority with respect to permitting decisions made by the Department involving flood control activities, pursuant to IC 14-10-2-3.

On June 26, 2002, Pinnacle Media LLC, hereinafter "Pinnacle", by counsel, filed a Motion to Dismiss under Trial Rule 12 (B)(1). On June 28, 2002, the Department of Natural Resources, hereinafter "Department", by counsel, filed a Motion to Join in Pinnacle's Motion to Dismiss. Nora Northside Community Council, Inc., "Nora", did not file a reply to the motions to dismiss. Oral Argument on the motion was held on March 19, 2003. At oral argument, Pinnacle, by counsel, verbally moved for default judgment based on Nora's failure to respond to the June 26, 2002 Motion to Dismiss and failure to act on its case since April 2002.

MOTION TO DISMISS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On December 17, 2001, Nora Northside Community Council, Inc. initiated this appeal by filing a petition for review of the Department's approval of FW-21,378, an after-the-fact permit that allows construction of a billboard in the floodway of the White River. A prehearing conference was held on January 28, 2002, and a Report of Prehearing Conference issued on February 11, 2002. The report reflects approval for Nora to amend its petition for review by February 28, 2002. Following Nora's February 27, 2002, motion for enlargement of time, the judge granted Nora until March 31, 2002, to amend

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the petition for review. On April 2, 2002, Nora filed an Amended Petition for Administrative Review.

Pinnacle seeks dismissal of Nora's petition for review and asserts that Nora has failed to fulfill the requirements of IC 4-21.5-3-7. IC 4-21.5-3-7(a) sets criteria in filing petitions for administrative review under the Administrative Orders and Procedures Act, commonly referred to as "AOPA," and specifically provides:

Sec. 7. (a) ...To qualify for review of any other order described in section 4, 5, or 6 of this chapter, a person must petition for review in a writing that does the following:

(1) States facts demonstrating that:
(A) the petitioner is a person to whom the order is specifically directed;
(B) the petitioner is aggrieved or adversely affected by the order; or
(C) the petitioner is entitled to review under any law.

Nora's initial petition for administrative review provides reference to the applicant's alleged failures in applying for the permit, [FOOTNOTE 1] DNR alleged failures in approving the permit,[FOOTNOTE 2] inaccuracies and inadequacies in the permit or application,[FOOTNOTE 3] and opinions regarding the potential for the activity to meet flood control standards.[FOOTNOTE 4]

Nora's April 2, 2002 amended petition for administrative review identifies Pinnacle's alleged failures in seeking permit approval. Nora specifically alleges Pinnacle's failure "to provide adequate notice to adjacent landowners", violation of "the 3rd Special Condition in the Certificate of approval by butchering trees and vegetation along the river bank," and construction prior to "first obtaining a permit."[FOOTNOTE 5]

Nora's amended petition also refers to DNR's alleged errors. The petition refers specifically to DNR's alleged failure "to adequately review the construction application prior to granting approval," to "require mitigation to the damage done to vegetation along the river bank by Respondent Pinnacle," and DNR's wrongful permit approval "because the construction project does not meet the statutory conditions for approval stated in IC 14-28-1."[FOOTNOTE 6]

At oral argument in this matter, Nora asserted that the amended petition for review was sufficient to show Nora was adversely affected by the FW-21,378 permit approval. Nora argued that the Indiana legislature set the purposes of IC 14-28-1, commonly referred to as the Flood Control Act, "FCA," at IC 14-28-1-1. The purposes of FCA, as set out in IC 14-28-1-1, are clear - to protect Indiana from the loss of lives and property caused by flooding. Nora argued that FCA's purposes necessarily provide standing to all Indiana residents in administrative appeals of Flood Control Act permits. Nora asserts that the averment that the Flood Control Act is violated satisfies IC 4-21.5-3-7 requirements. To accept this argument it must follow that any Indiana resident who asserts a violation of

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FCA, has standing to seek administrative review of any FCA permit in Indiana. Such a conclusion is an improper application of statutory construction.

When reviewing a statute for construction, the initial inquiry must be, are the terms "uncertain and ambiguous." Burks v. Bolerjack, 427 N.E. 2d 887, 889 (Ind. 1981). "Ambiguity exists when a statute is capable of being understood by reasonably well-informed persons in two or more different senses." Sutherland on Statutory Construction, Vol. 2A, section 45.02, citing In re Andover Togs, Inc. page 12. 6th edition (2000).

"Where the meaning of the statute is ambiguous, however, or where one or more constructions are apparently possible, we must construe the statute so as to arrive at the apparent intention of the legislature which is consistently revealed in all sections of the act, and consistent with all other statutes passed by the legislature." Dague v. Piper Aircraft Corp.., 275 Ind. 520, 524, 418 N.E. 2d 207 (1981), citing Loza v. State, (1975) 263 Ind. 124, 128-29, 325 N.E.2d 173 (1976). Words are to be given their plain, ordinary, and usual meaning, unless, a contrary purpose is shown by the statute or ordinance itself. Cox v. Worker's Comp. Bd., 675 N.E.2d 1053, 1057 (Ind.1996). Where possible, every word must be given effect and meaning, and no part is to be held meaningless if it can be reconciled with the rest of the statute. MDM Inv. v. City of Carmel, 740 N.E.2d 929, 934 (Ind.Ct.App.2000) (quoting JKB, Sr. v. Armour Pharm. Co., 660 N.E.2d 602, 605 (Ind.Ct.App.1996)). The "goal in statutory construction is 'to determine and effect [to] legislative intent.' " Hall Drive Ins, Inc., d/b/a Don Hall's Guesthouse v. City of Fort Wayne, 773 N.E.2d 255, 257 (Ind. 2002).

Section (B) of IC 4-21.5-3-7 requires that the petitioner state facts demonstrating the petitioner is "aggrieved or adversely affected by the order." Aggrieved is defined as "having suffered loss or injury." Black's Law Dictionary, p. 65 (Abridged 6th Ed. 1990). Adversely affected means to have had an opposing interest produced or resulting from the activity. Blacks's, supra at 53 & 57. The words of IC 4-21.5-3-7 are given their plain and ordinary meaning in this matter, as no contrary purpose is shown by AOPA. Under this section, Nora must state facts demonstrating that it has suffered loss or injury from the permit approval. Alternatively, Nora must state facts demonstrating that an opposing interest to Nora has been produced or as a result of the permit approval. An interpretation of IC 4-21.5-3-7 (B) leads to a finding that the initial petition for review does not contain demonstrations that Nora is aggrieved or adversely. No facts are stated within the amended petition, which meet the requirements of IC 4-21.5-3-7 (B).

IC 4-21.5-3-7(C) requires the petitioner state facts demonstrating that "the petitioner is entitled to review under any law." Neither the December 17, 2001, Petition for Administrative Review, nor the April 2, 2002, Amended Petition for Administrative Review, present facts demonstrating that Nora is entitled to administrative review "under

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any law." Nora asserted at oral argument is that an averment that FCA is violated renders the petition sufficient under IC 4-21.5-3-7.

The NRC in Hoosier Environmental Council v. RDI/Caesar's Riverboat Casino, LLC, and DNR, 8 CADDNAR 48 (1998), has specifically considered IC 4-21.5-3-7 in relation to FCA. The issue of standing as considered in this case assists in determining standing in the instant case. In RDI/Caesars, the Commission held that Claimant's petitions "are replete with averments of individual interest and environmental harm." HEC, supra at 54. RDI/Caesar's is distinguishable from the instant case in that the Commission found averments of individual interest in Claimant's petition for review. None are presented here.

While true that FCA purposes, as outlined in IC 14-28-1-1, are intended to protect Indiana residents from the loss of life and property, from flooding, those purposes do not abrogate Claimant's responsibility to meet the requirements of IC 4-21.5-3-7. To interpret FCA in this manner renders IC 4-21.5-3-7(a)(1) meaningless, and an improper construction of the statutes. MDM Inv. v. City of Carmel at supra. Nora has failed to demonstrate that it is aggrieved or adversely affected by the permit approval, as required by IC 4-21.5-3-7(B). Nora has failed to demonstrate that it is entitled to review under any law, as required by IC 4-21.5-3-7(C).

FOOTNOTES

1. See paragraphs 7, 8, 9,10, and 12 on pages 2 and 3 of the petition.

2. See paragraphs 2, 5, 11, 13 and 14 on pages 2 and 3 of the petition.

3. See paragraphs 1, 3, and 4 on pages 2 and 3 of the petition.

4. See paragraph 6 on page 2 of the petition.

5. See paragraphs 1, 2 and 6 of the amended petition.

6. See paragraphs 3, 4 and 5 of the amended petition.