[CITE:
Wheeler, et al. v. Peabody, DNR and Town of Zionsville, 9 CADDNAR 193
(2004)]
[VOLUME 9, PAGE 193]
Cause #: 04-121W
Caption: Wheeler, et al. v. Peabody, DNR, and Town of Zionsville (Intervenor)
Administrative Law Judge: Jensen
Attorneys: Wheeler; Nierman; Garrard; Boyko
Date: September 21, 2004
ORDER
Peabody's
"Withdrawal" is hereby denied. Permit # FW-22, 720, issued by the
Department to Peabody on June 14, 2004 is hereby revoked and remanded to the
Department's Division of Water. The sole purpose of this remand is to provide
Peabody and the Department, at Peabody's option, to correct the irregularities
relating to notice and to recommence review of permit application # FW-22, 720
consistent with this order and IC 14-28-1, 312 IAC 10 and 312 IAC 2-3. This
order is issued solely on the issue of notice and does not reach other merits
of the case. This order is issued without prejudice in the event Peabody
chooses to pursue permit application # FW-22, 720. This is a final order
subject to immediate judicial review upon the filing of a petition in an
appropriate court within 30 days and compliance with IC 4-21.5-5.
STATEMENT OF THE CASE
1. At issue in this proceeding is Certificate of Approval for Construction in a Floodway # FW-22, 720 issued by the Department of Natural Resources (hereinafter Department) on June 14, 2004 in favor of Steve Peabody (hereinafter Peabody), authorizing improvements to existing drives, installation of a storm sewer system, water mains, a sidewalk, a subdivision entry sign and the raising and modification of Turkey Foot Road located in Zionsville, Indiana.
2. This proceeding was initiated by Thomas E. Wheeler, Karen M. Wheeler, Todd M. Nierman, Carolyn Nierman, Lawrence A. Wheeler and Madelyn L. Wheeler (collectively "Petitioners"), with their "Petition for Review and Petition for Stay of Effectiveness" (hereinafter "Petition") filed June 17, 2004.
3. A Motion to Intervene was received from the Town of Zionsville and was granted on July 13, 2004 without objection.
4. This proceeding is controlled by IC 4-21.5 (the "administrative orders and procedures act" or "AOPA"). The Indiana Natural Resources Commission adopted rules at 312 IAC 3-1 to assist in its administration of "AOPA," and 312 IAC 3-1 also applies to this proceeding.
5. Pursuant to 312 IAC 3-1-1(b), an affected person who is aggrieved by a determination of the Department may apply for administrative review of the determination under IC 4-21.5 and 312 IAC 3-1.
6. On July 13, 2004 a prehearing conference was held during which Peabody sought a schedule for presentation of formal motions regarding Claimants' standing in this proceeding and such schedule was established for benefit of all parties.
7. On July 28, 2004, Peabody filed "Respondent Steve Peabody's Memorandum in Support of Motion to Dismiss or Alternatively for Summary Judgment" (hereinafter "Peabody's Memorandum").
8. On August 18, 2004, Petitioners filed "Petitioners' Response to Respondent Peabody's Motion to Dismiss/Motion for Summary Judgment," (hereinafter "Petitioners' Response").
9. The Department did not make submission of any Motions relating to the standing issue.
10. The Town of Zionsville did not make submission of any Responses relating to the standing issue.
11. On August 27, 2004, Peabody filed his "Motion for Enlargement of Time" seeking time within which to file a reply to Petitioner's Response. This
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Motion was granted and Peabody was given until September 17, 2004 within which to file a reply.
12. In lieu of a reply, Peabody instead filed his "Withdrawal of Motion to Dismiss or, Alternatively, For Summary Judgment," (hereinafter Peabody's "Withdrawal" on September 17, 2004.
13. Because Peabody is an applicant for a license over which the Department
is the regulatory authority, to consider a final disposition that would not
fully adjudicate a proceeding would render the disposition worthless.
Therefore, the Department is the benefactor of Peabody's "Memorandum"
and similarly Zionsville is the benefactor of Petitioners'
"Response."
FINDINGS OF FACT AND CONCLUSIONS
1. Before receiving Peabody's "Withdrawal," the Administrative Law Judge had fully considered Peabody's "Memorandum" and Petitioners' "Response" on the sole issue of the notice provided for permit application # FW-22, 720.
2. Peabody's "Withdrawal," which states that Petitioners' "Response" raised complex and fact sensitive issues, may be accurate; however the issue of notice is not complex and the undisputed facts submitted in Peabody's "Memorandum" and Petitioners' "Response" are sufficient to establish that notice of permit application # FW-22, 720 was not properly provided.
3. While there is no Indiana precedent identified, multiple jurisdictions have adopted the view that motions, upon submission for consideration, may not be arbitrarily withdrawn without consideration of the opposing party's time, expense and interest in light of the later ability to renew the motion. Marsh v. Marsh, 63 N.Y.S.2d 42; 1946 N.Y.Misc. LEXIS 2322, See also, Wallace v. Ford, 44 Misc. 2d 313, 253 N.Y.S.2d 608, 1964 N.Y. Misc. LEXIS 1335; In Re: White Farm Equipment Company, 23 B.R. 85; 1982 Bankr. LEXIS 3376.
4. On administrative review, the administrative law judge conducts proceedings de novo requiring the independent weighing of evidence without deference to the initial agency decision.
5. The administrative law judge must establish specific findings in order to provide a reviewing court the opportunity for intelligent judicial review of the decision.
6. Petitioners' "Petition" alleges that,
A. Appropriate notice was not given to all
adjacent property owners as required under Indiana law and DNR's regulations,
indeed at least one adjacent property owner directly impacted by this permit
has never received any notice whatsoever from DNR or the Peabodys
of the pendency of this application;
B. As a consequence of the defects in notice to adjacent property owners they
were barred from making any input into the application process. Moreover,
because of the defective notice the property owners did not have an opportunity
to make a request for public hearing as permitted under I.C. 14-11-4-8 as some
of the owners who could have been signatories to a petition were not aware of
the pendency of the application;
C. The permit application has other flaws that the adjacent property owners
have not yet been able to raise as a consequence of defects in the notice
process;
D. Because of these defects, the issuance of FW-22,720 was improper;
but the "Petition" fails to identify any
of the "Petitioners" as members of the group of adjacent property
owners entitled to but failing to be provided appropriate notice.
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7. Notice requirements relating to IC 14-28-1 and 312 IAC 10, (floodway construction) are controlled by 312 IAC 2-3-3. Specifically, if the license application at issue affects real property the Department is prohibited from issuing a permit until 30 days after notice has been provided to "at least one (1) of the owners of each parcel of real property reasonably known to be adjacent to the affected real property." 312 IAC 2-3-3(b) and (c)(1). Notice is additionally required to be provided by the Department to any person requesting notice of applications affecting real property to which the application relates or is of the same type. 312 IAC 2-3-3(d), IC 4-21.5-3-5(b)(4).
8. Real estate "adjacent to the affected real property" is defined at 312 IAC 2-3-2 as real property owned by a person, other than the applicant, that is "(1) located within one fourth (1/4) of a mile of the site where the licensed activity would take place, and (2) has a border or point in common with the exterior boundary of the property where the licensed activity would take place... ." 312 IAC 2-3-2.
9. The notice required to be provided to owners of real property adjacent to the affected real property "may be provided at any time AFTER an application for a license is filed with the department." 312 IAC 2-3-3(b), emphasis added by the Commission.
10. Where notice requirements regarding licensure are lacking or fundamentally flawed, the appropriate remedy is to remand the proceeding to the Department and to order correction of the licensing process. Fair, et al. v. Noble County Drainage Board and DNR, 9 Caddnar 82 (2002) and Citizens Against the Pit, by Rebecca L. Tenill v. DNR and Silver Creek Sand and Gravel Co., Inc., 7 Caddnar 140 (1996).
11. "Peabody's Memorandum" reveals that there is no genuine issue of material fact that Todd M. and Carolyn Nierman, and Lawrence A. and Madelyn L. Wheeler are owners of real estate adjacent to the real property affected by the license application by virtue of the fact that notice of application # FW-22, 720 was provided to these petitioners on August 5, 2003 and August 19, 2003, respectively. Peabody's Memorandum, p. 3 and Affidavit of Stacy Lynn Anderson.
12. "Petitioners' Response" provides a copy of application # FW 22,720, signed by Jay Gibson, Peabody's engineer, on February 4, 2004. The Department's received date stamp on the application reveals that the application was filed with the Department's Division of Water on February 6, 2004. "Petitioner's Response," Exhibit A.
13. Included within application # FW-22, 720 is the "Affirmation of Personal Service, First Class Mail Service, or Certified Mail Service." The affirmation reveals that, not only did Petitioners Todd M. and Carolyn Nierman and Lawrence A. and Madelyn L. Wheeler receive notice of application # FW-22, 720 before the date of filing the application with the Department, but all notices required by 312 IAC 2-3-3 were served before February 6, 2004. "Petitioner's Response," Exhibit A.
14. The language of administrative rule 312 IAC 2-3-3(b) is unambiguous. The requisite notice to Petitioners, Todd M. and Carolyn Nierman and Lawrence A. and Madelyn L. Wheeler, as well as all other adjacent property owners, must have been served after Peabody filed application # FW-22, 720 with the Department.
15. With the enactment of IC 14-11-4, the Indiana General Assembly identified sensitive classes of permits where adjacent property owners are entitled to be informed of and participate in the permitting process. Among these are permits for floodway construction. The floodway construction permit process includes the opportunity for adjacent property owners to make their views known to the Department and to seek public hearing by submission of a petition containing the signatures of twenty-five persons living in the county or owning property within one mile of the affected area. 312 IAC 2-3-4 and IC 14-11-4-8.
16. Timing of the notice is critical. By serving the notice before application # FW-22, 720 was filed with the Department, Petitioners Todd M. and Carolyn Nierman and Lawrence A. and Madelyn L. Wheeler, as well as remaining adjacent property owners, were afforded
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nothing to review. Furthermore, the
ability of adjacent property owners, including Todd M. and Carolyn Nierman and Lawrence A. and Madelyn L. Wheeler, to obtain a
sufficient number of petition signatures to obtain a public hearing was likely
impaired by Peabody's service of notice before application # FW-22, 720 was
filed with the Department.
17. Not only is the unambiguous language of the rule violated, but the legislative intent is thwarted. Peabody's service of notice of application # FW-22, 720 upon adjacent property owners was an empty gesture.
18. Petitioners' "Response" clarifies that the issue of notice is not applicable to Petitioners Thomas E. and Karen M. Wheeler, but instead the basis relied upon by these petitioners for review stems from their aggrieved status as taxpayers in light of the improper issuance of Certificate of Approval for Construction in a Floodway # FW-22, 720. It is not necessary to address this issue.
19. Trial Rule 12(C) states, "... if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
20. The material presented in Respondent's "Memorandum" and Petitioners' "Response" are outside the pleadings and have been accepted following reasonable opportunity for presentment of evidence by all parties and as such this matter is being treated as a summary judgment motion pursuant to Trial Rule 56 and IC 4-21.5-3-23.
21. In light of the failure of Peabody to provide notice of application # FW-22, 720 after submission of the application to the Department, Certificate of Approval for Construction in a Floodway # FW-22, 720 is on its face fatally flawed.
22. The Department' issuance of Certificate of Approval for Construction in a Floodway # FW-22, 720 was in error and the license granted thereby is void.
23. Remaining issues raised in this proceeding
are moot as a result of the irregularities involving Peabody's notice of permit
application # FW-22, 720 making futile the expenditure of additional effort by
this tribunal or the parties in pursuing administrative review in this venue at
this time.