CADDNAR

[CITE: Rosheck v. Mader Dental, 12 CADDNAR 251 (2010)]

 

[VOLUME 12, PAGE 251]

 

 

Administrative Cause #: 10-067W

Caption: Rosheck v. Mader Dental

Administrative Law Judge: Lucas

Attorneys: Rosheck (pro se); Lloyd (Mader Dental); Wyndham (DNR)

Date: July 27, 2010

 

 

FINAL ORDER OF SUMMARY JUDGMENT

 

There is not a genuine issue of fact in dispute regarding flood retention capacity.  Even if the Claimants were found to have standing to complain, the law is with the Mader Dental Office.  The Department of Natural Resources properly issued and conditioned, under the Flood Control Act and 312 IAC 10, the permit identified as FW-25,433.

 

I. Findings

 

A. Statement of the Case and Jurisdiction

 

 1. On April 2, 2010, Judy Rosheck and others (collectively the “Claimants” as captioned[1]) petitioned the Natural Resources Commission (the “Commission”) for relief, under Ind. Code § 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted at 312 Ind. Admin. Code § 3-1 to assist in implementation of AOPA, from an initial determination by the Department of Natural Resources (the “DNR”) to issue a certificate of approval for FW-25433 (the “subject permit”). 

 

2. The DNR granted the subject permit to the Mader Dental Office (“Mader”), under Ind. Code § 14-28-1 (sometimes referred to as the “Flood Control Act”) and rules adopted at 312 Ind. Admin. Code § 10 to assist with implementation of the Flood Control Act, for a site located in the floodway of Juday Creek, St. Joseph County, Indiana.

 

3. On April 7, 2010, the Commission assigned Stephen L. Lucas as its administrative law judge for this proceeding.  A “Notice of Initial Prehearing Conference” was served upon the Claimants, Mader, and the DNR.  The initial prehearing conference was conducted as scheduled on May 14 at North Judson, Indiana.

 

4. On April 13, Eric L. Wyndham and Ihor N. Boyko entered their “Joint Appearance of Counsel for Respondent Department of Natural Resources”. 

 

5. On April 15, John H. Lloyd entered his “Appearance” as attorney for Mader.

 

6. The Commission is the “ultimate authority” for DNR determinations under the Flood Control Act and 312 IAC 10.  Yoder v. DNR & Bouwkamp, 12 Caddnar 88, 99 (2009)[2].

 

7. The Commission has jurisdiction over the persons and over the subject matter of this proceeding.

 

B. Standards for Summary Judgment

 

8. On May 7, 2010, Mader filed a “Motion for Summary Judgment”.  The motion was supported by affidavits and the “Respondent’s Memorandum in Support of Motion for Summary Judgment”.  The motion sought relief on two grounds.  First, the Claimants lack “standing” to challenge the subject permit.  Second, the Claimants “are wrong in their assertion as to the loss of flood retention capacity.”  Because summary judgment is granted to Mader on the second ground, a determination of the first ground is unnecessary.

 

9. During the initial prehearing conference held on May 18, the parties in attendance agreed, and they were then ordered to respond, according to the following schedule:

(A) The Claimants and the DNR must file any response to the “Motion for Summary Judgment” and any cross or counter motion for summary judgment by June 7, 2010.

(B) Mader must file any response or reply to a pleading or document filed under Part (A) by June 21, 2010.

 

10. The Izaak Walton League of St. Joseph County filed its “Response to Motion for Summary Judgment” on June 4, 2010 and addressed both standing and flood retention capacity.  The response was not supported by affidavits.  Other Claimants caused the filing of documents which were directed primarily to standing.  The DNR did not file a response.

 

11. Mader did not file a reply to the “Response to Motion for Summary Judgment” of the Izaak Walton League of St. Joseph County.

 

12. IC 4-21.5-3-23 governs summary judgment under AOPA and provides:

 

(a) A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party’s favor as to all or any part of the issues in a proceeding. The motion must be supported with affidavits or other evidence permitted under this section and set forth specific facts showing that there is not a genuine issue in dispute.

 

[VOLUME 12, PAGE 252]

 

(b) The motion must be served at least five (5) days before the time fixed for the hearing on the motion. The adverse party may serve opposing affidavits before the day of hearing. The administrative law judge may direct the parties to give oral argument on the motion. The judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon fewer than all the issues or claims (such as the issue of penalties alone) although there is a genuine issue as to damages or liability, as the case may be. A summary judgment upon fewer than all the issues involved in a proceeding or with respect to fewer than all the claims or parties is not a final order. The administrative law judge shall designate the issues or claims upon which the judge finds no genuine issue as to any material facts. Summary judgment may not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the administrative law judge shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence. If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the administrative law judge may make any order that is just.

 

(c) If on motion under this section no order is rendered upon the whole case or for all the relief asked and a hearing is necessary, the administrative law judge at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating any person, shall if practicable ascertain:
(1) what material facts exist without substantial controversy; and

(2) what material facts are actually and in good faith controverted.

The administrative law judge shall then make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing further proceedings in the action as are just. Upon the hearing of the action, the facts specified are established in the judge’s order under this subsection.

 

(d) Supporting and opposing affidavits must:

(1) be made on personal knowledge;

(2) set forth facts that are admissible in evidence; and

(3) show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.

 

(e) The administrative law judge may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, further affidavits, or testimony of witnesses.

 

(f) If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party’s pleadings as a response to the motion. The adverse party shall respond to the motion with affidavits or other evidence permitted under this section and set forth specific facts showing that there is a genuine issue in dispute. If the adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party.

 

13. As provided in 312 IAC 3-1-10, an administrative law judge may apply the Trial Rules if not inconsistent with AOPA.  Reference may be made to Trial Rule 56 and to reported decisions based upon Trial Rule 56.  If Trial Rule 56 is inconsistent with IC 4-21.5-3-23, the latter controls.  Roebel, et al. v. Vorndran, et al., 11 Caddnar 250, 253 (2008).

 

14. “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.”  Wells v. Hickman, 657 N.E.2d 172, 175 (Ind. App. 1995).

 

15. Summary judgment should be granted if the evidentiary material shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990).

 

16. “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.”  Graham v. Vasil Management Co., Inc. 618 N.E.2d 1349 (Ind. App. 1993).  “A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.”  York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).

 

17. In the administrative context, a party moving for summary judgment has the burden of proof with respect to summary judgment, regardless of whether the party would have the burden in an evidentiary hearing.  Regina Bieda v. B & R Development and DNR, 9 Caddnar 1 (2001).  See, also, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994).

 

18. Once the party moving for summary judgment establishes a lack of material fact, the party responding to the motion must disgorge sufficient facts to show the existence of a genuine triable issue.  Cowe by Cowe v. Forum Groups, Inc. 575 N.E.2d 630, 633 (Ind. 1991).

 

19. This proceeding is ripe for a determination of summary judgment with respect to the issue of flood retention capacity.

 

[VOLUME 12, PAGE 253]

 

C. Flood Retention Capacity

 

20. Mader Enterprise, LLC is the owner of real property located at 17490 State Road 23, South Bend, St. Joseph County, Indiana (the “subject property”) upon which Mader operates a dental office.  Affidavit of Mark Foster, ¶ 3.  Mader applied to the DNR for a floodway permit to construct a 1,452 square foot addition to his dental office and to expand and raise the existing parking lot to allow for the installation of a French drain.  Foster Aff. ¶ 4.  The elevation of the structure would remain 733.64’ NGVD29, but the replaced drive and parking lot areas would be raised approximately three feet from the existing grade to allow for a storm-water drainage system that would drain to dry wells and a proposed pond in the northwest corner of the property.  Id.  The construction anticipated by the application is sometimes referred to as the “project”.

 

21. The DNR requested modeling for the project to establish that the project would not adversely affect the efficiency or unduly restrict the capacity of the floodway.  Foster Aff. ¶ 5.  At the DNR’s request, Weaver Boos Consultants (“Weaver Boos”) submitted additional floodway modeling information to assure all factors were considered and that the project would not adversely affect or unduly restrict the capacity of the floodway.  Foster Aff. ¶¶ 5 – 7.  The final modeling was performed to satisfy DNR’s interpretations of the “General Guidelines for the Hydrologic-Hydraulic Assessment of Floodplains in Indiana” and the “Coordinated Discharge of Selected Streams in Indiana”.  Foster Aff. ¶ 7.

 

22. As applied to the project, “Adversely affect the efficiency of, or unduly restrict the capacity of, the floodway” means an increase in the elevation of the regulatory flood of at least fifteen-hundredths (0.15) of a foot as determined by comparing the regulatory flood elevation under the project condition to that under the base condition.”  312 IAC 10-2-3.

 

23. The final modeling results that Mader submitted to the DNR reflected a maximum change in elevation of 0.07 feet.  The modeling demonstrated the project would not adversely affect the efficiency or unduly restrict the capacity of the floodway, considered either as an individual project or on a cumulative basis.  Foster Aff. ¶ 7.

 

24. The DNR concurred with the results of modeling provided by Weaver Boos.  “The statement by the applicant’s agent that the project satisfies the requirements of the General Guidelines for the Hydrologic-Hydraulic Assessment of Floodplains is reasonable.  The applicant’s agent has demonstrated that in conjunction with any other previously approved, currently proposed, or reasonably foreseeable future projects located in the floodway near this site, the project will not cause an adverse cumulative effect on either the efficiency or capacity of the floodway, or cumulatively result in an unreasonable hazard to safety of life or property.”  Division of Water, Engineering Service Center, Hydraulic Modeling Review (March 9, 2010) attached as Ex. 4 to Foster Aff.

 

25. The Izaak Walton League of St. Joseph County does not offer alternate modeling but rather relies upon a statement in Mader’s memorandum: “’The modeling showed that the [p]roject at worst will raise the regulatory flood elevation by 0.14 feet’….  The St. Joseph County, Indiana, Chapter, Inc., Izaak Walton League of America, asserts that it is reasonable to conclude, based on a review of the available evidence provided by [Mader], that the possible increase in flooding (0.14 feet) is so close to the regulatory limit (0.15 feet) that any failure in the operation of any of the engineered structures intended to limit flooding could be reasonably expected to push the increased flooding over the regulatory limit.”

 

26. The record does not support a finding the DNR determined or should have determined that technical data supported flood elevations were likely raised by 0.14 feet.  Even if this finding were supportable, 0.14 feet is less than the regulatory minimum of 0.15 feet.  The argument by the Izaak Walton League of St. Joseph County that “any failure in the operation of any of the engineered structures intended to limit flooding” is just that—argument.  No professional data or opinion is provided to support the argument and to disgorge the facts provided by Mader.  Neither is there a basis in fact provided for the concept that the regulatory standard is or should reasonably be based upon the anticipation of a system failure.  The Izaak Walton League of St. Joseph County has not provided sufficient facts to show the existence of a genuine triable issue. 

 

27. The Izaak Walton League of St. Joseph County offers a possible amendment to the subject permit.  This amendment is referenced in a template for the “Response to Motion for Standing” presented by several of the Claimants:

 

It is our understanding that the St. Joseph County, Indiana, Chapter/Inc., Izaak Walton League of America is submitting a request for an inclusion to the submitted plans for the Mader site in which the Respondents agree [sic., presumably Mader agrees] to prepare and submit to [DNR] a site maintenance plan to be added as an addendum to Permit Special Condition #6 that would state specifically the steps (e.g. routine inspections, cleanout of silt from silt traps, etc.) to be taken to maintain the engineered structures (e.g. retention pond and French drains) to function properly as designed.  Such a plan would be useful for the regulator and others to be able to determine in the future that necessary maintenance is in fact being followed and would serve as a guide for possible future owners of the site that may otherwise be unaware of what exactly is required to maintain these critical structures as intended.  While we are opposed to any further development along the floodway of Juday Creek this addendum would help ensure protective standards for the creek.

 

This proposal is in the nature of settlement negotiations, and while settlements are generally to be encouraged, they are not responsive to a motion for summary judgment.

 

28. There is not a genuine issue of fact in dispute regarding flood retention capacity, and the law is with Mader and supports issuance of the subject permit.  Summary judgment must properly be granted in favor of Mader and against the Claimants.