CADDNAR


[CITE: DNR v. Jenkins, 12 CADDNAR 310 (2011)]

 

 

[VOLUME 12, PAGE 310]

 

Cause #: 10-213F

Caption: DNR v. Jenkins

Administrative Law Judge: Lucas

Attorneys: Boyko (DNR); pro se (Jenkins)

Date: April 15, 2011

 

 

FINAL ORDER FOR WITHDRAWAL OF A PARCEL OF LAND FROM CLASSIFICATION UNDER IC 6-1.1-6

 

The subject property does not meet the statutory size minimum of ten (10) acres and is ordered withdrawn from certification under IC 6-1.1-6.  The State Forester or a delegate of the State Forester shall notify the Henry County Auditor that the certification has been revoked so the Henry County Auditor can make any tax determination required by IC 6-1.1-6.  A copy of the notification shall be provided by the Department of Natural Resources to Andrew Jenkins and Amber Jenkins.

 

 

Findings of Fact and Conclusions of Law

 

1. On December 15, 2011 [sic., 2010], the Department of Natural Resources (the “DNR”) filed a “Complaint for a Final Order to Require the Withdrawal of a Parcel of Land from the Classified Forest & Wildlands Program” (the “Complaint”) with the Natural Resources Commission (the “Commission”).

 

2. The Complaint was directed to real estate for which the “last known landowner” was Andrew Jenkins and which was described as follows:

 

Part of the Southwest Quarter (¼ ) of Section Twelve (12) and part of the Northwest Quarter (¼ ) of Section Thirteen (13), both in Township Sixteen (16) North, Range Nine (9) East in Henry County, State of Indiana, more particularly described as follows:

 

Commencing at the Southwest corner of the aforementioned Northwest Quarter (¼), thence Easterly along the South line of said Northwest Quarter (¼) a distance of 1495.00 feet to a stone marked I.R.F; thence North 00 degrees 00 minutes 00 seconds East a distance of 2032.5 feet; thence North 66 degrees 43 minutes 00 seconds East a distance of 229.00 feet; thence North 44 degrees 22 minutes 00 seconds East a distance of 177.7 feet; thence North 01 degrees 42 minutes 00 seconds East a distance of 115.5 feet; thence North 87 degrees 28 minutes 00 seconds West a distance of 30.8 feet to the center line of a private lane; thence North 02 degrees 32 minutes 00 seconds East, on and along said center line a distance 0f 914.6 feet to the POINT OF BEGINNING of the real estate described herein.

 

From said beginning point, running South 02 degrees 32 minutes 00 seconds West a distance of 210 feet; thence North 89 degrees 00 minutes 00 seconds West a distance of 525.5 feet; thence North 33 degrees 15 minutes East a distance of 525 feet; thence South 89 degrees 00 minutes a distance of 257 feet; thence South 02 degrees, 32 minutes, 00 seconds West a distance of 234 feet to the point of beginning, containing 3.987 acres, more or less.

 

ALSO

Part of the Northwest Quarter (¼) of Section Thirteen (13), both in Township Sixteen (16) North, Range Nine (9) East in Henry County, State of Indiana, more particularly described as follows:

 

Commencing at the southwest corner of the aforementioned Northwest Quarter (¼); thence Easterly along the South line of said Northwest Quarter (¼) a distance of 1495.00 feet to a stone marked I.R.F.; thence North 00 degrees 00 minutes 00 seconds East a distance of 2032.5 feet; thence North 66 degrees 22 minutes 00 seconds East a distance of 177.7 feet; thence North 01 degrees 42 minutes 00 seconds East a distance of 115.5 feet; thence North 87 degrees 28 minutes 00 seconds West a distance of 30.8 feet to the center line of a private lane; thence North 02 degrees 32 minutes 00 seconds East, on and along said center line a distance of 194.6 feet; thence South 02 degrees 32 minutes 00 seconds West a distance of 210 feet; thence North 89 degrees, 00 minutes, 00 seconds West a distance of 525.5 feet to the POINT OF BEGINNING of the real estate described herein.

 

From said beginning point, running North 89 degrees 00 seconds West a distance of 493 feet; thence North 29 degrees 15 seconds East a distance of 68 feet; thence South 81 degrees 28 minutes East a distance of 465 feet to the point of beginning, containing 0.340 acres, more or less.

 

These two parcels contain a total of 4.327 acres, more or less, and together are the “subject property”.

 

3. Amber Jenkins is the wife of Andrew Jenkins.  Andrew Jenkins is incapacitated, and Amber Jenkins is acting on his behalf.  Brenda Huter is Stewardship Coordinator for DNR’s Division of Forestry.  Ihor N. Boyko is DNR’s attorney for the proceeding. 

 

4. A prehearing conference was conducted as scheduled on March 17, 2011.  During the conference, Amber Jenkins and Brenda Huter provided factual background.  Their statements and averments in the Complaint are referenced to assist in making a disposition.

 

5. “For the purposes of property taxation, forest land and other land may be classified and assessed under [IC 6-1.1-6] if the land satisfies the conditions prescribed in [IC 6-1.1-6] for classification as native forest land, a forest plantation, or wildlands.”  IC 6-1.1-6-1.

 

[VOLUME 12, PAGE 311]

 

6. “A parcel of land may not be classified as native forest land, a forest plantation, or wildlands unless it contains at least ten (10) contiguous acres….”  IC 6-1.1-6-5.

 

7. “A parcel of land may not be classified as native forest land, a forest plantation, or wildlands if a dwelling or other building is situated on the parcel.”  IC 6-1.1-6-6.

 

8. The Complaint avers the subject property was originally part of certified “parcel 33-14” which contained “10.46 acres but has been split.” 

 

9. Amber Jenkins stated during a prehearing conference that when Andrew Jenkins purchased the subject property, he and she were unaware of the classification and assessment under IC 6-1.1-6.  Her belief is that the seller is now retired and living in Florida, and the title company is out of business that she and her husband used when purchasing the subject property.  A portion of her real estate includes a residence and a barn.  Andrew Jenkins was injured very seriously in an accident, requiring his institutional care.  Consequently, Amber Jenkins is emotionally and financially stressed.  Seeking relief against the seller or the title company appears to be impracticable, and increasing her acreage to meet the ten-acre minimum appears to now be impossible.

 

10. A formal record has not been developed for this proceeding, but the facts do not appear to be in fundamental dispute.  The subject property does not contain the ten-acre statutory minimum.  Andrew Jenkins and Amber Jenkins did not initiate splitting of parcel 33, and at the time of purchase, they were unaware the subject property was subject to classification and assessment under IC 6-1.1-6.  Increasing the size of the subject property, to meet the statutory minimum under IC 6-1.1-6-5, is not currently a viable option.

 

11. At least once every five years, the Indiana State Forester or his deputy is required to inspect each parcel of land which is classified under IC 6-1.1-6.  If the inspection reveals that the parcel no longer qualifies for classification, and the owner does not make “changes necessary for compliance”, the Indiana State Forester shall inform the appropriate county auditor.  “The county auditor shall determine the taxes that are required under” IC 6-1.1-6-24.  IC 6-1.1-6-19 and IC 6-1.1-6-21.

 

12. The DNR is the state agency that administers IC 6-1.1-6.  The DNR’s Division of Forestry is delegate authority to initiate a complaint to revoke a certification under IC 6-1.1-6 where the certified parcel no longer conforms to statutory requirements.  312 IAC 15-1-4.  The Commission is the “ultimate authority” for action on a complaint under IC 4-21.5.  IC 14-10-2-3.  The Complaint issued through DNR’s Division of Forestry against Andrew Jenkins was authorized by law, and the Commission is the ultimate authority under IC 4-21.5 for this proceeding.

 

13. Indiana statute provides:

 

(a) If land that is classified as native forest land, a forest plantation, or wildlands is withdrawn from the classification, the owner shall pay an amount equal to the sum of the following:

(1) The total property taxes that, if it were not for the classification, would have been assessed on the land during the period of classification or the ten (10) year period immediately preceding the date on which the land is withdrawn from the classification, whichever is lesser.

(2) Interest on the property taxes at the rate of ten percent (10%) simple interest per year.

(3) For land that was originally classified after June 30, 2006, a penalty amount of one hundred dollars ($100) per withdrawal plus fifty dollars ($50) per acre, unless an amount is established by rule by the…[C]ommission.  However, the …[C]ommission may not increase the penalty amount more than once every five (5) years.[1]

(b)….

(c) The county auditor shall determine the tax owed under subsection (a).” 

 

IC 6-1.1-6-24.

 

14. The Indiana State Forester or his delegate is obliged to inform the Henry County Auditor that the subject property does not qualify for classification under IC 6-1.1-6.  The reason for disqualification is that the subject property contains a little more than four acres and is considerably smaller than the ten-acre size limit set by IC 6-1.1-6-5. 

 

15. During the prehearing conference, Brenda Huter expressed a belief that an auditor could waive the statutory penalty.  Any tax assessment is within the discretion of the Henry County Auditor and is not for determination here.  Compelling statements appear to support any waiver that may be lawfully granted.  No order can be issued in this proceeding, however, regarding a tax assessment or waiver of a tax assessment.



[1] The Commission has not adopted a rule to increase the allowable amount of penalty.