CADDNAR


[CITE: Mary J. Archer v. DNR, 1 CADDNAR 26 (1981)]

 

[VOLUME 1, PAGE 26]

 

 

Cause #: 80-016W

Caption: Mary J. Archer v. DNR
Administrative Law Judge: Clayton
Attorneys: Woods; Scherschel, DAG
Date: February 26, 1981


ORDER

 

The previous determination of the Natural Resources Commission [denying the permit application is]...affirmed.


FINDINGS OF FACT

 

1. On or about May 12, 1980, Mary Jane Archer made application to construct an abode in the floodway (Docket #4-6518).

 

2. On July 24, 1980, at its regularly scheduled meeting, the Natural Resources Commission disapproved Mary Jane Archer's application to construct in a floodway.

 

3. By letter dated August 26, 1980, David T. Woods, Attorney for Petitioner, requested an Administrative Hearing to review the Commission's denial of Mary Jane Archer's application.

 

4. By certified mail, dated December 5, 1980, Notice of Hearing was sent to Petitioner setting the hearing of this cause for January 8, 1981, at 1:30 o'clock, p.m.

 

5. IC 13-2-22-13 requires that a permit be issued by the Natural Resources Commission prior to any construction in a floodway.

 

6. IC 13-2-22-13 provides: "It shall be unlawful to erect, use, or maintain in or on any floodway, a permanent abode or place of residence."

 

7. Rule #FPM-1 of the Natural Resources Commission defines "Regulatory Flood" as: "That flood having a peak discharge which can be expected to be equaled or exceeded on the average of once in a 100 year period as calculated by a method and procedure which is acceptable to and approved by the Commission. This flood is equivalent to a flood having a probability of occurrence of one percent in any given year."

 

8. Petitioner, at the time of hearing, had begun construction of an abode in the following location: NE 1/4, Sec. 15, T12N, R1W, West of Patton Lake Road about 6 miles Northeast of Paragon, Morgan County, Indiana.

 

9. The 100 year regulatory flood (as defined by Rule FPM-1), would obtain an elevation of approximately 644.0' MSL on the real estate owned by Petitioner.

 

10. The real estate owned by Petitioner has an approximate elevation of 640.0' MSL.

 

11. The partially constructed abode on Petitioner's real estate lies in the floodway of Lambs Creek.