[CITE: Parkview Square, Inc. v. DNR, 1 CADDNAR 50 (1983)]
[VOLUME 1, PAGE 50]
Cause #: 82-018W
Caption: Parkview Square,
Inc. v. DNR
Administrative Law Judge: Lucas
Attorneys: Huser; Habeeb,
DAG
Date: February 11, 1983
ORDER
The
application of Parkview Square, Inc. for a permit under the Flood Control Act
to remodel buildings on its property located in the southwest quarter of
Section 20, Township 9 North, Range 3 East in Brown
County, Indiana for use as a motel is denied.
FINDINGS OF FACT
1.
The petitioner, Parkview Square, Inc. ("Parkview"), is a corporation
with post office address, P.O. Box 141, Nashville, Indiana 47448 and with
resident agent in the State of Indiana being Larry J. Hawkins, as designated by
Parkview to the Secretary of State. Larry J. Hawkins is president of Parkview
and John C. Hart is secretary-treasurer.
2.
The respondent, Indiana Department of Natural Resources
("Department") is an agency of the State of Indiana, consisting in
part of the Natural Resources Commission ("Commission") and personnel
necessary for the performance of the official functions of the Department.
3.
The Department is empowered to conduct administrative hearings pursuant to IC
4-22-1, and has jurisdiction over the subject-matter and the parties to this
administrative action.
4.
The Flood Control Act is found in IC 13-2-22 and provides in part:
A.
"It is hereby declared
(a)
that the loss of lives and property caused by floods, and the damage resulting therefrom, is a matter of deep concern to the state..., (b)
that the channels and that portion of the flood plains of rivers and streams,
which are floodways, should not be inhabited..." IC
13-2-22-2.
B.
"The [C]ommission shall adopt, pursuant to
methods provided by law, from time to time, rules and regulations for the
transaction of its business and for the administration and exercise of its
power and duties." IC 13-2-22-4
C. "The
[C]ommission shall have jurisdiction over the public
and private waters in the state and the lands adjacent thereto necessary for
flood control purposes or for the prevention of flood damage..." IC
13-2-22-11
D.
"(a) It shall be unlawful to erect, use or maintain in or on a floodway, a
permanent abode or place of residence, or to erect, make, use or maintain any structure...on
any floodway...which, by virtue of its nature, design, method of construction,
state of maintenance or physical condition, will constitute an unreasonable
hazard to the safety of life or property...(c) Any person desiring to erect,
make, use or maintain, suffer or permit, a structure, obstruction, deposit or
excavation to be erected, made, used or maintained in or on any floodway shall
first filed a verified written application with the [C]ommission,
setting forth the material facts together with plans and specifications for
such structure, obstruction, deposit or excavation, and such person must
receive the written authorization of the [C]ommission
therefore prior to construction. The [C]ommission
shall issue an order of authorization if in the opinion of the [C]ommission such structure, obstructure,
deposit or excavation will not adversely affect the efficiency of, or will not
unduly restrict the capacity of the floodway, or will not constitute an
unreasonable hazard to the safety of life or property..." IC 13-2-22-12
5. A
rule duly promulgated by the Department and found in 310 IAC 6-1-12...provides
in significant part: "Non-Conforming Uses. All local ordinances
incorporating flood plain management provisions adopted after July 1, 1974,
shall provide for non-conforming uses. All land uses now existing in flood
hazard areas not in full compliance with this rule shall be considered a
non-conforming use. Except for normal maintenance, any building which constitutes
a non-conforming use may be altered, repaired, enlarged or extended, on a one
time only basis, provided such
[VOLUME 1, PAGE 51]
alterations, repairs, enlargements or
extensions do not increase the value of the building, excluding the value of the
land, by more than forty percent (40%) of its pre-improvement market value, and
the alterations, repairs, enlargements, or extensions are not otherwise
prohibited by state law or local ordinances.."
6.
Parkview is the owner of real estate and buildings (the "property")
located in the southwest quarter of Section 20, Township 9 North, Range 3 East in Brown County, Indiana; and adjacent to State
Road 46 and east of Parkview Road near Nashville.
7.
The property is located entirely within the floodway of the north fork of Salt
Creek, as the term floodway is defined under the Flood Control Act.
8.
The property is situated at or below elevation 602 feet mean sea level. State
Road 46 has been elevated to 610 feet adjacent to the property. The 100-year frequency
flood would obtain an elevation of approximately 607 feet and would encompass
the property. Salt Creek crested at the property at elevation 603.5 feet in May
1968 and 605.5 in June 1960.
9.
The waters of the north fork of Salt Creek are flashy and a flood may crest
within eight hours at the property.
10.
By verified petition dated August 4, 1981, Parkview sought approval of the
Commission to remodel existing buildings on the property for use as a motel.
Previously, Parkview leased units of the buildings for operation as retail
shops.
11.
The buildings located on the property were constructed after 1945.
12.
A motel is a roadside hotel providing lodging and parking space for motor
vehicles. Lodging implies sleeping accommodations.
13.
A person who might secure lodging on the property could become trapped
overnight by a flood on the north fork of Salt Creek, making use of the
property as a motel an unreasonable hazard to the safety of life, and a
prohibited use under the Flood Control Act.
14.
An abode is a place of residence or sojourn. Residence implies the act of
dwelling in a place for an extended period. Sojourn implies a temporary stay,
particularly in the context of a resort.
15.
A motel is an abode.
16.
The buildings sought to be used by Parkview as a motel are buildings in the
ordinary sense, roofed and walled permanent structures.
17.
The motel which Parkview seeks to establish in the Salt Creek floodway is a
permanent abode.[FOOTNOTE i],
and as such, is prohibited by the terms of the Flood Control Act, particularly
as set forth in IC 13-2-22-13.
18.
The proposal by Parkview to remodel the property from retail shops to a motel
is a first-time modification of non-conforming uses, and would not increase the
pre-improvement market value of the property, excluding the land, by more than
40%.
19.
The provisions of 310 IAC 6-1-12 do not deprive the Commission of jurisdiction
over the remodeling project proposed by Parkview. By its own terms, the rule
does not apply to "alterations, repairs, enlargements, or extensions"
which are "otherwise prohibited or restricted by state law." The proposed
remodeling project is prohibited under the Flood Control Act, particularly IC 13-2-22-13(a)
proscribing in a floodway erection of a permanent abode or maintenance of a structure
which constitutes an unreasonable hazard to the safety of life or property.[FOOTNOTE ii]
20. Parkview
by letter of October 11, 1979 and in the person of its officers directed
general questions concerning development of the property to the Department.
During these communications, Parkview did not indicate an intention to convert
the property to use as a motel, nor did the Department inquire whether use as
an abode or place of residence was contemplated.
21.
A letter dated October 15, 1979 was sent by Robert Jackson, Director of the
Department's Division of Water, to Parkview (Respondent's Exhibit 9) and the
effect of the letter was to respond to the general questions posed by Parkview.
The October 15 letter was not a permit.[FOOTNOTE iii]
22.
On April 13, 1982, Victor Wenning provided an
affidavit setting forth his position that if Parkview "intended to
redecorate the existing structures" on the property, the October 15, 1979
letter (Respondent's Exhibit 9), "would apply", but if Parkview "was
going to change the building's use to an abode", Parkview would need
Commission approval because Department "staff has no approval authority
for abodes." The affidavit is correct, although under proper
circumstances, the Department may be estopped to deny
authority of staff to approve floodway construction.
23.
For the Department to be estopped from refusing to
grant Parkview a permit for remodeling of the property for use as a motel,
Parkview must establish by a preponderance of the evidence all of the
following:
(a) a representation or concealment by the Department of
material facts,
(b) the representation was made with knowledge of the facts,
Parkview was ignorant of the matter,
(d) the Department intended that Parkview act upon the representation
and
(e)
Parkview was induced to act. Additionally, because the
[VOLUME 1, PAGE 52]
Department
is a governmental entity, Parkview must establish application of equitable estoppel, (f) would not involve an expenditure of taxpayer
money, (g) pertinent limitations on governmental authority were ambiguous and
unclear, and (h) applications of estoppel would be
consistent with the public interest.
24.
Parkview has failed to establish all elements necessary to prove equitable estoppel. By illustration, the Department did not have
knowledge of the fact that Parkview intended to remodel the property for use as
a motel at the time of the October 15, 1979 letter (Respondent's Exhibit 9).[FOOTNOTE iv] To grant Parkview the
remodeling permit would violate public interest, since the use of the property
as a motel would constitute an unreasonable hazard to the safety of life and property.
25.
The application by Parkview to remodel existing buildings on the property for
use as a motel should be denied.[FOOTNOTE v]
FOOTNOTES
i.
The Department urges in its post-hearing brief that the proposed motel may
require a resident manager, whose duty would be "to occupy one of the rooms
and remain on the property at all times as a 'permanent resident'". The
motel proposed by Parkview is modest, and a permanent resident manager may or
may not be contemplated. No evidence was presented on the possibility of a
resident manager, and that contingency was not considered in determining the
proposed motel would constitute a permanent abode. Parkview urges in its
post-hearing brief that permanent abode and permanent residences are
essentially equivalent terms. "In short, the plain and ordinary meaning of
'permanent abode' or 'permanent place of residence' involves one's indefinite,
last home, domicile or dwelling." To adopt the argument by Parkview would
render a nullity use of the term "abode" in IC 13-2-22-13. "It
shall be unlawful to erect, use or maintain in or on any floodway, a permanent
abode or place of residence." The Legislature intended the protections of
the Flood Control Act apply to residences, as well as to buildings where
persons might live on a temporary basis. Use of the term "abode" was
incorporated to extend the act beyond the protections which would have been afforded,
had it referred exclusively to a "place of residence". Hotels,
motels, boarding houses, hostels, inns and similarly resort dwellings are among
the class of structures intended for inclusion. Concern with protecting lives
and property was the central motivation and purpose for the Flood Control Act.
That purpose would be thwarted if structures where persons lived permanently
were included and those where persons lived temporarily were excluded. The risk
to life and property posed by flooding may be greater to a temporary motel
guest unfamiliar with the propensities of a "flashy" creek, then to a
resident well-acquainted with the dangers. Use of the term
"permanent" is not descriptive of the duration of human occupancy to
be covered, but the nature of a shelter which may, as a practical matter, be
controlled by the Commission. Someone who sleeps in his camper, his automobile
or "under the stars" cannot readily be brought under Commission
authority, even though the danger to him may be significant.
ii.
Even if 310 IAC 6-1-12 did not specifically limit its application to those
instances not otherwise prohibited or restricted by state law, the statutory
limitations of IC 13-2-22-13(a) would control. The Commission is given express
authority under IC 13-2-22-4 to promulgate rules for the administration of its
power and duties under the Flood Control Act, but the Commission cannot promulgate
rules which either expand or restrict the grant of jurisdiction made by the
Legislature. Any rule outside the enabling provisions of the statutes would be
void, as an unlawful usurpation of the exclusive legislative authority to
legislate.
iii.
During cross-examination of Larry Hawkins, he was asked if the letter clearly
stated it was not going to be a permit of any kind. He responded, "That's
correct." The witness also testified on cross-examination that the letter "contradicts
itself".
iv.
The record does not demonstrate Parkview had established in 1979 the intention
to remodel the property into motel units. If that intention then existed, it
was not expressed to the Department staff. On cross-examination, John Hart was
asked whether he told Kenneth Smith, a member of the staff, that Parkview
planned to convert the property as a motel. He answered that he didn't even
discuss it with him.
v.
Equitable estoppel is also unavailable to Parkview
because its actions violate the principal that to receive equity, one must to
equity. If the Flood Control Act did not exist, remodeling of a place for human
habitation in a flood plain on a "flashy" creek
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well below the 100-year flood
level and the elevation of an adjacent state highway might not be unlawful, but
would be inequitable.