CADDNAR

[CITE: DNR v. Everett and Rickleffs, 1 CADDNAR 66 (1985)]

[VOLUME 1, PAGE 66]

Cause #: 83-086W

Capton: DNR v. Everett and Rickleffs
Administrative Law Judge: Lucas
Attorneys: Johnson, DAG; Marshall
Date: August 13, 1985

ORDER

The residential building caused to be constructed by Jerry L. Everett on land located south of Flat Rock River, about 1, 400 feet east of the junction of SR 252 and Willow Rd. in the SW 1/4, SE 1/4, SE 1/4, SW 1/4, sec. 27, Track 11N, Range 6 East, near Flat Rock, Shelby County, IN shall be removed by 10/1/85. The order is directed to Jerry L. Everett who shall cause the removal at his own expense. The order shall attach to the described property; and the Attorney General of Indiana shall cause a copy of the order to be recorded with the Shelby County Recorder.

FINDINGS OF FACT

1. The provisions of the Administrative Adjudication Act (IC 4-22-1) govern this action.

2. The Department of Natural Resources (hereinafter the "Department") is an agency as the term is defined in IC 4-22-1. The Natural Resources Commission (hereinafter the Commission) is the ultimate authority of the Department with respect to the Flood Control Act (IC 13-2-22).

3. The Flood Control Act is applicable to the subject of this action.

4. The Commission has jurisdiction over both the subject matter and the parties.

5. Pursuant to IC 4-22-1, Notice of this action and service was made upon: Jerry L. Everett, 1314 Central Avenue, Columbus, Indiana 47201; Robert L. Dalmbert, DALMBERT & MARSHALL, Attorneys at Law, PO box 664; Arnold Rickleffs, 322 West Broadway, Shelbyville, Indiana 46176; Arnold Rickleffs, RR #1, Box 327, Flat Rock, Indiana 47234.

6. Arnold Rickleffs is the title holder of a tract of land located south of the Flat Rock River, about 1, 400 feet east of the junction of State Road 252 and Willow Road in the southwest quarter, southeast quarter, southwest quarter, Section 27, Tract 11 North, Range 6 East, near the town of Flat Rock, Shelby County, Indiana (hereinafter the property).

7. The property is located immediately downstream or at the downstream edge of an unincorporated development known as Willow Park, which is positioned along the south bank of the Flat Rock River and north of State Road 252. Included in Willow Park are several residential structures and a former dance hall, most or all of which were constructed during World War II.

8. Access to the property is provided by Willow Drive, a street which forms a somewhat circuitous connection to State Road 252 a few hundred feet to the east.

9. Jerry Everett is the contract purchaser of the property.

10. In about November 1982, Jerry Everett began construction on the property of a permanent abode or place of residence (hereinafter residence).

11. At the time Jerry Everett began construction of the residence, IC 13-2-22-13 provided in its first paragraph:

"It shall be unlawful to erect, use or maintain in or on any floodway a permanent abode or place of residence, or to erect, make, use or maintain any structure, obstruction, deposit or excavation in or any floodway...".

The section provided in its final paragraph:

"The Commission shall have the power to remove or eliminate any structure, obstruction, deposit or excavation in any floodway which adversely affects the efficiency of or unduly restricts the capacity of the floodway or which constitutes an unreasonable hazard to the safety of life or property...".

12. IC 13-2-22-2 (b) provided (and continues to provide) "that the channels and that portion of the floodplains of rivers and streams, which are the floodways, should not be inhabited..."

13. If the residence is located in a floodway, its construction and maintenance are per se unlawful.[FOOTNOTE i]

14. As defined under IC 13-2-22-3(12), "floodway" means the channel of a river or stream and those portions of the flood plains adjoining the channel, which are reasonably required to efficiently carry and discharge the flood water or flood flow of any river or stream.

15. A floodway is calculated by the Department with respect to a "regulatory flood".

16. As defined in 310 IAC 6-1-3 (f), a "regulatory flood" means that flood having a peak discharge which can

[VOLUME 1, PAGE 67]

be expected to be equaled or exceeded on the average of once in a one hundred 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.

17. The "regulatory flood" is commonly referred to as the "100-year frequency flood".

18. Reference to the 100-year frequency flood in calculating the floodway for a river of stream is in keeping with good engineering principles.

19. Recorded historic flood information indicates that the March 1913 and May 1961 floods reached elevations of 684.5 and 682 feet, mean sea level, respectively, near the property.

20. The regulatory flood (or 100-year frequency flood) levels at the property is 684.5 feet mean sea level.

21. The elevation of the residence at the ground surface is between 680.8 feet mean sea level. The main floor of the residence is approximately nine feet higher.

22. State Road 252, and particularly its bridge over Flat Rock River downstream from and west of the property, forms an artificial constriction to the floodway of the Flat Rock River. The constriction may cause or contribute to pooling of water in the vicinity of Willow Park during periods of even moderately high water on the Flat Rock River.

23. The elevation at the junction of State Road 252 and Willow Drive is about 684.7 feet mean sea level.

24. There are areas along State Road 252 between the bridge and Willow Drive that are lower than the 1913 flood elevation.

25. Willow Park and the property are prone to minor flooding on a fairly regular basis.

26. With respect to floods which occur at a lesser volume and at a greater frequency than the regulatory flood, the property is often inundated by shallow water. Typically, for these lesser floods, the property is included in flood plain but not within the floodway.[FOOTNOTE ii]

27. To determine whether the property is located within the floodway of the regulatory flood, the Water Division of the Department referenced the Guidelines for Delineation of Floodways and Flood Hazard Areas as adopted by the Commission on March 28, 1974. The Water Division reviewed historic flood data for the Flat Rock River and adjacent waterways, notably the 1913 and 1961 floods. Gauging station records were examined, the size, shape and slope of the watershed were considered and cross-sections of the river valley were factored into a computer program. A computer model was developed which indicated the probably parameters of the floodway and of the flood plain in the vicinity of the property.

28. The computer model prepared by the Department indicated the residence would be well within the boundaries of the floodway of the Flat Rock River during the regulatory flood.[FOOTNOTE iii]

29. The residence is located within the floodway of the Flat Rock River for a regulatory flood. 30. Construction of the residence violated (and its maintenance continues to violate) the terms of the Flood Control Act.

FOOTNOTES

i. As noted in the Report, one of the issues articulated by the parties was whether construction of a residence in a floodway is per se unlawful. After extensive briefing of the issue by both counsel, the Hearing Commissioner made an interlocutory finding that it is. That finding was set forth in a written "ENTRY BY HEARING COMMISSIONER PURSUANT TO REPORT OF PRE-HEARING CONFERENCE", a copy of which is attached and incorporated here as Exhibit "A". Finding 13 is also consistent with prior decisions of the Commission. See In the Matter of Parkview Square v. Department of Natural Resources (Cause No. 82-18W). Parkview there sought approval to remodel a structure in a floodway for use as a motel. The Commission denied the application, using language to indicate the project was per se unlawful. "The motel which Parkview seeks to establish in the ...floodway is a permanent abode, and as such, is prohibited by the terms of the Flood Control Act..."

ii. Wilbur Amner, a 25-year resident of the community, testified: "...I've never saw anything that you couldn't wade with a pair of overshoes on...No, it’s not running water...It's still water. It backs up there." The observations by Amner are consistent with those of other local residents and of Jerry Everett. Still water is indicative of a flood plain, not of a floodway. But that an area is part of the flood plain for a two-year or twenty-year frequency flood is not dispositive of whether the area would or would not be within the floodway for a regulatory flood. The perceived behavior of flood waters on the Flat Rock River

[VOLUME 1, PAGE 68]

may be further confused by the artificial construction described in Finding 22. The flow characteristics for the waterway may conform to one pattern where the constriction serves as a dike and quite another where water is high enough to overtop the dike. The behavior of the Flat Rock River in a minor flood may provide some insight into its behavior in a major flood such as the regulatory flood. Care must be taken, however, not to rely exclusively upon a lesser flood in predicting the behavior of a greater flood or to expect a relationship that is lineal or direct.

iii. To render a decision in this case, expert testimony offered by the parties must be considered and weighed. Professional staff of the Water Division, on one hand, and Norman Clark, a professional engineer and registered land surveyor called to testify by the Respondents, on the other hand were in apparent conflict concerning the boundaries of the floodway, and he specifically declined to characterize his results as a "conclusion", he did express the "opinion" that the property is not located in the floodway. He stated during direct examination: "Upon the field inspection that I did at the time I shot the elevations of the structure, and then I went back again and looked at the area, and in my opinion, the Everett structure is not in the floodway."

On cross examination, Clark was asked whether his opinion "was based more or less on experience and just an eyeball account of the situation?" He answered, "Yes, sir". Clark is an experienced professional and his opinion is not lightly dismissed. But the relatively general nature of his analysis, when compared with the more exacting analysis of the Water Division staff and the computer modeling, just favor the conclusions of the Division over the opinions of Norman Clark.

The technology employed by the Water Division to predict the floodway of a regulatory flood on Flat Rock River was more thorough, more sophisticated and more convincing than the effort by Norman Clark. ENTRY BY HEARING COMMISSIONER PURSUANT TO REPORT OF PREHEARING CONFERENCE [Exhibit "A"] During a pre-hearing conference held in this administrative action on November 7, 1984, the parties articulated three issues for consideration. The second issue was set forth as follows in the Report of Pre-Hearing Conference: "(2) If the residence is located in the floodway, was its construction per se unlawful?" Because the second issue presents a legal rather than factual question, the parties agreed to present written briefs in advance of the hearing. Those briefs have been filed by the parties and considered by the hearing Commissioner. Determination of this issue depends upon a proper application of the "Flood Control Act", currently found in IC 13-2-22. Its provisions were initiated by the 84th General Assembly and made effective March 7, 1945. [Acts 1945, c. 318, s. 25] Since enactment, the Flood Control Act has undergone several amendments. While not every amendment is pertinent to this discussion, counsel for the parties have focused upon two of the current statutory sections, and how a 1983 amendment may have modified the legislative intent. These sections are IC 13-2-22-2 and IC 13-2-22-13. Section 2 of the Flood Control Act is a rare declaration of legislative intent. The statement of intent is unmistakable and remains unchanged since its 1945 enactment. "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 the floodways, would not be inhabited and should be kept free and clear of interference or obstructions which will cause any undue restriction of the capacity of the floodways..." Section 13 has witnessed several amendments since enactment.

[VOLUME 1, PAGE 69]

The General Assembly provided in 1945:

"It shall be unlawful to erect, use or maintain any structure in or on any floodway as a permanent abode or place of residence, or to erect, make, use or maintain any structure, obstruction, deposit, or excavation in or on any floodway..." [Acts of 1945, c. 318, s. 25]

In 1961 the wording of the provision was realigned as follows:

In 1973 amendment to the provision added new protections against "unreasonably detrimental effects upon the fish, wildlife and botanical resource" which might otherwise result from construction in a floodway. The amendment did not impact the portion of IC 13-2-22-13 at issue. [Acts of 1973, P.L. 122, sec. 1.] Similarly, a 1981 amendment did not modify the quoted language. [Acts of 1981, P.L. 11, sec. 76.] In 1983 the General Assembly most recently amended IC 13-2-22-13. In pertinent part the section now provides: " (a) It is unlawful to erect, use or maintain in or on any floodway, a permanent abode or place of residence. It is unlawful to erect, make, use or maintain any structure, obstruction, deposit or excavation in or on any floodway..." [Acts of 1983, P.L. 165, sec. 4.]. Counsel for the claimant urges that the current language of IC 13-2-22-13(a) "is clear and unambiguous: It is unlawful to erect, use or maintain in or on any floodway, a permanent abode or place of residence. The language is mandatory, not directory". [Department of Natural Resources' Pre-hearing Brief, 2.] Counsel for the Respondent does not contest the Claimant's interpretation of current section 13(a), but denies its applicability to this case. He states the subject construction was performed before the effective date of the 1983 amendment. [FOOTNOTE i] "While Respondent has little argument with the reasoning of the Claimant's brief and legal conclusions therein, it is submitted that it does not apply to Respondent's factual situation." [Pre-hearing Brief of Respondent Jerry L. Everett, 2.] counsel for the Respondent urges that the 1983 amendment not be given retroactive application. He argues that the effective statutory provision (IC 13-2-22-13 as amended in 1981) includes "no unequivocal prohibition" against a residential usage in a floodway.[FOOTNOTE ii] [Everett Pre-hearing Brief, 4] counsel for the Respondent does not present a persuasive argument for his proposition that before 1983, a residence was not precluded from the floodway. While the 1983 amendment does clarify the language of IC 13-2-22-13(a), the legislative prohibition on residences in the floodway has been apparent since 1945, at least where the application portions of sections 2 and 13 are read together. IC 13-2-22-2(b) "...[T]he channels and that portion of the floodplains of rivers and streams, which are the floodways, should not be inhabited..." IC 13-2-22-13(a) "It shall be unlawful to erect, use or maintain in or on any floodway, a permanent abode or place of residence, or to erect, make, use or maintain any structure... in or on any floodway...which will adversely affect the efficiency of or unduly restrict the capacity of the floodway..." The issue presented for consideration is answered in the affirmative. If the residence is located in the floodway, its construction is per se unlawful.