[NOTE: ON JUNE 24, 1997, MARION COUNTY CIRCUIT COURT (49C01-9608-CP-1972) DISMISSED MATTER WITHOUT PREJUDICE. SEE CIRCUIT COURT ORDER FOLLOWING ADMINISTRATIVE FINDINGS.]
The decision of the Department of Natural Resources to deny floodway construction permit R-11,754 is affirmed.
The complaint for the issuance of a notice of violation filed July 12, 1990, by the Department of Natural Resources against Gladys Stanton is granted.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5 and IC 13-2 apply to these proceedings.
3. The DNR is the state agency responsible for regulating floodways within the state.
4. The Natural Resources Commission ("NRC") is the ultimate authority with respect to enforcement and permitting actions taken by the DNR.
5. At all times relevant to these proceeding, Gladys Stanton ("Stanton") owned property in Floyd County, Indiana, which is in the floodway of the Ohio River.
6. IC 4-21.5-3-23 provides for a disposition by summary judgment if there is no dispute over material facts.
7. The factual allegations in the summary judgment briefs show there is no dispute about the facts in these matters.
8. In 1984, Stanton erected a double-wide mobile modular home on a permanent foundation on her property in the floodway.
9. This structure replaced a single-wide mobile home which was entirely removed from the property prior to the 1984 construction.
10. This home was (and is) used as the Stanton residence.
11. In 1989, Stanton decided to add a garage to the house.
12. Apparently in connection with this project, and after substantial completion Stanton was advised by local authorities that she would have to obtain a DNR permit for construction in the floodway.
13. Stanton filed an application for an after-the-fact floodway construction permit (application number R-11,754) which was denied by the DNR in June of 1990 because of IC 13-2-22-13(a).
14. IC 13-2-22-13(a) provides in part that "It is unlawful to erect, use, or maintain in or on any floodway a permanent structure for use as an abode or place of residence."
15. Application R-11,754 seeks to replace an old garage with a garage attached to the residence.
16. The DNR correctly concluded that this was an addition to a residence improperly built in a floodway and the DNR is without the authority to grant a permit for the construction of an attached garage to a residence in a floodway unless the residence is "grandfathered" or otherwise lawfully present.
17. On July 12, 1990, almost immediately after the DNR denied the permit, the DNR filed "Complaint for the Issuance of a Notice of Violation (and the Imposition of a Charge) for the Failure to Correct the Matter of Allegedly Constructing an Abode or Place of Residence and an Addition in the Floodway of the Ohio River near New Albany, Floyd County" ("NOV").
18. The NOV was filed pursuant to IC 13-2-22-13(h) which provides that a person who erects, uses, or maintains a permanent structure in a floodway for use as a residence commits a Class C infraction.
19. The NOV seeks to require the removal of the residence from the floodway and the area restored to its original condition and a fine of up to $500 per day (the Class C infraction maximum penalty) imposed for each day the violation remains unabated commencing 30 days after the NOV is issued by the NRC.
20. Both parties filed summary judgment motions.
21. Stanton raises a number of defenses including laches, estoppel, and selective enforcement.
22. These defenses are equitable defenses that are rarely applicable to government actions. Even if this were one of the cases where an equitable defense would be considered, the parties agree that an element of laches is actual knowledge of existing conditions and there is no evidence that any representative of DNR knew about the residence prior to 1989. Similarly
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for equitable estoppel to apply, a representative of the DNR must have made a representation to the claimant. While claimant may have receeived faulty information, the DNR correctly asserts there is no allegation that the misinformation received came from a DNR employee.
23. Stanton's due process/equal protection/selective prosecution argument likewise must fail. While the NRC, as a policy matter, might wonder why the Stanton property is the only property in the area subject to an enforcement action and there is evidence in the record that there are numerous other residences in this community which are also in the floodway, the fact remains that the Stanton residence was built in violation of IC 13-2-22. See Video Tape Exchange v. Department of Revenue (Ind. Tax 1989), 533 N.E.2d 1302, 1305, where the court stated that administrative actions taken against a practice which violates a statute is not precluded because the agency does not proceed against all possible violators.
24. Stanton also raises a defense involving the statute of limitations.
25. This is a legal defense, not an equitable one, and applies to government actions in the same manner as any other action.
26. The DNR's response to the statute of limitations defense is to state that since IC 13-2-22-13(h) provided that "[e]ach day a person violates subsection (a) or (d) constitutes a separate infraction," that the offense is a continuing one and that statute of limitations defense only starts to run from the time the alleged violation is abated.
27. The DNR cites a number of cases in support of this assertion.
28. The DNR also contends that specific statute of limitations do not apply to administrative actions. The Commission will not address this issue due to the express statutory language of IC 13-2-22-13(h) providing that each day of a violation constitutes a separate, or continuing, violation which disposes of the issues in controversy in this case.
29. In a case where a well defined action or specific failure to act triggers a violation of DNR statutes or rules, the statute of limitations starts to run when the act is complete. In this case, the statute of limitations would start on the day after the violation has been abated, which would be when Stanton's house has been removed This is in accord with the 59 Am. Jur.2d. Sec. 308 statement on Nuisances which indicates that if it is permanent in character, the statute commences to run on completion.
30. In this case, Stanton's house has not been removed from the floodway. Until the house is removed from the floodway, an applicable statute of limitations (if any) has not yet start to run.
31. Stanton's motion for summary judgment in cause number 90-233W should be denied.
ORDER OF THE MARION CIRCUIT COURT
COMES NOW, the Parties, Gladys Stanton, by Counsel, and the Natural Resources Commission, by Counsel, to stipulate the dismissal of the above captioned matter. In support of such stipulation, the Parties state the following:
1. House Enrolled Act 1251 (HR 1251) provides that persons may now place or replace mobile homes in the Ohio River Floodway.
2. As a result of HR 1251, the Parties believe this action and the underlying action before the NRC are now moot. WHEREFORE, the Parties hereby stipulate that the above captioned matter is dismissed without prejudice. IT IS ORDERED this 24th day of June.