1. A notice of violation is issued against David and Carolyn Stone pursuant to IC 14-3-3-22 for their failure to receive a permit under IC 13-2-2213(d) prior to building or allowing to be built permanent decking at their campground along the Ohio River at about river mile 584, in Clark Military Grant #57, approximately seven miles west of Charlestown, Clark county, said campground being in the Ohio River floodway.
2. The Stones are ordered to abate the violation by either applying for a permit for the decking, removing the decking or rendering the decking temporary by July 1, 1992.
3. The Stones will be charged $500 per day for each day an abatement action has not been taken after July 1, 1992, such period running no longer than 30 days for a maximum charge of $15,000.
4. If the Stones apply for a permit and the permit is denied, they have 90 days after the date of denial to remove the decking or render it temporary.
5. If such abatement action is not taken after permit denial, the Stones will be charged $500 per day for each day in violation beginning with the 91st day and going through the 120th day for a maximum charge of $15,000.
FINDINGS OF FACT
1. The Department of Natural Resources (DNR) is an agency wihtin the meaning of IC 4-21.5.
2. The regulation of Indiana floodways is provided for by Indiana Code 13-2-22 (Flood Control Act).
3. The Department of Natural Resources is the state agency responsible for the administration and enforcement of this statute.
4. The Natural Resources Commission (NRC) is authorized by Indiana Code 14-3-3-22 to issue a Notice of Violation (NOV) to a person who violates a law administered by the DNR for which a misdemeanor or infraction penalty is established.
5. If that person, having received the NOV, fails to abate the violation within a period of not less than 15 days as specified in the Notice, the Commission may impose a charge that does not exceed the maximum amount that may be assessed by a court for committing the violation.
6. IC 132-22-13(h) provides that notwithstanding section 20 of this chapter, a person who fails to obtain a permit under section (d) commits a Class C infraction.
7. Each day a person violates subsection (d) constitutes a separate infraction.
8. The maximum amount that may be assessed by a court for committing a Class C infraction is $500.00 for each day the vioation continues.
9. IC 13-2-22-21 provides that in addition to other penalties prescribed by this chapter, the director may impose a civil penalty of $1,000 on a person who violates Section 13 of this chapter.
10. Each day a violation continues after a civil penalty is imposed under subsection (a) of 13-2-22-21 constitutes a separate violation.
11. The Natural Resources Commission is the ultimate authority within the meaning of IC 4-21.5 for requests for administrative review taken from DNR decisions regarding the issuance of a notice of violation.
12. NRC deliberations are governed by 310 IAC 0.6-1.
13. The Flood Control Act was enacted to provide a means by which the death, damage, and destruction caused by floods could be minimized.
14. The preamble to the Flood Control Act found at IC 13-2-22-2 states that "the channels and that protion of the floodplains of rivers and streams, which are in the floodways should not be inhabited.... "
15. Section 13-2-22-13 expressly prohibits in the floodway a permanent structure for use as an abode or place of residence.
16. Section b and d of 13-2-22-13 prohibit and require a permit for the use or maintenance of any structure that would: "constitute an unreasonable hazard to the safety of life or property... "
17. IC 13-2-22-13(d) specifically mandates that the commission can issue a permit only if in the opinion of the commission the applicant has clearly proven that such structure will not constitute an unreasonable hazard to the safety of life or property.
18. On October 23, 1987, the Advisory Council for Water and Mineral Resources approved Stream Permit #R-9,854 (the "Permit") for David and Carolyn Stone (the "Stones").
19. The permit allowed the Stones to develop a campground in the floodway of the Ohio River and a residential development at or above the 100-year frequency flood elevation of 454.5 feet, M.S.L..
20. Condition (4) of the permit states that "the campgrounds cannot be converted into a residential development in the future."
21. The Stones decided to sell the lots in the campground and allow the purchasers to place mobile homes on the lots.
22. The Stones have applied for, and received, all necessary local
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approvals needed to operate the campground in this manner.
23. On February 20, 1991, the DNR filed with the NRC Hearings Division, a Complaint for the Issuance of a Notice of Violation and the Imposition of Charges (the "Complaint") against the Stones.
24. The complaint alleges that the Stones violated IC 13-2-22-13 and the conditions of the permit by erecting, using, or maintaining permanent structures for use as abodes or places of residence in the floodway of the Ohio River near Charlestown in Clark county.
25. Specifically, the Stones were charged with placing mobile homes in the campground which is in the floodway of the Ohio River, thereby converting the campground into a residential development.
26. At hearing, by agreement of the parties, the administrative law judge agreed to add the permanent decking in place at the campground to the complaint.
27. The decking is alleged to be a violation of IC 13-3-33-13(b) & (d) and, if not included here, might become the subject of additional, repetitive litigation.
28. Storage bins are not included above because they were shown to be temporary in nature.
29. This case contains three issues to be decided.
30. Issue-1: Are the mobile homes permanent structures so as to violate IC 13-2-22-13(a)?
31. Issue-2: Is the campground a residential development so as to violate condition #4 to Stream Permit R-9,854?
32. Issue 3: Is the permanent decking a violation of IC 13-2-22-13(b) and/or is it subject to the permitting requirement in 13(d)?
33. The situation at the Stones' campground must be examined in light of the above issues.
34. The Stones always intended to accomodate mobile homes in their campground.
35. In their application the Stones stated that the campsites would be rented but later, due to funding considerations, decided to sell them.
36. There is no evidence that selling instead of renting would deny an area campsite status.
37. The Stones have not used the permit area septic system exactly as initially planned.
38. There is no evidence that deviation from the original sewage disposal plan would deny the area campsite status.
39. On June 20, 1990, the Stones applied for and received a blanket flood plain variance from the Clark county Board of Zoning Appeals which permitted the use of mobile homes in the campground area.
40. Several Clark county officials testified that the blanket variance was approved only after indications from DNR officials that mobile homes would be okay in the campground as long as they could be expeditiously removed if necessary.
41. The Stones testified that they had received the same information from the same DNR officials.
42. The DNR officials in question testified at hearing and they did not deny making the statements alleged.
43. The DNR now brings this action because its unwritten policy is a blanket "no mobile homes allowed in a floodway."
44. There have been no rules promulgated to announce this policy nor are there DNR rules defining the meaning of a permanent structure.
45. Testimony established that the U.S. Army Corps of Engineers has an early warning system on the Ohio River that can adequately predict a 10-year flood event.
46. The Stones have a contingency plan to evacuate the campground if a flood is imminent.
47. The plan requires all mobile homes to be ready for hook-up to a tractor for removal.
48. All mobile homes have wheels.
49. No mobile home is connected to a permanent structure or has a permanent foundation.
50. All mobile homes with tongues facing the river must have an extra set of wheels to allow for a quick turn around.
51. The Stones have arranged for available help if removal becomes necessary.
52. Testimony by campsite owners indicates that most use their mobile homes as abodes during the good weather months.
53. All owners have permanent residences away from the campground except one, who testified that he had sold his house in town and was in the process of buying another.
54. Since this testimony was taken in early September, it is logical that this witness would have been living at his campsite at that time irrespective of the sale of his permanent residence.
55. It must be assumed that he will purchase another permanent residence because he so testified under oath.
56. Therefore, he cannot be said to be a permanent resident at the campground.
57. The DNR makes much of the fact that campsite residents received mail deliveries, telephone service, etc., at their campsites.
58. This type of service does not seem unusual and certainly does not establish permanent residence.
59. The general theme of the testimony was that the bank of the Ohio River was a lovely place to be in the summer and a terrible place to be when the weather turned bad.
60. No residents admitted to staying at the campground during the winter months.
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61. The issues noted above (Findings 30 - 32) must now be examined in light of the established facts.
62. The deciding factor in determining whether the 13(a) violation mentioned in Issue-1 exists, is how the term "permanent structure" is defined.
63. Both parties refer to Judge Lucas' opinion presented in Parkview Square, Inc. v. Department of Natural Resources, 1 Caddnar 50 (1983).
64. In Parkview Square, Inc., Judge Lucas, referring to the Flood Control Act, opined that "use of the term 'permanent' is not descriptive of the duration of human occupancy to be covered, but the nature of the shelter which may, as a practical matter, be controlled by the Natural Resources Commission" (at page 52).
65. Judge Lucas rejected the notion that a person's state of mind in regard to his living arrangements could determine "permanency".
66. For instance, if a homeless person placed a cardboard box in a floodway for purposes of residence, the nature of the box NOT the person's effort to reside in it, would establish NRC jurisdiction or lack thereof.
67. At the time Judge Lucas construed the meaning of the word "permanent" in -13(a), the statute was ambiguous.
68. The statute has since been amended to conform its wording to Judge Lucas' opinion.
69. The nature of the structure is clearly the factor to be controlled as to Issue-1.
70. Since the DNR has written no rules to help in implementing provisions of the Flood Control Act, other sources of law must be looked to in defining terms.
71. The DNR would make the terms "mobile home" and "manufactured home'' synonymous in an attempt to use federal terminology (44 CFR-National Flood Insurance Program).
72. The DNR would reject State Board of Health rules (410 IAC 6 series) which allows mobile homes to be linked with the word "temporary" and referred to as "vacation mobile homes" (-7-1(c)).
73. Clearly a mobile home is a manufactured home but all manufactured homes are not mobile.
74. Just as clear is the meaning of the word "mobile" from Webster's Seventh New Collegiate Dictionary at page 543. There, "mobile" is defined as "1: capable of moving or being moved."
75. It is clear that placing a permanent abode in a floodway is a serious safety hazard and must not be allowed.
76. It is equally clear that if a mobile home is situated in such a way as to be very difficult to move, (ie. placed on a permanent foundation, fastened to other permanent structures, etc.) it would be termed as "permanent" in regard to the Flood Control Act.
77. However, at the Stones' site, evidence indicates such permanency is not present.
78. The mobile homes are not on foundations and all have wheels.
79. The only permanent sturctures are the decks and said decks are not affixed to the mobile homes.
80. The Stones require that all mobile homes at the site be immediately moveable and they have a contigency plan in effect to facilitate such a move to higher ground.
81. Based on the evidence presented, the mobile homes at the Stones' site are not permanent structures, and therefore, no violation of IC 13-2-22-13(a) exists.
82. In regard to Issue-2 (See Finding 31), no guidance is available by statute or rule to define a "residential development."
83. An analysis of Stream Permit R-9,854 is helpful in determining what the advisory counsel meant in the disputed condition #4.
84. The permit described a campground below the 100 year frequency flood elevation and a residential subdivision at or above that elevation.
85. The most logical reason for condition #4 is to warn against encroachment upon the floodway by the residential subdivision.
86. No such encroachment has occurred, indeed development of the residential subdivision had not even begun at the time this hearing took place.
87. Placing of mobile homes in the campground was always the intention of the Stones and the residential subdivision is a totally unrelated matter.
88. While the permanent structure issue was one of the nature of the structure, the residential development issue turns on the state of mind of the individuals using the campground and the facts surrounding such use.
89. The problem in defining "residential development" is that technically, a campground is a residential development because individuals reside for a period of time in a campground and the permit allowed development at the campground such as subdivision by lot, installation of utilities, sewers, etc., and boat ramp construction.
90. Therefore, when the advisory council approved condition #4, it must have been referring to building dwellings to be used as permanent residences as envisioned for the area outside the floodway.
91. Since a campground permit was issued by the advisory council, it could not have meant for condition #4 to preclude residing in nonpermanent strucutres such as tents, recreational vehicles, mobile
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homes, etc.
92. Since the evidence presented failed to establish any permanent residency in the campground, either by the nature of the structure or the state of mind of the resident, it follows that condition #4 of the permit has not been violated.
93. In regard to Issue-3, it is undisputed that permanent decking is present in the floodway of the Ohio River without a permit.
94. Such decking does not appear to be a violation of IC 13-2-22-13(b) because it would have no effect on the efficiency of the floodway or would not constitute any kind of hazard.
95. However, such decking must be permitted under IC 13-2-22-13(d) prior to construction.
96. Since no permit was shown, a violation must exist.
97. With the exception of the decking, evidence shows that the Stones have obeyed to law at all time.
98. They applied for and received a campground permit.
99. They queried the DNR as to the propriety of mobile homes at the campground.
100. Authorized representatives of the DNR told the Stones mobile homes were okay provided they were easily removable.
101. The Stones implemented a contingency plan to facilitate said removal.
102. The Stones applied for, and received, a variance from Clark County to place the mobile homes in the floodway.
103. Clark County officials approved the variance only after discussing with DNR officials the propriety of the mobile home placement.
104. DNR wishes to enforce the Flood Control Act by verbally enunciating policies.
105. Evidence shows that different DNR officials presented different verbal policies.
106. DNR should promulgate rules so as to give its policies force of law and to provide citizens like the Stones with proper guidance.
107. IC 14-3-3-22(b) places a burden on the DNR to prove, by a preponderance of the evidence, allegations made in an NRC complaint.
108. The decking is the only violation proved by the DNR.