Content-Type: text/html 91-412h.v6.html

CADDNAR


[CITE: Metamora H20-9 Committee v. DNR, Whitewater Valley Railroad, 6 CADDNAR 109 (1993)]

[VOLUME 6, PAGE 109]

Cause #: 91-412H
Caption: Metamora H20-9 Committee v. DNR, Whitewater Valley Railroad
Administrative Law Judge: Teeguarden
Attorneys: Garvin, Pletcher; Earle; Crispin
Date: January 28, 1993

ORDER

The decision of the Historic Preservation Review Board to grant a permit for the building of a railroad station in Old Metamora to Whitewater Valley Railroad, Inc. is reversed. The permit application is denied.

FINDINGS OF FACT

1. The Department of Natural Resources and the Indiana Historic Preservation Review Board ("DNR") are agencies within the meaning of IC 4-21.5.

2. IC 4-21.5 and IC 14-3-3.4 apply to these proceedings.

3. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to permitting decisions made by DNR.

4. On October 23, 1991, the DNR gave its approval, with conditions for the Whitewater Valley Railroad, Inc. ("RR") to build a railway station on the banks of the Whitewater Canal in Old Metamora.

5. On November 15, 1991, the Metamora H20-9 Committee ("H2O"), a group of concerned citizens, filed a request for administrative review.

6. H20 filed a motion for summary judgment contending as follows:

1. The Historic Preservation Review Board ("HPRB") does not have the authority to grant a certificate of approval for a privately funded project.
2. The failure of DNR to promulgate rules governing the issuance of permits[FOOTNOTE 1] and setting standards for granting permits renders any such decision arbitrary and thus void.
3. The HPRB failed to make or adopt sufficient findings when it granted the permit.

7. The ruling of the administrative law judge is attached to this nonfinal order and labeled "Exhibit A". In brief, the decision granted partial summary judgment in favor of H20-9 by finding IC 14-3-3.4-9 cannot apply hence any certificate of approval granted pursuant to that section was void. The issue of whether or not a permit could be issued pursuant to IC 14-3-3.4-7 was left open.

8. The decision on summary judgment goes on to deny H2O-9's motion for summary judgment on the basis of failure to promulgate rules and standards with respect to permits issued pursuant to IC 14-3-3.4-7.

9. H20-9 requested a reconsideration of this decision.

10. Upon reconsideration, the conclusion is reached that H20-9, for reasons much more limited than those asserted in its brief, is correct and summary judgment should be granted.

11. IC 4-21.5-3-23 permits the grant of summary judgment as to all or any part of the issues in a proceeding as long as there is no genuine issue of material fact.

12. H20-9 presented an extensive statement of facts complete with affidavits and exhibits. No other party ever indicated a dispute as to any of the asserted statements.

13. IC 14-3-3.4-7 provides that ". . . a person who knowingly, without a permit, conducts a field investigation or alters historic property within the boundaries of property owned or leased by the state commits a Class A misdemeanor."

14. IC 14-3-3.4-7 is the only place in the Indiana Code that such a permit is mentioned.

15. There are no rules promulgated which discuss the "permit" mentioned in IC 14-3-3.4-7.

16. The DNR granted the certificate of approval pursuant to IC 14-3-3.4-7 and IC 14-3-3.4-9 which allows the RR to construct a depot subject to approximately eight conditions in old Metamora within the Whitewater Canal State Historic Site.

17. Normally, the failure to promulgate rules is not fatal to the jurisdiction to issue (or deny) a permit. See page three of Exhibit A attached to these findings.

18. In this particular case, however, the legislature has provided no help whatsoever in discussing criteria to be examined in considering a permit under IC 14-3-3.4-7. The only place such a permit is mentioned is in connection with avoiding criminal liability.

19. The DNR most likely has a very broad mandate to take any position it wishes with regard to rules promulgated to implement IC 14-3-3.4-7.

20. H20-9 correctly points out that

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the failure to adopt (or even propose) any rules in an area where the underlying legislation is so vague makes it extremely difficult to contest ( or uphold) a permit application.

21. H20-9 cites two cases which bear light on this issue. They are Podgor v. Indiana University, (1987), Ind. App. 381 N.E. 1274 and Indiana Waste Systems, Inc. v. Board of Commissioners of the County of Howard (Ind. App. 1979), #89 N.E.2d 52.

22. The factual situation in Podgor, supra, bears no resemblance to this particular case (residency requirements for in-state tuition purposes) but the appeals court clearly stated that any of the standards applicable in reaching administrative decisions by an agency must give fair warning as to what the agency will consider.

23. Indiana Waste Systems, supra, however, has a similar fact situation. Howard County enacted a local zoning ordinance requiring licensing by the Commissioners for virtually all solid waste handling and disposal in the County. The ordinance contained no standards or criteria and the Commissioners did not adopt any guidelines. Indiana Waste appealed the denial of a permit. The Court of Appeals held that the failure to have any guidelines was a failure of due process.

24. In addition to the statutory vagueness and no rule, the DNR has no guidelines to guide it or an applicant or remonstrators with respect to this type of permit.[FOOTNOTE 2]

25. Given the vagueness of the underlying statute, the failure to promulgate rules, and the absence of any published guidelines, Indiana Waste Systems, supra, controls and no meaningful or valid action can be taken by the DNR on this permit application pursuant to IC 14-3-3.4-7.

26. The general application of this analysis to this particular problem means that currently, the DNR is without authority to permit the alteration of historic property within the boundaries of property owned or leased by the state by outside parties.

27. IC 14-3-3.4-9 does not apply to this case since no state money is involved.

28. Therefore, the DNR was without authority to grant the permit application to build a railroad station filed by the Whitewater Valley Railroad on a historic site.

FOOTNOTES

1. Permit, certificate of approval, license, etc. are all synonyms within the context of IC 4-21.5. See IC 4-21.5-1-8.

2. This is an assumption based on the fact that the DNR has had two opportunities to file any documents it believes are relevant and has not submitted any guidelines, policy statements, or nonrule policy documents that might apply.