[CITE: Department of Natural Resources v. Loveall,
Ellis and Ellis, 7 CADDNAR 203 (1998)]
[VOLUME 7, PAGE 203]
Cause #: 95-206W
Caption: Department of
Natural Resources v. Loveall, Ellis and Ellis
Administrative Law Judge: Lucas
Attorneys: Stefanovich; pro se (Loveall);
pro se (Ellis)
Date: August 6, 1998
ORDER
(1)
A Notice of Violation is issued to Garry Loveall, and
Fred Lewis Ellis and Wildena Joy Ellis, Husband and
Wife, under IC 14-3-3-22 and IC 13-2-22, the abatement of which is that they
shall raze the residence and remove the demolition
debris from the floodway (or otherwise properly secure the debris as agreed by
the Department). Provided, however, that the original log cabin structure may
remain within the floodway but must not be used as a residence or place of abode.
If the Respondents do not complete abatement by November 1, 1998, a charge
shall be imposed against them, jointly and severally (with the Ellises being considered one person as tenants by the
entirety), in the amount of $500 each day for 60 days (or a total amount of $30,000).
If abatement is performed in a timely fashion under this paragraph, no charge
shall result.
(2)
A civil penalty is assessed against Garry Loveall in
the amount of $1,000. This penalty is due and payable to the Department of
Natural Resources on September 1, 1998.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
1. On
July 10, 1995, the Department of Natural Resources ("Department")
filed its "Complaint for the Issuance of a Notice of Violation and the Imposition
of Penalties" (the "complaint") against Gerry Loveall ("Loveall")
seeking the issuance of a notice of violation and the imposition of penalties.
2.
The complaint alleged that Loveall had repaired a
residence located in the floodway of the Vermillion River near Eugene in Vermillion
County, Indiana. The complaint alleged the residence had previously been
damaged by a flood and that the repairs were in violation of the Flood Control
Act (IC 13-22-1).[FOOTNOTE 1]
3.
After further investigation, the Department concluded that Fred Ellis and Wildena Ellis were the owners of the residence. On April
16, 1996, the Department filed its "Motion to Amend Caption and to Set
Status Conference" with a Warranty Deed attached showing Fred Lewis Ellis
and Wildena Joy Ellis, Husband and Wife, (the "Ellises") as the owners.
4.
On April 30, 1998, the Administrative Law Judge converted the Department's
motion to a motion to add the Ellises as parties
whose presence may be needed for just adjudication under T.R. 19. The Ellises were served, added as parties, and have
subsequently participated in negotiations with the Department, status
conferences, and the hearing.
5.
This proceeding is governed by IC 4-21.5 (the "AOPA") and 312 IAC
3-1, a rule adopted by the natural resources commission (the
"Commission") to assist in its administration of the AOPA. The
Commission has jurisdiction over the subject matter of this proceeding and over
the person of the parties.
6.
When extended settlement negotiations among the parties failed to yield a
settlement, this proceeding was scheduled for a hearing. The hearing was
conducted as scheduled on April 7, 1998.
7.
The Flood Control Act prohibits the reconstruction of a residence in the
floodway, except in delineated circumstances where the residence has not been
damaged by floodwaters. IC 13-2-22-13, IC 13-2-22-13.2, and IC
13-2-22-13.3.
8.
The legislative intent of the Flood Control Act indicates that the loss of live
and property from floods is a matter of deep concern. IC
13-2-22-2. The Flood Control Act further provides that the
"channels and that portion of the flood plains of rivers and streams, which
are floodways, should 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." IC 13-2-22-2(b).
[VOLUME 7, PAGE 204]
9.
In addition to this broad statement of legislative intent, the Flood Control
Act makes it unlawful to "[r]econstruct or allow
or permit the reconstruction of an abode or residence located in a floodway,
except as authorized under sections 13.2 and 13.3." Those sections provide
in pertinent part:
Sec.
13.2(a) A person may not begin the reconstruction of an abode or residence
that:
(1) is
located in a floodway; and
(2) is substantially damaged. . . by means other than floodways;
unless the person has obtained a
permit under this section for the reconstruction of the abode or residence.
Sec.
13.3(a) A person who desires to reconstruct an abode or residence that:
(1)
is located in a floodway; and
(2) is not substantially damaged. . . by means other than
floodwaters;
is not required to obtain a
permit from the [D]epartment for the reconstruction
of the abode or residence. . . .
10.
A survey by John V. Major, Vermillion County Surveyor, and data within the
official records of the Department indicates the residence is located in the NE
1/4 of Section 31, Township 18 North, Range 9 West, Vermillion County, in the
floodway of the Big Vermillion River.
11. Historic
flood information indicates the May 1943 and April 1964 floods reached
elevations of 501.5 and 498.0 feet, NGVD, respectively at the site of the
residence. The regulatory flood (100-year frequency flood) has been estimated
to reach about 503.8 feet, NGVD, at the site. The foundation of the residence
has been determined by the Vermillion County Survey to vary from 498.26 feet,
NGVD, to 500.50, NGVD.
12.
An inspection report by the Department from the site of the residence made on
April 5, 1995, and admitted into evidence at hearing without objection, states
the residence "was heavily damaged by floodwaters in April 1994. A modular
home on an adjoining lot was totally destroyed at the same time. . . . A large
quantity of soil has been removed from under the structure to allow water
passage. Materials from the destroyed modular are being used to make repairs to
the damaged structure. Mr. Loveall has been advised by
Rec. Letter #83-940718-1 that based on available information his site is in the
floodway and approval is needed from the" Department to reconstruct the
residence. Vermillion County "has also issued three stop work orders. The
County also believes the structure is not structurally sound. Some of the walls
lean."
13.
A second inspection report by the Department from the site of the residence made
on August 2, 1995, and admitted into evidence at hearing without objection,
states "work has been completed on placing the siding on the addition on
the south side of the residence. The windows on the north are still boarded
up."
14.
A third inspection report by the Department from the site of the residence made
on January 29, 1998, and admitted into evidence at hearing without objection,
states "siding on the addition (east side of the house) and south wall of
residence has been completed and changed from blue to tan. The front port on the
west side of the residence has been removed. A noticeable hole and roof sag has
developed on the north side of residence in the roof below the chimney."
15.
The preponderance of evidence shows the residence is located in the floodway of
Big Vermillion River in Vermillion County and, following flood damage in April
1994, has been repaired by Loveall without a permit
issued to authorize those repairs having been issued by the Department. The
residence
[VOLUME 7, PAGE 205]
poses a hazard to the safety of
life and property, both in fact and as prescribed by law within the Flood
Control Act.
16.
The residence is in violation of the Flood Control Act and must be razed and
the demolition debris removed from or properly secured within the floodway. A
notice of violation should be issued by the Commission under IC 14-3-3-22
against Loveall and the Ellises,
providing until November 1, 1998 to abate this violation. If abatement does not
occur in a timely fashion, commencing on November 1, 1998 a charge should be
imposed, jointly and severally, upon Loveall and the Ellises (as one person in their tenancy by the entirety) in
the amount of $500 per day for 60 days (or a total amount of $30,000).
17. Loveall continued to proceed with repairs to the residence
even after having received stop orders from Vermillion County and after having
been informed by the Department of his violation of the Flood Control Act.
Accordingly, he should receive a civil penalty under IC 13-2-22-21 in the
amount of $1,000.
FOOTNOTE
1.
IC 13-2-22 has since been recodified as IC 14-28-1.
Reference is made here to the former codification of the Flood Control Act
since it was in effect at the initiation of the complaint. This entry would not
vary materially if reference were instead to be made to the codification
contained within IC 14-28-1.