CADDNAR


[CITE: Department of Natural Resources v. Loveall, Ellis and Ellis, 7 CADDNAR 203 (1998)]

 

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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).

 

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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

 

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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.