Content-Type: text/html Cause #: 99-066w.v8.html

CADDNAR


[CITE: Shoaff, et al. v. Ft. Wayne Zoological Society and DNR, 8 CADDNAR 157 (2000)]

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Cause #: 99-066W
Name: Shoaff, Mullin, and DeVille v. Ft. Wayne Zoological Society and DNR
Administrative Law Judge: Wilcox
Attorneys:Van Gilder; Deeb; Roth
Date: March 14, 2000

ORDER

Permit #FW-19,300 issued in favor of the Fort Wayne Zoological Society is affirmed.

FINDINGS OF FACT (CONCLUSIONS OF LAW)

1. The department of natural resources is a state agency of the state of Indiana as defined by IC 4-21.5-1-3.

2. The natural resources commission is the ultimate authority for the Department under IC 4-21.5-1-15. See IC 14-3-3-21.

3. On March 18, 1999, the Department approved permit #FW-19,300 granting the Fort Wayne Zoological Society ("Zoo") to construct in the floodway of Spy Run Creek. See Exhibit A of the department's motion for summary judgment.

4. The permit would allow the Zoo to construct a paved parking lot along the overbank of the creek adjacent to the zoo under the Flood Control Act at IC-14-28 et seq. See Exhibit A.

5. Several citizens, John Shoaff, Betty Mullin and Joseph Deville, petitioned this tribunal on April 5, 1999, seeking a stay and administrative review of permit FW-19,300 under IC 4-21.5 (the "Administrative Orders and Procedures Act or "AOPA").

6. On September 30, 1999, the parties filed a joint request for stay hearing cancellation and expressed "because the stay of the permit is no longer in effect[FOOTNOTE 1], the Parties agree that a hearing regarding the stay is not needed."

7. John Shoaff, Betty Mullin and Joseph Deville and the Department are the parties to this proceeding. The Commission has jurisdiction over each of these parties.

Burden of Proof

8. "Where the Department has made an initial determination to issue a permit under the Flood Control Act, the burden of proof rests with the person seeking to set aside the permit." See Schafer and Nash v. DNR and Wagoner 7 CADDNAR 17 (1993) citing Brown v. DNR and Peabody Coal Co., 6 CADDNAR 136 (1993). Claimants bear the burden of going forward and the burden of persuasion, commonly referred to as the burden of proof thus bear the burden of proving that the permit granted to the Fort Wayne Zoological Society ("Zoo") should be set aside.

9. Summary judgment is appropriate where no genuine issue of material fact exists and where the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990). Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation. Marsym Development Corp. v. Winchester Econ Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983). 73. A party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Id. As the moving parties, Respondents had the burden of proving they were entitled to summary judgment against the Claimants on issues pertaining to the permit

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under the Flood Control Act.

10. AOPA allows for summary judgment under IC 4-21.5-3-23. Subsections (a) and (b) provide in pertinent part:

(a) A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party's favor as to all or any part of the issues in a proceeding. The motion must be supported with affidavits or other evidence permitted under this section and set forth specific facts showing that there is not a genuine issue in dispute.

(b) . . . The [summary] judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law. After the filing of a motion for summary judgment with supporting affidavits and exhibits, the requirements of subsection (f) apply: (f) If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party's pleadings as a response to the motion. The adverse party shall respond to the motion with affidavits or other evidence permitted under this section and set forth facts showing that there is a genuine issue in dispute. If the adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party. The statute requires the adverse party or parties must come forward with affidavits or other permitted evidence which "set forth specific facts showing that there is a genuine issue in dispute." If the adverse party fails to meet this requirement, the administrative law judge may enter summary judgment.

11. Ind. Code 14-28-1-22(c) provides: An applicant must receive a permit from the director for the work before beginning the construction. The director shall issue a permit only if in the opinion of the director the applicant has clearly proven that the structure, obstruction, deposit, or excavation will not do any of the following:

(1) Adversely affect the efficiency of or unduly restrict the capacity of the floodway.
(2) Constitute an unreasonable hazard to the safety of life or property.
(3) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.

12. Is the permit invalid since construction preceded the grant of a permit?

13. Claimants assert that IC 14-28-1-22(c) and (e) require that an application be received prior to construction in the floodway and argue the statute "does not give the director of the Department of Natural Resources' discretion to issue permits" after-the fact. Claimants maintain that "absent express statutory authority that allows the Department to issue an after-the-fact permit, none exists, and this permit is therefore invalid as a matter of law." See Claimant's Memorandum in Opposition to Motion for Summary Judgment.

14. When the courts are called upon to construe statutes, the first question to be decided is whether the terms are "uncertain and ambiguous." See Burks v. Bolerjack, 427 N.E. 2d 887, 889 (Ind. 1981). If the statute is found to be unambiguous, it is not the prerogative of the court to vary from that meaning. Id.

15. The legislature is presumed to have intentionally chosen the words of a statute. See Burks at 890. The presumption also follows that the legislature does not enact inconsistent statutes deliberately. As such, construction of those statutes should be construed to be in harmony if reasonably possible. See Sutherland Statutory Construction Sec. 51.02 (4th ed. 1984).

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"It is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter." Id. citing Allen v. Grand Cent. Aircraft Co., 347 US 535, 98 L Ed. 933, 74 S. Ct. 745 (1954). Statutes relating to the same subject matter should be construed in pari materia in order to give effect to every provision. Id. and Collins v. State, 415 N.E. 2d 46, 56, 275 Ind. 86, (Ind. 1981).

16. If an irreconcilable conflict exists between two in pari materia statutes, specifically conflict between the new provision and the prior statutes, "the new provision will control as it is the later expression of the legislature." Sutherland at supra and Gonser v. Board, 378 N.E. 2d 425 (1978).

17. "Inherent in IC 13-2-22-13 [now IC 14-28-1-22], is the presumption that a party will obtain a permit from the NRC before beginning construction in a floodway..." See NRC v. Sugar Creek Mobile Estates, 646 N.E. 2d 61 (Ind. App. 1995) Remedies for failure to obtain the permit are given the director in that he may "remove or eliminate any structure, obstruction, deposit, or excavation in any floodway which" fails to meet the criteria set forth in IC 14-28-1-22(e).

18. Additional remedies are found in IC 14-28-1-21 in that "the director may commence, maintain, prosecute any appropriate action to enjoin or abate a nuisance...." The statute provides discretionary power to the director to remedy the public nuisance. Claimants' argument that a permit is void if granted after the nuisance has been placed and that " [t]here is no simply no legal support for the proposition that the Department can ignore violations of Indiana's laws and issue after-the-fact permits" improperly interprets IC 14-28-1-22(c) and IC 14-28-1-22(e).

19. The standards set forth for the director in approving permits limit the review to an evaluation of floodway capacity and efficiency, unreasonable hazards to the safety of life or property and detrimental effects to fish, wildlife or botanical resources. The department does not assume any powers not conferred upon it by the legislature in approving an after-the-fact permit, if indeed the evaluations required under IC 14-28-1-22(e) have been done. The burden to seek such a permit prior to construction in the floodway as presented in IC 14-28-1-22(c) and (e) is on those seeking to construct in the floodway, or else suffer the possibility of a departmental violation, fine, order to remove or order to abate the nuisance.

20. A violation occurs if one erects, makes, uses, or maintains a structure, an obstruction, a deposit, or an excavation in or on a floodway without a permit from the DNR under IC 14-28 et seq. If construction was done prior to permit approval, the determination whether to issue a violation is within the enforcement authority of the DNR. This tribunal may review whether the issuance of a violation was proper. At the same time, the fact that a violation exists does not necessitate that DNR approval of a p
ermit application by the violator is unlawful or that granting a permit after a violation creates an invalid permit.

21. The Flood Control Act does not necessarily disallow the issuance of after-the-fact permits.

22. Will the activity adversely affect the efficiency of or unduly restrict the capacity of the floodway?

23. 310 IAC 6-1-3(1) provides that "[a]dversely affect the efficiency of, or unduly restrict the capacity of the floodway" means an increase in the elevation of the regulatory flood of at least fifteen-hundredths (0.15) of a foot as determined by comparing the regulatory flood elevation under the project condition to that under the base condition..." 310 IAC 6-1-7(c)

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further provides that "[r]egulatory flood profiles shall be determined using standard engineering techniques acceptable to the commission."

24. Division of Water staff reviewing the permit included two hydraulic engineers, Steve Bradley and Dennis Stewart, an engineering assistant, Holly Zurcher-Sutton and the assistant division director and professional engineer, George Bowman. The record shows that department staff determined, using the Five Percent Rule, and the HEC-2 and HEC-RAS model, that the subject project would not adversely affect the efficiency or unduly restrict the floodway. The HEC-2 and HEC-RAS are utilized to determine "(a) what portions of a river or stream and the flood plain are reasonably required to efficiently carry and discharge the peak flow of the regulatory (i.e. 100 year frequency) flood; and (b) whether a structure, deposit or excavation will adversely affect the efficiency of, or unduly restrict the capacity of the floodway." See George Bowman Affidavit, Exhibit C. These test methods have been considered by the commission as accepted standard engineering techniques to determine such effects on the floodway. See Boyd v. DNR and Floyd County Commissioners, 8 CADDNAR 5 (1997).

25. Claimants aver that a question of fact exists because the department failed to consider the Lillian Avenue storm water intercept when evaluating the efficiency and undue restrictions to the floodway. Claimants indicate "[n]owhere in the materials relied upon by the department, or in the file relating to this project at the Department of Natural Resources, is there any modeling, hydraulic or otherwise, to reflect consideration of a concurrent project, the Lillian Avenue storm water intercept." This contradicts George Bowman's affidavit stating " I determined that the increased volume of runoff is minimal in that there were existing outflow pipes already controlling the project site." Bowman found the outflow pipes will be "completely submerged during the regulatory flood event, [and] the amount of flow contributed by these outflow pipes will be minimal.

26. Claimants do not provide an analysis of the regulatory flood profile using "standard engineering techniques acceptable to the commission," the standard set forth in 310 IAC 6-1-7(c) at supra. Nor do Claimants provide an evaluation of the possible "increase in the elevation of the regulatory flood of at least fifteen-hundredths (0.15) of a foot as determined by comparing the regulatory flood elevation under the project condition to that under the base condition..." as required by 310 IAC 6-1-3(1). Claimants have failed to show the existence of a material issue of fact and failed to meet the burden of proof on this point.

27. Will the permit constitute an unreasonable hazard to the safety of life or property?

28. 310 IAC 6-1-3(39) defines an unreasonable hazard to the safety of life or property as "a condition which is likely to be caused by the design or construction of a project which is likely to result during a regulatory flood in either... loss of human life" or
"[d]amage to public or private property to which the permit applicant has neither ownership nor a flood easement."

29. Bowman provides that the Five Percent Rule is the standard for assessing whether a project will constitute an unreasonable hazard to the safety of life or property. The determination that increased volume of runoff into Spy Run Creek would result in a surcharge of 0.04 feet, "well below the allowable surcharge of 0.14 feet," is not contradicted in the record.

30. The permit will not constitute an unreasonable hazard to the safety of life or property.

31. Lastly, will the subject permit result in unreasonably detrimental effects upon fish, wildlife, or botanical resources?

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32. 310 IAC 6-1-3(38) provides: Unreasonable detrimental effects upon fish, wildlife or botanical resources means damage to fish, wildlife, or botanical resources which is found likely to occur by the director based upon the opinion of a professional qualified to assess the damage and which:

(A) creates a condition where recovery of the affected resources is not likely to occur within an acceptable period; and
(B) cannot be mitigated through the implementation of a mitigation plan approved by the director.

33. Claimants assert that the department's expert, Keith Poole's conclusion "is unsupported by any facts." Claimants argue that "[n]o where in paragraph seven (7) or in the attachments and memoranda referred to in paragraph seven (7) is there any mention of any other past, present or future projects along Spy Run Creek."

34. Poole indicates he "inspected the site, participated in a field meeting with representatives of the Fort Wayne Zoological Society and its consultant and worked out with them a mitigation wetland plan for the project." See C503 plan attached to memorandum in support of summary judgment.

35. Poole asserts that on November 13, 1998 an environmental assessment recommendation of Exhibit D, was followed up by the December 30, 1998 environmental assessment of Exhibit E, after the Division of Fish and Wildlife became aware of proposed outfall pipe removals and replacements. The knowledge of the proposed outfall pipe removals prompted Fish and Wildlife to recommend the project's redesign. The March 11, 1998 environmental assessment of Exhibit F recommends permit approval with modification. Poole expresses in his affidavit that he considered the "cumulative effects of the proposed project on the resources [and] I considered the effects of surface and subsurface runoff from the parking and the projects effect to stream water quality." Poole found in the March 11, 1999 that "cumulative effects on fish, wildlife, and botanical resources will occur as a result of this project." However, utilization of the Wetland Construction Plans on C503 in constructing retention basins, revegetating the affected area and design methods for controlling erosion and sediment are recommended. Poole's opinion is stated that "recovery of the affected resources is likely within an acceptable period of time if permit conditions are met and is constructed as permitted." He also asserts that any "damage to fish, wildlife or botanical resources and the stream quality will be adequately and reasonably mitigated through the mitigation measures" in the permit, "such that unreasonably detrimental effects will not occur."

36. The C503 wetland mitigation plan includes identification of areas to grade, species of plants needed, waterfowl exclusions, seed areas, mulch areas and areas for fencing. The affidavits and mitigation plans attached to the motions by the Department demonstrate there would be minimal adverse affects upon the fish, wildlife or botanical resources at the project site. The Claimants presented no affidavit or other evidence establishing a fact in material dispute.

37. The evidence is unrefuted that there will be no unreasonable detrimental affects.

38. Claimants have failed to demonstrate, as required by IC 4-21.5-3-23, that a material issue of fact exists. Therefore, summary judgment is appropriate.

FOOTNOTE

1. The parties filed an Order for Stay stipulating to stay portions of permit FW-19,300 through September 1, 1999.