CADDNAR
[CITE: Russell v. DNR, 15 CADDNAR 81 (2019)]
[VOLUME 15, PAGE 81]
Cause #: 18-049W & 18-092W
Caption: Russell v. DNR
Administrative Law Judge: Wilson
Attorneys: Abrams (Petitioner); Gamboa (Respondent)
Date: October 22, 2019
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER ON MOTION FOR SUMMARY JUDGMENT
Procedural Background and Summary of Proceeding
1. On June 1, 2018, Alan Russell, self-represented, filed a request for administrative review (Petition #1) of Notice of Violation V-5861-FW (NOV) issued by the Department of Natural Resources (Department) regarding construction in a floodway. The Natural Resources Commission (Commission) assigned case number 18-049W to the proceeding.
2. Petition #1 states in part:
I am sorry but I will not be able to comply with the actions required to mitigate the indicated violations set forth in the notice of violation V-5861-FW. Additionally… 1.) The IDNR findings of ‘unreasonable hazard to the safety of life or property’ is subjective and would not be considered ‘reasonable or customary’ when compared to the risk factors associated with other permissible building locations across the country…2.) My willingness to comply with the stipulations to submit an application, an application fee, and provide public notice was nullified by statements from local Wayne County officials that the requests would be denied because certain IDNR conditions could not be met...3.)…There is no violation considering the capacity of the waterway compared to the size and location of the structure… [and] no violation considering there are no fish as it is a dry area, no displaced wildlife as it is an addition to an existing structure, and no botanical resources detrimentally affected because the location is a previously mowed yard….
Petition #1.
3. Petition #1 initiated proceedings governed by IC 4-21.5-3, sometimes referred to as the “Administrative Orders and Procedures Act” (AOPA) and the administrative rules adopted by the Natural Resources Commission (Commission) at 312 IAC 3-1 to assist with the implementation of AOPA.
4. On August 13, 2018, Byron Alan Russell, by Counsel G. Douglas Abrams, filed a request for administrative review (Petition #2) of the Department’s denial of Permit Application FW-29499 (Permit Application) submitted by Byron Alan Russell. Petition #2 also initiated a proceeding governed by AOPA and the Commission assigned case number 18-092W to the proceeding.
5. Petition #2 states the following bases for the administrative review request: “the subject real estate is not in a floodplain that prohibits his application and desired uses. The dwelling addition, would not increase the value of the real estate by 50%.... Russell cures the issue of non payment of $200.00....” See Petition #2.
6. Russell’s counsel, G. Douglas Abrams, in case number 18-049W informed the Administrative Law Judge (ALJ) that Alan Russell and Byron Alan Russell (Russell) are the same individual. G. Douglas Abrams subsequently filed an appearance in case number 18-092W.
7. Both Petition #1 and Petition #2 involve floodway activities governed by IC 14-28, commonly referred to as the Flood Control Act (FCA) and the administrative rules adopted at 312 IAC 10. Petition #1 also involves Department enforcement actions pursuant to the FCA found at IC 14-25.5.
8. The parties are in agreement that the site of the proposed construction for the Permit Application and the NOV both relate to the same project.
9. Upon motion by the Department, the ALJ, for judicial efficiency, consolidated the proceedings for Petition #1 and Petition #2.
10. On June 17, 2019, the Department filed a Motion for Summary Judgment (MSJ). In the MSJ, the Department requested judgment in favor of the Department, “… that the NOV be enforced against Russell and the denial of the permit be upheld.” See the MSJ.
11. The ALJ granted a request from Russell to extend Russell’s deadline to file a response to the Department’s MSJ and Russell timely filed his “Response to the Department’s Motion for Summary Judgment” (Response) on August 15, 2019. The Response, accompanied by no designated evidence, states Russell’s position:
There are no questions of material fact. The Department’s Brief and Memorandum of law are well taken. However, the remedy sought and stated in the NOV…is not the appropriate remedy in view of all the circumstances. The Structure to be found in violation is well built and can withstand floods and other inclement weather and will not otherwise harm the environment or waterways. [Russell] prays the court hold the judgment in abeyance and set the matter for a damages or remedy hearing; or enter judgment and fashion another remedy[1] than those stated in the NOV.
Response.
12. The Department timely filed its “Reply Brief of the Respondent Department of Natural Resources” (Reply) on September 4, 2019.
13. The Commission is the ultimate authority for FCA determinations. 312 IAC 3-1-2.
14. The Commission has jurisdiction over the subject matter and over the persons of the parties. The proceeding is ripe for a disposition on the Department’s MSJ.
Standard of Review on Summary Judgment
15. Pursuant to IC 4-21.5-3-23, the Commission considers summary judgment in the manner prescribed by Trial Rule 56 of the Indiana Rules of Trial Procedure.
16. A party “against whom a claim…is asserted… may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” Trial Rule 56(B).
17. A party moving for summary judgment shall “designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” Trial Rule 56(C).
18. “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.” Bragg v. Kittle's Home Furnishings, Inc., 52 N.E.3d 908, 919 (Ind. App. 2016).
19. Trial Rule 56(C) provides that “the judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
20. “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties' differing accounts of the truth ..., or if the undisputed facts support conflicting reasonable inferences." Angel v. Powelson, 977 N.E. 2d 434 (Ind. App. 2012) citing Williams v. Tharp, 914 N.E. 2d 756, 761 (Ind. 2009).
21. “The movant must demonstrate that ‘the designated evidence raises no genuine issue of material fact and that the moving party is entitled to judgment as a matter
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22. of law.’ Upon this showing, the nonmoving party then has the burden to demonstrate that there is a genuine issue of material fact.” AM General LLC v. Armour, 46 N.E.3d 436, 439 (Ind. 2015) citing Indiana Restorative Dentistry, P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (internal citations omitted).
23. “A court must construe all designated evidence and reasonable inferences in favor of the non-moving party, and resolve all doubts against the moving party.” Bragg, supra.
24. However, “summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.” Trial Rule 56(C).
25. The Commission is obligated to designate the issues or claims presented on summary judgment upon which it concludes there to be no genuine issue as to any material facts. Trial Rule 56(C).
Issues on Summary Judgment
26. Is the Department entitled to judgment as a matter of law for the violations identified in the NOV (case number 18-049W)?
27. Is the Department entitled to judgment as a matter of law on its determination to deny Russell’s Permit Application (case number 18-092W)?
28. Are the mitigation options and the civil penalty identified by the Department in the NOV enforceable and appropriate (case number 18-049W)?
Findings of Fact Established on Summary Judgment
29. The factual evidence is generally not in dispute.
30. Russell informed the Department that Wayne County records reveal Russell’s home was originally placed on a concrete pad in 1968. See Petition #1 and the Affidavit of Hebenstreit.
31. Based on a reasonable inference in favor of the non-moving party, Russell’s home was constructed before January 1, 1973.
32. In 1988, Russell purchased property that includes his home at 3606 Endsley Road, Richmond, Indiana (Subject Property). See Petition #1 and the Affidavit of Hebenstreit.
33. On June 7, 2002, the Department responded to a request from Russell concerning a proposal to replace his manufactured home with a stick built home. See Affidavit of Jon Eggen, Exhibit B.
34. In the Department’s 2002 response to Russell’s request, Andrea Gromeaux, Section Head for Technical Services, within the Department’s Division of Water, notified Russell that “[t]he existing structure is in the floodway.” Gromeauz, on behalf of the Department, informed Russell that construction would require a permit and that the lowest floor would have to be set at or above flood protection grade. Id.
35. Despite being informed in 2002 of the requirement to obtain a permit for activities in a floodway, Russell did not apply to the Department for a permit prior to constructing additions to his home at the Subject Property.
36. On May 3, 2018, the Department, by Jon Eggen, issued the NOV to Russell, as the property owner of the Subject Property in Wayne County. See Affidavit of Jon Eggen, Exhibit A.
37. The NOV states that a Department inspection found unpermitted activities on the East Fork of the Whitewater River in Wayne County, specifically the placement of fill and the construction of additions to a residential structure in the floodway, including an addition with a basement (the Project) at the Subject Property. The specific nature of the violation, as described by the Department in the NOV, follows:
This project has caused unreasonable hazard to the safety of life or property through construction of multiple unelevated residential additions which have significantly increased the size of a home located in a floodway. The failure of Bryan Alan Russell to submit an application, to submit the application fee, to provide public notice, failure to show that the project will not do any of the following, (a) adversely affect the efficiency of or unduly restrict the capacity of the floodway, (b) create an unreasonable hazard to the safety of life or property, or (c) result in unreasonably detrimental effects upon the fish, wildlife or botanical resources are all in violation of the Flood Control Act. The work was completed without the prior written approval of the Division of Water and is in violation of Indiana Code 14-28-1.
Id.
38. On June 26, 2018, Russell made application to the Department for an after-the-fact permit for the Project at the Subject Property (the Permit Application). See Affidavit of Jim Hebenstreit, Application Submittal Packet.
39. A portion of Russell’s Permit Application is labeled “Indiana Floodplain Information Portal Report” and identifies the construction site for the Project to be in Effective Flood Zone “AE”. Id.
40. In his Permit Application, Russell confirmed the following Project activities in the Summary to his Description Narrative:
I have increased the square footage of an existing home while maintaining the same floor level that was established fifty (50) years ago. I added a basement area at the same floor level as the existing well room…a larger garage was torn down and sat at a lower level than the current garage footer and footer wall location [and I] included an area for a therapy pool…that finishes at the same level as the garage floor.
See Petition #2 and the Affidavit of Hebenstreit, Application Submittal Packet.
41. A floorplan drawing and photographs provided by Russell as a part of the Permit Application support a finding that the Project more than tripled the footprint of Russell’s home. See the Affidavit of Hebenstreit, Application Submittal Packet.
42. The Permit Application includes no documentation within the section identified as the “Environmental Evaluation”. Id.
43. The Permit Application includes an Affidavit by Russell stating that he provided service of notice to adjacent property owners on June 4, 2018. Id.
44. For purposes of summary judgment, a reasonable inference supported by the designated evidence supports a finding that Russell provided public notice of the Permit Application.
45. On July 26, 2018, the Department denied Russell’s Permit Application on three bases. The first basis is that “the applicant failed to provide documentation showing the cost of the addition is less that fifty percent of the market value of the existing abode.” See the Affidavit of Hebenstreit, p. 4.
46. On or about March 5, 2018, Russell stated orally to Suzanne Delay that the additions to his home would increase its market value by “two or three” times. See Affidavit of Suzanne Delay.
47. Russell believed that the value of his home would be enhanced by his Project. However, no designated evidence was provided by either party to support the current value of Russell’s home including the constructed Project, or the current value of the home had no addition been constructed.
48. A second basis on which the Department denied Russell’s Permit Application was that, “the applicant failed to provide documentation showing that the lowest floor elevation is at or higher than the flood protection grade.” See the Affidavit of Hebenstreit, p. 4.
49. While the construction of the Project’s additions to the Russell home were not elevated, insufficient evidence was designated to support a finding that the Project additions were constructed below, at or higher than flood protection grade.
50. A third basis on which Russell’s Permit Application was denied states that the applicant failed to provide the non-refundable $200 processing fee required by the Flood Control Act, IC 14-28-1”. See the Affidavit of Hebenstreit, p. 4.
51. The Department’s Brief in Support of Motion for Summary Judgment states that the $200 processing fee was paid. On summary judgment, the factual representation made within the Department’s brief is not eligible for consideration as designated evidence in this matter. However, the Department’s assertion is determined to represent the party position that nonpayment no longer forms a basis of the Department’s denial.
52. The Department’s NOV identified the following as appropriate mitigation action:
a. Byron Alan Russell and any authorized representative shall immediately stop the authorized work in the floodway.
b. Byron Alan Russell, or any authorized representative shall within 30 days of receipt of this letter submit a proposed onsite restoration plan that includes removal of the fill and unauthorized additions.
c. Byron Alan Russell, or an authorized representative shall, upon approval of the restoration plan, implement the plan within 90 days.
d. Byron Alan Russell, or an authorized representative shall notify the Department in writing after restoration is completed.
Affidavit of Jon Eggen, Exhibit A.
53. Russell did not initiate or complete any of the mitigation actions identified in the NOV.
54. The Department’s NOV also included a civil penalty assessment, as follows:
The Department may assess a penalty of not more than ten thousand dollars ($10,000) for a violation. Each day during which a violation continues may be considered a separate violation for purposes of assessing a civil penalty. For this violation an initial assessment of $1000 is being assessed, in addition to $500 per day every day Byron Alan Russell, or his representatives, fails to comply with the time-lines set forth above.
Id.
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Conclusions of Law Applicable to Facts Established
55. The Indiana General Assembly has declared:
The following are declared:
(1) The loss of lives and property caused by floods and the damage resulting from floods is a matter of deep concern to Indiana affecting the life, health, and convenience of the people and the protection of property. To prevent and limit floods, all flood control works and structures and the alteration of natural or present watercourses of all rivers and streams in Indiana should be regulated, supervised, and coordinated in design, construction, and operation according to sound and accepted engineering practices so as to best control and minimize the extent of floods and reduce the height and violence of floods.
(2) The channels and that part of the flood plains of rivers and streams that are the floodways should not be inhabited and should be kept free and clear of interference or obstructions that will cause any undue restriction of the capacity of the floodways.
IC 14-28-1-1.
Is the Department entitled to judgment as a matter of law for the violations identified in NOV V-5861 FW (case number 18-049W)?
56. The NOV identified the failure of Bryan Alan Russell to submit an application, to submit the application fee and to provide public notice as an FCA violation.
57. Except as otherwise provided in IC 14-28-1 or this article, a license from the department is required to erect, make use, maintain, suffer or permit a structure, obstruction, deposit, or excavation on or on a floodway. 312 IAC 10-4-1(a).
58. A person must not erect, use or maintain a permanent abode in or on any floodway, except for an abode constructed before January 1, 1973. In some situations, a person may construct at least one addition to a structure used as an abode on January 1, 1973, that is located in a floodway. IC 14-28-1-26 and 312 IAC 10-4-3.
59. An "abode" is defined to include “a structure that is used or may be used primarily as a living quarters or residence” and includes a house or a “similar structure which provides permanent or temporary overnight lodging.” 312 IAC 10-2-2.
60. Russell’s home was constructed before January 1, 1973 as an abode within a floodway. Russell may have the ability to obtain a permit to make “at least one addition” to the home as long as other necessary criteria are met. IC 14-28-1-26 and 312 IAC 10-4-3.
61. The person may not construct an addition to an abode constructed before January 1, 1973 if the addition, not including the value of the land on which the abode is built:
…in combination with all other additions to the abode or residence that have been constructed since the abode or residence was originally built, would increase the market value of the abode or residence to an amount more than fifty percent (50%) greater than: (1) the market value of the abode or residence if no additions have been constructed since the abode or residence was originally built; or (2) the approximate market value the abode or residence would have in the form in which the abode or residence was originally built if at least one (1) addition has already been constructed.
IC 14-28-1-26(c). See also 312 IAC 10-4-3.
62. Exercise of the authority expressly granted by IC 14-28-1-26 is subject to the compliance with administrative rules, adopted by the Commission to implement IC 14-28-1-26. The administrative rules implementing the FCA require a person to obtain an approved permit and requires that the permit application include certain documentation. 312 IAC 10-4-1 and 312 IAC 10-4-3(c).
63. Russell’s Project activities that occurred within a floodway required a Department permit that has not been secured. For this reason, the Project violates the FCA.
64. However, whether a violation exists or not, “[t]he Flood Control Act does not necessarily disallow the issuance of after-the-fact permits.” Shoaff, et al. v. Ft. Wayne Zoological Society and DNR, 8 CADDNAR 157, 159 (2000).
65. Consideration of Russell’s Permit Application is necessary in order to determine if the application presents information sufficient to support approval of a permit for the Project. An approved permit under IC 14-28-1-26 and 312 IAC 10-4-3 would allow at least one compliant addition to be made to Russell’s home and would not support judgment affirming the Department’s NOV on this basis. If the Permit Application presents information insufficient to support approval of a permit for the Project, the failure would present an FCA violation sufficient to entitle the Department to judgment as a matter of law for the NOV.
66. Nonpayment of the application fee is no longer a disputed issue. Russell provided the required public notice of the Permit Application. Insufficient designated evidence was presented to support a judgment affirming the Department’s NOV through summary judgment on these bases.
67. The Department’s NOV identifies additional FCA violations as follows: “The failure of Bryan Alan Russell to ... show that the project will not do any of the following, (a) adversely affect the efficiency of or unduly restrict the capacity of the floodway, (b) create an unreasonable hazard to the safety of life or property, or (c) result in unreasonably detrimental effects upon the fish, wildlife or botanical resources are all in violation of the Flood Control Act.”
68. For any adverse effect on the floodway, unreasonable hazard to the safety of life or property or unreasonably detrimental effect upon the fish, wildlife or botanical resources, insufficient evidence was presented to support a judgment to affirm the Department’s NOV through summary judgment on this basis.
Is the Department entitled to judgment as a matter of law on its determination to deny permit application FW-29499 (case number 18-092W)?
69. The Department’s denial of the Permit Application was based on a failure to document the change in the home’s value attributable to the Project, the Project elevation and a failure to pay the application fee.
70. The application fee is not determined to be a disputed issue and does not support the Department’s denial of the Permit Application.
71. Insufficient evidence was presented to determine the elevation of the Project.
72. As to the home’s value, pursuant to 312 IAC 10-4-3, a permit application to construct an addition to an abode originally constructed before January 1, 1973, must include an appraisal by an appraiser with an acceptable designation “which establishes the value of the abode of place of residence before and after the proposed addition”. 312 IAC 10-4-3(c)(1). The appraisal must meet specific requirements, as follows:
(B) Requirements for appraisal reports are the following:
(i) Identification of the property to include the location, legal description, and owner or occupant.
(ii) Neighborhood analysis, including land use, price range, and age of structures in the area, changing conditions, and all relevant information pertaining to value of structures in the area.
(iii) Description of the site, including the dimensions, site area, zoning classification, and compliance of present structure, highest and best use, real estate taxes, assessments utilities, description of site improvements, and easements.
(iv) Description of structural improvements, interior and exterior, considering depreciation, general market conditions, and additional features.
(v) Cost approach to value of present structure and proposed addition, with computative data based on an appraisal guideline in common usage among appraisers.
(vi) Market or sales comparison analysis, including adequate descriptions of three (3) recent comparable sales having the same highest and best use as the subject, weighted and analyzed in relation to the subject property, with adjustments not exceeding thirty percent (30%).
(vii) Reconciliation, including a summary:
(AA) of pertinent data of particular approaches and the appraiser's final conclusion, which conclusion cannot be based on an average; and
(BB) explaining strengths and weaknesses of each approach.
(viii) Certification by the appraiser that:
(AA) the property was personally inspected;
(BB) facts and data are true and correct;
(CC) the appraised value represents the appraiser's best judgment;
(DD) the appraiser has no interest in the property; and
(EE) an opinion of the estimated fair market value of the property, excluding the value of the land, established under subsection (b) and at the completion of the proposed addition.
(ix) Percentage of increase in value that the proposed addition will make in the property, excluding the value of the land.
(x) Photographs of the property and comparable sales.
(xi) Verification by appraiser as to when the original structure was built and, if there have been additions made to the original structure, the date of these additions (appraiser must give source of this information and copies of the source material).
(xii) Designation of appraiser.
312 IAC 10-4-3(c)(1)(B).
73. Russell’s Permit Application does not include an appraisal prepared by an appraiser with an acceptable designation that includes the required certification.
74. Pursuant to 312 IAC 10-4-3, a permit application to construct an addition to an abode originally constructed before January 1, 1973 must also include construction plans and specifications that “must (A) consider the effects of buoyance, dynamic, and erosive factors; (B) be constructed with materials resistant to flood damage; (C) be constructed by methods and practices that minimize flood damage; and (D) be certified by a: (i) professional engineer registered under IC 25-31-1; or (ii) an architect registered under IC 25-4-1.” 312 IAC 10-4-3(c)(2).
75. Russell’s Permit Application does not include required construction plans and specifications certified by a registered professional engineer or architect.
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76. Pursuant to 312 IAC 10-4-3, a permit application to construct an addition to an abode originally constructed before January 1, 1973 must also include a certification by a registered professional engineer or architect that the proposed addition was built according to design criteria that “adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads associated with the regulatory flood”. 312 IAC 10-4-3(c)(3) and 312 IAC 10-4-3(d).
77. Russell’s Permit Application does not include the necessary certification regarding design criteria.
78. Any addition constructed is subject to restrictions imposed by a county, municipality or township in which the abode is located. IC 14-28-1-26(b) and IC 36-1-2-23.
79. The Department’s designated evidence includes correspondence dated February 26, 2018, on Wayne County Planning and Zoning letterhead. While IC 14-28-1-26(b) limits construction of an addition that is subject to local restriction, the letter is insufficient to support a conclusion that a local restriction supports denial of the Permit Application. IC 14-28-1-26(b).
80. The designated evidence presents insufficient documentation to support permit approval for the Project. The Department’s denial of the Permit Application is appropriate. The Department is entitled to judgment on summary judgment for its determination to deny the Permit Application.
Are the mitigation options and the civil penalty identified by the Department in NOV V-5861 FW enforceable and appropriate (case number 18-049W)?
81. The Department is authorized to take enforcement actions associated with a person’s violation of the FCA, IC 14-28, or rules adopted at 312 IAC 10 and may issue a notice of violation advising a person of (1) the “nature of the violation”, (2) the action appropriate to mitigate the violation, (3) the date by which the mitigation must be completed, and (4) the procedure to obtain administrative review under IC 4-21.5. IC 14-25.5-2-2 and 3.
82. The NOV issued by the Department included information necessary to provide sufficient notice to Russell.
83. An NOV becomes effective without a proceeding under IC 4-21.5-3 unless a person submits a timely request for administrative review to the Commission. IC 14-25.5-2-6.
84. Russell filed a request for administrative review in this proceeding and for that reason, the NOV was not effective at the time it was issued.
85. The Commission has previously addressed enforcement under the FCA in a variety of situations. In DNR v Marion and Linda White, d/b/a White Brooke Park, 7 CADDNAR 152, 152 (1996), regarding the placement of fill in a floodway, the Commission ordered civil penalties and restoration of sites to “their approximate condition before the illegal work was begun or obtain permits for construction in a floodway….” In Parker v DNR, 8 CADDNAR 84 (1998), a Department NOV was upheld, the petitioner’s permit application denial was upheld and the owner was ordered to remove a privacy fence constructed in a floodway.
86. The Commission has previously considered the application of the FCA to new construction and the repair of residences in a floodway. In DNR v. Everett and Rickleffs, 1 CADDNAR 66 (1985), the Commission upheld an NOV issued by the Department and the owners of a newly constructed residence were ordered to remove the residence at the owner’s expense. In another proceeding, the Commission ordered property owners to “raze the residence and remove demolition debris from the floodway” for a residence located in a floodway that was repaired following a flood. DNR v. Loveall, Ellis and Ellis, 7 CADDNAR 203, 203 (1998). In the Loveall case, the original log cabin structure was allowed to remain within the floodway but not for use as a residence or place of abode.
87. The Commission has specifically applied IC 14-28-1-26 and 312 IAC 10-4-3 to address the construction of an addition to an abode in a floodway, for an abode originally built prior to January 1, 1973. In that case, the Commission, finding violation of the FCA, ordered the property owner to “apply for a permit… and fulfill all requirements, including, if necessary, revision of previously made additions…or [r]estore the [property] to its previous condition by removing all additions…that were made without a permit.” In McFall, et al. v. DNR, 14 CADDNAR 25, 25 (2015).
88. Russell did not apply for a permit before constructing the Project additions to his home on the Subject Property located within a floodway.
89. The after-the-fact permit application submitted by Russell is legally insufficient in that it fails to include the components required by 312 IAC 10-4-3.
90. Russell failed to achieve compliance under the FCA and is therefore in violation of the FCA.
91. The NOV notified Russell of “actions appropriate to mitigate violation.”
92. The mitigation option to stop the authorized work in the floodway is no longer determined to be an appropriate remedy in that the Project is now complete.
93. The Department identified a mitigation option that allowed Russell the opportunity to propose an onsite restoration plan to the Department that included removal of the fill and unauthorized additions. Upon the Department’s approval, this mitigation option required Russell to implement the plan within 90 days and notify the Department of the completed restoration.
94. Mitigation by removal of fill and any unauthorized additions by Russell, within 90 days, is found to be appropriate. While no Department preapproval of Russell’s plan is required, it is determined to be necessary and appropriate that Russell immediately notify the Department of the completed restoration.
95. A person who fails to mitigate a violation of the FCA or an administrative rule adopted in connection with the statute is liable for a civil penalty. IC 14-25.5-2-6, IC 14-25.5-4-3 and IC 14-28-1-36.
96. “Each day during which a violation continues may be considered a separate violation for purposes of assessing a civil penalty.” IC 14-25-2-4-3(b).
97. The civil penalty identified in the NOV, and duplicated in paragraph 53 of this decision, is found to be enforceable if Russell fails to timely remove all additions at the site, within the Subject Property, that were made without a permit.
Final Order on Motion for Summary Judgment
1. The Department’s denial of Permit Application #FW-29499, dated July 26, 2018, is affirmed.
2. The Department’s Notice of Violation, V-5861-FW issued May 3, 2018, is affirmed, on the sole basis that Russell failed to provide information required to secure a permit to construct an addition to an abode in a floodway, pursuant to IC 14-28-1-26 and 312 IAC 10-4-3.
3. Within ninety (90) days of the issuance of a final order in this proceeding, Petitioner Russell shall restore the Project site at the Subject Property to its previous condition by removing all fill and any additions that were made without a permit. Russell must notify the Department immediately following completion of the restoration.
4. If Petitioner Russell fails to take timely action in accordance with the immediately preceding paragraph, the Department is authorized to take further enforcement action as prescribed by IC 14-28-1 and IC 14-25.5, including the civil penalty assessment for the violation as prescribed in the NOV and paragraph 53 of this decision.
[1] No specific remedy request is identified in the Response.