[CITE: Historic Fort Wayne v. DNR, 1 CADDNAR 1 (1978)]
[VOLUME 1, PAGE 1]
Cause #: 77-003W
Caption: Historic Fort Wayne v. DNR
Administrative Law Judge: Lieber
Attorneys: Hobbs; Servaas, DAG
Date: June 9, 1978
ORDER
Petitioner's application is denied and Petitioner is ordered to remove said unauthorized structures from the floodway of the St. Mary's River or, in the alternative, to compensate for said restriction by improving the floodway of said river by excavating material from the west bank of said river. If Petitioner chooses the compensation alternative it is further ordered that Petitioner submit plans to the NRC within 60 days and after plans are approved petitioner shall further with perform the channel improvement in accordance with said plans within 120 days.
FINDINGS OF FACT
1. On or about the 22nd day of October, 1974, the Petitioner, through its duly authorized agent, Herman S. Strauss, Strauss Associates, Inc. filed a verified written application to construct the foundations for Historic Fort Wayne along the St. Mary's River in Fort Wayne, Indiana.
2. On the 18th day of December, 1974, the Natural Resources Commission approved the petitioner's application (Docket G-4297 Part I) with four conditions including
" (3) this approval not be construed to include the proposed fort buildings, visitor's center or pedestrian bridge, and
(4) plans for the buildings, visitor's center and bridge and any other floodway construction not included in this submittal be approved by the Natural Resources Commission prior to construction".
3. The certificate of approval for Docket G-4297 Part I, containing said four (4) conditions was transmitted to Petitioner by letter dated January 15, 1975.
4. On the 15th day of January, 1976, the Petitioner, through its duly authorized agent, Herman S. Strauss, Strauss Associates, Inc. filed a verified written application with the Department of Natural Resources, Division of Water, for a permit to construct a pedestrian bridge over the St. Mary's river in Fort Wayne, Indiana.
5. On the 15th day of January, 1976, the Natural Resources Commission approved the petitioner's application (Docket G-4297 Part II) with four conditions including " (3) this approval not be construed to include the proposed fort buildings or visitors center and (4) plans for the buildings, visitor's center and any other floodway construction not included in this submittal be approved by the Natural Resources Commission prior to construction".
6. The certificate of approval for Docket G-4297, Part II containing said four conditions were transmitted to Petitioner by letter dated January 19, 1976.
7. On or about the 19th day of April 1976, the Petitioner, through its duly authorized agent, Herman Strauss, Strauss Associates, Inc., filed a verified written application with the Department of Natural Resources, Division of Water for a permit to construct a levee and visitor's center building along the St. Mary's River in Fort Wayne, Indiana.
8. On or about the 14th day of October, 1976, Robert F. Jackson, Chief of the Division of Water, sent a letter to Herman Strauss indicating that the plans submitted with said application (Docket G-4297 Part III) could not be recommended for approval by the staff to the Natural Resources Commission because the building would constitute a restriction in the floodway of the St. Mary's River.
9. On the 16th day of November 1977, the Petitioner's application (Docket G-4297 Part III) was denied by the Natural Resources Commission.
10. On the 7th day of December 1977, notice of denial was served on Petitioner by certified mail; return receipt being signed and dated the 12th day of December 1977.
11. Petitioner's request for hearing under IC 4-22-1-24 was received by the Department of Natural Resources on the 10th day of December 1977.
12. On the 9th day of February 1977 [sic], the undersigned was appointed by the Commission to hold a hearing on the said denial pursuant to IC 4-22-1 et. seq. and IC 14-3-3-3.
13. Said hearing was set by proper notice to the parties and convened at 11:30 O'clock A.M., local time on the 19th day of April, 1978, at the Commissioner's Courtroom, Room 200, City-County Building, 1 Main Street, Fort Wayne, Indiana.
[VOLUME 1, PAGE 2]
14. The law applicable to the application is IC 13-2-22-12 and provides in pertinent part as follows: "Any person desiring to erect, make, use or maintain, suffer or permit, a structure, obstruction, deposit or excavation to be erected, make, use or maintained in or on any floodway shall first file a verified written application for such structure, obstruction, deposit or excavation, and such person must receive the written authorization of the commission thereof prior to construction. The commission shall issue an order of authorization if in the opinion of the commission such structure, obstruction, deposit or excavation will not adversely affect the efficiency of or will not unduly restrict the capacity of the floodway, or will not constitute an unreasonable hazard to the safety of life or property, or will not result in unreasonably detrimental effects upon fish, wildlife and botanical resources."
15. The rule and regulation application to the application is IC 13-2-22.5-2-1 et. seq. Indiana Administrative Rules and Regulations.
16. Said fort buildings, pedestrian bridge and visitor's center are located in the Northeast quarter of Section 2, Township 30 North, Range 12 East in the City of Fort Wayne, Allen County, Indiana.
17. The fort buildings for Historic Fort Wayne were constructed sometime in 1976 on the left (east) banks of the St. Mary's River without the prior approval of the Natural Resources Commission.
18. The visitor's center was constructed sometime in 1976 on the right (west) bank of the St. Mary's River without prior approval of the Natural Resources Commission.
19. Fill has been placed along the right (west) bank of the St. Mary's River in the vicinity of visitor's center.
20. During the March 1978 flood at Fort Wayne, Indiana, water reached a height of 755.5 feet, elevation, mean sea level datum, at the project site on March 21, 1978.
21. Said flood height put water in the fort buildings about six inches above the first floor and reached the floor of the visitor's center.
22. The regulatory flood (100-year frequency flood) will reach an elevation of 757.7 feet, mean sea level datum, at the project site.
23. Said fort buildings, pedestrian bridge, visitor's center and fill are in the regulatory floodway of the St. Mary's River.
24. The combined effect of the Historic Fort Wayne project including the fort buildings, pedestrian bridge, visitor's center and fill would cause an increase in the stage of the regulatory flood.
25. Said Historic Fort Wayne project unduly restricts the capacity of the floodway.
26. Said Historic Fort Wayne project constitutes an unreasonable hazard to the safety of life or property.