[CITE: Dale Blackford v. DNR, 1 CADDNAR 11 (1978)]
[VOLUME 1, PAGE 11]
Cause #: 77-031W
Caption: Dale Blackford v.
DNR
Administrative Law Judge: Shanks
Attorneys: Lukenbill; Zlatos,
DAG
Date: June 16, 1978
ORDER
The
previous determination of the Commission [to deny an application for
construction in a floodway] is affirmed.
FINDINGS OF FACT
1.
On or about September 26, 1975, Petitioner filed his Application for Approval
of Construction in a Floodway. (Docket R-4691).
2.
On or about November 20, 1975, Petitioner through his Engineer withdrew his
said application.
3.
Subsequent to such withdrawal, Petitioner proceeded to construct an abode and
an out building (pole barn).
4.
Such construction was discovered by representatives of the Department of
Natural Resources on or about March 8, 1977.
5.
On or about May 24, 1977, Petitioner was directed by letter from the Department
to restore the property to its original condition within six (6) months.
6.
On or about October 6, 1977, Petitioner, through his attorney, requested his
Application for Construction in a Floodway be reinstated.
7.
On or about November 16, 1977, the Natural Resources Commission denied
Petitioner's application.
8.
On or about December 6, 1977, Petitioner through his attorney,
requested a hearing on the matter of the Commission's denial of his
application.
9.
On or about February 8, 1978, Notice of Hearing was mailed to Petitioner by certified
mail (#902622), return receipt requested, and received by Petitioner on or
about February 15, 1978.
10.
Said abode lies within the floodway of the Tippecanoe River.
11.
IC 13-2-22-13 requires that a permit be issued before any construction may be
done in a floodway.
12.
IC 13-2-22-2 provides that floodways should not be inhabited.
13.
Petitioner is inhabiting said abode and unless removed
intends to continue to inhabit said abode.
14.
Rule # FPM-1 of the Natural Resources Commission defines "Floodway"
as: "The channel of a river or stream and those portions of the flood
plains adjoining the channel which are reasonably required to efficiently carry
and discharge the peak flood flow of regulatory flood of any river or
stream."
15.
Rule No. FPM-1 of the Natural Resources Commission defines "regulatory
flood" as: "That flood having a peak discharge which can be expected
to be equaled or exceeded on the average of once in a one hundred year period,
as calculated by a method and procedure which is acceptable to and approved by
the Commission. This flood is equivalent to a flood having a probability of
occurrence of one percent in any given year."
16.
Ground level elevation at the foundation of the abode is 769.2 feet MSL.
17.
The regulatory flood has been calculated to be 771.3 feet MSL in the immediate
area of the abode.
18.
The highest flood of record in the immediate area was 769.4 feet MSL.
19.
The structures on the subject property constitute an unreasonable hazard to the
safety of life and property.
20.
IC 13-2-22-13 provides: "It shall be unlawful to erect, use or maintain in
or on any floodway, a permanent abode or place of residence…”