[CITE: B. Dickerson, et al.
v. DNR, 1 CADDNAR 19 (1978)]
[VOLUME 1, PAGE 19]
Cause #: 78-018W
Name: B. Dickerson, et al. v.
DNR
Administrative Law Judge: Finkenbinder
Attorneys: Franceschini; Schaefer, DAG
Date: November 30, 1978
ORDER
The
previous determination of the Commission [which denied the permit application
is]...affirmed.
FINDINGS OF FACT
1.
On or about December 21, 1977, James and Betty Dickerson made application to
construct an abode in the floodway (Docket R-5602).
2.
On May 25, 1978, at its regularly scheduled meeting of the Natural Resources
Commission disapproved the application for construction of the proposed
project.
3.
On June 21, 1978, the Petitioners (James and Betty Dickerson) requested an
appeal of the Commission's decision through their counsel Michael Franceschini.
4.
On August 19, 1978, the Petitioners were advised by certified mail that their
hearing of appeal was set for October 10, 1978.
5.
On October 10, 1978, Petitioners' Counsel appeared and requested a continuance
which was granted and the hearing was continued to November 28, 1978, by
agreement of parties and counsel. Further notice was waived.
6.
The Petitioners propose to build an abode at 52nd and Riverside Drive in the
City of Indianapolis, Indiana.
7.
Said abode would lie within the floodway of the White River, West Fork.
8.
The proposed abode would replace an abode which was destroyed by fire (value of
abode was reduced more than 40%)
9.
IC 13-2-22-13 requires that a permit be issued before any construction may be
done in a floodway.
10.
IC 13-2-22-2 provides floodway should not be inhabited.
11.
The petitioners would intend to inhabit an abode if it were built as proposed.
12.
Rule No. 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."
13.
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."
14.
Ground level elevation of the real estate where the proposed abode would be
built is between 708 feet MSL and 709 feet MSL.
15.
The regulatory flood has been calculated to be between 712.3 feet MSL and 713
feet MSL in the immediate area of the proposed abode.
16.
The proposed abode would have a crawl space of three to four feet, making the
main flood of the residence 712 feet MSL to 713 feet MSL.
17.
The highest flood of record in the immediate area was 715+ feet MSL.
18.
The structures on the subject property constitute an unreasonable hazard to the
safety of life and property.
19.
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."
20.
Rule No. FPM-1 of the Natural Resources Commission provides that the flood
protection grade for all buildings shall be at least two feet above the
regulatory flood profile.