[CITE: Gary Price v. DNR, 1 CADDNAR 45 (1982)]
[VOLUME 1, PAGE 45]
Cause #: 82-007W
Caption: Gary Price v. DNR
Administrative Law Judge: Lucas
Attorneys: Price none;
Collins, DAG
Date: August 11, 1982
ORDER
1. The
Application for Approval of Construction in a Floodway caused by Gary L. Price to
be filed with the Department of Natural Resources on October 8, 1981 with
respect to Lot 1, Riverlan Isles Subdivision, Concord
Township, Elkhart Township, Elkhart County, Indiana is in all parts denied.
2.
Fill deposited at such property shall be removed...by...Price, at his own expense,
and the elevation restored to 744 feet on or before October 1, 1982.
FINDINGS OF FACT
1.
The Department of Natural Resources (hereinafter the "Department") is
an agency of the State of Indiana duly empowered to conduct administrative
hearings pursuant to IC 4-22-1 et seq.
2.
The Department has jurisdiction over the subject matter of and the parties to this
action.
3. The
petitioner, Gary L. Price (hereinafter "Price"), made written
application to the Riverlan Isles Subdivision,
Concord township, Elkhart County, Indiana (hereinafter the "property")
to make the property saleable for residential purposes.
4.
The property is located in the floodway of the St. Joseph River.
5.
The 100-year frequency flood would pass the property at elevation 747.5 feet.
6.
The property was at elevation 744 feet prior to the deposit of fill several
years ago, and is presently approximately elevation 748 feet. The fill was
deposited without written authorization of the Department or the Natural
Resources Commission.
7.
The deposit of fill on the property was unlawful and has adversely affected the
efficiency, and has unduly restricted the capacity of the floodway.
8.
The erection of a place of residence on the property would by virtue of its
nature or design constitute an unreasonable hazard to the safety of life or
property. Price has not received written authorization from the Natural
Resources Commission or the Department for erection of a place of residence,
nor for the erection or maintenance of any other structure, obstruction or
deposit on the property.
9.
The Department is not estopped nor otherwise
precluded in equity from the enforcement of the provisions of Title 13 of the
Indiana Code with respect to the property.
10.
As a party and the sole petitioner, Price was timely served with notice of the
hearing set for July 20, 1982, and failed to appear in person or by counsel. In
accordance with IC 4-22-1-23 no hearing of this administrative action was required.