CADDNAR


[CITE: Parkview Square, Inc. v. DNR, 1 CADDNAR 50 (1983)]

 

[VOLUME 1, PAGE 50]

 

Cause #: 82-018W

Caption: Parkview Square, Inc. v. DNR
Administrative Law Judge: Lucas
Attorneys: Huser; Habeeb, DAG
Date: February 11, 1983

ORDER

 

The application of Parkview Square, Inc. for a permit under the Flood Control Act to remodel buildings on its property located in the southwest quarter of Section 20, Township 9 North, Range 3 East in Brown County, Indiana for use as a motel is denied.

FINDINGS OF FACT

 

1. The petitioner, Parkview Square, Inc. ("Parkview"), is a corporation with post office address, P.O. Box 141, Nashville, Indiana 47448 and with resident agent in the State of Indiana being Larry J. Hawkins, as designated by Parkview to the Secretary of State. Larry J. Hawkins is president of Parkview and John C. Hart is secretary-treasurer.

 

2. The respondent, Indiana Department of Natural Resources ("Department") is an agency of the State of Indiana, consisting in part of the Natural Resources Commission ("Commission") and personnel necessary for the performance of the official functions of the Department.

 

3. The Department is empowered to conduct administrative hearings pursuant to IC 4-22-1, and has jurisdiction over the subject-matter and the parties to this administrative action.

 

4. The Flood Control Act is found in IC 13-2-22 and provides in part:

 

A. "It is hereby declared

 

(a) that the loss of lives and property caused by floods, and the damage resulting therefrom, is a matter of deep concern to the state..., (b) that the channels and that portion of the flood plains of rivers and streams, which are floodways, should not be inhabited..." IC 13-2-22-2.

 

B. "The [C]ommission shall adopt, pursuant to methods provided by law, from time to time, rules and regulations for the transaction of its business and for the administration and exercise of its power and duties." IC 13-2-22-4

C. "The [C]ommission shall have jurisdiction over the public and private waters in the state and the lands adjacent thereto necessary for flood control purposes or for the prevention of flood damage..." IC 13-2-22-11

D. "(a) It shall be unlawful to erect, use or maintain in or on a floodway, a permanent abode or place of residence, or to erect, make, use or maintain any structure...on any floodway...which, by virtue of its nature, design, method of construction, state of maintenance or physical condition, will constitute an unreasonable hazard to the safety of life or property...(c) Any person desiring to erect, make, use or maintain, suffer or permit, a structure, obstruction, deposit or excavation to be erected, made, used or maintained in or on any floodway shall first filed a verified written application with the [C]ommission, setting forth the material facts together with plans and specifications for such structure, obstruction, deposit or excavation, and such person must receive the written authorization of the [C]ommission therefore prior to construction. The [C]ommission shall issue an order of authorization if in the opinion of the [C]ommission such structure, obstructure, 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..." IC 13-2-22-12

 

5. A rule duly promulgated by the Department and found in 310 IAC 6-1-12...provides in significant part: "Non-Conforming Uses. All local ordinances incorporating flood plain management provisions adopted after July 1, 1974, shall provide for non-conforming uses. All land uses now existing in flood hazard areas not in full compliance with this rule shall be considered a non-conforming use. Except for normal maintenance, any building which constitutes a non-conforming use may be altered, repaired, enlarged or extended, on a one time only basis, provided such

 

[VOLUME 1, PAGE 51]

 

alterations, repairs, enlargements or extensions do not increase the value of the building, excluding the value of the land, by more than forty percent (40%) of its pre-improvement market value, and the alterations, repairs, enlargements, or extensions are not otherwise prohibited by state law or local ordinances.."

 

6. Parkview is the owner of real estate and buildings (the "property") located in the southwest quarter of Section 20, Township 9 North, Range 3 East in Brown County, Indiana; and adjacent to State Road 46 and east of Parkview Road near Nashville.

 

7. The property is located entirely within the floodway of the north fork of Salt Creek, as the term floodway is defined under the Flood Control Act.

 

8. The property is situated at or below elevation 602 feet mean sea level. State Road 46 has been elevated to 610 feet adjacent to the property. The 100-year frequency flood would obtain an elevation of approximately 607 feet and would encompass the property. Salt Creek crested at the property at elevation 603.5 feet in May 1968 and 605.5 in June 1960.

 

9. The waters of the north fork of Salt Creek are flashy and a flood may crest within eight hours at the property.

 

10. By verified petition dated August 4, 1981, Parkview sought approval of the Commission to remodel existing buildings on the property for use as a motel. Previously, Parkview leased units of the buildings for operation as retail shops.

 

11. The buildings located on the property were constructed after 1945.

 

12. A motel is a roadside hotel providing lodging and parking space for motor vehicles. Lodging implies sleeping accommodations.

 

13. A person who might secure lodging on the property could become trapped overnight by a flood on the north fork of Salt Creek, making use of the property as a motel an unreasonable hazard to the safety of life, and a prohibited use under the Flood Control Act.

 

14. An abode is a place of residence or sojourn. Residence implies the act of dwelling in a place for an extended period. Sojourn implies a temporary stay, particularly in the context of a resort.

 

15. A motel is an abode.

 

16. The buildings sought to be used by Parkview as a motel are buildings in the ordinary sense, roofed and walled permanent structures.

 

17. The motel which Parkview seeks to establish in the Salt Creek floodway is a permanent abode.[FOOTNOTE i], and as such, is prohibited by the terms of the Flood Control Act, particularly as set forth in IC 13-2-22-13.

 

18. The proposal by Parkview to remodel the property from retail shops to a motel is a first-time modification of non-conforming uses, and would not increase the pre-improvement market value of the property, excluding the land, by more than 40%.

 

19. The provisions of 310 IAC 6-1-12 do not deprive the Commission of jurisdiction over the remodeling project proposed by Parkview. By its own terms, the rule does not apply to "alterations, repairs, enlargements, or extensions" which are "otherwise prohibited or restricted by state law." The proposed remodeling project is prohibited under the Flood Control Act, particularly IC 13-2-22-13(a) proscribing in a floodway erection of a permanent abode or maintenance of a structure which constitutes an unreasonable hazard to the safety of life or property.[FOOTNOTE ii]

 

20. Parkview by letter of October 11, 1979 and in the person of its officers directed general questions concerning development of the property to the Department. During these communications, Parkview did not indicate an intention to convert the property to use as a motel, nor did the Department inquire whether use as an abode or place of residence was contemplated.

 

21. A letter dated October 15, 1979 was sent by Robert Jackson, Director of the Department's Division of Water, to Parkview (Respondent's Exhibit 9) and the effect of the letter was to respond to the general questions posed by Parkview. The October 15 letter was not a permit.[FOOTNOTE iii]

 

22. On April 13, 1982, Victor Wenning provided an affidavit setting forth his position that if Parkview "intended to redecorate the existing structures" on the property, the October 15, 1979 letter (Respondent's Exhibit 9), "would apply", but if Parkview "was going to change the building's use to an abode", Parkview would need Commission approval because Department "staff has no approval authority for abodes." The affidavit is correct, although under proper circumstances, the Department may be estopped to deny authority of staff to approve floodway construction.

 

23. For the Department to be estopped from refusing to grant Parkview a permit for remodeling of the property for use as a motel, Parkview must establish by a preponderance of the evidence all of the following:

 

(a) a representation or concealment by the Department of material facts,

(b) the representation was made with knowledge of the facts, Parkview was ignorant of the matter,

(d) the Department intended that Parkview act upon the representation and

(e) Parkview was induced to act. Additionally, because the

 

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Department is a governmental entity, Parkview must establish application of equitable estoppel, (f) would not involve an expenditure of taxpayer money, (g) pertinent limitations on governmental authority were ambiguous and unclear, and (h) applications of estoppel would be consistent with the public interest.

 

24. Parkview has failed to establish all elements necessary to prove equitable estoppel. By illustration, the Department did not have knowledge of the fact that Parkview intended to remodel the property for use as a motel at the time of the October 15, 1979 letter (Respondent's Exhibit 9).[FOOTNOTE iv] To grant Parkview the remodeling permit would violate public interest, since the use of the property as a motel would constitute an unreasonable hazard to the safety of life and property.

 

25. The application by Parkview to remodel existing buildings on the property for use as a motel should be denied.[FOOTNOTE v]

 

FOOTNOTES

 

i. The Department urges in its post-hearing brief that the proposed motel may require a resident manager, whose duty would be "to occupy one of the rooms and remain on the property at all times as a 'permanent resident'". The motel proposed by Parkview is modest, and a permanent resident manager may or may not be contemplated. No evidence was presented on the possibility of a resident manager, and that contingency was not considered in determining the proposed motel would constitute a permanent abode. Parkview urges in its post-hearing brief that permanent abode and permanent residences are essentially equivalent terms. "In short, the plain and ordinary meaning of 'permanent abode' or 'permanent place of residence' involves one's indefinite, last home, domicile or dwelling." To adopt the argument by Parkview would render a nullity use of the term "abode" in IC 13-2-22-13. "It shall be unlawful to erect, use or maintain in or on any floodway, a permanent abode or place of residence." The Legislature intended the protections of the Flood Control Act apply to residences, as well as to buildings where persons might live on a temporary basis. Use of the term "abode" was incorporated to extend the act beyond the protections which would have been afforded, had it referred exclusively to a "place of residence". Hotels, motels, boarding houses, hostels, inns and similarly resort dwellings are among the class of structures intended for inclusion. Concern with protecting lives and property was the central motivation and purpose for the Flood Control Act. That purpose would be thwarted if structures where persons lived permanently were included and those where persons lived temporarily were excluded. The risk to life and property posed by flooding may be greater to a temporary motel guest unfamiliar with the propensities of a "flashy" creek, then to a resident well-acquainted with the dangers. Use of the term "permanent" is not descriptive of the duration of human occupancy to be covered, but the nature of a shelter which may, as a practical matter, be controlled by the Commission. Someone who sleeps in his camper, his automobile or "under the stars" cannot readily be brought under Commission authority, even though the danger to him may be significant.

 

ii. Even if 310 IAC 6-1-12 did not specifically limit its application to those instances not otherwise prohibited or restricted by state law, the statutory limitations of IC 13-2-22-13(a) would control. The Commission is given express authority under IC 13-2-22-4 to promulgate rules for the administration of its power and duties under the Flood Control Act, but the Commission cannot promulgate rules which either expand or restrict the grant of jurisdiction made by the Legislature. Any rule outside the enabling provisions of the statutes would be void, as an unlawful usurpation of the exclusive legislative authority to legislate.

 

iii. During cross-examination of Larry Hawkins, he was asked if the letter clearly stated it was not going to be a permit of any kind. He responded, "That's correct." The witness also testified on cross-examination that the letter "contradicts itself".

 

iv. The record does not demonstrate Parkview had established in 1979 the intention to remodel the property into motel units. If that intention then existed, it was not expressed to the Department staff. On cross-examination, John Hart was asked whether he told Kenneth Smith, a member of the staff, that Parkview planned to convert the property as a motel. He answered that he didn't even discuss it with him.

 

v. Equitable estoppel is also unavailable to Parkview because its actions violate the principal that to receive equity, one must to equity. If the Flood Control Act did not exist, remodeling of a place for human habitation in a flood plain on a "flashy" creek

 

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well below the 100-year flood level and the elevation of an adjacent state highway might not be unlawful, but would be inequitable.