[CITE: Stephen Mitros, et ux. v. DNR, 3 CADDNAR
58 (1986)]
[VOLUME 3, PAGE 58]
Cause #: 85-178W
Caption: Stephen Mitros, et ux. v. DNR
Administrative Law Judge: Shadley
Attorneys: Kalamaros; Long, DAG
Date: February 21, 1986
ORDER
[NOTE: JUDICIAL REVIEW OF
THIS ACTION IS PENDING IN THE MARSHALL CIRCUIT COURT. THE STATUTE ON WHICH THE
ADMINISTRATIVE ORDER WAS BASED WAS SUBSEQUENTLY AMENDED AND THE TRIAL COURT HAS
ORDERED THE ACTION REMANDED TO THE COMMISSION IN LIGHT OF THAT STATUTORY
AMENDMENT.]
The
February 28, 1985 determination of the Commission to disapprove the Claimants' application
for construction in a floodway is affirmed.
FINDINGS OF FACT
1. The
provisions of the administrative adjudication act (IC 4-22-1) govern this
proceeding.
2.
The Department of Natural Resources (hereinafter the Department) is an agency
as the term is defined in IC 4-22-1. The Natural Resources Commission
(hereinafter the Commission) is the ultimate authority of the Department with
respect to the flood control act (IC 13-2-22).
3.
Stephen F. Mitros, MD and Janet Mitros,
husband and wife, are the owners of a residence located at 53383 Juniper Road,
South Bend, St. Joseph County, Indiana.
4. Claimants
residence was built in 1946. [See brief of Claimants filed October 15, 1985,
page 1.]
5.
On January 10, 1985, Claimants filed an application for approval of
construction in a floodway. [See brief of Claimants filed October 15, 1985,
page 2]
6.
On February 28, 1985, the Commission disapproved the Claimants' application.
[See brief of Claimants filed October 15, 1985, page 2]
7.
On July 30, 1985, Claimants requested a hearing to review the denial of their
application for a permit to construct in a floodway.
8.
The flood control act is applicable to the subject matter of this action.
9.
The Commission has jurisdiction over both the subject matter and parties to
this proceeding.
10.
The parties have agreed to waive their rights to a hearing, and in lieu thereof
have stipulated to the fact that the claimants' residence and the proposed
addition area is within the floodway of Juday Creek.
11.
IC 13-4-22-2 provides as follows: "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 stat
affecting the life, health and convenience of the people and the protection of property. . .
(b) that the channels and that portion of the flood plains of
rivers and streams, which are the flood ways, should not be inhabited. .
."
12.
IC 13-2-22-13 provides as follows: "It shall be unlawful to erect, use or
maintain in or on any floodway, a permanent abode or place of residence, . . ."
13.
Claimants' application proposed the enlargement of their residence by adding
one bedroom and one bathroom. [See brief of Claimants, filed October 15, 1985,
page 1]
14.
Construction to add one bedroom and one bathroom to the existing residence at
53383 Juniper Road, South Bend, St. Joseph County, Indiana, would constitute
the erecting, use or maintenance of a permanent abode or place of residence.
15.
Because the existing residence and the proposed addition are within the floodway
of Juday Creek, construction of the addition is
prohibited by IC 13-2-22-2 and IC 13-2-22-13.
16.
310 IAC 6-1-12 provides as follows: ". . .All
land uses now existing in flood hazard areas are not in full compliance with
the 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
alterations, repairs, enlargements or extensions are not otherwise prohibited
or restricted by site law or local ordinances. . . ." (emphasis
added).
17.
Because IC 13-2-22-2 and IC 13-2-22-13 prohibit inhabiting the floodway and
prohibit the erection
[VOLUME 3, PAGE 59]
use or maintenance of a
permanent abode or place of residence in the floodway, 310 IAC 6-1-12 does not
allow Claimants a one time only enlargement of their
residence.