[NOTE: ON JULY 27, 1990, JUDICIAL REVIEW WAS TAKEN TO MARION SUPERIOR COURT 3 (49D03-9007MI-092). ON FEBRUARY 5, 1991, COURT ENTERED A DISMISSAL BY STIPULATION.]
The request by Juanita Anderson to rebuild a dwelling in the floodway of the Flatrock River known as docket #9,972 is denied.
FINDINGS OF FACT
1. On January 3, 1989, Juanita Anderson (the "Claimant") filed a petition for review of the Natural Resources Commission decision of December 14, 1988 on Docket #9,972.
2. The Claimant had requested a permit to construct an abode in the floodway of the Flatrock River in Shelby County, such abode to replace one destroyed by a falling tree in 1983.
3. This action was continued indefinitely in 1989 pending enactment of legislation by the Indiana Legislature which might have granted Claimant relief.
4. Due to the failure of said legislation, a status conference was held on January 26, 1990.
5. At said status conference, the parties agreed that no question of material fact was in dispute; and therefore, this case could be resolved by Summary Judgment brief.
6. IC 4-21.5, IC 13-2-22 and 310 IAC 0.6 apply to this proceeding.
7. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The Natural Resources Commission (the "Commission") is the ultimate authority for the Department with respect to this proceeding.
8. The Claimant raises three issues in her brief:
(a) Does the State's action refusing permission to rebuild constitute a taking of property without compensation which violates the Due Process Clause of the 14th Amendment? (Issue-1)
(b) Is it logical or fair to deny rebuilding of this structure on public safety grounds when the same floodway is inhabited by over a dozen other people? (Issue-2)
(c) Should the Commission have made an exception under IC 13-2-22-13(d)(C) because the structure could be rebuilt for less than 40% of its original value? (Issue 3)
9. IC 13-2-22 (the "Statute") is known as the Flood Control Act.
10. The Statute at section 13 tasks the Commission with the responsibility for issuing or denying permits to construct in a floodway.
11. In the Statute at section 2, the Indiana Legislature declares at (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 affecting the life, health and property; that to prevent and limit floods ... the channels and that portion of the flood plains of rivers and streams, which are the floodways, should not be inhabited and should be kept free and clear of interference or obstructions which will cause any undue restriction of the capacity of the floodways ..."
12. The Claimant's Issue-1 advances the proposition that the Claimant would be entitled to compensation due to the State "taking" her property by not allowing her to rebuild her dwelling.
13. The Claimant quotes a U.S. Supreme Court decision in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, (1987) 107 Supreme Court 2378, to support Issue-1.
14. First English can be distinguished from the case at bar because the ordinance in question there placed a complete ban on all structures in the flood area.
15. The Indiana Statute sets out procedures by which permits can be obtained from the Commission to place various structures, obstructions, etc. in a floodway provided certain criteria are met.
16. The only structures that are banned are new abodes/dwellings.
17. In addition, the Court in First English did not decide on whether a taking had actually occurred but simply held that if a taking did occur the church was entitled to monetary compensation.
18. The question to be
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decided in Issue-1 is whether a taking occurred at all.
19. An Indiana case on point is Indiana Department of Natural Resources v. Indiana Coal Council, Inc. (Ind. 1989), 542 N.E.2d 1000, cert den'd., 110 S. ct. 1130.
20. In the above case (IDNR) the Indiana supreme Court advanced a two-prong test to determine whether a taking had occurred. The Court stated: "...a land use regulation will not effect a taking if it substantially advances a legitimate state interest and does not deprive an owner of economically viable use of his property" IDNR at 1002.
21. In regard to the first prong, the Court stated that ... "it is generally accepted that the government has the power to enact laws and regulations to promote order, safety, health, morals and the general welfare of society" IDNR at 1004.
22. The Statute is clearly designed to promote the ends stated by the Court in IDNR at 1004.
23. It is reasonable that the State would ban construction of abodes/dwellings in a floodway so as to protect the safety of its citizens.
24. In regard to the second prong of the test offered in IDNR, the Court states that "a landowner is not entitled to the highest and best use of his land and a taking results under the economic impact inquiry only when all reasonable use of the land is prevented by land use regulation" IDNR at 1004.
25. Since the only land use the Commission denied the Claimant was the placing of an abode/dwelling on her property, the second prong advanced in IDNR does not indicate a taking has occurred.
26. Applying the IDNR test as a whole to the case at bar reveals that the denial of the Claimant's permit request is not a "taking" as construed by the Indiana Supreme Court.
27. Issue-2 can be easily disposed of because the Statute at Section 13(a) clearly prohibits construction of abodes in a floodway after January 1, 1973.
28. The Natural Resource Commission has no authority under the law to make an exception for the Claimant.
29. The Department has taken action in the Flatrock River area to remove homes built without permits after January 1, 1973. Homes built before that date cannot be regulated by the Department.
30. Issue-3 is also easily decided. The Statute at Section 13(d)(C) allows a homeowner to make a one-time addition to her home as long as the addition does not increase the value by more than 40%.
31. In the instant case the Claimant's dwelling has only a foundation, concrete steps and footers remaining.
32. It would be impossible to build a dwelling on what remains and not increase the value by more than 40%.
33. Further, the above would require building an entire dwelling and would certainly not conform to the meaning of the word "addition".
34. The Statute allows the Commission no discretion to make an exception to the 40% rule.
35. There are no questions of material fact in dispute in this case and the law clearly favors the Department.
36. Therefore, the Department's Cross-motion for Summary Judgment must be granted and the Claimant's Motion for Summary Judgment denied.