[CITE: Moll v. Dept. Nat. Res., 5 CADDNAR 144 (1990)]
[VOLUME 5, PAGE 144]
Cause #: 90-115W
Caption: Moll v. Dept. Nat.
Res.
Administrative Law Judge: Teeguarden
Attorneys: Moll, pro se; McInerny
Date: August 16, 1990
ORDER
The
denial of permit application R-12078 dated March 21, 1990, is hereby affirmed.
FINIDNGS OF FACT
1.
The department of natural resources (DNR) is an agency within the meaning of IC
4-21.5.
2.
IC 4-21.5 and IC 13-2 apply to these proceedings.
3.
The natural resources commission (NRC) is the ultimate authority for the DNR in
this matter.
4.
On October 16, 1989, Ronald and Bonnie Moll (Moll) submitted an application for
the approval of construction in a floodway designated R-12078 to the DNR
division of water (DOW).
5.
The purpose of this application was to replace an existing summer cottage on
property owned by Moll and fronting on the Tippecanoe River.
6.
This application was denied by the DNR following the March 21, 1990, Advisory Council meeting and Moll filed a timely
administrative appeal.
7.
The application called for the construction of a new cottage approximately 30
feet from the existing cottage.
8.
DOW site maps show an elevation of 560 feet to 564 feet above sea level for the
lots in question.
9. [Note: Original document did not contain a
Finding 9.]
10. [Note: Original document did not contain a
Finding 10.]
11.
There is no adverse impact on the botanical and biological resources of the
building plan.
12.
The proposed construction will not significantly increase the flood stage of
the Tippecanoe River.
13.
The proposed use of the construction is as a residence.
14.
IC 13-2-22-13(a) states:
"It
is unlawful to erect, use, or maintain in or on any floodway a permanent
structure for the use as an abode or place of residence."
15.
Residences constructed before January 1, 1973, are exempted by IC
13-2-22-13(a), as are certain areas of the Ohio River.
16.
Neither exemption applies to this case.
17.
No evidence has been presented which contradicts the flood stage elevations or
the general elevation of the building lots.
18. The
proposed construction is permanent and for use as a residence.
19.
The proposed construction is for a new building and does not involve remodeling
an existing structure.
20.
There is no dispute as to the above facts, thus summary judgment can be granted
pursuant to IC 4-21.5-3-23.
21.
The uncontroverted evidence leads to the conclusion that state law prohibits
the granting of this permit as IC 13-2-22-13 applies and prohibits the
construction of a residence.
22.
Accordingly, summary judgment is granted in favor of the DNR.