[CITE: LeVeque v. Sorocco, Jr.
and DNR, 12 CADDNAR 187 (2009)]
[VOLUME 12, PAGE 187]
Cause #: 09-103W
Caption: LeVeque v.
Sorocco, Jr. and DNR
Administrative Law
Judge: Lucas
Attorneys: pro se
(LeVeque); pro se (Sorocco, Jr.); Wyndham (DNR)
Date: September 9, 2009
FINAL ORDER
Issuance by the Department of Natural Resources of Permit PL-21,267 in favor of Joseph J. Sorocco, Jr. is affirmed with the document described in Finding 6 included as an added condition and term.
FINDING OF FACT AND
CONCLUSIONS OF LAW
1. On June 3, 2009, Sharon LeVeque (“LeVeque”) filed correspondence with the Natural Resources Commission (the “Commission”). LeVeque wrote that she was the owner of property adjacent to property owned by Joseph J. Sorocco, Jr. (“Sorocco”), and in the same platted addition, for which Sorocco received Permit PL-21,267 (the “subject permit”) from the Department of Natural Resources (the “DNR”) to place a 92-foot long pier along the shoreline of Lake of the Woods in Marshall County. LeVeque wrote Sorocco did not obtain a survey of his property, but surveys obtained by LeVeque indicate that all property owners in the plat have only 82 feet of frontage. LeVeque stated, “While I am not opposed to a seawall going up, I do however oppose a possible encroachment.”
2. The correspondence referenced in Finding 1 initiated administrative review under Ind. Code § 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC § 3-1 to assist with the implementation of AOPA. LeVeque, Sorocco, and the DNR are collectively the “parties”. An administrative law judge was appointed, and he notified the parties of a prehearing conference to be conducted on June 25, 2009 in Indianapolis, Indiana.
3. Lake of the Woods in Marshall County is a “public freshwater lake” as defined at IC § 14-26-2-3. Wayne L. Dickerhoff and Robert Bolinger v. DNR, 6 Caddnar 65 (1992). The Commission is the “ultimate authority” for this proceeding under IC 14-10-2-3 and AOPA.
4. A prehearing conference was conducted as scheduled on June 25, 2009. By prior arrangement with the administrative law judge, LeVeque participated by telephone. The DNR appeared through its attorney, Eric Wyndham. Without apparent good cause, Sorocco failed to appear.
5. The Commission has jurisdiction over the subject matter and over the persons of the parties.
6. On August 10, 2009, LeVeque filed correspondence with the Commission which included a document which was signed by her, Sorocco, and Mary Ann Sorocco (wife of Sorocco). The document was recorded with the Marshall County Recorder and provided in substantive part:
This
document serves as an Acknowledgement that a seawall is being installed along
the lakside boundary of the property located at 8861 Sycamore Dr., Bremen,
Indiana 46506, (“the Property”) and having a legal description of “Lot 6,
Sycamore Acres” as shown on Plat Record 1970, record 1970, Page 5…. The Property is currently owned by Joseph J.
Sorocco, Jr. and May Ann Sorocco (“the Owners”). The Property is adjacent to Lot 7, Sycamore
Acres which is believed to be owned by Sharon LeVeque.
The Owners
of the Property represent that a survey of the Property was not undertaken
prior to the installation of the seawall.
The Owners represent that it is not their intention that the seawall,
once installed, encroach upon or encumber Lot 7, Sycamore Acres believed to be
owned by Ms. LeVeque. The Owners make no
claim to any portion of Lot 7, Sycamore Acres upon which the seawall may
encroach or lay across. Ms. LeVeque is
informed about the installation of the seawall and does not object to its
installation, provided the foregoing acknowledgement by the Owners.
7. The Lakes Preservation Act encourages the settlement of disputes among persons with interests along the shorelines of public freshwater lakes. Illustrative is IC § 14-26-2-23(e)(3). The document described in Finding 6 is an agreement between LeVeque and Sorocco (and Mary Ann Sorocco) and should be approved as a term of the subject permit.