Summary judgment is granted in favor of the Department of Natural Resources and J.W. Jones. The decision of the Department of Natural Resources to issue floodway construction permit number 16,750 is affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5 and IC 14-28 apply to these proceedings.
3. The DNR is the state agency responsible for the issuance of permits to construct in a floodway.
4. The Natural Resources Commission ("NRC") is the ultimate authority with respect to administrative reviews taken pursuant to IC 4-21.5 of DNR decisions to grant of deny floodway construction permits.
5. On August 4, 1995, the DNR approved floodway construction permit application FW-16,750 ("Permit") submitted on behalf of John W. Jones ("Permittee") which allowed sand and gravel to be removed from the floodway and the placement of spoil in the floodway of Indian Creek near Martinsville in Morgan County, Indiana.
6. Notices of approval were apparently mailed on August 10, 1995.
7. On September 29, 1995, South Central Community Mental Health Centers, Inc. ("South Central"), an adjacent property owner, filed a request for administrative review of the DNR decision to grant the permit.
8. The DNR filed a motion to dismiss for failure to file a timely request for review, later amended, with a number of attachments.
9. South Center filed responses to both the original and amended motions with attachments.
10. The Permittee filed a reply brief with attachments.
11. Because of all the extraneous documents introduced including affidavits, pursuant to TR 12, the trier of fact will treat these motions as motions for summary judgment.
12. Exhibits A and B attached to the DNR's motion to dismiss show that South Central received the required notice from the permittee that the permittee had applied for the permit and that South Central was an adjacent party.
13. The notice specifically states that South Central may request the DNR to notify it whenever a decision is made on the permit application.
14. No written request for further information about the grant or denial of the permit was to the Department until September 5, 1995.
15. IC 4-21.5-3-5 requires a petition for review in this case to be filed fifteen days after issuance plus the three days for mailing referenced in IC 4-21.5-3-2.
16. The petition for review in this matter was filed 50 days after notices of permit approval were sent out.
17. South Central did not receive the notice of approval because it did not respond to the February 14, 1995, letter which told adjacent landowners that there was an application for a floodway construction permit pending near their property and among other rights the applicable law gave them was to request notice when the permit was acted upon.
18. The first time the Department received anything in writing from South Central was a letter dated September 5, 1995, and received September 11, 1995, (Exhibit A attached to the DNR's motion), at which time South Central stated they did not realize the extent of the project and now wanted to request notice and an informal public hearing.
19. This document was written more than a week after the time for requesting administrative review expired. It was received two weeks after the time for review had expired.
20. The notice to adjacent land owners contains adequate information about people to contact if there are questions about the permit application.
21. South Central apparently did not make any such inquiries during the eight months the application was being reviewed by the DNR.
22. The documents presented do not show a material dispute of facts.
23. The only conclusion which the trier of fact can reach is that South Central was given adequate notice of the permit application and failed to request review of the permit approval in a timely manner.
24. The DNR and the permittee are entitled to summary judgment for the failure of the claimant to timely seek review.