Application PL-15,650 submitted by Robert and Marjorie Renschen is approved.
FINDINGS OF FACT
1. On April 15, 1994 Mr. Richard D. Miller (the "claimant") filed an objection to approved application PL-15,650.
2. The application was approved by the department on March 10, 1994.
3. The applicants, namely Robert and Marjorie Henschen, gained approval to construct a concrete seawall with its lakeward face along the shoreline of Big Long Lake in LaGrange County.
4. in the application, the property is described as Lot 12, Woodland Park Addition near South Milford, Milford Township, LaGrange County.
5. The approved permit allows the permittees a location of "approximately 61 feet of the frontage of the property".
6. Therein, lies the claimant's objection. He alleges that the Renschan's actual frontage- measures less than 61 feet and, therefore, a 61 foot seawall would encroach on his Lot #13.
7. IC 4-21.5, IC 13-2-11.1, 310 IAC 0.6-1, and 310 IAC 6-2 apply to this proceeding.
8. The department of natural resources (the "department") is an agency as defined in IC 4-21.5-1-3.
9. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
10. The natural resources commission (NRC) is the ultimate authority for this type proceeding.
11. Since the permit was issued prior to the claimant's objection, the burden of persuading the administrative law judge that the permit should not be issued is placed upon the claimant. See Brown V. DNR and Peabody Coal Company, 6 Caddnar 136, citing an NRC decision dated May 20, 1992 for Amax Coal Company v. DNR and Jack Jarrett, Administrative Cause Number 89-099R.)
12. Evidence presented at hearing shows that Lot #12 is indeed approximately 50 feet wide.
13. However, the department pointed out and the survey showed that the shoreline of Big Long Lake in front of Lot #12 was uneven and angled severely as the shoreline curved.
14. The sketch attached to the approved permit depicted a seawall placed at an angle to the land and one that was itself hinged in the middle to allow it to follow the uneven shoreline.
15. Further, the sketch shows assumed property lines for Lot #12 and the approved seawall is limited to the property line on each side.
16. The evidence shows that the permit authorization of approximately 61 feet is reasonable due to the angle of the approved seawall.
17. Mr. Miller's fear of the seawall encroaching on his Lot #13 is not well founded because the approved permit limits the seawall to the property lines of Lot #12.
18. If the Henschens build a seawall which exceeds their property lines extended to the shoreline, they would be in violation of their permit and Mr. Miller could seek appropriate remedy for the department.