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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA man’s permission to build a concrete wall on his northern Indiana lakefront property has been halted now that the Indiana Court of Appeals has reversed a trial court’s reversal of his denied application.
Kevin Prosser, an owner of property on Lake Manitou in Rochester, applied for a permit to construct a concrete seawall on his property in 2015. His application was denied by the Indiana Department of Natural Resources for numerous reasons, including that his property was not considered to be a developed area under Indiana law and that the construction of the wall would significantly affect the fish, wildlife and plant life near the site.
Prosser appealed to an administrative law judge, arguing that the shoreline near his property had been lengthened by a dredging operation that occurred in the late 1940s. He offered six aerial shots of the shoreline dating from 1940 through 2013 to display the difference. He also presented two individuals who testified to having witnessed the dredging firsthand as children.
The ALJ affirmed the denial, finding there was insufficient clarity and definition to show whether the shoreline had increased since that time. The Natural Resources Commission of the DNR likewise affirmed the final order and denied Prosser’s application. He later petitioned for judicial review.
The Fulton Circuit Court found Prosser had established the property to be a developed area and stated that the ALJ’s discounting of the witnesses’ testimonies was unjustified based on other evidence presented at trial. It then overturned the denial of Prosser’s permit application.
In Indiana Department of Natural Resources v. Kevin Prosser, 18A-MI-2644, the Indiana Court of Appeals disagreed with the trial court on whether the administrative record contained substantial evidence to sustain the ALJ’s finding that Prosser failed to establish the dredging had lengthened the shoreline.
“We conclude that the record does, in fact, support the ALJ’s finding,” Judge Cale Bradford wrote for the panel. It thus sided with state agency experts who testified to the unpredictability of water levels on the day the photos were taken, or the amount of vegetation on the lake at the time of year. The appellate court further noted the difficulty in determining the legal shoreline of the lake at the time the photos were taken and whether the dredging added or decreased the amount of shoreline frontage.
“Keeping in mind that it was Prosser’s burden to establish that the shoreline had been lengthened and that we show considerable deference to state agencies working within their areas of expertise, we conclude that the ALJ’s conclusion was supported by substantial evidence,” the panel wrote.
Lastly, the appellate court pointed out that it was the ALJ’s job to evaluate the testimony of the two witnesses and other evidence for credibility and weight, and that its evaluation of the evidence was neither arbitrary nor capricious.
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