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Cause #: 03-034L
Caption: Gerbers & Buhr, et al. v. Nix, et al.
Administrative Law Judge: Wilcox
Attorneys: Benson (Gerbers); pro se (Buhr); Thomas (Nix)
Date: February 13, 2004
FINAL ORDER
The pier tent of Ed Nix and Marcia Nix meets the standards of 312 IAC 11-3-1 for a temporary structure. This pier tent is not a boathouse, is easily removable, and does not infringe on the access of adjacent landowners to Lake James.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. IC 4-21.5 and IC 14-26 apply to these proceedings.
2. The Department of Natural Resources (the "Department") is the state agency responsible for the regulation of public freshwater lakes under IC 14-26-2, commonly referred to as the "Lakes Preservation Act," the "Act." Rules governing the Act are found at 312 IAC 11.
3. The Natural Resources Commission (the "Commission") is the ultimate authority for the Department pursuant to IC 14-20-2-3.
4. IC 14-26-2-5(c) and IC 14-26-2-5(d) provide:
(c) The:
(1) natural resources and the natural scenic beauty of Indiana are a public right: and
(2) public of Indiana has a vested right in the following:
(A) The preservation, protection, and enjoyment of all the public freshwater lakes of Indiana in their present state.
(B) The use of the public freshwater lakes for recreational purposes.
(d) The state:
(1) has full power and control of all of the public freshwater lakes in Indiana both meandered and unmeandered; and
(2) holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.
5. IC 14-26-2-23 authorized the Commission to promulgate rules in order to provide for the mediation and resolution of riparian disputes along shorelines. Rules were adopted at 312 IAC 11-1 to regulate construction activities at Indiana lakes.
6. 312 IAC 11-1-3 provides an opportunity for riparian owners to seek resolution of disputes along public freshwater lakes. The section provides:
Sec. 3. (a) A riparian owner or the department may initiate a proceeding under IC 4-21.5 and 312 IAC 3-1 to seek resolution by the commission of a dispute among riparian owners, or between a riparian owner and the department, concerning the usage of an area over, along, or within a shoreline or waterline of a public freshwater lake.
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(b) A party to a proceeding initiated under subsection (a) may seek mediation of the dispute under IC 4-21.5. The administrative law judge shall approve the use of mediation if the request is made by:
(1) a party within thirty (30) days of the initiation of the proceeding;
(2) a party within thirty (30) days after a party is joined as determined necessary for just adjudication or by agreement of the parties; or
(3) agreement of the parties.
(c) The administrative law judge may at any time approve the use of mediation.
(d) If a good faith effort by the parties to the mediation fails to achieve a settlement, the department shall make an initial determination of the dispute, file the determination with the administrative law judge, and serve it upon the parties. Within twenty (20) days after filing the initial determination, a party may request that the administrative law judge perform administrative review of the initial determination.
(e) If a request for administrative review is received under subsection (d), the administrative law judge shall seek a final disposition of the proceeding as soon as is practicable.
7. Mediation was attempted in this matter without success. The hearing was held on November 21, 2003.
8. 312 IAC 11-3-1 provides in pertinent part:
Sec. 1. (a) The placement and maintenance of a temporary structure or a dry hydrant is authorized without a written license issued by the department under IC 14-26-2 and this rule if the temporary structure or dry hydrant qualifies under this section.
(b) In order for a temporary structure to qualify, the structure must satisfy each of the following:
(1) Be easily removable.
(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.
(3) Not unduly restrict navigation.
(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.
(5) Not extend more than one hundred fifty (150) feet from the legally established or average normal waterline or shoreline.
(6) If a pier, not extend over the water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the legally established or average normal waterline or shoreline.
(7) Not be a marina.
(8) Be placed by or with the acquiescence of a riparian owner...
9. On January 28, 2003, Kathy Gerbers, Donnalyn Melcher, Jacquelin Rekeweg, and Carolyn Hirsch, filed a petition with the Division of Hearings for the Commission, requesting that a temporary structure owned by Ed Nix and Marcia Nix (the "Nixes") be disallowed on Lake
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James in Steuben County, Indiana.
10. Lake James in Steuben County, Indiana is a "public freshwater lake" as defined at IC 14-26-2-3 and 312 IAC 11-2-17.
11 The Nixes are the riparian owners of property on Lake James at Lot Number five (5) in Glen Eden Springs. See Exhibits 3 and 5.
12. Kathy Gerbers, Donnalyn Melcher, Jacquelin Rekeweg, and Carolyn Hirsch are riparian owners of the property adjoining Nix; specifically at lot number six (6) in Glen Eden Springs. See Exhibits 1 and 5.
13. Elmer Buhr and Vera Buhr (the "Buhrs") are the riparian owners of property adjoining lot number six (6), specifically owners of lot number seven (7) in Glen Eden Springs. See Exhibit 2 and 5.
14. The Commission has considered the balance of riparian rights and the public trust doctrine in Brown, et al. v. DNR, 9 CADDNAR 109 (2003). Brown provides that "[t]he Lakes Preservation Act is "[p]ublic trust legislation" intended to recognize "the public's right to preserve the natural scenic beauty of our lakes...Riparian landowners...continue to possess their rights with respect to a public freshwater lake, but their rights are now statutory and must be balanced with the public's rights." Brown at 112.
15. The Indiana Court of Appeals provided a "reasonable test" when the exercise of riparian rights is at issue. See Zapfee v. Srbeny, et al., 587 N.E. 2d 177, 181 (1992 Ind. App.). The Zapfee court held that "riparian owners may exercise such rights as access, swimming, fishing, bathing, and boating, subject to a rule of reasonableness." Id. Reasonableness of the activity is determined on a case by case basis, with the hope of "accommodating the diverse characteristics of Indiana's numerous freshwater lakes" and avoid interference "with the use of the lake by others." Id.
16. On October 14, 2003, Gerbers, Melcher, Rekeweg and Hirsch, "Claimants," filed Contentions clarifying the nature of the review request. Contentions provide:
...
3. This year, Respondents have had on their lake frontage a conventional covered pontoon lift, two conventional covered boat lifts, a pier and a pier tent with opaque sides.
4.The Respondents used the pier tent this year to store a row boat and other lake related items.
5.The Plat of Glen Eden Springs has a restriction stating "no boat house extending into the lake shall be erected on any of said lots." Said restriction was contained in the original Plat dated February 4, 1922.
6. Prior to the erection of the pier tent, Claimants' lake view was partially obscured by the two covered boat lifts and the one covered pontoon lift. After the erection of the pier tent, Claimants' lake view is totally obscured when Claimants attempt to view the lake while seated on their lawn.
7. It is Claimant's contention that the pier tent is equivalent of a boat house and the ...Commission should not permit temporary structures with opaque sides and should also limit the number of covered shore stations per lake property owner.
17.The Nixes' use of Lake James clearly consists of a pontoon boat (Exhibit D), a rowboat (Exhibit 10), a personal watercraft (Exhibit L top right), and second boat (Exhibit L top right). A personal watercraft and a pontoon boat in Exhibit D, and L, and a smaller boat shown in Exhibit 8 evidence the Claimants' use of Lake James. The Buhrs' use of Lake James is shown through Exhibits L (left top photograph) which includes a pontoon boat and a small boat.
18. The
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question to be considered is whether the Nixes' "pier tent" is allowable under the Lakes Preservation Act.
19. Ed Nix testified that the pier tent was put up in April 2002 and taken down in October 2002. He states that his intent is that this pier tent be used as a temporary structure. Respondent Exhibits B and K that show the tent disassembly through a series of photographs support the testimony. The facts support a finding that the "pier tent" is temporary under 312 IAC 11-3-1(a).
20. 312 IAC 11-3-1(b)(2) requires that a temporary structure not infringe on the access of an adjacent landowner to the public freshwater lake. Carolyn Hirsch, one of the owners of the adjacent property to Nix, testified that the tent structure prevents her view of the lake to the right while sitting on her lawn. She stated that she and her sisters, Claimants in this case, always had an open view of the lake prior to the placement of this "pier tent".
21. Prior to the placement of the pier tent, Claimants' Exhibit 7 shows that a portion of the lake is seen through the various shore stations and boats to the right of Claimants' property, however, this court would not consider this is open. A myriad of watercraft and plants preclude an open view of the lake to Claimants' right.
22. Respondent's Exhibit B further shows that Claimants' view is not open to the right even when all the shore stations and boats are removed. Plants located on the Nix property preclude a full open view of the lake when Claimants are seated on their lawn.
23. The Buhrs' views on both sides of their property are restricted, with the presence of a pier with approximately eight (8) slips to the left. Claimants' views of the lake are moderately restricted to the left by the Buhrs' watercraft, and restricted to the right by both the plants and watercraft units owned by Nix. Nix also testified that all of his boatlifts and temporary structures are located within his property boundaries. Neither the Claimants nor Buhrs enjoy an unrestricted open view of the lake in any direction when neighboring landowners have boats docked off their shorelines. The Claimants and the Buhrs do not enjoy a full open view of the lake in front of their property since their own boats and watercraft prevent it.
24. The presence of the Nixes' pier tent does not unreasonably interfere with the Claimants' and Buhrs' use of the lake under the Zapfee test.
25. Claimants additionally assert that the pier tent constitutes a boathouse, precluded from use by the original Plat for Glen Eden Springs. See Claimants' Exhibit 15. First Sergeant William Snyder, Conservation Officer, for the Department, testified that he has enforced water rights in Steuben County since 1975. Snyder testified that a traditional boathouse is normally channeled back into the property and cut into the lake edge, unlike the Nixes' pier tent. Snyder further provided that if this was a boathouse, a permit would be required, and a permit is not required for this structure.
26. The record does not support a finding that this pier tent is a boathouse.
27. Claimants present no evidence on the failure of Nixes' pier to meet the requirements of (b)(3) through (b)(8) of 312 IAC 11-3-1. As Claimant bears the burden of proof in this case, no issue of fact is found with respect to these provisions.
28. On April 25, 1997, the Indiana General Assembly passed Public Law 239-1997 establishing a workgroup for the study and consideration of proposed solutions "for the problems affecting the lakes of Indiana." This workgroup consists of members of the House of Representatives, Senate, Department of Natural Resources, Department of Environmental Management, as well as several appointees.
29. Claimants request the Department to place a limit on the number of covered shore stations for each property owner. In order to determine an appropriate number of shore stations, the Department would be a necessary party to the action. Since the Department is not a party in this matter, the question of what constitutes an appropriate limit of shore stations cannot be answered here.