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Cause #: 03-082W
Caption: Brown and Zeller, et al. v. DNR
Administrative Law Judge: Lucas
Attorneys: Cornelius (Claimants); Knotek (DNR)
Date: February 5, 2004
FINAL ORDER
1. The following temporary piers on Clear Lake in Steuben County are approved as lawful nonconforming uses under IC 14-26-2 and 312 IAC 11-5-2:
A. A pier maintained by Jon and Janet Zachrich that is supported by auger posts and that is 238 feet long.
B. A pier maintained by David E. Russert that is supported by auger posts or removable sockets and that is 195 feet long.
C. A pier maintained by Alan V. Brown that is supported by auger posts (or uprights that are supported by mud plates less than 15 inches wide) and that is 240 feet long.
D. A pier maintained by Tom Kramer that is supported by auger posts and that is 240 feet long.
E. A pier maintained by Edward J. Zeller that is supported by auger posts and that is 240 feet long.
2. Each of the Claimants is limited to the dimensions described in Item 1 and to the pier configuration that existed on July 1, 2000.
3. This Nonfinal Order is without prejudice to the Department of Natural Resources if choosing to seek relief under 312 IAC 11-5-2(b), 312 IAC 11-5-2(c), or 312 IAC 11-5-2-(d).
4. The "Stay Regarding Placement of Temporary Piers" entered on June 13, 2003 is vacated as being moot.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Clear Lake in Steuben County, Indiana is a "public freshwater lake" as the phrase is defined at IC 14-26-2-3 and at 312 IAC 11-2-7. Clear Lake is subject to IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act") and rules adopted by the natural resources commission (the "Commission") at 312 IAC 11 to assist in the implementation of the Lakes Preservation Act.
2. The Lakes Preservation Act does not eliminate riparian rights. Zapfee v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992) and Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984). The law is stated succinctly by the Court of Appeals of Indiana in Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001). The Lakes Preservation Act is "[p]ublic trust legislation" intended to
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recognize "the public's right to preserve the natural scenic beauty of our lakes and to recreational values upon the lakes." The Court further observed that "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."
3. The department of natural resources (the "DNR") is the agency charged with administration of the Lakes Preservation Act.
4. The Commission is the "ultimate authority" under IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA") for the DNR. IC 14-10-2-3. The Commission has adopted rules at 312 IAC 3-1 to assist in its implementation of AOPA.
5. This proceeding is the consolidation of separate timely requests for administrative review filed with the Commission by Alan V. Brown, Tom Kramer, David E. Russert, Jon Zachrich, Janet Zachrich, and Edward J. Zeller (the "Claimants") from the DNR's denial of license applications under the Lakes Preservation Act.
6. The Lakes Preservation Act is subject to administrative review by the Commission under AOPA. The Commission has jurisdiction over the subject matter and over the persons of the parties under AOPA and 312 IAC 3-1.
7. The purposes of the Lakes Preservation Act are set forth in IC 14-26-2-5:
Sec. 5. (a) As used in this section, "natural scenic beauty" means the natural condition as left by nature without manmade additions or alterations.
(b) As used in this section, "recreational purpose" means the following:
(1) Fishing.
(2) Boating.
(3) Swimming.
(4) The storage of water to maintain water levels.
(5) Any other purpose for which lakes are ordinarily used and adapted.
(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.
(e) A person owning land bordering a public freshwater lake does not have the exclusive right to the use of the waters of the lake or any part of the lake.
8. In 1997, the Indiana Third District Court of Appeals of Indiana addressed Department licensure of pier placement under this section. The Court determined the Lakes Preservation Act did not vest authority in the Department to require licenses for the seasonal installation of piers using auger posts. "A review of the Lake[s] Preservation
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Act reveals that the legislature was contemplating the regulation of activities of a more violent and substantial nature than securing three-and-a-half inch posts two to three feet into a lake bed." Department of Natural Resources v. Town of Syracuse, et al., 686 N.E.2d 401 (Ind. App. 1997).
9. Before the decision in Town of Syracuse, the DNR exercised licensure authority for temporary piers on public freshwater lakes based on two sections of the Lakes Preservation Act. First, IC 13-2-11.1-3(a) provided that "No person may change. . .the shoreline of a public freshwater lake by excavating, filling in, or otherwise causing a change in the area or depth or affecting the natural resources, scenic beauty, or contour of the lake below the waterline or shoreline, without first securing a written permit" issued by the DNR. This statutory section was enacted in 1982 by P.L. 103, and the section essentially recodified language formerly found at IC 13-2-11-14. P.L. 103 became effective on February 24, 1982. The second statutory section relied upon was IC 13-2-11.1-5. "Upon application by the owner of land abutting a public freshwater lake, the [DNR] may issue a permit to change the shoreline or alter the bed of a public freshwater lake after investigating the merits of a written application. . . ." This section also became effective February 24, 1982, and it essentially recodified IC 13-2-11-2.
10. In implementing the Lakes Preservation Act, IC 14-26-2-23(2) authorizes the Commission to exempt a class of activities from licensure if the Commission finds that the class is "unlikely to pose more than a minimal potential for harm to the public rights" described in IC 14-26-2-5. A similar concept already existed at IC 14-10-2-4(b) before the 2000 enactment of IC 14-26-2-23.
11. The first rule section adopted by the Commission concerning piers was 310 IAC 6-2-14 that, on its face, was to have become effective on January 5, 1991. This section established a general license for a qualified temporary structure. Specifications for qualification were described in 310 IAC 6-2-14(a). A "pier" could qualify as a temporary structure where "supported by auger poles or other poles which do not exceed three and one-half (3 1/2) inches in diameter and which rest on the lake bed", if the poles were not mounted in, or comprised of, concrete or cement. 310 IAC 6-1-14(d)(1). In 1999, 310 IAC 6-2-14 was recodified at 312 IAC 11-3-1.
12. The DNR based its authority to regulate temporary piers upon the Lakes Preservation Act, not upon rules adopted under the Lakes Preservation Act. The DNR did not base its authority to regulate temporary piers upon 312 IAC 11-3-1 or its predecessor, 310 IAC 6-2-14. These rules were manifestations of the DNR's interpretation that IC 13-2-11.1-3(a) and IC 13-2-11.1-5 required a license for the placement of temporary piers on public freshwater lakes. 312 IAC 11-3-1 and its predecessor were efforts to engage IC 14-10-2-4(b) and IC 14-26-2-23(2), offering qualified riparian owners the opportunity to act upon a general license rather than to satisfy the rigors associated with a specific license.
13. Similarly, Town of Syracuse
considered whether the Lakes Preservation Act conferred authority to regulate temporary piers. The decision was not directed to the concepts or goals of 312 IAC 11-3-1 or 310 IAC 6-2-14 but to the DNR's underlying statutory interpretation for adopting those rules. With the decision of the Court of Appeals of Indiana, the DNR need not provide riparian owners with the opportunity to obtain a general license for the placement of qualified temporary piers. The agency lacked the requisite statutory authority to regulate the seasonal installation, on public freshwater lakes, of piers using
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auger posts. With Town of Syracuse, 312 IAC 11 became unenforceable as it applied to temporary piers.
14. In 1997, the Indiana General Assembly established the Indiana Lakes Management Work Group. The work group included citizens with a breadth of knowledge and interests in lakes, as well as bipartisan representation with two members from the Indiana Senate and two from the Indiana House of Representatives. The substantive charge to the work group was to develop proposed solutions to problems affecting Indiana lakes. P.L. 239-1997. In response to this charge, the work group met 24 times between 1997 and 1998 and offered numerous recommendations. One of the recommendations was directed to the Town of Syracuse decision:
On October 16, 1997, the Court of Appeals ruled that the Indiana Department of Natural Resources (DNR) has no statutory authority under [the] Lakes Preservation Act to require permits for seasonal installation of piers or other structures that are of a temporary nature, so long as the installation method has minimal impact on the bed of the lake.
Although there are other areas of law that suggest DNR has the authority to regulate temporary structures in public freshwater lakes, the authority is not definitive and is cumbersome to apply.
The result of this condition of law is that DNR is unable to effectively manage public freshwater lakes in the full spirit of "public trust" as mandated by law. Additionally, the ability of public freshwater lakes, users, property owners, and local governments to resolve disputes short of expensive court battles is unrealistically limited.
Structures that are considered temporary, and have "de minimis" impact on the lake bed are left to uncontrolled proliferation. The result is loss of public usage of areas within 150 feet of shore, an increase in riparian owner disputes, and environmental harm to the lakes.
DNR has attempted to manage this problem through agency rule-making authority. This process has not adequately dealt with the problem, and clear authority must be re-established by the legislature to protect Indiana's public freshwater lakes for property owners, current users, and future stakeholders.
The work group recommended:
The Indiana Lakes Management Work Group recommends that the Indiana General Assembly amend the public freshwater lake law to add a new section that reads as follows:
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IC 14-26-2-5.5. The Commission shall adopt rules under IC 14-10-2-4 to assist in the administration of this chapter. The rules must, as a minimum, do the following:
(1) Provide objective standards for licensing the placement of any temporary or permanent structure or material, or the extraction of material, over, along, or within the shoreline or waterline. These standards shall exempt any class of activities from licensing where the Commission finds the class is unlikely to pose more than a minimal potential for harm to the public rights or public trust as described in IC 14-26-2-5.
(2) Establish a process under IC 4-21.5 for the mediation of a dispute among riparian owners, or by a riparian owner against the department, relative to the usage of an area over, along, or within the shoreline or waterline for a matter within the jurisdiction of this chapter. If after a good faith effort mediation under this subdivision fails to achieve a settlement, the department shall make a determination of the dispute. A person affected by the determination may seek administrative review by the Commission.
"Final Report of the Indiana Lakes Management Work Group", (Indiana Department of Environmental Management, Dec. 1999), pp. 40 and 41.
15. The Indiana General Assembly enacted P.L. 64-2000 to implement this work group recommendation and to clarify that the Lakes Preservation Act has broader application than stated in the Town of Syracuse. The licensure provisions in the Lakes Preservation Act were retained, and an important new licensure provision was codified at IC 14-26-2-23:
Sec. 23. The [C]ommission shall adopt rules in the manner provided in IC 14-10-2-4 to do the following:
(1) Assist in the administration of this [Lakes Preservation Act] chapter.
(2) Provide objective standards for licensing:
(A) the placement of a temporary or permanent structure or material; or
(B) the extraction of material;
over, along, or within the shoreline or waterline. The standard shall exempt any class of activities from licensing if the commission finds that the class is unlikely to pose more than a minimal potential for harm to the public rights described in section 5 of this chapter.
(3) Establish a process under IC 4-21.5 for the mediation of disputes among riparian owners or between a riparian owner and the department concerning usage of an area over, along, or within a shoreline or waterline for a matter within the jurisdiction of this chapter. The rule must provide that:
(A) if good faith mediation under the process fails to achieve a settlement, the department shall make a determination of the dispute; and
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(B) a person affected by the determination of the department may seek administrative review by the commission.
This section became effective on July 1, 2000. P.L. 64-2000.
16. The enactment of IC 14-26-2-23 may either be viewed as a repudiation of the Town of Syracuse decision or as a new vision for the DNR's responsibilities in light of concerns raised by the Indiana Lakes Management Work Group. In either event, IC 14-26-2-23(2)(A) was written with a clear understanding of Town of Syracuse and with a clear legislative intention to regulate temporary structures on public freshwater lakes.
17. Much of IC 14-26-2-23 was already implemented at 312 IAC 11 when the legislation became effective. Pertinent rule provisions had been adopted before the Town of Syracuse decision, and these were not subsequently repealed. As required by IC 14-26-2-23(3), the Commission added new rule provisions to address mediation. The portions of 312 IAC 11 dealing with temporary piers and other temporary structures were again enforceable beginning on July 1, 2000.
18. The rules implementing the Lakes Preservation Act address nonconforming uses at 312 IAC 11-5-2:
Sec. 2. (a) A structure or facility that was lawfully placed before the effective date of a section of this rule (including a structure or facility lawfully placed under a section of 310 IAC 6-2 before its repeal), which would be unlawful if placed after that date, is a lawful nonconforming use.
(b) A lawful nonconforming use under subsection (a) may be ordered to be removed or modified by the director, or the director's designee, if the structure or facility is either of the following:
(1) A nuisance that adversely affects public safety, natural resources, natural scenic beauty, or water level of a public freshwater lake.
(2) Modified in a manner for which a license is required under IC 14-26-2 or this rule.
(c) An order issued under subsection (b) is controlled by IC 4-21.5-3-8, unless an emergency exists, in which event IC 4-21.5-4 may be applied.
(d) Nothing in this rule affects the department's right to seek injunctive or other relief under IC 14-26 or another applicable law.
19. 312 IAC 11-5-2(a) is inartfully drawn. The stated application of the section is limited to "this rule". Applying the conventions of the Legislative Services Agency, the rule designated in subsection (a) is 312 IAC 11-5. "Administrative Rules Drafting Manual", Indiana Legislative Services Agency, Approved and Published by the Indiana Legislative Council (September 10, 1997), p. 8.
20. The provisions for the licensure of particular structures, along or within public freshwater lakes, are set forth mostly in 312 IAC 11-3 and 312 IAC 11-4. Restricting application of 312 IAC 11-5-2 to 312 IAC 11-5 would essentially render 312 IAC 11-5-2 a nullity. General principles of statutory and rule construction require that an effort be made to give meaning to every word and phrase,
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and it cannot be presumed a nullity or a meaningless statute or rule was adopted. Indiana Waste Systems of Indiana, Inc. v. Indiana Dept. of State Revenue, 633 N.E.2d 359 (Ind. Tax 1994). The presumption is there is no superfluous statute or rule, and the entity interpreting a statute or rule must endeavor to give meaning to every word. Mynsberg v. Department of State Revenue, 716 N.E.2d 629 (Ind. Tax 1999); and, King v. Hamilton County Commissioners and DNR, 9 Caddnar 86 (2003).
21. The wording of 312 IAC 11-5-2(a) is most likely an unfortunate artifact of the recodification of 310 IAC 6-2 to 312 IAC 11. The former section for nonconforming uses (310 IAC 6-2-23) properly referenced the other sections of a single rule (310 IAC 6-2) that governed the licensure of particular structures. When 310 IAC 6-2 was recodified as 312 IAC 11, however, the licensure of particular structures was addressed in multiple rules (312 IAC 11-3, 312 IAC 11-4, and, perhaps, 312 IAC 11-5), and the reference in 2(a) failed to account for the change.
22. Applying to 312 IAC 11-5-2(a) the Commission's most-likely intent, the subsection would state:
(a) A structure or facility that was lawfully placed before the effective date of a section of [312 IAC 11-3, 312 IAC 11-4, or] this rule (including a structure or facility lawfully placed under a section of 310 IAC 6-2 before its repeal), which would be unlawful if placed after that date, is a lawful nonconforming use.
The subsection is implemented here as if it were worded in this fashion.
23. The standards for nonconforming uses in 312 IAC 11-5-2 apply to licensures under 312 IAC 11-3, 312 IAC 11-4, and 312 IAC 11-5, including the licensure of temporary piers.
24. Although commonly considered in the context of ordinances, the application of principles of nonconforming uses can arise in the context of rules or other similar regulatory structures. As applied to a rule, a nonconforming use is a use of the premises that legally existed before the effective date of the rule, and that is permitted to continue subsequent to the enactment of the rule despite the fact it does not conform to the rule.
25. Providing for nonconforming uses in the context of rules is harmonious with the principle of construction that, absent strong and compelling reasons, rules are given only prospective application. Mann v. State Dept. of Highways, 541 N.E.2d 929, 936 (Ind. 1984).
26. The law does not generally favor a nonconforming use because it detracts from the purpose of the rule, which is to confine certain classes of uses and structures to certain areas. Kosciusko County Bd. of Zoning Appeals v. Smith, 724 N.E.2d 279 (Ind. App. 2000); transfer denied 741 N.E.2d 1251.
27. The person who claims a legal nonconforming use has the burden of establishing the claim. When the lawful conforming use is established, the burden of termination of the use by abandonment or discontinuance rests on the governmental entity opposing the nonconforming use. Town of Avon v. Harville, 718 N.E.2d 1194 (Ind. App. 1999), rehearing denied, transfer denied 735 N.E.2d 233.
28. The pertinent facts are presented by the Claimants on summary judgment and are not in material dispute. Each of the Claimants' piers was temporary and was erected before July 1, 2000. Each was placed on auger posts not exceeding 3 1/2 inches in diameter. Each pier was more than 150 feet long. More particularly, the Zachrich pier was 238 feet long. The Russert pier
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was 195 feet long. The Brown pier was 240 feet long. The Kramer pier was 240 feet long. The Zeller pier was 240 feet long. November 10, 2003 Affidavit of Jon Zachrich; November 7, 2003 Affidavit of David E. Russert; November 6, 2003 Affidavit of Alan V. Brown; November 10, 2003 Affidavit of Tom Kramer; and, November 10, 2003 Affidavit of Tom Kramer.
29. Based upon the holding in Town of Syracuse, the Lakes Preservation Act did not apply to the Claimants' temporary piers. Before July 1, 2000, the Lakes Preservation Act did not confer jurisdiction upon the DNR to regulate these piers. With the July 1, 2000 effectiveness of IC 14-26-2-23, the piers became subject to licensure under the Lakes Preservation Act. Because the piers were more than 150 feet long, they would not qualify for a general license under 312 IAC 11-5 and would each require a specific license, if they were new. The piers were not new, however; they were already in existence. On July 1, 2000, the Claimants' piers became lawful nonconforming uses under the Lakes Preservation Act.
30. Once a legal nonconforming use is established, the agency has the burden of proving a termination of the use by abandonment or discontinuance. Jacobs v. Mishawaka Bd. of Zoning Appeals, 395 N.E.2d 834, 182 Ind. App. 500 (Ind. App. 1975). The mere discontinuance of use is not sufficient to show abandonment. The proprietor of a nonconforming use must manifest an intention to abandon or discontinue. Stuckman v. Kosciusko County Bd.of Zoning Appeals, 506 N.E.2d 1079 (Ind. App. 1987).
31. The DNR observes the "subject piers are, by definition, temporary piers" and urges this character makes them ineligible for retention as lawful nonconforming uses. Temporary piers placed within public freshwater lakes may typically be removed in winter months, but this seasonal character constitutes neither discontinuance nor abandonment.
32. The DNR has a remedy. The DNR's director or the director's designee may seek removal of a pier through a complaint filed under IC 4-21.5-3-8 if the pier is a nuisance that is believed to affect public safety, natural resources, or the natural scenic beauty of a public freshwater lake. 312 IAC 11-5-2(b) and 312 IAC 11-5-2(c).
33. In the alternative, the DNR may seek appropriate injunctive relief under IC 14-26 or another applicable law. 312 IAC 11-5-2(d).
34. For the remedies described in Finding 32 and Finding 33, the DNR has the burden of persuasion and the burden of going forward (sometimes collectively referred to as the "burden of proof"). This burden is not onerous, however, and placing it upon the agency is consistent with the general principles of lawful nonconforming uses and with 312 IAC 11-5-2.*
FOOTNOTE
* An analogous circumstance applies under AOPA to license renewals. If a license holder timely files a renewal application, an agency cannot use license expiration to implement license revocation. The agency must carry the burden of proof to demonstrate cause for revocation. IC 4-21.5-3-5(g).