CADDNAR

[CITE: Barbee Villa Condominium Owners Assoc. v. Shrock, 10 CADDNAR 23 (2005)]

FINAL ORDER OF SUMMARY JUDGMENT

Gary Shrock cannot lawfully moor a boat on the western side of his pier and within the riparian area of the Barbee Villa Condominium Association. Shrock is ordered to refrain from mooring a boat, and to refrain from allowing another person to moor a boat while using his pier, on the western side of Shrock's pier and within this location.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Craig Ford ("Ford") owns a house within his proprietary interest in the Barbee Villa Condominium Horizontal Property Regime at a site adjacent to Big Barbee Lake, Kosciusko County, Indiana.

2. Big Barbee Lake is a "public freshwater lake" as the term is defined at IC 14-26-2-3 and is subject to IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act"). The Department of Natural Resources (the "Department") administers licensure and sanctioning under the Lakes Preservation Act. IC 14-26-2-6, IC 14-26-2-9, IC 14-26-2-19, IC 14-26-2-20, IC 14-26-2-22, and IC 14-26-2-23.

3. The Natural Resources Commission (the "Commission") is the "ultimate authority" for the Department under IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA"). IC 14-10-2-3. The Commission has adopted rules at 312 IAC 3-1 to assist with its implementation of AOPA.

4. In 2000, the Indiana General Assembly amended the Lakes Preservation Act with the enactment of P.L. 64-2000, SEC. 1, codified at IC 14-26-2-23.[FOOTNOTE A.] As pertinent here, the Commission was directed to adopt rules regarding the placement of temporary structures within a public freshwater lake. In addition, the Commission was directed to establish a process for the mediation of disputes among riparian owners.

5. Rules to address temporary structures and the use of mediation are now included within 312 IAC 11. The following sections are among those prominent to the implementation of IC 14-26-2-23: 312 IAC 11-1-1, 312 IAC 11-1-2, 312 IAC 11-1-3, 312 IAC 11-2-15, 312 IAC 11-3-1, and 312 IAC 11-3-2.

6. On June 1, 2004, Ford filed correspondence with the Commission seeking administrative review of a riparian rights dispute with Gary Shrock ("Shrock") on Big Barbee Lake. Ford alleged that Shrock "has moored a boat blocking access to the front of our pier. His boat is moored within our riparian zone." He wrote that one of the Department's Conservation Officers "reviewed my information and made a site visit. He informed...[Shrock the] boat must be moved...." The correspondence initiated this proceeding to apply the Lakes Preservation Act (particularly IC 14-26-2-23) to Ford's dispute with Shrock.

7. The Commission made personal service upon Shrock. By his attorney on July 7, 2004, Shrock filed a pleading entitled "Answer, Counterclaim and Affirmative Defenses" to Ford's request for administrative review.

8. During a telephone status conference held in this proceeding on August 25, 2004, Barbee Villa Condominium Owners Association ("Barbee Villa COA") was substituted for Ford as the real party in interest.

9. The Commission has jurisdiction over the subject matter and over the person of the parties.

10. Barbee Villa COA is the duly authorized owners association of the Barbee Villa Condominium Horizontal

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Property Regime. As such, Barbee Villa COA is charged with the obligation of maintaining and administering the property of the condominium, including the riparian rights which attach to the real estate subjected to the Horizontal Property Regime. This authorization is more particularly set forth in the Declaration of Horizontal Property Regime recorded in Miscellaneous Record 86, page 66 of the Office of Recorder of Kosciusko County.

11. Shrock is the owner of the following described real estate located in Kosciusko County:

Lot Number 12, the North 40 fet of Lot Number 14 and the South 24 and 1/2 feet of Lot 10 in Barbee Villa, according to the plat thereof in Plat Book 5, page 15 in the Office of the Recorder of Kosciusko County, Indiana.

Shrock has certain rights to the use of a "boat and dock landing for use by the lot owners" as shown in the plat of Barbee Villa. A copy was attached to the "Stipulations" filed on December 8, 2004.

12. Shrock maintains a pier extending southward from the "boat and dock landing area" into the waters of Big Barbee Lake the western side of which corresponds with the extension of the common line between the condominium and the plat of Barbee Villa extended into the waters of Big Barbee Lake.

13. Barbee Villa COA maintains a pier at the water's edge of its property extending into the waters of Big Barbee Lake. The pier's position allows the docking of a boat on the eastern side of the pier and adequate space east of the moored boat to maneuver a watercraft toward the landward end of the pier.

14. Shrock has docked a boat on the western side of his pier. Shrock's boat is located wholly within the riparian area of Barbee Villa COA and prevents Barbee Villa COA from navigating a watercraft between its boat and Shrock's boat and toward the lakeward end of Barbee Villa COA's pier.

15. The survey of Jerry K. Walker dated August 9, 2004 as Drawing No. BF-169 "A" accurately establishes the common line between the condominium and the plat of Barbee Villa. A copy of the survey was attached to the "Stipulations" filed on December 8, 2004.

16. The plat of Barbee Villa is recorded in Plat Book 5, page 15, in the Office of the Recorder of Kosciusko County, Indiana. An uncertified but true and accurate copy of the plat was attached to the "Stipulations" filed on December 8, 2004.

17. Aerial photographs from the Kosciusko County Geographic Information System accurately reflect the properties owned by the parties. Copies of the photographs were attached to the "Stipulations" filed on December 8, 2004.

18. The Administrative Law Judge memorialized discussions by the parties' attorneys and the Department's attorney, during an August 25, 2004 telephone status conference, in a "Report of Telephone Status Conference" that was entered on the same day. The Report stated that Shrock was docking a boat to a pier, where the pier was located Shrock's riparian area, but the boat was in Barbee Villa COA's riparian area. "A question of law is presented as to the propriety of the placement of the moored boat. The Department of Natural Resources reflected that it does not appear to have a compelling interest in this dispute and was not made a party."

19. Similarly, Barbee Villa COA reflects the "sole issue in this matter is whether [Shrock] may dock his boat in such a fashion that it is adjacent to his pier but occupies a portion of the riparian area of [Barbee Villa COA] as defined by the boundary lines of [Barbee Villa COA's] property extended into the waters of Big Barbee Lake." Barbee Villa COA's "Memorandum in Support of Motion for Summary Judgment" (December 8, 2004).

20. The parties both seek summary judgment under IC 4-21.5-3-23. If there is no genuine issue of material fact, summary judgment is appropriate, and, as a mater of law, the moving party is entitled to judgment. Chester v. Indianapolis Newspapers, Inc., 553 N.E.2d 137, 139 (Ind. App. 1990).

21. On a public freshwater

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lake, a myriad of other issues may be presented concerning the proprietary relationships between neighboring riparian owners or between a riparian owner and the Department where the Department is fiduciary for the public trust. The parties reference some of those issues in their briefs. They contest vehemently the order of events and the motivations for them. A party might present facts to show the existence of a binding agreement with the other party, adverse possession, a prescriptive easement, or some other event of legal import that would determine riparian rights. Absent a showing of this consequence, the history of which structure or which boat was placed in which configuration and by whom does not present a material fact. First in time first in right is not a viable factual or legal principle for determining the rights of riparian owners or those of the public on the open waters of public freshwater lakes.

22. In determining here that the Department was not a party needed for just adjudication, a consideration was the narrow scope of the issue statement. Can a person lawfully moor a boat adjacent to a pier, where the pier is located in the person's riparian area, but where the boat occupies the riparian area of the person's neighbor? As applied to this issue, the material fact is that the parties have fundamentally different perspectives for their respective navigational needs.

23. No decision of the Indiana Supreme Court, and no reported decision of the Court of Appeals of Indiana, answers this issue. Whether a person can lawfully moor a boat adjacent to a pier, where the pier is located in the person's riparian area, but where the boat occupies the riparian area of a neighbor, is a matter of first impression.

24. Four reported decisions offer insights. These are BATH v. COURTS, 459 N.E.2d 72 (Ind. Ct. App. 1984); Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. Ct. App. 1992); Abbs v. Syracuse, 655 N.E.2d 114 (Ind. App. 1995); and, Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001).

25. The Baths and the Courts were neighbors owning adjacent land on a public freshwater lake. Bath at 73. The Courts wished to build a platform at the end of their pier without interfering with a public pier located on land the opposite direction from the Baths. The Courts angled their pier away from the public pier. In the process, the platform crossed into the riparian area of the Baths. The Court of Appeals concluded, "[R]iparian right owners may build a pier within the extension of [their] shore boundaries only so far out as not to interfere with the use of the lake by others." A pier or platform that extended into the riparian area of another person was an encroachment. The law "prohibits encroachments upon the riparian rights of another." After noting "interruption of Baths' view had no weight in this decision," the Courts were ordered to remove their platform. Bath at 76.

26. In Zapffe, the Court of Appeals adopted a "'reasonableness' test" in an attempt to "accommodate the diverse characteristics of Indiana's numerous [public] freshwater lakes." The reasonableness test applies to the relationships between riparian owners as well as the relationship between a riparian owner and the public. Riparian owners may exercise rights such as access, swimming, fishing, bathing, and boating subject to the rule of reasonableness. The installation of a pier by a riparian owner is a reasonable use under the Lakes Preservation Act "so long as it does not interfere with the use of the lake by others... Thus, any extension of a pier beyond the point required for the mooring and launching of boats might be considered unreasonable." Zapffe also reflects that a riparian owner does not have standing to enforce a restriction in the Lakes Preservation Act for an area outside the owner's riparian area. This authority resides in the Department. Zapffe at 181.

27. Riparian rights are a proprietary interest derived from ownership of the fee title to land that abuts the lake. "With regard to riparian rights, a riparian owner acquires his rights to the water from his fee title to the shoreland." Abbs at 115.

28. Riparian rights are now correlative with

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those of the public,but the Lakes Preservation Act does not eliminate riparian rights. The Lakes Preservation Act is "[p]ublic trust legislation" intended to recognize "the public's right to preserve the natural scenic beauty of our lakes and to recreational values upon the lakes." The Court 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." Lake of the Woods at 401.

29. A person who is not a riparian owner has the lesser interests of the public in another person's riparian area. The public may enjoy natural scenic beauty and recreational values, such as navigation and fishing. Within another person's riparian area, these values are generally temporal. A riparian owner is also entitled to these values but may additionally enjoy the benefits attributable to improvements (such as wharves, piers, and boat stations) as a consequence of the riparian owner's proprietary interests. Within the riparian area, and with due consideration for the public trust, the riparian owner is entitled to those values that are more enduring, as well as those that are temporal.

30. Within a person's riparian area, the person has standing to seek protection from encroachment for those values attributable to the person's enduring proprietary interests, such as those pertaining to the placement of wharves, piers, and boat stations. If a person is not the riparian owner of the area where an encroachment takes place, the person may lack standing to complain, although the Department may seek to secure the values protected by the Lakes Preservation Act. Zapffe at 181. The protection of a merely temporal value, such as the enjoyment of scenic beauty, may be too ephemeral or too subjective to support a successful adjudication. Bath at 76.

31. A boat upon the water constitutes a lake usage that is exclusive or nearly so. When actively used for transportation, fishing, hunting, or any of a number of other recreational activities, this exclusive usage is temporal. When a boat is moored to a pier, the consequences of the usage are similar to those of the pier, and the boat essentially becomes an extension of the pier. Mooring a boat is an exercise of proprietary rights and would typically be unreasonable in the same locations where a pier would be unreasonable. If the location of a pier were to violate the "reasonableness" test, typically a boat moored in that same location would also violate the "reasonableness" test.

32. Extraordinary facts might be imagined where a different result would follow. For example, the "reasonableness" test might be satisfied if one riparian owner granted a deed to another riparian owner, and mooring a boat on the riparian waters of the other implemented the deed's apparent intent. Another example might be if the facts demonstrated the riparian owner suffered no interference to riparian rights.[FOOTNOTE B.] These are not the facts here. The aspirations of boat ownership and recreation, and the limitations of space, present a genuine challenge to both parties.

33. As provided in IC 4-21.5-3-32, an agency is required to index final orders. The agency may rely upon indexed orders as precedent. In November 1988, the Commission adopted "Caddnar" as the index of agency decisions anticipated in AOPA.

34. An issue similar to the one for consideration here was addressed by the Commission in Piering v. Ryan and Caso, 9 Caddnar 123 (2003). "Similarly to Indiana, Michigan uses a 'reasonableness' test to govern the interests among riparian owners on inland lakes. The surface may be used for boating, swimming, fishing, and similar purposes as long as they do not interfere with reasonable uses by other riparian owners. In applying the 'reasonableness' test, Michigan has determined use of a pier may be limited to loading and unloading a boat, if the limitation is needed to allocate waters for reasonable use by another riparian owner. W. Mich. Dock v. Lakeland Inv., 534 N.W.2d 212 (Mich. App. 1995)." The Commission determined that to "fully enjoy their riparian rights, the

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Claimants need ready ingress and egress to their pier and their shoreline. That enjoyment may reasonably require temporary usage of" the waters of a public freshwater lake, located in the riparian areas of the Claimants' neighbors, "for the purposes loading and unloading a boat. A temporary use of this nature does not unreasonably infringe on the riparian rights of the Respondents and is consistent with the Lakes Preservation Act...." The Commission determined, however, that usage by the Claimants of their neighbors' riparian areas "to permanently moor a boat" would violate the "reasonableness" test. "A usage of this nature would unreasonably interfere with [the neighbors'] riparian rights."

35. The facts are not in material dispute. Shrock cannot lawfully moor a boat on the western side of his pier and within the riparian area of Barbee Villa COA. Doing so prevents Barbee Villa COA from navigating a watercraft between its boat and Shrock's boat and toward the lakeward end of Barbee Villa COA's pier. Doing so is an unreasonable infringement upon Barbee Villa COA's riparian rights.

36. The Conservation Officer's order to Shrock to remove his boat should be implemented by prohibiting future mooring by Shrock, or by other persons using Shrock's pier, at that location.

FOOTNOTES:

A. IC 14-26-2-23 was enacted in response to Ind. Dept. Natural Resources v. Town of Syracuse, 686 N.E.2d 410 (Ind. App. 1997) in which the Appeals Court of Indiana determined the Lakes Preservation Act did not authorize the Department to regulate temporary piers. The new statutory section had been recommended by the Indiana Lakes Management Work Group to clarify that the Department should regulate both permanent structures and temporary structures, through rules adopted by the Commission. See discussion of Category 21 in "The Public Trust Doctrine and Navigable Waters and Public Freshwater Lakes", Natural Resources Commission Information Bulletin #41, 27 Ind. Reg. 2109, 2111 (March 1, 2004).

B. The parties stipulated to the admission of two unreported decisions of the Court of Appeals of Indiana. Gruppe v. Ummel, Cause No. 43A03-9811-CV-457 (June 28, 1999) and Merow v. Rice, Cause No. 46A03-0201-CV-28 (October 7, 2002). Neither of these decisions is cited here as authority. In addition to being unreported, both are appeals from negative judgments. If they were controlling authority, however, Gruppe might stand for the proposition that a moored boat does not pose a legally recognizable interference to a riparian owner where its only consequence is to the enjoyment of scenic beauty. Merow might stand for the proposition that ordinarily neither a pier, nor a boat moored to a pier, may be located in the riparian area of another.