CADDNAR

[CITE: Scharlach v. Doswell, 11 CADDNAR 420 (2008)]                                                                           

 

[VOLUME 11, PAGE 420]

 

Cause #08-073W

Caption: Scharlach v. Doswell (Third Party: DNR)

Administrative Law Judge: Lucas

Attorneys: Scharlach (pro se); Doswell (pro se); Boyko (DNR)

Date: October 27, 2008

 

 

[NOTE: ON OCTOBER 25, 2008, THE GRANDES ELECTED TO EMPLEMENT ITEM (2) OF THE FINAL ORDER. ON NOVEMBER 25, 2008, THE ADMINISTRATIVE LAW JUDGE ENTERED A FINAL ORDER OF SUPPLEMENTATION.]

 

 

FINAL ORDER

 

Item (1): As a consequence of the agreement among the Claimants and the Respondents for relocation of the Doswells’ pier and boat lift, and the Doswells’ compliance with the agreement for relocation of their pier and boat lift, the Doswells are dismissed with prejudice.

 

Item (2): The Grandes may maintain their pier and related facilities so long as they do not reconfigure, lengthen, or enlarge the current footprint; provided, however, that they must obtain and file with the Commission a survey before January 1, 2009, performed by a land surveyor registered under IC 25-21.5, which identifies the location of the Grandes’ pier and related facilities.  Among the parties and their successors, if a timely survey is performed, the Grandes’ pier and related facilities are treated as if qualified as lawful nonconforming uses under 312 IAC 11-5-2. 

 

Item (3): If the Grandes do not obtain and file a survey under Item (2), they are not required to remove their pier and current facilities, but no disposition is made concerning the propriety of placement.  Any party could initiate a new proceeding with the Commission pertaining to the placement of their pier or current facilities.

 

Item (4): If no party petitions for judicial review of this Final Order, the Commission and its administrative law judge shall retain jurisdiction over the proceeding until May 1, 2009 to address any matter appropriate to the disposition of Item (2).

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Case and Jurisdiction

 

 

[VOLUME 11, PAGE 421]

 

1. On April 29, 2008, Daniel S. Scharlach and Jillian C. Scharlach (the “Scharlachs”) filed a complaint with the Natural Resources Commission (the “Commission”) seeking the resolution of a dispute with Robert Doswell and Nyla Doswell (the “Doswells”) and John Grande and Linda Grande (the “Grandes”) as to the delineation of their respective riparian areas within Jimmerson Lake in Steuben County.  The complaint indicated that a Department of Natural Resources (“DNR”) Conservation Officer agreed with the Scharlachs’s interpretation of the respective riparian areas, so the DNR was named as a Third Party Respondent.  The Scharlachs, the Doswells, the Grandes, and the DNR are collectively the “parties”.

 

2. Jimmerson 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”).  Halstead v. Department of Natural Resources, 7 Caddnar 71 (1993) and Kinder v. Department of Natural Resources, 8 Caddnar 23 (1998).

 

3. In 2000, the Indiana General Assembly enacted P.L. 64 which encouraged informal dispute resolution of disputes among riparian owners through the DNR and with the opportunity for administrative review by the Natural Resources Commission (the “Commission”).  P.L. 64 was codified, in part, at IC 14-26-2-23.

 

4. The Commission’s administrative law judge sent a “Notice of Prehearing Conference” to the parties, with a copy of the complaint by the Scharlachs attached, scheduling a conference for May 30, 2008 in Columbia City, Indiana.  Each of the parties appeared as scheduled in person or by a representative. 

 

5. The Commission has jurisdiction over the subject matter and over the persons of the parties.

 

 

B. Doswells’ Pier and Boat Lift

 

6. A “Report of Prehearing Conference and Notice of Telephone Status Conference” was entered to memorialize the discussions during the May 30 prehearing conference.  Included in this Report was the following statement: “After extended discussions among the parties, Robert Doswell announced he had determined to remove his boatlift and to move his pier so it does not extend across the extended lot line shared with the Scharlachs.  The parties agreed that with these modifications, the Doswells should be dismissed as parties.”  They also agreed a telephone status conference should be set for June 27, 2008.

 

7. A telephone status conference was conducted as scheduled on June 27, 2008.  A “Report of Telephone Status Conference and Notice of Telephone Status Conference” was entered to memorialize the discussions during the status conference.  Included in this Report was a statement “that progress has been made toward removal of the Doswell pier and boatlift, but the process is incomplete.  Scharlach and Grande agreed additional time should be allowed for Doswell to remove these facilities, and there might be no remaining controversy when removal was completed.”  The parties also agreed another telephone status conference should be set for August 22, 2008 to monitor the Doswells’ progress.

 

[VOLUME 11, PAGE 422]

 

8. A telephone status conference was conducted as scheduled on August 22, 2008.  The Grandes participated through John J. Grande.  Ihor N. Boyko was the DNR’s attorney.  A telephone call was made to Daniel S. Scharlach and Jillian C. Scharlach, but the administrative law judge received only the response of an answering machine.  A message was left on the machine indicating the Scharlachs could return the call and be included in the telephone status conference.  During the status conference of August 22, 2008, John Grande reported Doswell completed removal of the pier and boatlift from Jimmerson Lake and relocated them so the pier did not interfere with the shared extended lot line of the Doswells and the Scharlachs.  As a result, the boatlift was now opposite the Scharlachs’s property line (in other words, north instead of south of the pier).  Grande added that his pier and any related facilities were 17 feet from the extended lot lines.  The DNR and the Grandes both orally moved to dismiss the Scharlachs’ petition for their failure to participate in the telephone status conference.

 

9. In response to the motions to dismiss by the Grandes and the DNR, the administrative law judge entered a “Notice of Proposed Dismissal” dismissal as follows:

 

(1) Robert A. Doswell and Nyla Doswell have reconfigured their pier and boatlift as anticipated by the parties during the initial prehearing conference (and confirmed during the telephone status conference of June 27, 2008).  In accordance with this agreement, there is no case or controversy remaining within this proceeding as to the placement of the Doswells’ facilities.

 

(2) The location of the Grandes’ pier and any related facilities, as currently configured, do not pose an encroachment on the riparian zone of the Scharlachs.

 

(3) The oral motions to dismiss by the Department of Natural Resources and by the Grandes, made on August 22, 2008, are meritorious.  The Scharlachs have failed to attend or otherwise participate in the telephone status conference of August 22, a critical stage of the proceeding.

 

(4) Based upon the configurations of the piers, boatlifts and any related facilities of the parties as they exist on August 22, 2008, the dismissal should be made with prejudice to the Scharlachs.  The Doswells and the Grandes may maintain these facilities as they exist on August 22, 2008 without a subsequent claim against them by the Scharlachs or successors in interest of the Scharlachs.

 

10. The parties were provided until September 2, 2008 to file a motion requesting a final order of dismissal not be imposed, as set forth in the “Notice of Proposed Dismissal”, and stating the grounds relied upon for the request.

 

[VOLUME 11, PAGE 423]

 

11. On August 28, 2008, the Scharlachs filed a timely response to the “Notice of Proposed Dismissal”.  The response stated in substantive part as follows:

Point 1 and 3 are fine.

 

Point 2: The location of the Grandes’ pier and any related facilities, as currently configured, do not poise an encroachment on the riparian zone of the Scharlachs’ as per the old definition of this prior to information bulletin that was issued in 2008.  Both parties agree that at this point in time we are content with not taking this to the next step which would be going to court.

 

Point 4: The Grandes’ may maintain the current location of pier and any related facilities if there is not a desire on either party to take this action to the next stage; court of law.  This applies to the Scharlachs’ or successor owner of interest thereof.

 

12. No party other than the Scharlachs filed a response to the “Notice of Proposed Dismissal”.  In their response, the Scharlachs stated they were “fine” with the statement that Robert A. Doswell and Nyla Doswell have reconfigured their pier and boatlift as anticipated by the parties during the initial prehearing conference (and confirmed during the telephone status conference of June 27, 2008).  In accordance with this agreement, there is no case or controversy remaining within this proceeding as to the placement of the Doswells’ facilities.

 

13. Between the Doswells and the other parties, there is a fully executed agreement.  The Doswells reconfigured their pier and boatlift as anticipated by the parties during the initial prehearing conference (and confirmed during the telephone status conference of June 27, 2008).  In accordance with this agreement, there is no case or controversy remaining as to placement of the Doswells’ facilities.  The Doswells should be dismissed.

 

 

C. Grandes’ Pier and Related Facilities

 

14. On September 1, 2008, the administrative law judge filed an “Entry Regarding Notice of Proposed Dismissal” in which he provided the parties until September 24, 2008 to reply to the Scharlachs’ response.

 

15. On September 8, 2008, the Grandes filed a timely reply as anticipated by the Entry of September 1.  The reply stated in substantive part[1] as follows:

 

Both John and Linda Grande, the respondents, have issues with the facts stated in point two of the response.  “Both parties agree that at this point in time we are content with not taking this to the next step which would be going to court.”  We, the Grande’s, have never agreed to this misleading and untrue statement.  We agree to the dismissal of this dispute that the

 

[VOLUME 11, PAGE 424]

 

Scharlachs stated was “fine” in point three in their response.  However, we want total dismissal for now and any subsequent claim by the Scharlachs and or any subsequent successors that may own that property.  If this is not agreeable to the claimants, we wish to resolve this in a court of law as soon as possible.  We wish to finalize this matter for current and all subsequent owners or interest thereof.

 

….

 

In conclusion, the Grande’s are steadfast in the belief that they are in no way encroaching on anyone’s riparian zones.

 

16. No other party replied to the Scharlachs’s response.

 

17. Defaults are governed under AOPA at IC 4-21.5-3-24.  An administrative law judge is to enter a notice of proposed default if a party fails to “attend or participate in a prehearing conference, hearing, or other stage of the proceeding.”  IC 4-21.5-3-24(a)(2).  The telephone status conference was a “stage of the proceeding” as the phrase is used in Section 24(a)(2).  The party who is subject to default shall be provided seven days to “file a written motion requesting that the proposed default order not be imposed and stating the grounds relied upon.”  IC 4-21.5-3-24(b).  The Scharlachs provided a timely response but offered no motion to vacate the proposed default or excuse for failure to participate in the telephone status conference.  They responded “fine” to the statement that the Grandes’ and DNR’s motions for default were meritorious and should be granted.

 

18. Standing alone, failure by the Scharlachs to participate in the telephone status conference might be excusable neglect and may not pose a compelling reason to support a final order of default.  In general, defaults are not favored in Indiana, although the grant or denial of a default is committed to the sound discretion of the tribunal.  Parkison v. McCue, 831 N.E.2d 118, 126 (Ind. App. 2005).

 

19. In addition to the Scharlachs failure to participate in the telephone status conference, there are persuasive factors which support according a level of finality beyond simply issuing a final order of dismissal without prejudice.

 

[VOLUME 11, PAGE 425]

 

20. As a consequence of the Scharlachs’ complaint and the resulting proceeding, the Grandes were required to attend a prehearing conference in Columbia City, participate in two telephone status conferences, and participate in the filing and exchange of pleadings and documents.

 

21. The Scharlachs do not contend the current configuration of the Grandes’ pier and related facilities encroach upon the Scharlachs’ riparian zone.  The Scharlachs concede that, if riparian zones are established by extending lot lines into Jimmerson Lake, the Grandes’ pier and related facilities would not constitute an encroachment.  Only if a methodology other than extended lot lines were employed might there be an encroachment, although the Scharlachs do not identify a particular methodology having the result.[2]

 

22. Upon these peculiar facts, the Grandes should be allowed to maintain their pier and related facilities so long as the Grandes do not reconfigure, lengthen, or enlarge the current footprint of the pier and related facilities.  Among the parties and their successors, the pier and related facilities would be treated as if qualified as lawful nonconforming uses under 312 IAC 11-5-2.

 

23. If the Grandes wish to avail themselves of the opportunity accorded by Finding 22, they should be required to obtain and file a survey with the Commission before     January 1, 2009, performed by a land surveyor registered in Indiana under IC 25-21.5, which identifies the location of the Grandes’ pier and related facilities.

 

24. If the Grandes do not elect to act under Finding 23, no disposition should be made concerning the placement of the Grandes’ pier and related facilities.