[CITE: Pier 343 and Muncie YMCA v. DNR, 12 CADDNAR 312 (2011)]
[VOLUME 12, PAGE 312]
Cause #: 10-190L (and 10-217L)
Caption: Pier 343 and Muncie YMCA v. DNR
Administrative Law Judge: Lucas
Attorneys: Snyder (Claimants); Wyndham (DNR)
Date: May 2, 2011
FINAL ORDER OF SUMMARY JUDGMENT
The material facts are not in dispute. Pier 343 Condominium Association and Young Men’s Christian Association of Muncie Indiana, Inc. provided sufficient information to satisfy the burden of proof that the subjects of their claims for a lawful nonconforming use were in existence and lawful at the time applicable standards were established by IC 14-26-2, 312 IAC 11, and 312 IAC 6-2 (before its repeal). These uses have continued, as they existed or with acceptable modifications, from when the statutory and rule standards became effective until the date of the Claimants’ requests for status determinations. Summary judgment is granted approving lawful nonconforming uses in favor of Pier 343 Condominium Owners Association, in favor of Young Men’s Christian Association of Muncie Indiana, Inc., and against the Department of Natural Resources.
Approval of these lawful nonconforming uses does not preclude the Department of Natural Resources from initiating a proceeding with the Natural Resources Commission, under IC 4-21.5-3-8 or IC 4-21.5-4, against Pier 343 Condominium Owners Association or against Young Men’s Christian Association of Muncie Indiana, Inc. The proceeding may seek to remove all or some of the structures that have been granted status as lawful nonconforming uses.
Findings of Fact
A. Statement of the Proceeding
1. On November 11, 2010, Pier 343 Condominium Owners Association (“Pier 343”) filed for administrative review, under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”), with the Natural Resources Commission (the “Commission”) of a determination by the Department of Natural Resources (the “DNR”) made through Lt. John Sullivan of DNR’s Division of Law Enforcement. The determination was that a temporary pier located on Lake Wawasee, a public freshwater lake located in Kosciusko County, did not qualify as a “lawful nonconforming use” under IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted under 312 IAC 11 to assist with implementation of the Lakes Preservation Act. This proceeding was docketed by the Commission as Administrative Cause No. 10-190L.
2. On December 20, 2010, the Young Men’s Christian Association of Muncie Indiana, Inc. (“YMCA of Muncie”) filed similarly for administrative review for a site on James Lake (also known as “Little Lake Tippecanoe”)[1], another public freshwater lake located in Kosciusko County. Again, the DNR through Lt. Sullivan determined a temporary pier did not qualify as a lawful nonconforming use under the Lakes Preservation Act and 312 IAC 11. This proceeding was docketed by the Commission as Administrative Cause No. 10-217L.
3. “Pier 343” and “YMCA of Muncie” are sometimes collectively referenced as the “Claimants”. The Claimants and the DNR are the “parties”.
4. In particular, lawful nonconforming uses on public freshwater lakes are addressed at 312 IAC 11-5-2. Applied to Administrative Cause No. 10-190L and Administrative Cause No. 10-217L, subsection 2(a) and subsection 2(b) provide with respect to the establishment of a lawful nonconforming use:
Sec. 2. (a) A structure or facility that was lawfully placed before the effective date of a provision of:
(1) IC 14-26-2; or
(2) a section of:
(A) 312 IAC 11-3;
(B) 312 IAC 11-4; or
(C) 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 eligible for qualification under this section as a lawful nonconforming use.
(b) This subsection governs the establishment of a lawful nonconforming use as follows:
(1) A person who claims a lawful nonconforming use has the burden of proof for establishing:
(A) the existence of the use; and
(B) that the use was lawful;
when the new or amended statutory or rule section became effective. Except as provided in subdivision (2), a use must have been in existence when the new or amended section became effective and not merely at some time before it became effective.
(2) If a rule section that governs the placement of a temporary structure becomes effective outside the boating season, but a temporary structure was used during the previous boating season, the use is considered to have been in existence when the section became effective. As used in this subdivision, the boating season is from April 1 through October 31.
(3) The department may consider the following documentation in determining the existence of a lawful nonconforming use:
(A) Ground level or aerial photographs.
(B) Blueprints or engineering drawings.
(C) Pier installation company records.
(D) Inventories of piers that are nonconforming uses. These inventories shall be maintained by the department's division of law enforcement at the district headquarters for the district in which the structure is located.
(E) CAD drawings.
(F) Deeds, plats, and similar recorded documents.
(G) Adjudications by the commission or by a court, including those determining the intent or consequence of an easement.
(H) GPS units or range finders.
(I) USDA documentation.
(J) County GIS programs and documentation.
(K) Statements from riparian owners and others familiar with the site may also be considered, but a determination may not be based solely on those statements.
(4) Except as provided in subdivision (5), a person may deliver a written request and supporting documentation in support of a claim to any lawful nonconforming use that arises under IC 14-26-2 or this article. Except as provided in subdivision (5), a person who does not deliver a request under this subdivision is not prohibited from asserting the benefits of a lawful nonconforming use as an affirmative defense or otherwise in a proceeding under IC 4-21.5.
(5) A person must satisfy this subdivision in order to retain the status of a lawful nonconforming use for a pier that is longer than one hundred fifty (150) feet…. By January 1, 2010, the person must deliver, to the department’s division of law enforcement at the district headquarters for the district in which the lawful nonconforming use is located, a written request and supporting documentation sufficient to demonstrate the existence of the lawful nonconforming use.
(6) The department shall provide notice under IC 4-21.5-3-5 of a determination that a structure qualifies or does not qualify as a lawful nonconforming use under subdivision (4) or (5).
(7) The department shall maintain a public file or files to memorialize any determinations under this subsection. The department may include in the file a determination that a structure qualified or did not qualify as a lawful nonconforming use even if the determination was made before the effective date of this subsection….
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5. By temporary rule, the deadline for delivery of a written request under 312 IAC 11-5-2(b)(5), to obtain the status of a lawful nonconforming use for a pier longer than 150 feet, was extended from January 1, 2010 to November 1, 2010. LSA Document #10-49(E) (January 27, 2010).
6. The delivery of the written requests by Pier 343 for Administrative Cause No. 10-190L and YMCA of Muncie for Administrative Cause No. 10-217L were timely. The Claimants’ petitions for administrative review of the denials of those requests were also timely.
7. The Commission caused the appointment of Stephen L. Lucas as its administrative law judge for both Administrative Cause No. 10-190L and Administrative Cause No. 10-217L. The Commission is the “ultimate authority” for DNR status determinations under the Lakes Preservation Act and 312 IAC 11. IC 10-2-4. Rademaker v. Wells, 12 Caddnar 224 (2010). The Commission has jurisdiction over the subject matter and over the persons of the Parties.
8. In their petitions for administrative review, the Claimants raised both procedural and substantive issues. One of the procedural issues discussed during a prehearing conference held on January 18, 2011 for Administrative Cause No. 10-190L and Administrative Cause No. 10-217L involved the application of AOPA, and particularly IC 4-21.5-3-8, to a status determination under 312 IAC 11-5-2. The Parties agreed, and the administrative law judge then ordered, the consolidation of Administrative Cause No. 10-190L and Administrative Cause No. 10-217L for the purpose of considering summary judgment as to the application of AOPA to the implementation of 312 IAC 11-5-2. The parties also agreed and were then ordered to present this issue according to the following schedule:
(1) The Claimants would file and serve any motion for summary judgment by February 18, 2011.
(2) The DNR would respond to any motion for summary judgment by March 21, 2011.
9. Understanding that timing was critical to a disposition pertaining to pier placements, and on the condition that the Parties complied with the schedule, the administrative law judge stated he would make every reasonable effort to enter a nonfinal order with respect to summary judgment by April 4, 2011.
10. On February 14, 2011, the Claimants timely filed their “Motion for Summary Judgment” and their “Memorandum in Support of Motion for Summary Judgment” with attachments.
11. The Claimants stated the issues as follows:
12. The DNR has not responded nor has it requested an extension of time to file a response to the Claimants’ “Motion for Summary Judgment”.
13. The administrative law judge properly determined that fairness required him to enter on April 8, 2011 a nonfinal order regarding summary judgment for Administrative Cause No. 10-190L and Administrative Cause No. 10-271L.
B. Summary Judgment Standards
14. IC 4-21.5-3-23 governs summary judgment under AOPA and provides:
(a) A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party’s favor as to all or any part of the issues in a proceeding. The motion must be supported with affidavits or other evidence permitted under this section and set forth specific facts showing that there is not a genuine issue in dispute.
(b) The motion must be served at least five (5) days before the time fixed for the hearing on the motion. The adverse party may serve opposing affidavits before the day of hearing. The administrative law judge may direct the parties to give oral argument on the motion. The judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon fewer than all the issues or claims (such as the issue of penalties alone) although there is a genuine issue as to damages or liability, as the case may be. A summary judgment upon fewer than all the issues involved in a proceeding or with respect to fewer than all the claims or parties is not a final order. The administrative law judge shall designate the issues or claims upon which the judge finds no genuine issue as to any material facts. Summary judgment may not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the administrative law judge shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence. If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the administrative law judge may make any order that is just.
(c) If on motion under this section no order is rendered upon the whole case or for all the relief asked and a hearing is necessary, the administrative law judge at the hearing of the motion, by examining the
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pleadings and the evidence before it and by interrogating any person, shall if practicable ascertain:
(1) what material facts exist without substantial controversy; and
(2) what material facts are actually and in good faith controverted.
The administrative law judge shall then make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing further proceedings in the action as are just. Upon the hearing of the action, the facts specified are established in the judge’s order under this subsection.
(d) Supporting and opposing affidavits must:
(1) be made on personal knowledge;
(2) set forth facts that are admissible in evidence; and
(3) show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.
(e) The administrative law judge may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, further affidavits, or testimony of witnesses.
(f) If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party’s pleadings as a response to the motion. The adverse party shall respond to the motion with affidavits or other evidence permitted under this section and set forth specific facts showing that there is a genuine issue in dispute. If the adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party.
15. As provided in 312 IAC 3-1-10, an administrative law judge may apply the Trial Rules if not inconsistent with AOPA. Reference may be made to Trial Rule 56 and to reported decisions based upon Trial Rule 56. If Trial Rule 56 is inconsistent with IC 4-21.5-3-23, the latter controls. Szpara v. Perez, 12 Caddnar 291, 293 (2011).
16. “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.” Wells v. Hickman, 657 N.E.2d 172, 175 (Ind. App. 1995).
17. Summary judgment should be granted only if the evidentiary material shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Booneville Convalescent Ctr., Inc. v. Cloverleaf Healthcare Serv., Inc., 790 N.E.2d 549, 555 (Ind. App. 2003).
18. “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.” Graham v. Vasil Management Co., Inc. 618 N.E.2d 1349 (Ind. App. 1993). “A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.” York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).
19. In an administrative proceeding, a party moving for summary judgment has the burden of proof with respect to summary judgment, regardless of whether the party would have the burden in an evidentiary hearing. Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994) and Szpara v. Perez cited previously.
20. Once the party moving for summary judgment establishes a lack of material fact, the party responding to the motion must disgorge sufficient facts to show the existence of a genuine issue for a hearing of the facts. Cowe by Cowe v. Forum Groups, Inc. 575 N.E.2d 630, 633 (Ind. 1991).
21. This proceeding is ripe for a determination of summary judgment.
C. Facts Pertinent to Pier 343
22. Pier 343 is a 21-unit condominium constructed in 1989 along 106 feet of Lake Wawasee shoreline. The original pier was installed in summer 1990. In 1991, two sections were added. The existence of the subject pier is established by 2002 and 2003 aerial images from the Kosciusko County GIS website and by a 1998 note from Dave Heckaman of Sudlow’s Pier Shop, Inc. The last modification to the pier was made in 1991, with minor modifications to an adjacent three-section pier made in 2009 pursuant to Walther v. Pier 343 Condominium Owners Association, 12 Caddnar 12 (2009).
23. The current pier extends 205 feet into Lake Wawasee from a seawall at the shoreline of Lake Wawasee.
24. The current pier is annually removed from Lake Wawasee for the winter and is returned the following spring.
D. Facts Pertinent to YMCA of Muncie
25. YMCA of Muncie owns and operates Camp Crosley which has maintained a site on James Lake since 1915. In 2008, YMCA of Muncie acquired Camp Dick Runyan and expanded operations into that area. The main pier was installed in 1924, and, with the exception of the south leg, has remained in its current configuration since 1985. In 1985, the portion of the pier from the shoreline to the main platform was replaced with a floating structure. The north pier was installed in 2008, replacing a similar pier maintained by Camp Dick Runyan since at least 1997, and has not been modified. The North Village swim area was established in 2008 and buoyed off by connected buoys.[2] No modification to any of the structures has been made since 2008.
26. The main pier was established by 1924 and was installed with sockets in 1940. The current configuration is the same as it was in 1940, although the portion from the shoreline to the main platform was replaced with a floating pier in 1985, when the south arm from the main platform was removed.
27. The North Village pier and adjacent swimming area were established in 2008 when the area was purchased from Camp Dick Runyan. No modifications have been made since installation.
28. The boat pier was installed in 1998 and has remained without modification since then.
29. The camp facilities have existed on James Lake for nearly 100 years. The piers vary in length from 137 feet to 219 feet and are located on a shoreline having an approximate length of 1,020 feet. A significant portion of the shoreline owned by YMCA of Muncie remains open and in its natural state, including a sand beach at the main camp.
30. The piers, buoys, and other structures are annually removed from James Lake for the winter and are returned the following spring.
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E. Piers, Buoys, and Ropes as Lawful Nonconforming Uses in Public Freshwater Lakes
31. Although more commonly applied to ordinances, principles of nonconforming uses also apply to rules. For a rule, a nonconforming use is one 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. 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. DNR v. Freeman Orchard Assoc., Inc., 11 Caddnar 285, 287 (2008) and Mann v. State Dept. of Highways, 541 N.E.2d 929, 936 (Ind. 1984).
32. Effective January 5, 1991, the Commission adopted rules at 312 IAC 6-2 [repealed] to assist with implementation of the Lakes Preservation Act. Effective July 23, 1993, these rules sought to provide a general license for qualified temporary piers. A person who placed a temporary pier, which did not qualify for a general license, was required to obtain an individual license for the pier. See, particularly, 312 IAC 6-2-14 [repealed].
33. In 1997, the Indiana Court of Appeals in Indiana Department of Natural Resources v. Town of Syracuse, 686 N.E.2d 410, 413 determined the DNR did not have jurisdiction to regulate temporary structures in the form of piers using augered pier posts or to require a license for the seasonal installation of these piers.
34. Effective March 24, 1999, the Commission recodified and amended 312 IAC 6-2 as 312 IAC 11, including provisions addressing temporary structures at 312 IAC 11-3. The application of these rules was limited by the holding in Town of Syracuse.
35. As a result of the decision in Town of Syracuse, the Indiana General Assembly amended the Lakes Preservation Act by adding IC 14-26-2-23 to specifically provide the DNR with authority to require a permit for the purpose of placing a temporary structure in a public freshwater lake. P.L. 64-2000, SEC. 1, effective July 1, 2000. See, particularly, IC 14-26-2-23(a)(1)(B) requiring a DNR permit to “place, modify, or repair a temporary…structure” and IC 14-26-2-23(e)(2)(B) authorizing the Commission, by rule, to exempt the licensing of a temporary structure if the Commission finds that its class “is unlikely to pose more than a minimal potential for harm to the public rights” described in IC 14-26-2-5.
36. The Claimants here urge that all piers, which were placed in a public freshwater lake before July 1, 2000, are qualified as lawful nonconforming uses. The scope of Town of Syracuse has not been fully addressed and need not be fully addressed to decide summary judgment for Administrative Cause No. 10-190L and Administrative Cause No. 10-217L. The piers, buoys, and ropes in these consolidated proceedings (at their most intrusive) were seasonal and temporary structures. These seasonal and temporary structures were governed by Town of Syracuse, and, thus, were outside the DNR’s regulatory scope until July 1, 2000.[3]
37. The pier at Pier 343 and the main YMCA of Muncie pier were installed in their current configuration before July 1, 2000. The YMCA of Muncie north pier that was placed in 2008 replaced a longer pier that existed in 1997. Each of these temporary structures qualifies as a lawful nonconforming use under 312 IAC 11-5-2(b). To the extent they are governed by the Lakes Preservation Act, buoys and attached ropes also qualify.
38. The material facts are not in dispute. Pier 343 and YMCA of Muncie provided sufficient information to satisfy the burden of proof that the subjects of their claims for a lawful nonconforming use were in existence and lawful at the time applicable standards were established by IC 14-26-2, 312 IAC 11, and 312 IAC 6-2 (before its repeal). These uses have continued, as they existed or with acceptable modifications, from when the statutory and rule standards became effective until the date of the Claimants’ requests for status determinations. Summary judgment should be granted approving lawful nonconforming uses in favor of Pier 343 and YMCA of Muncie and against the Department of Natural Resources.
F. Removal of Lawful Nonconforming Uses from Public Freshwater Lakes
39. Because a lawful nonconforming use is in derogation of the regulatory design, authorization for an activity subject to the Lakes Preservation Act and 312 IAC 11 must be narrowly construed. Jansing v. DNR and Hawkins, et al., 11 Caddnar 8, 37 (2007).
40. With this recognition, the Commission adopted 312 IAC 11-5-2(d) and 312 IAC 11-5-2(e) to provide substantive standards and procedural mechanisms to seek the removal of troublesome structures within public freshwater lakes. As applicable to these consolidated proceedings, these subsections provide:
(d) This subsection governs the removal of a lawful nonconforming use as follows:
(1) The director or the director’s designee may order the removal of a lawful nonconforming use if the structure or facility is either of the following:
(A) A nuisance that adversely affects any of the following:
(i) Public safety.
(ii) Natural resources.
(iii) Natural scenic beauty.
(iv) The water level of a public freshwater lake.
(B) Abandoned.
(C) Modified in a manner for which a license is required under IC 14-26-2 or this rule, but for which no license has been obtained.
(2) The department has the burden of proof to establish a lawful nonconforming use should be removed under this subsection.
(3) A structure adversely affects public safety under subdivision (1)(A)(i) if the structure is any of the following:
(A) …[E]xtended or located more than one hundred fifty (150) feet lakeward from the shoreline or water line.
….
(C) Submerged or otherwise obscured from the view of a boater or other person using a lake.
(D) In a derelict condition. A structure is in a derelict condition if:
(i) so neglected by the owner that it has become ineffective for the intended purposes; or
(ii) following a reasonable inquiry, the owner of the structure cannot be identified.
(4) Generally, a use is abandoned if not exercised for a period in excess of one (1) year. A person may, however, present evidence of special factors that would reasonably excuse a failure to maintain the use. These factors include the following:
(A) Pending litigation relating to the lawful nonconforming use.
(B) Unusual environmental conditions.
(e) IC 4-21.5-3-8 controls an order issued under subsection (d) unless an emergency exists, in which event IC 4-21.5-4 applies.
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41. The DNR may seek to restrict or eliminate the approved lawful nonconforming use of Pier 343 and the approved lawful nonforming use of YMCA of Muncie by applying the standards established by 312 IAC 11-5-2(d) in a proceeding governed by 312 IAC 11-5-2(e).
42. 312 IAC 11-5-2(e) requires the application of IC 4-21.5-3-8, unless an emergency exists, in which event IC 4-21.5-4 applies.
43. IC 4-21.5-3-8 provides:
Sec.
8. (a) An agency may issue a sanction or terminate a legal right, duty,
privilege, immunity, or other legal interest not described by section 4, 5, or
6 of this chapter only after conducting a proceeding under this chapter.
However, this subsection does not preclude an agency from issuing, under
IC 4-21.5-4, an emergency or other temporary order concerning the subject
of the proceeding.
(b) When an agency seeks to issue an order that is
described by subsection (a), the agency shall serve a complaint upon:
(1) each person to whom any
resulting order will be specifically directed; and
(2) any other person required
by law to be notified.
A person notified under this subsection is not a party to the proceeding unless
the person is a person against whom any resulting order will be specifically
directed or the person is designated by the agency as a party in the record of
the proceeding.
(c) The complaint required by subsection (b) must
include the following:
(1) A short, plain statement
showing that the pleader is entitled to an order.
(2) A demand for the order that
the pleader seeks.
44. To apply IC 4-21.5-3-8 under the Lakes Preservation Act, the DNR files a complaint with the Commission. The Commission causes service upon persons identified by the DNR as being affected, and a proceeding is conducted under AOPA. The DNR has the burden of proving matters averred in the complaint, and DNR is entitled to relief only following a successful disposition of the proceeding. DNR v. Freeman Orchard Assoc., Inc. cited previously.
45. IC 4-21.5-4 authorizes the issuance of an order if an emergency exists. IC 4-21.5-4-1. The order may be issued, “without notice or an evidentiary proceeding, by any authorized individual or panel of individuals” or after “a hearing conducted by an administrative law judge”. IC 4-21.5-4-2. An emergency order generally expires within 90 days after issuance but can be renewed for successive 90-day periods. IC 14-21.5-4-5.
46. The DNR determinations referenced in Finding 1 and Finding 2 do not satisfy the procedural requirements of IC 4-21.5-3-8 or IC 4-21.5-4. No evidence has been offered that the DNR has otherwise complied with IC 4-21.5-3-8 or IC 4-21.5-4.
G. Application of Lawful Nonconforming Use to Long Piers
47. Finally, the Claimants question whether DNR can deny the status of a lawful nonconforming use “solely on the basis that the pier extends into the high-speed boating area (200 feet from the shoreline)”.
48. No statute or rule has been identified which set maximum pier lengths when the piers at issue here were originally placed. Pier 343 and YMCA of Muncie have demonstrated the piers were placed lawfully and then maintained appropriately.
49. Absent such a statute or rule governing pier length, denying the status of lawful nonconforming use cannot be based solely on pier length.
50. In adopting 312 IAC 11, the Commission has identified a regulatory design that is sensitive to potential problems associated with long piers. See, particularly, 312 IAC 11-3-1 and 312 IAC 11-5-2.
51. The DNR may pursue a proceeding under IC 21.5-3-8 or IC 21.5-4 in which pier length is a central issue. Until the DNR elects to initiate the proceeding, consideration of pier lengths for Pier 343 or YMCA of Muncie would be premature.
[1] By rule, the Commission has established a restricted boating zone on James Lake (also known as “Little Lake Tippecanoe”). In the rule, the Commission uses the name “James Lake”. 312 IAC 5-6-9. To help foster consistency, the term “James Lake” is used in these Findings.
[2] Richard Armstrong, Camp Director, states under affirmation that buoys isolated the swimming area “under state Board of Health regulations.” Armstrong’s statement does not cite particular rules of the State Department of Health, and there is no showing he is competent to offer evidence as to their application. This aspect of YMCA of Muncie’s motion for summary judgment is not adopted.
[3] Given sufficient time, every manmade structure within a public freshwater lake will be proven temporary. Even concrete piers eventually crumble. Town of Syracuse did not apparently preclude DNR regulation of concrete piers. The placement and removal of a pier on a seasonal basis evidences the pier was not subject to DNR jurisdiction before July 1, 2000. “Temporary structure” is now also defined at 312 IAC 11-2-25 partly in terms of ease of installation and removal. Piers undoubtedly exist which are more substantial than those for consideration in Administrative Cause No. 10-190L and Administrative Cause No. 10-217L, but which are less substantial than a concrete pier. The potential application of Town of Syracuse to these piers of intermediate permanence need not now be decided.