[CITE: Neal v. Gaerte, 13 CADDNAR 44 (2012)]
[VOLUME 13, PAGE 44]
Cause #: 11-104W
Caption: Neal v. Gaerte
Administrative Law Judge: Lucas
Attorneys: pro se (Neal); Helm (Gaerte)
Date: May 2, 2012
FINAL ORDER OF DISMISSAL
A dispute regarding the exercise of riparian rights among several of the parties, for the site at issue, was adjudicated previously in Kosciusko Superior Court No. 1, Cause No. 43D01-0103-CP-181.
Craig W. Neal (“Neal”) filed a complaint (the “complaint”) with the Natural Resources Commission (the “Commission”) on June 27, 2011 in which he alleged Larry W. “Gaerte has purposely and maliciously angled a pier to block my pier. This has caused a safety issue as I try to maneuver my boat into and out of the greater lake area. Since his pier is so much larger than any others in the area, I am forced to try to walk my boat in and out just to ensure safety for myself and my family. Mr. Gaerte feels that since I do not own lakefront property, only an easement, I don’t have a right to use the lake.”
The complaint describes a dispute or disputes concerning usage of Big Chapman Lake in Kosciusko County, Indiana. Big Chapman Lake is a “public freshwater lake” as the phrase is defined at Ind. Code § 14-26-2-3 and 312 Ind. Admin. Code § 11-2-17. The Commission has jurisdiction under IC § 14-26-2-23 to address riparian rights disputes in a proceeding that is governed by IC § 4-21.5 and 312 IAC § 3-1.
An administrative law judge was appointed to conduct a proceeding under IC § 4-21.5 to consider the dispute. He scheduled and notified Neal and Larry W. Gaerte of the initial prehearing conference to be held on July 22, 2011 in Michigan City, Indiana. The Department of Natural Resources (the “DNR”) was also provided notice. The initial prehearing conference was held as scheduled.
During the initial prehearing conference, Larry W. Gaerte provided correspondence dated July 10, 2010 in which Lt. John Sullivan issued a favorable disposition to him concerning a lawful nonconforming use for the placement of a pier on Big Chapman Lake. The July 10, 2010 correspondence stated in substantive parts:
Recently you submitted an application claiming a Lawful Non-Conforming Use status for a pier or similar structure which has a length of more than 150 feet. Multiple Divisions within the [DNR] have reviewed the application and the information you provided.
The Lawful Non-Conforming Use Administrative Rule (312 IAC 11-5-2) requires the [DNR] to provide notice under IC 4-21.5-3-5 of the determination that a structure qualifies or does not qualify as a Lawful Non-Conforming Use. This correspondence will serve as the fulfillment of that requirement.
After careful review of all the information provided, it has been determined that you have satisfied the requirements of 312 IAC 11-5-2 and this structure qualifies as a Lawful Non-Conforming use. The [DNR] shall maintain a public file to memorialize this determination. Please keep in mind that any future maintenance or repairs to this structure must satisfy the requirements of IC 14-26-2.
In the course of the proceeding, parties other than Neal and Larry Gaerte were added and served. These additional parties are identified in the caption.
The Commission has jurisdiction under IC § 4-21.5 over the subject matter and over the persons of the parties.
In correspondence filed on October 13, 2011, Neal stated “I withdraw my complaint against Larry D. Gaerte date[d] and filed 6/27/11.”
On December 6, 2011, the administrative law judge entered an “Order for Continuance of Status Conference, Order Adding Gregory Hall as an Additional Third Party Respondent, and Invitation to Tender Recitals in Support of a Final Order of Dismissal”. With respect to this “Final Order of Dismissal”, the aspect of the December 6, 2011 Order that is most pertinent is an opportunity provided to the parties to respond to Neal’s October 13, 2011 correspondence.
On December 9, 2011, the attorney for Larry W. Gaerte and Shirley Gaerte provided a response. He alleged his clients were caused to bear expenses and inconvenience as a result of the complaint and should not be subject to further litigation instigated by Neal. He tendered proposed “Findings, Conclusions and Order on Dismissal with Prejudice”.
No party other than the Gaertes has exercised the opportunity to respond to Neal’s October 13, 2011 correspondence. Neither has another party commented upon the Gaertes’ response to Neal’s correspondence.
With the complaint, Neal initiated a proceeding under IC § 4-21.5 which sought to review one or both of whether: (1) the DNR properly determined Gaerte’s pier qualifies as a lawful nonconforming use; and (2) Gaerte’s pier constituted a safety hazard.
With consideration of the history of the civil disposition by Kosciusko Superior Court No. 1, the disposition by DNR’s Division of Law Enforcement of a lawful nonconforming use, and this proceeding, the administrative law judge finds Larry Gaerte and Shirely Gaerte should not be required to undertake the time and expense of repeatedly defending these claims by Neal.
[VOLUME 13, PAGE 45]
A final order of dismissal should be entered based on Neal’s correspondence of October 13, 2011, and the dismissal should be made with prejudice as to Neal.
The parties having had a full opportunity to brief the issues, and the administrative law judge being duly advised, a final order of dismissal is entered. The October 13, 2011 request by Craig W. Neal to dismiss his complaint is granted with prejudice. The reasons and terms for the dismissal are stated more particularly supra.
A person who wishes to seek judicial review must file a petition for judicial review in an appropriate court within 30 days of this order and must otherwise comply with IC § 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC § 3-1-18.