CADDNAR
[CITE: Mueller-Brown v. Caracci, 13 CADDNAR 156 (2013)]
[VOLUME 13, PAGE 156]
Cause #: 12-122W
Caption: Mueller-Brown v. Caracci
Administrative Law Judge: Lucas
Attorneys: Snyder (Mueller-Brown); pro se (Caracci); Wyndham (DNR)
Date: May 15, 2013
FINAL ORDER
(1) Summary judgment is entered in favor of Cindy Elizabeth Mueller-Brown and against Joseph R. Caracci and Barbara Caracci. The location of the Caraccis’ boathouse and pier interfere with the reasonable enjoyment by Mueller-Brown of her riparian area. In addition, the boathouse is a permanent structure for which a permit is required under IC 14-26-2 and 312 IAC 11 and has not been obtained the Caraccis. As a matter of law, neither the boathouse nor the pier (in its current configuration) qualifies as a lawful nonconforming use pursuant to 312 IAC 11-5-2.
(2) Joseph R. Caracci and Barbara Caracci are ordered by July 1, 2013: (A) to remove the boathouse; and (B) to reconfigure the pier so that the pier does not enter the riparian zone of the Mueller-Brown real estate as described in Finding 48. The Caraccis are further permanently enjoined from placing any structure or mooring any boat within the riparian zone of the Mueller-Brown real estate.
SUMMARY JUDGMENT
A. Statement of the Proceeding and Jurisdiction
1. Cindy Elizabeth Mueller-Brown (“Mueller-Brown”) and Thomas Brown (collectively the “Browns”) filed a request for review (the “petition”) with the Natural Resources Commission (the “Commission”) on July 30, 2012. The petition sought relief against Joseph R. Caracci (“Caracci”) under Ind. Code § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”), and rules adopted by the Commission at 312 Ind. Admin. Code § 11 to assist with implementation of the Lakes Preservation Act, for a site within Webster Lake in Kosciusko County, Indiana. The petition initiated a proceeding that is governed by IC § 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC § 3-1 to assist with its implementation of AOPA.
2. Webster Lake is a “public freshwater lake” under IC § 14-26-2-3 and 312 IAC § 11-2-17 and is subject to the Lakes Preservation Act. Porter v. Swain, et al., 12 Caddnar 1, 3 (2009) and “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Second Amendment), Indiana Register, 20110601-IR-312110313NRA (June 1, 2011), p. 4. For most proceedings, the geographic application of the Lakes Preservation Act is the “shoreline or water line”. IC § 14-26-2-4.
3. Without objection by the Browns, Caracci, or the Department of Natural Resources (the “DNR”), the DNR was added as a party on August 20, 2012.
4. An administrative law judge was appointed under IC § 14-10-2-2 to conduct the proceeding. The administrative law judge conducted the initial prehearing conference in Columbia City, Indiana on August 24, 2012. The Browns and Caracci appeared in person. Barbara Caracci also appeared and was made an additional Respondent with her husband. Joe Caracci and Barbara Caracci are collectively the “Caraccis”. The DNR appeared by its attorney on August 28, 2012. The Commission has jurisdiction over the subject matter and over the parties.
5. During the initial prehearing conference, the administrative law judge granted the Caraccis until September 14, 2012 to file and serve any affirmative defense. The Caraccis requested and were later granted an extension until October 12, 2012 to file and serve any affirmative defense. On September 28, 2012, the Caraccis asserted lawful nonconforming use as an affirmative defense.
6. A telephone status conference was conducted as scheduled on October 31, 2012. During the conference, the parties agreed and were then ordered to comply with the following schedule to consider summary judgment under IC § 4-21.5-3-23 and Trial Rule 56:
(1) The Browns shall file and serve upon the other parties any motion for summary judgment and supporting documentation by December 14, 2012.
(2) Caracci and the DNR shall file and serve upon the other parties any response to the Browns’ motion for summary judgment, including supporting documentation, by January 29, 2013. On the same date, they may file and serve any cross or counter motion for summary judgment with supporting documentation.
(3) The Browns shall file and serve upon the other parties any reply to a response or any cross or county motion by February 12, 2013.
7. By counsel on December 11, 2012, the Browns filed timely a “Motion for Summary Judgment”, the “Claimants’ Designation of Evidence” with attachments, and their “Brief in Support of Motion for Summary Judgment”.
8. On January 24, 2013, the “Respondents’ Response to Claimants’ Motion for Summary Judgment” and the “Respondents’ Designation of Evidence” with attachments were filed timely by the Caraccis. On January 25, 2013, the Respondents’ “Counter Motion for Summary Judgment” was also filed timely.
9. On February 1, 2013, the Browns filed timely their “Response to “Counter Motion for Summary Judgment’ and Respondents’ Response to Claimants’ Motion for Summary Judgment”.[1]
10. On February 12, 2013, the DNR filed timely the “Agency Respondent Department of Natural Resources’ Reply to Claimants’ Motion for Summary Judgment and Respondents Carraci’ Response to Claimants’ Motion for Summary Judgment”.
11. The Caraccis on February 15, 2013 filed their “Counter Response to ‘Agency Respondent Department of Natural Resources’ Reply’ of February 12, 2013.
12. In response to a motion by the Carracis, the administrative law judge dismissed Thomas Brown as a party on March 5, 2013. The dismissal was made without prejudice.[2] With the dismissal, Mueller-Brown was the sole Claimant.
[VOLUME 13, PAGE 157]
13. The administrative law judge determined the proceeding was ripe for a disposition of the motions for summary judgment and entered a Summary Judgment with Nonfinal Order on March 7, 2013. The parties were provided until March 25, 2013 to file objections under IC § 4-21.5-3-29 and 312 IAC § 3-1-12.
14. No party filed objections. The Caraccis filed a Response to Summary Judgment Ruling on March 22, 2013 in which they sought modifications to the Summary Judgment with Nonfinal Order.
15. On March 25, 2013, the administrative law judge summarized in an email to the parties his understanding of the relief sought by the Caraccis. The email stated in substantive parts:
On March 22, 2013, the Caraccis filed their “Response to Summary Judgment Ruling”. The response does not constitute “objections” under IC 4-21.5 and 312 IAC 3-1-12. Instead, the administrative law judge understands that, through the motion, the Caraccis seek modifications to the “Summary Judgment with Nonfinal Order” in two regards. First, they seek a deferral of the compliance date from June 1 to July 1, 2013. Second, they seek reconsideration of delineation of the angle for the common line that forms the riparian zones of Mueller Brown and of the Caraccis. A modified delineation of the angle of the riparian line would have no bearing on removal of the boathouse but would have significance to a reconfigured pier and the mooring of boats to a reconfigured pier.
The Caraccis are asked to clarify their motion by April 1, 2013, if the administrative law judge has misunderstood the relief they seek. No clarification is required if the understanding is correct. The administrative law judge provides Mueller-Brown and the DNR until April 15, 2013 to reply to the “Response to Summary Judgment”. [Emphasis in email omitted.]
16. In a March 26, 2013 email, the Caraccis indicated the administrative law judge was “basically correct” in summarizing their request but added that they also sought a third modification. The third modification was directed to permitting of the boathouse after relocation from its current position. The administrative law judge declined to address permitting of a relocated boathouse (and whether the relocation would require an individual permit or could be authorized by rule through a general permit) because relocation was not at issue in this proceeding and because a disposition on administrative review would be premature before a permitting decision is made by the DNR. For more particularity, see Orders Regarding Briefing Subsequent to Entry of Summary Judgment with Nonfinal Order, ¶1. Licensure of Relocated Boathouse (April 2, 2013).
17. Neither Mueller-Brown nor the DNR objected to deferral of the Caraccis’ compliance date from June 1, 2013 until July 1, 2013. The Caraccis set forth a reasonable basis for seeking the deferral in the Response to Summary Judgment. The deferral is granted.
18. Delineation of the angle for the common line that forms the riparian zones of Mueller-Brown and of the Caraccis is reconsidered. Augmented analyses pertaining to delineation of the angle are set forth infra beginning with Finding 43.
B. Summary Judgment under AOPA as applied through Trial Rule 56
19. This proceeding is controlled by IC § 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”). IC § 4-21.5-3-23 governs summary judgment under AOPA:
(b) Except as otherwise provided in this section, an
administrative law judge shall consider a motion filed under subsection (a) as
would a court that is considering a motion for summary judgment filed under
Trial Rule 56 of the Indiana Rules of Trial Procedure.
(c) Service of the motion and any response to the
motion, including supporting affidavits, shall be performed as provided in this
article.
(d) [IC § 4-21.5-3-28 and IC § 4-21.5-3-29] apply to an
order granting summary judgment that disposes of all issues in a proceeding.
20. As applied under AOPA at this stage of the proceeding, Trial Rule 56 of the Indiana Rules of Trial Procedure provides:
(A) For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of twenty [20] days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.
(B) For defending party--When motion not required. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. When any party has moved for summary judgment, the [administrative law judge] may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.
(C) Motion and proceedings thereon. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits. The [administrative law judge] may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the [administrative law judge] shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response. At the time of filing the motion or response, a party shall designate to the [administrative law judge] all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the [administrative law judge] each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be. A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the [administrative law judge] in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. The [administrative law judge] shall designate the issues or claims upon which it finds no genuine issue as to any material facts. Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.
(D) Case not fully adjudicated on motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon 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 such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
[VOLUME 13, PAGE 158]
(E) Form of affidavits--Further testimony--Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The [administrative law judge] may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.
(F) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(G) Affidavits made in bad faith. Should it appear to the satisfaction of the [administrative law judge] at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the [administrative law judge] shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees….
(H) Appeal-Reversal. No judgment rendered on the motion shall be reversed on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the [administrative law judge].
(I) Alteration of Time. For cause found, the [administrative law judge] may alter any time limit set forth in this rule upon motion made within the applicable time limit.
21. Summary judgment should be granted 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. Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990). In determining if a genuine issue of material fact exists to preclude summary judgment, all doubts must be resolved against the nonmoving party. Facts set forth by a party opposing the motion must be taken as true. Terry v. Indiana State University, 666 N.E.2d 87 (Ind. App. 1996).
22. “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).
23. Supporting and opposing summary judgment affidavits must present admissible evidence that follows substantially the same form as though the affiant were giving testimony in court. Capital Drywall Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193 (Ind. App. 2010). “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).
24. Summary judgment is a lethal weapon. In considering whether to grant summary judgment, the adjudicator must consider its aims and targets and must avoid overkill. Hutchens v. MP Realty Group-Sheffield Square Apartments, 654 N.E.2d 35 (Ind. App. 1995), trans. denied. Caution must be exercised to ensure a party the right to a fair determination of genuine issues. E.Z. Gas, Inc. v. Hydrocarbon Transp., Inc., 471 N.E.2d 316 (Ind. App. 1984).
25. 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. Regina Bieda v. B & R Development and DNR, 9 Caddnar 1 (2001). See, also, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994). 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 triable issue. Cowe by Cowe v. Forum Groups, Inc. 575 N.E.2d 630, 633 (Ind. 1991).
C. Facts Not in Genuine Dispute
26. Mueller-Brown is the owner of the following real estate located in Kosciusko County, Indiana:
Lots Number 5 and 6 in the Replat of Hiner Park on Webster Lake according to the plat thereof.
The “Mueller-Brown real estate”. Affidavit of Cindy Elizabeth Mueller-Brown dated December 8, 2012 (the “Mueller-Brown Affidavit) ¶1.
27. Mueller-Brown acquired Lot Number 5 with her subsequently deceased husband in 1996 and Lot Number 6 in 1999. Respondents’ Response to Claimants’ Motion for Summary Judgment” to which Mueller-Brown accedes in the “Response to ‘Counter Motion for Summary Judgment’ and Respondents’ Response to Claimants’ Motion for Summary Judgment.
28. Lot Number 6 is adjacent to and southwesterly of Lot Number 7 in the Replat of Hiner Park on Webster Lake. Lot Number 6 and Lot Number 7 share a common line extending to the water’s edge of Webster Lake. Replat of Hiner Park on Webster Lake, Certified by the Kosciusko County Recorder or Deputy Recorder.
29. The Carracis are the owners of Lot Number 7 in the Replat of Hiner Park. Warranty Deed to Joseph R. Caracci or successors, Trustee of the Barbara R. Caracci Trust dated October 21, 1998 and recorded January 19, 1999, Certified by the Kosciusko County Recorder or Deputy Recorder. Lot Number 7 is the “Carraci real estate”.
30. Richard J. Kemper is an Indiana registered land surveyor holding License No. 880012 and is the County Surveyor of Kosciusko County. Affidavit of Richard J. Kemper dated December 5, 2012 (the “Kemper Affidavit”) ¶1.
31. Kemper prepared a survey of the Mueller-Brown real estate on October 11, 2012. The Caraccis installed a pier and boathouse[3] in the waters of Webster Lake. As identified in the Kember survey immediately below, the pier is partially located southwesterly of the common line between the Mueller-Brown real estate and the Caracci real estate. The boathouse is located wholly within the boundaries of the Mueller-Brown real estate extended into Webster Lake:
[VOLUME 13, PAGE 159]
32. Richard J. Kemper reviewed the original plat of Hiner Park on Webster Lake recorded in Plat Book 4, Page 141 in the Office of the Recorder of Kosciusko County, Indiana on June 16, 1956. Kemper also reviewed the Replat of Hiner Park on Webster Lake appearing in Plat Book 11, Page 51 in the Office of the Recorder of Kosciusko County, Indiana recorded August 27, 1997. Kemper Affidavit ¶3.
33. With respect to the original plat of 1956 and the Replat of 1997, Kemper’s professional opinion is the common lot line between the Mueller-Brown real estate and the Caracci real estate “is in substantially the same position as located in the original plat of Hiner Park on Webster Lake and was not relocated by the replat process.” Kemper Affidavit ¶3. Kemper is the only expert to offer an opinion. The replat modified the Caracci real estate by giving an additional 11.9 feet of width at the water’s edge. Plat of Hiner Park on Webster Lake, Replat of Hiner Park on Webster Lake.
34. The Mueller-Brown real estate has approximately 100 feet of frontage on Webster Lake. The Caracci real estate has approximately 69 feet of frontage on Webster Lake. Replat of Hiner Park on Webster Lake. Replat of Hiner Park on Webster Lake.
35. The boundaries of Lot Number 5, Lot Number 6, and Lot Number 7 each extend to the water’s edge and meet the shoreline or water line of Webster Lake at approximately a perpendicular angle. Replat of Hiner Park on Webster Lake.
36. The Caraccis did not obtain an individual permit under the Lakes Preservation Act when they caused they caused the boathouse to be placed by Rookstool’s Pier Shop at its current location in June 1995.[4] From placement in June 1995 until the present, the Caraccis have never removed the boathouse. They now consider the structure to be immovable without causing it damage and a “permanent structure”. Affirmative Defense Administrative Cause Number 12-122W.
D. Application of Law to the Undisputed Facts
37. Traditionally, riparian rights were associated with owners of land abutting a river or stream, while those within the shoreline on a lake or pond acquired littoral rights. Indiana courts now use the term “riparian” to refer to both classes of ownership. Zapffe v. Srbeny, 587 N.E.2d 177, 178 n. 1 (Ind. App. 1992).
38. Generally, a property owner whose property abuts a lake possesses certain riparian rights associated with ownership of the property. Parkison v. McCue, 831 N.E.2d 118, 128 (Ind. App. 2005). Riparian rights are appurtenant to the shore land owned in fee title. Watson v. Thibodeau, 559 N.E.2d 1206, 1208 (Ind. App. 1990). To similar effect is Brown v. Heidersbach, 360 N.E.2d 614 (Ind. App. 1977).
39. Riparian rights of the owners of land fronting public waters are derived from common law as modified by statute. Riparian rights do not necessarily constitute an independent estate and are not property rights per se. They are licenses or privileges. They constitute property rights of a qualified or restricted nature. A person must have a property interest in the land appurtenant to the water before the person can acquire rights to use the water. Bass v. Salyer, 923 N.E.2d 961, 971 (Ind. App. 2010) and Ctr. Townhouse Corp. v. City of Mishawaka, 882 N.E.2d 762, 767-68 (Ind. App. 2008).
[VOLUME 13, PAGE 160]
40. “The rights associated with riparian ownership generally include: (1) the right of access to navigable water; (2) the right to build a pier out to the line of navigability; (3) the right to accretions; and (4) the right to a reasonable use of the water for general purposes such as boating, domestic use, etc.” Parkison v. McCue at 128.
41. An appropriate measure for the enjoyment of riparian rights is obtained by applying the “reasonableness” test to “accommodate the diverse characteristics of Indiana’s numerous freshwater lakes.” Zapffe v. Srbeny at 181.
42. In adopting 312 IAC § 11, the Commission placed limits on the lengths of piers based upon the depth of water and other factors related directly to the mooring of boats and the creation of navigational hazards. The rules detail the general philosophy of Zapffe and impose an important condition applicable to this proceeding. A structure must be placed “by a riparian owner or with the written approval of a riparian owner.” 312 IAC § 11-3-1(b)(9).
43. Indiana adopted Wisconsin law from Nosek v. Stryker, 103 Wis.2d 633, 309 N.W.2d 868 (Wis. 1981) to assist with determining how riparian zones within a lake are determined between neighboring riparian owners. Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008) and Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984). If the onshore property boundaries approximate a straight line and the onshore property boundaries are perpendicular to the shore, the offshore boundaries of riparian zones are determined by extending in a straight line the “onshore boundaries into the lake”. Lukis at 331. An exception applies if “a homeowners association’s constitution and bylaws” specifies how riparian zones should be delineated. In this circumstance, riparian owners that are subject to the specification are governed by the methodology. Lukis at 333.
44. The Commission assembled decisions from the Indiana Supreme Court, the Court of Appeals of Indiana, and the Commission for the delineation of riparian zones in “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (Second Amendment), Indiana Register at 20100331-IR-312100175NRA (March 31, 2010). “If a determination of riparian boundaries is reasonably required for the performance of functions” by the DNR or the Commission under the Lakes Preservation Act and 312 IAC § 11, this publication shall be considered for guidance. 312 IAC § 11-1-4. “Riparian Zones within Public Freshwater Lakes and Navigable Waters” must properly be considered in this proceeding.
45. The First Principle stated in “Riparian Zones within Public Freshwater Lakes and Navigable Waters” for delineating riparian zones is adapted from the exception language in Lukis at 333.
First principle: Where properties are purchased subject to a homeowner association's constitution and bylaws, or a similar document intended to govern riparian rights, the document supersedes other principles governing a determination of riparian zones.
“Riparian Zones within Public Freshwater Lakes and Navigable Waters” at p. 3.
46. In the “Claimant’s Response to Respondents’ Response to Summary Judgment Ruling”, language is cited from the Re-plat of Hiner Park, in which the Caraccis joined, that Mueller-Brown urges is controlling:
…. Riparian rights for each Lot are vested within those boundaries of the shore line of Webster Lake demarcated by the Lot lines, extended, as shown on the replatted Subdivision.
In their “Counter Response to Claimant’s Response to Respondents’ Response to Summary Judgment”, the Caraccis contest the applicability of this language.
47. The Second Principle stated in “Riparian Zones within Public Freshwater Lakes and Navigable Waters” for delineating riparian zones is adapted from Lukis v. Ray at 330 and 331 which cited Bath v. Courts and Nosek v. Stryker. If the onshore property boundaries approximate a straight line and the onshore property boundaries are perpendicular to the shore, the offshore boundaries of riparian zones are determined by extending in a straight line the “onshore boundaries into the lake”.
Second principle: Where the shore approximates a straight line, and where the onshore property boundaries are approximately perpendicular to this line, the boundaries of riparian zones are determined by extending the onshore boundaries into the public waters.
“Riparian Zones within Public Freshwater Lakes and Navigable Waters” at pp. 3 and 4.
48. The language from the Re-plat of Hiner Park referenced in Finding 46 is the equivalent of the Second Principle. In this proceeding, whether the First Principle is applied or the Second Principle is applied, the result is the same. For this reason, the applicability of the First Principle need not be determined. The offshore boundaries of the riparian zones in Webster Lake of the Mueller-Brown real estate and of the Caracci real estate (and, most notably of their common boundary between Lot Number 6 and Lot Number 7) are formed properly by extending their onshore boundaries in a straight line.
49. The Caraccis’ boathouse and a portion of their pier are outside the riparian zone that is appurtenant to the Caracci real estate and within the riparian zone that is within the Mueller-Brown real estate. As such, the boat house and the encroaching portion of the pier interfere with the reasonable use by Mueller-Brown of her riparian rights. The location of the boat house and the encroaching portion of the pier in Mueller-Brown’s riparian zone are both unlawful.
50. The Caraccis claim the boathouse and the pier qualify as lawful nonconforming uses under Commission rules used to assist with implementation of the Lakes Preservation Act.
51. Although more commonly considered in the context of ordinances, the application of principles of nonconforming uses can arise in the context of rules and similar regulatory structures. As applied to 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 nonconformance. 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).
52. 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.
53. Lawful nonconforming uses under the Lakes Preservation Act are governed by 312 IAC § 11-5-2. As pertinent to this proceeding, the rule section provides:
Sec. 2. (a) A structure or facility that was lawfully placed before the effective date of a provision of:
…
(B) 312 IAC 11-4;
…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….
…
(4) …[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…. [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….
54. The boathouse and the encroaching portion of the pier cannot qualify as a lawful conforming use because the use was placed unlawfully in the riparian zone of the Mueller-Brown real estate.
[VOLUME 13, PAGE 161]
55. The boathouse also cannot qualify as a lawful conforming use because the Caraccis’ concede it is now a “permanent structure”. Although expressing opinions, they offer no factual basis upon which a determination could be made that it was ever other than a permanent structure. Since they did not remove the boathouse after placement in June 1995, and the boathouse is now a permanent structure, how they could offer facts to show an historic ability to remove the boathouse is difficult to envision.
56. In 1995, 310 IAC § 6-2-14 [repealed] authorized the placement of structures such as the boathouse and pier without a written permit under the Lakes Preservation Act but only on specified conditions including being a “temporary structure which is easily removable” and ownership by the riparian owner. 310 IAC § 6-2-14(a)(1) and 310 IAC § 6-2-14(a)(8), respectively. There is no evidence on which a determination can be made the boathouse was easily removable. The Caraccis did not have the status of riparian owners where the boathouse was placed.
57. In 1995, 310 IAC § 6-2-15 [repealed] provided that a structure, which was located within 200 feet of shoreline or water line and which did not qualify as a temporary structure, was required to have a written permit from the DNR. In the absence of a factual basis to demonstrate the boathouse was a temporary structure, the placement required a written permit. Again, the evidence does not support a finding the boathouse was lawful when placed and that it now qualifies as a lawful nonconforming use.
58. In 1999, 310 IAC § 6-2 was repealed and simultaneously replaced by 312 IAC § 11 which carried forth the same regulatory philosophy. As observed in the “Agency Respondent Department of Natural Resources’ Reply to Claimants’ Motion for Summary Judgment and Respondents Caracci Response to Claimants’ Motion for Summary Judgment”, the Caraccis:
…do not claim [the boathouse] is a “temporary structure. 312 IAC 11-2-25(a) defines “temporary structure” as “a structure that can be installed and removed from the waters of a public freshwater lake without using a crane, bulldozer, backhoe, or similar heavy or large machinery.” 312 IAC 11-2-16 defines “permanent structure” as “a structure that does not qualify as a temporary structure.” 312 IAC 11-3-3(a) provides that except as provided in section 1 of that rule (312 IAC 11-3-1) and in subsection (c) (which is not applicable in this [proceeding]), a structure placed within the shoreline or water line of a public freshwater lake requires a written license issued by the [DNR under the Lakes Preservation Act and 312 IAC 11]. The Caraccis have submitted no evidence in their response to [Mueller-Brown’s] motion for summary judgment that [the Caraccis] were issued any license or permit for [the boathouse].
59. Without legal authority since 1995, the Caraccis have used the riparian zone of Mueller-Brown for the placement of their boathouse and a portion of their pier. The Caraccis have established no factual or legal basis why this usage should extend into the future. To restore to Mueller-Brown the full enjoyment of her riparian rights, the boathouse must be removed and the pier reconfigured so that it does not encroach on the riparian zone of the Mueller-Brown real estate.
60. The boathouse was not demonstrated ever to have been other than a permanent structure. A permit would have been required for its placement in 1995 and for its maintenance at all times since 1995. The Caraccis have never obtained a permit, and the boathouse is likely to have been unlawful under former 310 IAC § 6-2. Regardless of its history, however, lacking a written permit the boathouse is today unlawful under 312 IAC § 11-3. The boathouse is a permanent structure and requires a written permit. But the boathouse does not qualify for a written permit because the Caraccis are not the riparian owners and because they have not obtained written permission from the riparian owner (Mueller-Brown).
61. The Caraccis should be ordered to remove the boathouse and to reconfigure the pier so the pier does not encroach on the riparian zone of the Mueller-Brown real estate.
[1] Also, on February 1, 2013, the Browns’ Motion to Strike was filed. The Caraccis filed a Response to Motion to Strike on February 4, 2013. The administrative law judge addressed the motion in an “Order Striking Portions of the Caraccis’ Affidavit and Order Dismissing Thomas Brown as a Party” (March 5, 2013).
[2] The dismissal of Thomas Brown is also considered in the Order Striking Portions of the Caraccis’ Affidavit and Order Dismissing Thomas Brown as a Party.
[3] The Caraccis refer to this structure as a “boat lift”. Mueller-Brown refers to the structure in at least some instances as a “boatlift/boathouse”. In other documents, the structure is identified as a “shore station”. The Caraccis contest use of the term “boathouse” because the structure “has no sides, windows or doors and hardly can be called a house.” Respondents’ Response to Claimants’ Motion for Summary Judgment. The exact nomenclature to identify the structure is probably not critical. The Caraccis are correct that the structure would not constitute a “house” in the sense of a residence or domicile. But the Caraccis characterize it as a “permanent structure”. The structure has a roof and provides an elevated boat with some defense to the lake and the elements. The Commission previously defined a “boathouse” as “a building or shed, usually built partly over water, for sheltering boats.” Jansing v. DNR and Hawkins, et al., 11 Caddnar 8, 22 (2007) citing Random House Webster’s College Dictionary, p. 148 (2000 Random House, Inc.). The structure meets the definition. Within the limitations of the definition, the term “boathouse” is used in these Findings.
[4] Mueller-Brown has a recollection of the boathouse that may differ factually from the statement by the Caraccis. “When I purchased my property, the boat lift maintained by Joseph R. Caracci was not in the same condition as its current condition, being a metal frame without permanent posts or a permanent shingled roof.” Mueller-Brown Affidavt ¶3. Also, the Caraccis’ statement may not satisfy the requirements of IC § 4-21.5-3-23 and Trial Rule 56. For purposes of this Order, the doubt was resolved in favor of the Caraccis and any difference was found to be immaterial.