CADDNAR

[CITE: Yager v. Ryan, 14 CADDNAR 50 (2016)]

 

[VOLUME 14, PAGE 50]

 

 

Cause #: 15-062W

Caption: Yager v. Ryan

Administrative Law Judge: Wilson

Attorneys: Snyder (Yager); Kocher (Ryan)

Date: March 24, 2016

 

 

 

FINAL ORDER

 

1)     The common property line between Yager, Lot 15, and the Ryans, Lot 14, shall be extended a reasonable distance in a straight line into Bass Lake, in Starke County, to identify the boundary between the riparian zones of Yager and the Ryans, consistent with the Second Principle found in Information Bulletin #56.

 

2)     Yager and the Ryans must not retain, place or authorize the placement of a structure or the mooring of a boat nearer than ten (10) feet on either side of their common riparian boundary.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Statement of the Proceeding and Jurisdiction

 

1       On May 14, 2015, Albert S. Yager (“Yager”) filed correspondence with the Natural Resources Commission (“the Commission”) seeking relief against Terence J. Ryan (“Ryan”) with respect to Ryan’s placement of a personal pier.  

 

2       In part, the correspondence filed by Yager avers that “Mr. Ryan’s pier crosses the riparian line by about 3 foot, that makes him 13’ on my side. The plot map shows Mr. Ryan & myself both have 50’ lots, I just do not have 13’ to give him.”[1]

 

3       The correspondence filed by Yager initiated a proceeding governed by Indiana Code (“IC”) 4-21.5-3, sometimes referred to as the “Administrative Orders and Procedures Act” (“AOPA”), and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.

 

4       The Lakes Preservation Act places full power over public freshwater lakes in the State of Indiana. The State, through the Department of Natural Resources (“DNR”), is responsible to “hold and control all public freshwater lakes in trust for the use of all the citizens of Indiana for recreational purposes.” IC 14-26-2-5(d), Indiana Dept. of Nat. Res. v. Lake George, 889 N.E.2d 361 (Ind. App. 2008) and Lake of the Woods v Ralston, 748 N.E.2d 396, 401 (Ind. App. 2001).

 

5       The Commission is responsible for controlling activities occurring “over, along, or lakeward of the shoreline or water line of a public freshwater lake”, including the placement and maintenance of temporary structures, including piers. The Commission is also charged with resolving “disputes among persons with competing interests or between a person and the department” with respect to activities associated with a public freshwater lake.  IC 14-26-2-23. 

 

6       The Commission is the “ultimate authority” for determinations under the Lakes Preservation Act and has adopted rules at 312 IAC 11 to assist with administration of the Lakes Preservation Act. IC 4-21.5-1-15 and 312 IAC 3-1-2.

 

7       Bass Lake, in Starke County,  is a public freshwater lake as defined at IC 14-26-2-3 and 312 IAC 11-2-17 and is listed as such in the “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Fourth Amendment), Indiana Register, 20140924-IR-312140381NRA (October 1, 2014) [2], pg. 7. 

 

8       The Commission has jurisdiction over the subject matter of this proceeding and over the persons of the parties.

 

9       An administrative law judge (“ALJ”) was appointed under IC 14-10-2-2 to conduct this proceeding. Following the issuance of notice on to Yager, Ryan and the DNR, on May 22, 2015, the ALJ conducted a prehearing conference on June 16, 2015, in Columbia City, Indiana.

 

10    On June 2, 2015, John Kocher filed his Appearance on behalf of Ryan.

 

11    On June 10, 2015, Stephen Snyder filed his Appearance on behalf of Yager.

 

12    At the prehearing conference on June 16, 2015, Yager and Ryan appeared in person and by counsel. In addition, Joyce Ryan appeared and asserted her status as a co-owner of the Ryan property. As a result of her ownership interest, Joyce Ryan was joined as a party to this proceeding. Terence and Joyce Ryan are hereinafter referred to collectively as the “Ryans”. Also during the prehearing conference, Yager and Ryan agreed to obtain a survey in an effort to self-determine the appropriate riparian boundary between Yager and the Ryans. A status conference was set for           August 17, 2015.

 

13    On August 17, 2015, Yager asserted his position that the “Second Principle” from “Public Freshwater Lakes and Navigable Waters, Information Bulletin #56 (Second Amendment), Indiana Register, 20100331-IR-312100175NRA (March 31, 2010), hereinafter referred to as “Information Bulletin #56”, is applicable in determining the appropriate riparian boundary between Yager and the Ryans. Ryan asserted his position that the “Third Principle” described in Information Bulletin #56 is applicable in determining the appropriate riparian boundary.

 

14    During the status conference on August 17, 2015, Yager asserted that for full and just adjudication, adjoining lot owners Thomas A. Briscuso (“Briscuso”) and Nancy L. Harger (“Harger”) should be joined in the proceeding. Briscuso and Harger were joined as respondent parties to this proceeding. Briscuso participated in a prehearing conference on September 17, 2015, and a status conference on November 4, 2015. Briscuso failed to attend the final status conference heard on December 22, 2015. Harger participated in a prehearing conference on September 17, 2015, failed to attend the status conference on November 4, 2015, and appeared for the final status conference heard on December 22, 2015.

 

[VOLUME 14, PAGE 51]

 

15    During the pendency of the proceeding, the parties were informed that the Commission authorizes mediation and actively participates in the Shared Neutrals program. No party indicated a desire to mediate the issues in this case.

 

16    An administrative hearing of the facts was conducted, as scheduled, in Rochester, Indiana, on January 26, 2016. Yager was present in person and by counsel, Stephen Snyder. The Ryans were present in person and by counsel, John Kocher. Briscuso and Harger failed to attend the administrative hearing on January 26, 2016.

 

Findings of Fact[3]

 

17    At the administrative hearing, prior to any testimony being taken, Yager and Ryan stipulated to the fact that Bass Lake, located in Starke County, is a public freshwater lake and the site of the dispute in this proceeding.

 

18    On January 11, 2016, Yager and the Ryans filed a “Stipulation” to the admission of the Yager and Ryans exhibits, from their respective Witness and Exhibit Lists, in evidence in this matter. The following Exhibits were offered by Petitioner Yager and admitted by the ALJ as stipulated:

 

a       Petitioner’s Exhibit 1, Birchhurst Subdivision Plat (1 page).

b       Petitioner’s Exhibit 2, Boundary Survey (2 pages).

c       Petitioner’s Exhibit 3, Situation Survey (1 page).

d       Petitioner’s Exhibit 4, Photograph (1 page).

e       Petitioner’s Exhibit 5, Document titled Boundary (1 page).

f        Petitioner’s Exhibit 6, Google Earth aerial photo (1 page).

g       Petitioner’s Exhibit 7, Photograph (1 page).

h       Petitioner’s Exhibit 8, Starke County GIS 2005 aerial photograph (1 page).

i        Petitioner’s Exhibit 9, Starke County GIS 2005 aerial photograph (1 page).

j        Petitioner’s Exhibit 10, Starke County GIS 2011 aerial photograph (1 page).

k       Petitioner’s Exhibit 11, Google Earth aerial photo (1 page).

l        Petitioner’s Exhibit 12, Photograph (1 page).

m     Petitioner’s Exhibit 13, Natural Resources Commission, Information Bulletin #56 (Second Amendment) (12 pages).

 

19    The following Exhibits were offered by Respondents, the Ryans, and admitted by the ALJ as stipulated:

 

a       Respondent’s Exhibit A-R1, A-R2, A-R3, A-R4, Photographs (1 page each).

b       Respondent’s Exhibit A-R5, Situation Survey (1 page).

c       Respondent’s Exhibit A-Y1, A-Y2, A-Y3, Photographs (1 page each).

d       Respondent’s Exhibits A-B1, A-B2, A-B3, Photographs (1 page each).

e       Respondent’s Exhibit A-B4, Plat of Survey for Sebouh Terzian (1 page).

f        Respondent’s Exhibit A-B5, Document titled Boundary (1 page).

 

20    During the hearing, these additional exhibits were offered by Petitioner Yager and, without objection, were admitted by the ALJ:

 

a       Petitioner’s Exhibit 14, Photograph (1 page).

b       Petitioner’s Exhibit 15, Situation Survey with pencil line added (1 page).

 

21    The riparian zones lakeward of Lots 16, 15, 14, 13 and 12, in Birchhurst subdivision, fronting Bass Lake are relevant to this proceeding. See Yager testimony, Petitioner’s Exhibits 1, 2, 3, 5 and 15 and Respondent’s Exhibits A-R5, A-B4 and A-B5. [4]

 

22    Petitioner’s Exhibit 1 is a Plat for Birchhurst subdivision. As shown by the Plat, Lots 16-12 are generally northward of the shoreline and the shoreline approximates a straight line, beginning with Lot 16 at the furthest point west, to Lot 12 at the furthest point east. See testimony of Yager and Petitioner’s Exhibits 1 and 5.

 

23    Briscuso is the owner of Lot 16, fronting on Bass Lake. Lot 16 is the lot furthest west in Birchhurst subdivision. West of Lot 16 is a marina. East of and adjacent to Lot 16, is Lot 15. See testimony of Yager.

 

24    Yager is the owner of Lot 15, fronting on Bass Lake. West of and adjacent to Lot 15 is Lot 16. East of and adjacent to Lot 15 is Lot 14. See testimony of Yager.

 

25    The Ryans own Lot 14, fronting on Bass Lake. West of and adjacent to Lot 14 is Lot 15. East of and adjacent to Lot 14 is Lot 13. See Petitioner’s Exhibit 1.  

 

26    Harger is the owner of Lots 13 and 12, fronting on Bass Lake. West of and adjacent to Lot 13 is Lot 14. East of and adjacent to Lot 13 is Lot 12. See Petitioner’s Exhibit 1.  

 

27    In summary, in a general direction from west to east, the relevant lots and the current owners of those lots within the Birchhurst subdivision are as follows; Briscuso’s Lot 16, Yager’s Lot 15, the Ryans’ Lot 14 and then Harger’s Lots 13 and 12.

 

28    Terence Ryan reviewed a survey which identified the shoreline for Briscuso’s Lot 16 to be 30 feet. The Plat of Birchhurst subdivision identifies 50 feet of shoreline for all of the lots relevant to this matter, including Lot 16. No survey or similar evidence was admitted at the administrative hearing to rebut the Plat of the Birchhurst subdivision admitted as Petitioner’s Exhibit 1. The ALJ finds that Briscuso’s Lot 16 has 50 feet of shoreline, Yager’s Lot 15 has 50 feet of shoreline, the Ryans’ Lot 14 has 50 feet of shoreline and Harger’s two lots, Lot 13 and Lot 12, have a total shoreline of 100 feet. See testimony of Terence Ryan and Petitioner’s Exhibit 1.

  

29    In this proceeding, the riparian border separating Yager’s Lot 15 and the Ryans’ Lot 14 is in dispute.

 

30    As to the historical placement of piers, Terence Ryan’s father-in-law and his wife informed Mr. Ryan that piers have been placed perpendicular to the shore on Bass Lake in the past. The Ryans presented no additional compelling evidence to support this position. See testimony of Terence Ryan.

 

31    Rodney Neese (“Neese”) is the head surveyor for the DNR Division of Water and is very familiar with Information Bulletin #56. Neese reviewed the Situation Survey obtained by Yager and the Ryans. In addition, he reviewed National Agriculture Imaging Program (NAIP) high altitude photos, which were taken during the summers of 2003, 2006, 2008, 2010 and 2012. He reviewed photographs taken in the summer to ensure a view of piers in the water. Neese observed a historical pattern for piers in the disputed area. Mr. Neese concluded following his review that a historic pattern of prior pier placement exists and is consistent with extending the property line from the meander line of the shore, in a parallel manner into the water. The ALJ accepts Mr. Neese’s conclusion as an accurate historical conclusion based on the evidence presented. See testimony of Neese.

 

32    In 1999, Yager purchased Lot 15. See Yager testimony.

 

33    In 2011, as in prior years, Yager installed his pier in a manner consistent with a lot line extension approach. See Yager testimony and Petitioner’s Exhibit 8, 9, 10 and 11.

 

34    In 2013, following Yager’s review of a survey of Briscuso’s lot, Yager altered the installation of the lakeward end of his pier (3) three feet toward the Ryans’ riparian zone. Yager took this action due to his observation of Briscuso’s pie shaped lot, as a precautionary measure, to avoid his encroachment upon Briscuso’s riparian boundary. See Yager testimony.

 

35    In 2013, the Ryans purchased Lot 14. No pier was installed lakeward of Lot 14 at the time the Ryans purchased their lot. Evidence presented at the hearing was inclusive as to whether the Ryans placed a pier lakeward of Lot 14, on Bass Lake in 2013. See testimony of the Ryans.

 

[VOLUME 14, PAGE 52]

 

36    In 2014, Briscuso installed his pier closer to Yager’s pier and moored a Briscuso pontoon on the side of his pier nearest to Yager’s pier. See testimony of Terence Ryan and Respondent’s Exhibit A-B2.

 

37    In 2014, Yager moored his pontoon and installed a shore station on the side of his pier nearest the Briscusco pier. Yager expressed concern due to this configuration and told Terence Ryan that he, Yager, was having difficulty getting his pontoon out. See testimony of Terence Ryan, Respondent’s Exhibit A-R2, A-Y1 and A-B2.

 

38    In 2014, the Ryans intended for their pier to be installed perpendicular to the shore, approximately 13 feet off the Ryans’ property line, to account for a ten foot buffer. While it was not clearly delineated in the evidence presented, a logical conclusion based on the evidence presented is that the 13 foot set back was off the common onshore property line between Yager and the Ryans. See Terence Ryan and Respondent’s Exhibit A-R2.

 

39    In 2014, the Ryans’ pontoon was moored on the side of the Ryans’ pier nearest the Yager pier. Joyce Ryan recalls that the Ryans’ pier placement was designed to place their pier “out of [Yager’s] way” because of the noise created by their grandchildren. See testimony of Joyce Ryan and Respondent’s Exhibits A-R2.

 

40    In 2015, Briscusco moored a pontoon on the side of the Briscuso pier furthest from Yager’s pier. See Respondent’s Exhibit A-B3.

 

41    In 2015, Yager placed a shore station on the side of his pier nearest to the Ryans riparian zone. This placement allowed Yager a full view of the lake. In 2015, Mr. Ryan sensed that Yager’s pier was “in the way” and blocked his egress to the lake. See testimony of Terence Ryan, Respondent’s Exhibit A-R3 and A-Y3.

 

42    In 2015, the Ryans’ pier installation placement was closer to Yager’s pier than in prior years. Mr. Ryan acknowledged during his testimony that the Ryans’ pier placement in 2015 drifted to the west, toward Yager’s riparian boundary. Mr. Ryan agrees that, according to the Situation Survey, the Ryans’ pier was out of compliance. See testimony of Terence Ryan, Yager testimony, Respondent’s Exhibit A-R4, A-R5 and Petitioner’s Exhibits 3, 12 and 15.

 

43    Yager and the Ryans had a Situation Survey completed following the initiation of this proceeding. The Situation Survey shows an application of two different alternatives in determining the riparian boundary between Yager and the Ryans and includes the pier placement in 2015. The Situation Survey shows the application of Second Principle and the Third Principle found in Information Bulletin #56. In the calculation of the application of the Third Principle, a “Median Bearing Between Perpendicular Lines” is inserted, due to the difference between the angle at which the Yager and Ryans common onshore property boundaries meet the water. The Situation Survey reflects Ryans’ pier placement crosses into the riparian zone of Yager under the application identified as “Boundary Extension.” The Situation Survey reflects Ryans’ pier placement does not cross into the riparian zone of Yager under the application identified as “Median Bearing between Perpendicular Lines”. See Respondent’s Exhibit A-R5 and Petitioner’s Exhibits 3 and 15.

 

44    In 2016, Terence Ryan’s intention is to have his pier installed ten feet from his onshore property line, extended perpendicular to the shore into the lake, consistent with Information Bulletin #56, Principle Three, and he would like for Yager to place his shore station on the Briscuso side of the Yager pier. See testimony of Terence Ryan.

 

45    The Ryans have concerns that if the piers are installed using the Second Principle described in Information Bulletin #56, the view from their house of the lake would be blocked by Yager’s pier.[5] Mr. Ryan does not see a need for Yager to install his pier in a way that blocks the Ryans’ view of the lake. If Yager’s pier placed is perpendicular to the shoreline, Yager would not block the Ryans’ view of the lake.  See testimony of Terence Ryan.

 

46    In his current position with DNR, Neese determines the angle at which property boundaries meet the shore. Neese uses a meander line to determine the shoreline portion of the angle, rather than a single point along the shoreline or an approximation. A meander line is determined by utilizing many points, rather than a single point on the shore to enhance accuracy. See testimony of Neese, Petitioner’s Exhibit 1 and 2.

 

47    Neese has determined that no shoreline is exactly perpendicular, meeting the onshore properties at exactly 90 degrees at all points of contact. Therefore, when Neese calculates the degree at which the onshore property boundaries meet the shoreline, he uses a “10% rule”. If Neese finds the angle, at which the onshore property boundaries meet the shoreline, to be within 10% of 90 degrees, he concludes that the onshore property boundaries are approximately perpendicular to shore. If he finds the angle to be beyond 10% of 90 degrees, Neese concludes that onshore property boundaries meet the shoreline at an acute or obtuse angle. See testimony of Neese and Petitioner’s Exhibit 13.

 

48    Petitioner’s Exhibit 2 includes a calculated “meander line” which enabled Neese to conclude his review of the document with an opinion concerning whether the degree of the angle, of the shore to the onshore property boundaries, creates approximately a 90 degree angle. In reviewing Petitioner’s Exhibit 2, Neese determined the angle by adding the bearing of the meander line, to the South East line of Lot 15. He concluded that the angle is within 10% of 90 degrees and approximately perpendicular to shore. As a result, Neese concluded that, in his opinion, the application of the Second Principle would be appropriate. See testimony of Neese and Petitioner’s Exhibit 2.

 

 

49    For public safety, Neese, on behalf of DNR, generally “recommends” that piers and boats moored to a pier set back ten feet from riparian boundaries within a public freshwater lake. Consistent with Information Bulletin #56, a reservation of 10 feet on either side of riparian lines is ideal for safety purposes. He is aware that a reservation of less than 10 feet has been found to be appropriate in situations where available shoreline is minimal. Due to the amount of shoreline available in this proceeding, application of either the Second or Third Principle would allow plenty of room for both piers. See testimony of Neese.

 

50    Terence Ryan is agreeable to a 10 foot set back from each side of the riparian boundary between Yager and the Ryans. See testimony of Terence Ryan.

 

 

Conclusions of Law

 

51    The Commission has adopted a rule to define a “riparian owner” to mean “…the owner of land…bound by a lake….” See 312 IAC 11-2-19.

 

[VOLUME 14, PAGE 53]

 

52    Briscuso, Yager, Ryans and Harger are all riparian owners.

 

53    A riparian owner typically enjoys the rights that include: “(1) 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.” Parkinson v McCue, 831 N.E.2d 118, 128 (Ind. App. 2005).

 

54    Riparian owners may build a pier within the extension of their onshore boundaries only so far out as not to interfere with the use of the lakes by others. Bath v Courts, 459 N.E.2d 72, 76 (Ind. App. 1984).  Consistent with this concept, a riparian owner may install a temporary structure under a general license in accordance with 312 IAC 11-3-1. Limitations to the authority of a riparian owner in placing a temporary structure, include the limitation that the structure may not “infringe on the access of an adjacent landowner to the public freshwater lake.” See 312 IAC 11-3-1(b)(2).

 

55    In order to determine whether the Ryans’ temporary structure infringes or encroaches on the Yager riparian zone, as alleged by Yager, the common riparian boundary between Yager and the Ryans must be determined.

 

56    The Indiana Court of Appeals has considered the complaints of neighbors who disagreed about the proper angle and location of their respective piers. The Indiana Court of Appeals determined that where the shore approximated a straight line, and where the onshore property boundaries were perpendicular to the shore, the appropriate way to determine riparian zones to extend the onshore boundaries into the lake. Boundaries of riparian zones are determined by extending the onshore boundaries into the public waters. Bath at 73. This legal conclusion has been incorporated as “Second Principle” in Information Bulletin #56, p.3 (Petitioner’s Exhibit 13).

 

57    Information Bulletin #56 states as a 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.”

 

58    Information Bulletin #56 also states as a Third Principle, “Where the shore approximates a straight line, and where the onshore boundaries approach the shore at obtuse or acute angles, the boundaries of the riparian zones are generally determined by extending a straight line at a perpendicular to the shore.” This principle is utilized in Wisconsin and recognized in Nosek v Stryker, 309 N.W. 2d 868 (Wis. 1981), as referenced by the Indiana Court of Appeals in Lukis v Ray, 888 N.E. 2d 325 (Ind. App. 2008).

 

59    The shoreline approximates a straight line at Lots 16, 15, 14, 13 and 12.

 

60    The on shore property boundaries of Yager and the Ryans are approximately perpendicular to the shoreline.

 

61    On behalf of the DNR, Neese, in considering the principles found in Information Bulletin #56, provided his opinion that an extension of onshore boundaries into the public waters and the application of the Second Principle is appropriate. Consistent with the historic division of riparian zones, under the Second Principle, the common onshore property boundary line between Lots 14 and 15 on Bass Lake would be extended in a straight line into the lake to identify the riparian boundary between Lots 14 and 15. His conclusion is consistent with Bath v Courts and the Second Principle in Information Bulletin #56. See Petitioner’s Exhibit 13.

 

62     “Indiana does not recognize ‘a riparian right to an unobstructed view as a legally protected use….  The scope of a landowner’s view, whether of the water or otherwise, is a policy decision best left to the legislative branch generally and the local zoning authorities specifically….’” Rademaker v. Wells, 12 CADDNAR 224 (2010), citing Center Township Corp. v. City of Mishawaka, 882 N.E.2d 762 (Ind. App. 2008), at 772.

 

63    Diminishment of Ryans’ lake view from their onshore property, does not justify interference with Yager’s utilization of his riparian zone. While obstruction of his view is a concern to the Ryans, the result does not provide them with an actionable claim.

 

64    Information Bulletin #56, page 2 states, “To assist with safe navigation, as well as to preserve the public trust and the rights of neighboring riparian owners, there ideally should be 10 feet of clearance on both sides (for a total of 20 feet) of the dividing line between riparian zones. At a minimum, a total of 10 feet is typically required that is clear of piers and moored boats, although the area may be used for loading and unloading boats and for active recreation.”

 

65    Because Lots 16, 15, 14, 13 and 12 all have 50 feet of shoreline, there is sufficient space for a 10 foot set back on either side of the riparian boundary between Yager’s Lot 15 and the Ryans’ Lot 14. No evidence was presented to justify less than the full recommended set back of 10 feet of clearance on either side of the dividing line between riparian zones.