[CITE: Deister v. JR Realty Corp., 14 CADDNAR 97 (2016)]
[VOLUME 14, PAGE 97]
Cause #: 15-077W
Caption: Deister v. JR Realty Corp.
Administrative Law Judge: Wilson
Attorneys: Snyder (Deister); Eherenman (JR Realty)
Date: July 11, 2016
FINAL ORDER
1) Deister and JR Realty must not retain, place or authorize the placement of a structure or a moored boat or other watercraft nearer than five (5) feet on either side of their common riparian zone boundary. The buffer area may be used for loading and unloading boats and for active recreation.
2) The common riparian zone boundary between Deister and JR Realty is determined by extending the common onshore property boundary into the public waters of Lake Wawasee, consistent with the Second Principle of “Information Bulletin #56” and the two surveys identified as Deister Exhibit 1, Deister Exhibit 2 and JR Realty Exhibit A.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Statement of the Proceeding and Jurisdiction
1 On June 10, 2015, E. Mark Deister (“Deister”), by counsel, Stephen Snyder, filed correspondence with the Natural Resources Commission (“the Commission”) seeking relief against JR Realty Corp. (“JR Realty”) with respect to a dispute concerning riparian rights for the location of piers.
2 In part, the correspondence filed by Deister avers that JR Realty “placed a pier and boat lift and docked boats in the waters of Lake Wawasee in a fashion that encroaches into the riparian area of petitioner….” Specifically, the complaint identified a dispute as to “[w]hether Respondent has placed its pier into the riparian area of Claimant” and “[w]hether Claimant is entitled to the full use of the shoreline of his property.” Petition for Administrative Review.
3 The Deister correspondence initiated a proceeding governed by Indiana Code (“IC”) 4-21.5-3, commonly 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 Administrative Law Judge (“ALJ”) Dawn Wilson was appointed under IC 14-10-2-2 to conduct this proceeding.
5 On July 6, 2015, following the service of notice on Deister and JR Realty, the ALJ held a prehearing conference, in Columbia City, Indiana. During the prehearing conference, Robert Eherenman filed his Appearance on behalf of JR Realty. The parties requested a period of time during which discovery could be pursued, appropriate surveys could be obtained and to allow the parties an opportunity to engage in discussion regarding the potential for appropriate settlement of the disputed issues.
6 At the prehearing conference and throughout the pendency of the proceeding, the parties were informed and reminded that the Commission authorizes mediation and actively participates in the Shared Neutrals program. No party indicated a desire to mediate the disputed issues in this case.
7 As scheduled, on September 14, 2015, and October 20, 2015, the ALJ held telephonic status conferences with the parties.
8 On December 4, 2015, JR Realty Corp.[1], by counsel, Robert Eherenman, filed a Counter-Petition for Administrative Review. In the Counter-Petition, JR Realty avers the following:
…A dispute exists between J&R Realty and Deister as to the following matters under the Lakes Preservation Act, I.C. 14-26-2, et seq. and the regulations promulgated under the Lakes Preservation Act, 312 IAC 11-3, et seq.:
5.1 Whether the cumulative effects of Deister’s structures in Lake Wawasee adversely affect the public rights;
5.2 Whether the cumulative effects of Deister’s structures in Lake Wawasee affect the management of watercraft operations;
5.3 Whether the cumulative effects of Deister’s structures in Lake Wawasee adversely affect the interests of J&R Realty’s or its rights to reasonable access a public freshwater lake;
5.4 Whether Deister’s structures in Lake Wawasee unduly restricts navigation and do not qualify for a general license;
5.5 Whether Deister’s structures in Lake Wawasee are unusually long or wide [relative] to similar structures in the vicinity of the same freshwater lake;
5.6 Whether Deister’s structures in Lake Wawasee are placed in an area by the riparian owner or within the written approval of a riparian owner;
5.7 Whether Deister’s structures in Lake Wawasee should be located ten (10) feet from the boundary of his riparian zone to assist with safe navigation; and
5.8 Whether Deister’s structures in Lake Wawasee fail the test of reasonableness because they interfere with the use of a public freshwater lake.
Counter-Petition for Administrative Review.
9 On December 10, 2015, Deister filed an affirmative defense and avers that JR Realty “is without standing to raise the issues in the Counter-Petition” and is “guilty of laches.” Affirmative Defenses to Counter-Petition for Administrative Review.
10 December 21, 2015, in reliance on Kranz v Meyers Subdivision Property Owners Association, Inc., 969 N.E.2d 1068 (Ind. Ct. App., 2012), IC 14-26-2-5, IC 14-26-2-23(c) and (e)(2), JR Realty filed a Clarification of Counter-Petition to request the joinder of the Department of Natural Resources (“DNR”) as a proper party to the proceeding in that “DNR is charged with enforcing the public rights to a public freshwater lake…considering the interests of landowners who own property abutting the lake…[and] charged with enforcing the laws for the conservation and development of the natural resources of Indiana.” Clarification of Counter-Petition.
11 In both the Counter-Petition for Administrative Review and in the Clarification of Counter- Petition, JR Realty requests administrative review of the dispute between Deister and JR Realty and declaratory relief under the Lakes Preservation Act and 312 IAC 11-3, et seq, regarding whether Deister’s use of Deister’s riparian area complies with the general license criteria.
[VOLUME 14, PAGE 98]
12 JR Realty’s claim for declaratory relief does not substantially comply with 312 AC 3-1-15, in that JR Realty does not include any assertion that JR Realty submitted a request to DNR to “interpret a statute or rule administered by the department”, as required by 312 IAC 3-1-15(a). In addition, JR Realty did not provide information from which it could be determined that JR Realty was aggrieved by DNR’s response or that JR Realty received no response from DNR within the time frames specified in 312 IAC 3-1-15(b) and (c). Therefore, no petition for administrative review for a quasi-declaratory judgment, here requested as declaratory relief, is available to JR Realty within this proceeding. 312 IAC 3-1-15.
13 As scheduled, on January 20, 2016, a telephonic status conference was heard. During the status conference, the ALJ granted JR Realty’s request to join DNR as a party to the proceeding. Deister and JR Realty asserted an agreement to a common riparian boundary between the riparian zones of those parties, through the application of the Second Principle described in Public Freshwater Lakes and Navigable Waters, Information Bulletin #56 (Second Amendment), Indiana Register, 20100331-IR-312100175NRA (March 31, 2010) (“Information Bulletin #56”) “determined by extending the onshore boundaries into the public waters”, commonly referred to as the “lot line extended” method. Id, at pg. 3.
14 As scheduled, on March 31, 2016, the ALJ conducted a telephonic final status conference.
15 Over the course of the proceeding, the parties resolved all disputed issues contained within the original complaint filed by Deister. The remaining issues for hearing, contained within the Counter-Petition, were determined by the parties to be two-fold, as follows:
a What is the appropriate buffer zone, or set-back from each side of the undisputed riparian boundary, between Deister and JR Realty; and
b JR Realty’s challenge that the Deister pier does not qualify for placement under a general license as authorized by IC 14-26-2-23(e)(2)(B) and 312 IAC 11-3-1(b).
16 On May 5, 2016, the ALJ conducted an administrative hearing of the facts, as scheduled, in Columbia City, Indiana. Deister was present in person and by counsel, Stephen Snyder. JR Realty was present by Bob Herdrich, President of JR Realty, and by counsel, Robert Eherenman. DNR appeared by Jim Hebenstreit, Assistant Director for DNR’s Division of Water and by counsel, Sean Wooding.
17 During the administrative hearing, prior to any testimony being taken, two procedural matters were identified. First, Deister and JR Realty proposed stipulations of fact. The ALJ took the proposed stipulations under advisement. The stipulated facts offered by Deister and JR Realty are identified within paragraph 27, of the findings of fact in this order. Second, Deister and JR Realty offered the following stipulated exhibits as to admissibility and relevance: Deister Exhibits 1-17 and JR Realty Exhibits A, B and C. It is noted that Deister’s Exhibit 2 and JR Realty’s Exhibit A are copies of the same survey. DNR joined in the request to admit the stipulated exhibits offered by Deister and JR Realty. The proposed stipulated exhibits were admitted by the ALJ.
18 On May 5, 2016, following the presentation of all evidence in the matter, Attorney Eherenman requested an opportunity for the parties to submit closing statements in writing, on or before May 20, 2016. The ALJ granted his request and extended the opportunity to all parties. Deister and JR Realty filed written closing arguments. On May 20, 2015, the hearing record was closed.
19 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).
20 DNR 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. IC 14-26-2-23(a).
21 The Commission is charged with adopting rules to assist in the administration of the chapter and to provide objective standards for the configuration of piers and similar structures. IC 14-26-2-23(e).
22 Administrative review by the Commission under IC 4-21.5-3 is authorized for disputes among persons with competing interests or between a person and the department, for a person affected by a determination of the department. IC 14-26-2-23(e)(3)(B).
23 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.
24 The Lakes Preservation Act defines a “public freshwater lake” to mean “a lake that has been used by the public with the acquiescence of a riparian owner.” IC 14-26-2-3(a) and 312 IAC 11-2-17.
25 As defined, consistent with the proposed stipulated facts offered by Deister and JR Realty, Lake Wawasee, in Kosciusko County, is a public freshwater lake and is listed as such in the “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Fifth Amendment), Indiana Register, 160127-IR-312160050NRA.xml.pdf (September 24, 2014), pg. 3.
26 The Commission has jurisdiction over the subject matter of this proceeding and over the persons of the parties.
Findings of Fact[2]
27 At the administrative hearing on May 5, 2016, Deister and JR Realty proposed the following stipulations of fact:
a The subject matter in dispute involves Lake Wawasee, a public freshwater lake in Indiana.
b Appropriate spacing for a set-back or buffer zone for the placement of temporary structures or moored boats is five (5) feet from each side of the riparian zone boundary between Deister and JR Realty.
c The common riparian boundary between Deister and JR Realty is to be determined by extending the common onshore property boundary into the public waters of Lake Wawasee, consistent with the Second Principle of Information Bulletin #56.
28 DNR offered no objection to the proposed stipulation of facts but did not affirmatively join in the stipulated proposal. At the time the stipulated facts were offered, the ALJ took the proposed stipulations of fact under advisement. The stipulated facts offered by Deister and JR Realty are accepted as findings of fact in this order.
29 At the time of Bob Herdrich’s (“Herdrich”) testimony, he was the President of JR Realty, a family corporation comprised of six individuals. Herdrich’s family has owned property fronting Lake Wawasee since 1919. JR Realty has been in operation since 1964 and has owned lakefront lots in the vicinity of the disputed area since that time. Personally, Herdrich has had a presence at the lake for more than 65 years. See testimony of Herdrich.[3]
[VOLUME 14, PAGE 99]
30 Deister owns a lot that fronts on Lake Wawasee.
31 South of and adjacent to the lot owned by Deister, JR Realty owns two lots that front on Lake Wawasee. South of and adjacent to the two lots belonging to JR Realty, is a lot owned by Scow View, LLC, a limited liability corporation also owned by one or more members of the Herdrich family. The two lots owned by JR Realty, plus the lot owned by Scow View, LLC, have a total shoreline of 120 feet of frontage. See testimony of Herdrich, Deister Exhibits 1 and 2, JR Realty Exhibit A.
32 The shoreline of the JR Realty lot that is closest to Deister’s lot spans approximately 66 feet. See Deister Exhibit 1 and 2, JR Realty Exhibit A.
33 JR Realty also owns two lots landward, in an easterly direction from the lakefront lots of JR Realty and Scow View, LLC. South of and adjacent to these two lots is a lot owned by Herdrich. There is no intervening lot between the frontage lots and these three off lake lots.
34 The Herdrich family is currently comprised of approximately 60 individuals who utilize the lake. See testimony of Herdrich and Deister Exhibit 3.
35 JR Realty’s riparian area associated with the lot closest to Deister’s lot includes a pier that is approximately 100 feet long. The survey admitted as Deister Exhibit 2 and JR Realty Exhibit A, reveals two boat lifts. An additional lift is revealed on various photographs within the “U” shaped extensions at the lakeward end of the 100 foot pier. In addition, a diving platform is revealed that is lakeward, but not attached, to the JR Realty pier[4]. See testimony of Herdrich, JR Realty Exhibits A, C and Deister Exhibits 2, 10-12, 14, 16 and 17.
36 The pier of JR Realty within the riparian area closest to Deister’s riparian area is not centered in JR Realty’s riparian zone. This pier is angled toward the northern portion of JR Realty’s riparian area, toward Deister’s riparian area. The pier has been configured in this way for many years. See testimony of Herdrich, Deister Exhibits 1, 2, 8-10, 17, JR Realty Exhibit A, B and C.
37 At the time when the original petition was filed by Deister, there was a boat owned by Herdrich’s brother, “Chris”, extending into the riparian zone of Deister, moored on a lift attached to the JR Realty pier. After the initiation of this proceeding, the boat and lift were removed, which resolved the issues disputed in the original Complaint filed by Deister. See testimony of Herdrich and Deister’s Exhibits 8-12, 16.
38 There are 11 watercraft associated with the area owned by the Herdrich family, including, two 28 foot sailboats (E-Scow), a 38 foot sailboat (A-Scow), a 14 foot Sunfish, a 22 foot Centurion powerboat, two Boston Whaler fishing boats, one Wave Runner,[5] a paddleboat and two kayaks. See testimony of Herdrich.
39 The Herdrich family watercraft are not exclusively moored at the 100 foot pier placed within the JR Realty riparian area that is closest to Deister’s riparian area. There are generally three boats moored to the pier that is closest to the Deister property. See testimony of Herdrich, JR Realty Exhibit C and Deister Exhibit 16.
40 In 1991, Deister purchased his Lake Wawasee property, as a summer residence. This property is adjacent to JR Realty’s frontage lots,. See testimony of Deister.
41 Herdrich estimates Deister’s shoreline to span approximately 58 feet. Deister estimates his own shoreline to span approximately 60 feet at the water’s edge. Both estimate the span of the shoreline by extrapolating from the surveys admitted as evidence in this matter. Neither survey specifies the length of Deister’s frontage; both include landward markers showing a distance of 62.55 feet in an angle near the shoreline. The ALJ finds the shoreline to be less than 62.55 feet in length, but not substantially so, and either witnesses’ estimate is within an acceptable margin of error for the relevant purposes of this order. See Deister Exhibits 1 and 2, JR Realty Exhibit A and the testimony of Herdrich and Deister.
42 At the time when Deister purchased his lot on Lake Wawasee, his recollection is that there was a pier placed lakeward of the shore in three sections. In 1992, the first year following his purchase of this lot, Deister put in a pier. Deister reconfigured his pier four or five years prior to the administrative hearing, when the water level was low, extending his pier by one 11 foot section. At that time, he also moved his lifts out. His pier has included the 11 foot extension since that time. Most recently, the lakeward end of the Deister pier is in three sections, equating to a width of twelve feet. Over time, Deister has also attached multiple extensions to his pier surrounding his boat lifts. See testimony of Deister.
43 From the water’s edge, the Deister pier is currently 142 feet in length. See testimony of Deister.
44 In 2015, Deister maintained eight lifts. The boat anchor posts for his houseboat and two other Deister lifts are currently placed to the North of the line identified on Deister’s Exhibit 2 and JR Realty Exhibit A, as “Extension of Property Line” between Deister and Deister’s northern riparian boundary that he shares with Dr. Parent. See testimony of Herdrich, Deister, Deister Exhibit 2, 4-6 and JR Realty Exhibit A.
45 In 1992, Deister moored a houseboat at his pier, in the same location in which he moors his houseboat currently. He currently maintains a different houseboat at the lake that is the same length but two feet wider.
46 In addition to his houseboat, in 1992, Deister moored approximately eight other watercraft at his pier, including five or six powered boats. Currently, in addition to his houseboat, Deister maintains three powerboats, Wave Runners, a paddleboat, kayaks and canoes. He currently moors a total of eleven powered watercraft at his pier or at a lift not attached to his pier. See testimony of Deister.
47 Herdrich’s recollection is that Deister accommodates approximately 15 watercraft within Deister’s riparian area. The ALJ finds that a reasonable conclusion regarding the discrepancy between the number of watercraft identified by Herdrich and the number identified by Deister would be that Herdrich’s recollection includes watercraft not currently owned by Deister. The Herdrich number may include watercraft moored over a period of time, or watercraft moored by persons visiting the Deister property. See testimony of Deister and Herdrich.
48 Herdrich believes that Deister has an abnormally large number of watercraft, given Deister’s number of drivers, which Herdrich estimates to be six. See testimony of Herdrich.
49 While Herdrich is aware that he has no right to a view of the lake, his obstructed view, due to the size and quantity of Deister’s lifts and boats, is disappointing to him. See testimony of Herdrich.
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50 Jim Hebenstreit (“Hebenstreit”) is the Assistant Director supervising the Ground Water, Water Rights and Permitting sections of the DNR Division of Water. He has been with DNR for over 42 years and has been involved, for over 30 years, with the placement of piers, including structures placed by general license, structures placed under individual permits, and the administration of the Lakes Preservation Act. See testimony of Hebenstreit.
51 The Lakes Preservation Act does not provide statutory authority to DNR to control the number of watercraft moored by a riparian owner at a residential dock. See testimony of Hebenstreit.
52 Each year, under the Lakes Preservation Act, thousands of temporary piers fall under “general licensing” and do not require individual license applications and permits. To qualify under the general licensing criteria, a temporary pier generally must be less than 150 feet long and must be placed within appropriate riparian boundaries, or with the permission of a riparian owner. In addition, the pier cannot obstruct navigation on the “lake proper", which he describes as “beyond 200 feet of shore”. Hebenstreit acknowledges that there may be limited space between temporary structures closer to shore. See testimony of Hebenstreit.
53 For Lake Wawasee, as with other large lakes within Indiana, there may be mere inches between temporary piers. See testimony of Hebenstreit.
54 Hebenstreit has not personally been called upon to determine whether any pier is unusually long or wide in the vicinity of the piers at issue in this proceeding. Upon such a request, he would consider whether a pier is less than 150 feet long and if the pier is found to be within available riparian boundaries. Hebenstreit has not personally observed the Deister pier but has seen photographs of the pier. See testimony of Hebenstreit.
55 While DNR prefers a 20 foot buffer zone, or setback that generally reflects 10 feet on either side of a riparian zone boundary, DNR often finds a 10 foot setback, reflecting five feet on either side of a riparian zone boundary line, to be acceptable as long as the needs of safe navigation are met. See testimony of Hebenstreit.
56 Herdrich is aware that over a period of time, both Deister and Herdrich have “bumped” one another’s docks many times. Deister has placed posts next to his lift on the side of his pier nearest the JR Realty riparian area to prevent the Herdrich family, as well as guests associated with JR Realty, from hitting his pier on a windy day. See testimony of Herdrich.
57 When it is windy and wavy it is difficult for Herdrich to get out into the lake with his 38 foot sailboat, which he moors with its bow out. Generally, mooring is more difficult in windy conditions. See testimony of Herdrich.
58 With confidence, Herdrich believes that an appropriate set back of five (5) feet on either side of the riparian line between JR Realty and Deister would allow him to safely and adequately moor his largest sailboat. Deister asserts that five (5) feet on either side of the riparian line between Deister and JR Realty is an appropriate setback. See testimony of Deister and Herdrich.
59 Kay Young (“Young”) has been a real estate agent for 26 years, primarily for Lake Wawasee properties. She has also been the President of the Wawasee Property Owners’ Association for 12 or 13 years. As Association President, she has been involved with the numbering of piers on the lake by the Association as well as the general resolution of issues of property owners on the lake. See testimony of Young.
60 Young has observed that piers are larger now than piers have been in the past. She also has observed that it is now unusual for a pier to have a single boat moored to it. She is aware that most recently, it is not unusual for 10 or more watercraft to be moored to a pier at Lake Wawasee. See testimony of Young.
61 Young identified the pier of Deister within JR Realty’s Exhibit B and observed that the Deister pier is longer than the piers aerially photographed in the Google Earth photograph identified as JR Realty Exhibit B. However, based on Young’s knowledge of the area and her personal observations of piers on the lake, including the Deister pier, she does not believe that the Deister pier is unusually wide or long, compared to other piers on the lake. See testimony of Young and Deister Exhibits 4-7, 13 and JR Realty’s Exhibit B.
62 To the North of and adjacent to Deister’s lot is Dr. Parent’s lot. Dr. Parent’s lot also fronts on Lake Wawasee and appears to include shoreline that approximates the total feet of lake frontage owned by both the Herdrich family, including JR Realty, Scow View, LLC and Deister. See testimony of Herdrich and Deister Exhibit 3.
63 Deister recalls that Dr. Parent purchased his property in 1991. See testimony of Deister.
64 Herdrich believes that Deister maintains boat anchor posts and two lifts that extend beyond the riparian zone of Deister into the riparian zone of Dr. Parent. See JR Realty Exhibit C, pages 6-10, 14, Deister Exhibit 2 and 4-7 and the testimony of Herdrich.
65 Hebenstreit is unaware of any complaint of Deister encroachment or interference from Dr. Parent. See testimony of Hebenstreit.
66 In correspondence on letterhead for the “Eye Center of Fort Wayne J. Rex Parent, M.D.”, dated June 16, [2015], to “Mark Deister”, signed “Rex”, Dr. Parent provided the following statement: “I know you found your pier is close to mine, but I have no probable (sic) with that. After 20 years I feel if there is a concern, we could work it out amicably.” See Exhibit 18[6] and testimony of Hebenstreit and Deister.
67 Hebenstreit identified the format of the correspondence identified in paragraph 66 to this decision, as sufficient for DNR to determine written approval by a riparian owner for purposes of a general license qualification. See Exhibit 18 and testimony of Hebenstreit.
68 Dr. Parent was not made a party to this proceeding. No determination of the riparian boundary between Deister and Dr. Parent is being determined in this proceeding.
Conclusions of Law
Commission Jurisdiction and party burden
69 Piers placed within an Indiana public freshwater lake require, as a general premise, that a person may not place a structure “over along or lakeward of the shoreline or waterline of a public freshwater lake”, unless the person obtains a permit from DNR.
IC 14-26-2-23(a).
70 The Commission was granted the statutory authority to adopt administrative rules to provide objective standards for the configuration of piers, boat stations, platforms and similar structures. IC 14-26-2-23(e).
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71 As authorized at IC 14-26-2-23(e)(2)(B), some activities within public freshwater lakes were determined by the Commission “unlikely to pose more than a minimum potential for harm to the public rights” as established by law. Those activities, including the placement of temporary structures, may now qualify for placement under a general license. 312 IAC 11-2-25 and 312 IAC 11-3-1(b).
72 A temporary structure is defined by 312 IAC 11-2-25, as follows:
(a) "Temporary structure" means 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.
(b) Examples of a temporary structure include the following:
(1) A pier that:
(A) is supported by auger poles or other poles that do not exceed three and one-half (3½) inches in diameter and rest on the lake bed; and
(B) is not mounted in or comprised of concrete or cement.
(2) A boat shelter, boat lift, or boat hoist that:
(A) has a canvas top and sides;
(B) is supported by auger poles or other poles that do not exceed three and one-half (3½) inches in diameter;
(C) is not mounted in or comprised of concrete or cement;
(D) is designed to float or to rest upon the bed of the lake under its own weight if any structure to which it is attached complies with this section; and
(E) is not wider than ten (10) feet nor longer than twenty (20) feet.
73 In accordance with rules established by the Commission to implement IC 14-26-2-23(e), objective standards have been established so that the placement of a temporary structure is authorized without an individual written license issued by DNR, if the structure qualifies by satisfying each of the following:
(1) Be easily removable.
(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.
(3) Not unduly restrict navigation.
(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.
(5) Not extend more than one hundred fifty (150) feet from the shoreline or water line.
(6) If a pier, not extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the shoreline or water line.
(7) Not be a marina.
(8) Not be a group pier.
(9) Be placed by a riparian owner or with the written approval of a riparian owner.
312 IAC 11-3-1(b).
74 Under the Lakes Preservation Act, administrative review by the Commission under IC 4-21.5-3 is authorized for disputes among persons with competing interests or between a person and the department, for a person affected by the determination of the department. IC 14-26-2-23(e)(3)(B).
75 The Commission has established rules to implement IC 14-26-2-23(e)(3)(B). “A riparian owner[7] or the department may initiate a proceeding under IC 4-21.5 and 312 IAC 3-1 to seek resolution by the commission of a dispute among riparian owners, or between a riparian owner and the department, concerning the usage of an area over, along, or within a shoreline or waterline of a public freshwater lake.” 312 IAC 11-1-3(a) (emphasis added).
76 In addition, “A person may seek administrative review of the placement or maintenance of a structure…” placed under the authority of 312 IAC 11-3-1(b). 312 IAC 11-3-2 (emphasis added).
77 IC 14-25.5-1-1 provides authority to DNR to enforce IC 14-26, the Lake Preservation Act. IC 14-26-2-19 provides DNR the authority to seek relief under IC 14-25.5-4 of a violation of IC 14-26, which would include a violation associated with the placement of temporary structures under IC 14-26-2-23 and 312 IAC 11-3-1.
78 To qualify for administrative review under IC 4-21.5-3-7(a)(1), a petitioner must present facts showing one of the following:
(A) the petitioner[8] is a person to whom the order is specifically directed;
(B) the petitioner is aggrieved or adversely affected by the order; or
(C) the petitioner is entitled to review under any law.
79 Both the JR Realty pier and the Deister pier are temporary structures as defined by 312 IAC 11-2-25.
80 JR Realty disputes whether the Deister pier qualifies as a temporary structure for placement under the criteria set forth in 312 IAC 11-3-1(b).
81 As the party requesting that an agency take action, Counterclaim Petitioner, JR Realty, bears the burden of persuasion and the burden of going forward to prove the issues raised in its Counter-Petition for Administrative Review. IC 4-21.5-3-14(c).
82 In response to the arguments raised by JR Realty, Counterclaim Respondent, Deister, asserts affirmative defenses that JR Realty has no standing to present the argument and that JR Realty is guilty of laches. Deister has the burden to prove the issues he raised as affirmative defenses to JR Realty’s Counter-Petition in this proceeding. Id.
83 Agency Respondent, DNR, identified no affirmative defenses in this proceeding.
JR Realty’s claim as a riparian owner and a member of the public
84 JR Realty requests an adjudication under the Lakes Preservation Act and its regulations that Deister’s structures in Lake Wawasee are contrary to law pursuant to 312 IAC 11-1-3. JR Realty rests this claim on the cumulative effects of the Deister’s structures and asserts that the structure adversely affects JR Realty’s interests or its rights to reasonable access to a public freshwater lake.
85 Deister and JR Realty are riparian owners.
86 As a riparian owner, JR Realty “may initiate a proceeding under IC 4-21.5 and 312 IAC 3-1 to seek resolution by the commission of a dispute among riparian owners…concerning the usage of or an area over, along, or within a shoreline or waterline of a public freshwater lake.” 312 IAC 11-1-3(a).
87 JR Realty’s complaint avers a dispute between JR Realty and Deister concerning Deister’s usage of the Deister riparian zone.
88 Deister and JR Realty are also adjacent riparian owners who own adjacent lots that front on Lake Wawasee. 312 IAC 11-3-2 authorizes any person to initiate an action to review the placement a temporary structure and for that reason JR Realty possesses standing to initiate this action in accordance with IC 4-21.5-3-7(a)(1)(C).
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89 JR Realty possesses standing through 312 IAC 11-1-3 and 312 IAC 11-3-2, to assert interference or infringement, specifically the infringement identified in 312 IAC 11-3-1(b)(2).
90 Deister’s affirmative defense regarding JR Realty’s standing to bring this claim fails.
91 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).
92 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).
93 Consistent with this concept, a riparian owner, Deister, may install a temporary structure under a general license in accordance with 312 IAC 11-3-1. However, under 312 IAC 11-3-1(b)(2), a temporary pier must “[n]ot infringe on the access of an adjacent landowner to the public freshwater lake.”
94 As to the merits of its claim, JR Realty does not claim encroachment by Deister into the riparian zone of JR Realty, provided that Deister’s and JR Realty’s stipulation that a five (5) foot buffer should exist on each side of the common riparian zone boundary between Deister and JR Realty.
95 The evidence supports establishment of Deister’s and JR Realty’s proposed buffer. See testimony of Deister, Herdrich and Hebenstreit.
96 JR Realty provided insufficient evidence to show that the placement of the Deister structure interferes with JR Realty’s reasonable access to the lake, not otherwise resolved through the implementation of the agreed upon buffer zone.
97 The evidence does not support its claim that the Deister structures infringe or adversely affect its right to reasonable access to the lake.
98 No other claim by JR Realty is based on the rights of JR Realty as a riparian owner under 312 IAC 11-1-3.
JR Realty’s other claims as a member of the public
99 JR Realty also asserts that the (1) cumulative effects of the Deister’s structures adversely affect the public rights and affect the management of watercraft operations, (2) that Deister’s structures unduly restrict navigation[9], (3) are unusually long or wide relative to similar structures in the vicinity of the same public lake[10] and (4) are not placed in an area by the proper riparian owner or with the written permission of a riparian owner.[11]
100 While JR Realty is a riparian owner on Lake Wawasee, JR Realty is also a member of the public who has a vested right to the “preservation, protection, and enjoyment” and “use…for recreational purposes.” IC 14-26-2-5(c)(2).
101 312 IAC 11-3-2 authorized any person to initiate an action to review the placement a temporary structure and for that reason JR Realty possesses standing to initiate this action in accordance with IC 4-21.5-3-7(a)(1)(C).
102 Deister’s affirmative defense regarding JR Realty’s standing to bring these claims fails.
103 As to the first and second claims, no evidence was presented to show any effect that the placement of the Deister pier has upon JR Realty as a member of the public, not as a riparian owner, on JR Realty’s management of watercraft operations. This management is limited to navigation, as identified within the specific criteria established by rule to qualify for a general license. 312 IAC 11-3-1(b)(3).
104 No evidence of any potential adverse impact to JR Realty related to safe navigation, beyond the riparian zones of the parties, was presented.
105 JR Realty, as a member of the public, also claims to be potentially affected by contending that the Deister structures are unusually long or wide relative to similar structures in the vicinity, as identified in 312 IAC 11-3-1(b)(4).
106 As it relates to the interests of JR Realty, while conflicting testimony on this issue was presented, the weight of the evidence, including the testimony of Hebenstreit, Young and Deister support a finding that the structures of Deister are not unusually long, at 142 feet, or wide relative to similar structures in the vicinity on the same public lake.
107 JR Realty’s final claim is based upon the assertion that Deister’s pier is inappropriately located within the riparian zone of Dr. Parent. Dr. Parent, the person who would clearly be impacted by any such encroachment, has not complained. In fact, the correspondence in evidence might actually be characterized as an expression of acquiescence by Dr. Parent, as the riparian owner. Terry and Penny Waikel V. DNR, 6 CADDNAR 43 (1992).
108 JR Realty may not initiate an action on behalf of another person, without a showing that JR Realty is a duly authorized representative. Collins & Pressner v Town of Ogden Dunes, 13 CADDNAR 226 (2014) and Edwards v. Pressler & Tomei, 12 CADDNAR 325 (2011).
109 For this reason this claim by JR Realty will not be considered further. See also IC 4-21.5-3-15.
JR Realty’s claims on behalf of the public
110 As to any of the aforementioned claims asserted, on behalf of the public, not as a member of the public, JR Realty may not initiate a proceeding on behalf of the public.
111 Under the Administrative Orders and Procedures Act (AOPA), a person must possess a sufficient interest in the subject matter in order to initiate a proceeding under AOPA as follows: “Essentially, to be ‘aggrieved or adversely affected,’ a person must have suffered or be likely to suffer in the immediate future harm to a legal interest, be it a pecuniary, property, or personal interest.” Huffman v Indiana Office of Environmental Adjudication, et al, 811 N.E.2d 806 (Ind. 2006), at 810. "…the language of AOPA does not allow for administrative review based on a generalized concern as a member of the public. The statute says "aggrieved or adversely affected" and this contemplates some sort of personal harm." Id at 812.
112 Furthermore, IC 14-25.5-1-1 provides authority to DNR to enforce IC 14-26, the Lake Preservation Act on behalf of and in protection of the resource for the public. IC 14-26-2-19 provides DNR the authority to seek relief under IC 14-25.5-4 of a violation of IC 14-26, which would include a violation associated with the placement of temporary structures under IC 14-26-2-23 and 312 IAC 11-3-1.
113 “A notice of violation under IC § 14-25.5-2 is in the nature of a DNR ‘accusation’ against a person or persons. AOPA does not provide a remedy to a person who is dissatisfied with an agency “decision to issue or not issue a complaint, summons, or similar accusation.” IC 4-21.5-2-5(8) through IC 4-21.5-2-5(10). Under AOPA, the General Assembly generally exempts from administrative review an agency’s exercise of prosecutorial discretion. Crown Point v. DNR and Stillwater of Crown Pt., 13 CADDNAR 42 (2012) citing Daniel v. Johnston & Fultz Excavating (Lake Trust), 12 CADDNAR 264, 268 (2010) and Ford & Guenther v. DNR in re Matthew, 10 CADDNAR 21, 22 (2005).
114 The Department has not exercised its authority under IC 14-25.5-4.
115 Deister has met his burden on his affirmative defense regarding any claim asserted by JR Realty on behalf of the public. JR Realty has no standing to bring a claim on behalf of the public.
116 In his Affirmative Defenses to Counter-Petition for Administrative Review, Deister also raises an affirmative defense and avers that JR Realty “is guilty of laches.” Insufficient evidence was presented to support this affirmative defense.
[1] In the body of the Counter-Petition for Administrative Review, and in the clarification of Counter-Petition, “J&R Realty Corporation” is referenced as the party. In other filings, this party is referenced as JR Realty Corp. For consistency throughout this decision, the party is referenced as “JR Realty”.
[2] Findings of fact that may be construed as conclusions of law and conclusions of law that may be construed as findings of fact are so deemed.
[3] Notations are provided as a reference to support testimony or exhibits in the record. The reference may not be exhaustive.
[4] It is noted that while Herdrich appears as the representative of JR Realty, for any information concerning the boat previously moved from the Deister riparian zone which resulted in the original initiation of this case, as well as the diving platform, he defers to his brother.
[5] An additional WaveRunner is maintained in a garage.
[6] Exhibit 18 is signed “Rex” above the following typed name: “J. Rex Parent, M.D.”. Exhibit D is an unsigned version of the consent and was the document released in discovery to JR Realty. JR Realty objected to the admission of Exhibit 18 based on its receipt as an unsigned document in discovery. JR Realty also objected to admission based on the hearsay nature of the exhibit. Exhibit 18 was admitted over the objection of JR Realty as an exhibit properly objected to as hearsay.
[7] The Commission has established a rule defining a “riparian owner” to mean “…the owner of land…bound by a lake….” 312 IAC 11-2-19.
[8] JR Realty in filing a Counter-Petition in this matter is deemed the Petitioner.
[9] 312 IAC 11-3-1(b)(3).
[10] 312 IAC 11-3-1(b)(4).
[11] 312 IAC 11-3-1(b)(9).