Content-Type: text/html 92-293w.v6.html

CADDNAR


[CITE: Miller v. DNR and Kozon, 6, CADDNAR 181 (1993)]

[VOLUME 6, PAGE 181]

Cause #: 92-293W
Caption: Miller v. DNR and Kozon
Administrative Law Judge: Teeguarden
Attorneys: Miller, pro se; Anderson; Walmer
Date: January 8, 1993

ORDER

The decision of the department of natural resources to deny Public Freshwater Lake construction permit application PL-14,982 is hereby affirmed.

FINDINGS OF FACT

1. The Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.

2. IC 4-21.5, IC 13-2, and 310 IAC 6 apply to these proceedings.

3. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to public freshwater lake permitting decisions.

4. On April 20, 1992, Herman and Linda Miller ("Miller") filed permit application PL-14,982 ("application") requesting a permit to place a boat pier on the shore of Dewart Lake in Kosciusko County.

5. On July 28, 1992, the DNR denied the application.

6. IC 13-2-11.1-3 requires that any person desiring to change the shoreline of a public freshwater lake obtain a permit from the DNR.

7. 310 IAC 6-2-15 discusses the placement of temporary piers. No permit is needed under certain circumstances but two of those circumstances require the builder to be a riparian owner and the pier must not be objected to by any affected person.

8. At all times relevant to these proceedings, Joseph Kozon, ("Kozon") has objected to the construction of a pier by Miller.

9. Dewart Lake is a public freshwater lake. See Kozon Exhibit A, which shows numerous platted roads leading to the water front, thus giving public access to the lake waters.

10. Miller has received DNR permission to construct his temporary pier in the past. In fact, he has received a permit in the past over the objection of Kozon. See Kozon v. DNR (1990) 5 Caddnar 228. Administrative Cause Number 90-054W.

11. In cause number 90-054W, the NRC found that there were no riparian owners to Dewart Lake and that the documentation in evidence showed a common area ten feet in width surrounding the lake.

12. The DNR successfully argued in that case that all homeowners in this subdivision were entitled to assert water front rights in this common area and thus Miller was entitled to his temporary pier.

13. Between 1990 decision of the DNR, Kozon brought a quiet title suit in the Kosciusko circuit Court. The Millers (and numerous others) were named defendants.

[FINDING 14 OMITTED IN ORIGINAL DOCUMENT]

15. On December 17, 1992, the Circuit Court published its decision. See Kozon v. Young, et al. 43C0l-9008-CP-577.

16. In its decision, the Circuit Court found that there has been accretion from the lake beyond the ten foot dedicated strip in front of Kozon's property (lot 131 and part of lot 130 on Exhibit A) and such accretion belongs to Kozon.

17. This finding of the Circuit court, by collateral estoppel and res judicata, is binding on both Miller and Kozon since both were parties to the suit.

18. This Kozon is now a riparian (or littoral) owner.

19. Kozon correctly points out there is no definitive evidence at this point as to where the Miller's own property, but analyzing Miller's tendered documents and Kozon's Exhibit A lead to the reasonable conclusion that Miller owns lots number 134 and 135 and part of lot 136, which means the Miller property has lots 137 and 138 between it and the lake. In other words, the Millers own property which does not front on the ten foot common right of way, and therefore have no title to any accretion.

20. Even worse for the Millers, to get from the ten foot common strip surrounding the lake to the water in front of Kozon's property, they must commit a trespass.

[VOLUME 6, PAGE 182]

21. The DNR Cannot give a back lot property owner a permit to build a pier if it means trespassing on another's property. Absent proof of a license granted from a shoreline owner to Miller which allows the construction and use of a pier, the DNR has no choice but to deny the application.

22. The plat maps attached to pleadings show a platted roadway (Elkhart Drive) 25 feet in width running alongside Kozon's property to the shoreline.

23. The obvious purpose of the roadway is to allow access to the lake waters and the ten foot strip for persons not owning property fronting on the lake.

24. It appears as though this roadway has never been formally used or maintained by a public entity or homeowners association.

25. In its decision in Kozon v. Young, et al., supra, the circuit court ruled against Kozon in a claim of abandonment, however common law provides that Kozon and the owner of lot 137 (not the Millers) each "own 12 1/2 feet of the roadway subject to the rights of the public to use the 25 foot strip for lake access. See Gorby v. McEndarfar (1963), 191 N.E.2d 786.

26. Pursuant to IC 4-21.5-3-26(f) and (g), official notice is taken of permit application PL-14,892 for construction in or on a public freshwater lake.

27. The diagram attached to the application shows the proposed location of the pier to be in front of Elkhart drive and 24 inches from the edge of lot 131, Kozon's property.

28. Gorby, supra, indicates that the ground on which the base of the pier would be placed is Kozon's property. While Kozon cannot prevent people (or vehicles) from approaching the lake waters on Elkhart Drive and obtaining access to the lake, the fact that the shore front property is platted as a roadway does not mean that one of many back lot property owners (possibly a total of 160 such owners in this case) has a right to build a private pier on the shoreline at this point without the consent of Kozon.

29. The circuit court in Kozon, supra, was concerned about encumbrances that might exist in favor of back lot owners, however, the court specifically found that no evidence was produced by any party as to a right to place a pier in front of Kozon's property.

30. As mentioned before, Miller was a party to the quiet title action. He is thus bound by that finding of the circuit court.

31. The DNR cannot grant permit application PL-14,892 as submitted unless Kozon consents.