Content-Type: text/html 92-338w.v6.html

CADDNAR


[CITE: Krivak v. DNR, Dempsey, Lenzen, and Amelio, 6, CADDNAR 176 (1994)]

[VOLUME 6, PAGE 176]

Cause #: 92-338W
Caption: Krivak v. DNR, Dempsey, Lenzen, and Amelio
Administrative Law Judge: Lucas
Attorneys: Bedrock; Davidsen; Dempsey-Lenzen, pro se, Millbranth
Date: April 25, 1994

ORDER

[KRIVAK TOOK JUDICIAL REVIEW TO THE STARKE CIRCUIT COURT (75C01-9405-CP-121), BUT THE CASE WAS DISMISSED FOR FAILURE TO FILE THE AGENCY RECORD IN A TIMELY FASHION. COURT ORDER IS ATTACHED]

Permits PL-14,911, and PL-14,920 are affirmed in the form given initial determination by the Department of Natural Resources.

FINDINGS OF FACT

1. On September 11, 1992, Joseph Krivak ("Krivak") filed a petition for review of Condition 7 placed on Permit PL-14,984 (the "subject permit") to install a temporary pier under IC 13-2 on Bass Lake in Starke county, Indiana.

2. Since the subject permit was granted in conjunction with those of Krivak's neighbors, Robert Dempsey-Robert Lenzen (Permit PL-14,911) and Nick Amelio (PL-14,920), they joined in this proceeding as affected persons.

3. This proceeding is governed by IC 4-21.5, 310 IAC 0.6-1, IC 13-2 (particularly IC 13-2-11.1 and IC 13-2-4-5), and 310 IAC 6-2.

4. The natural resources commission (the "Commission") is the "ultimate authority" for the department of natural resources (the "Department") in this proceeding.

5. Tim Rider was appointed under 310 IAC 0.6-1-4 as the administrative law judge for the Commission; and following presentations by the parties, he tendered a "Report, Findings of Fact, and Nonfinal Order of the Administrative Law Judge" on August 13, 1993. copies were forwarded to each of the parties or their counsel.

6. Nick Amelio, by counsel, on September 2, 1993 filed his "Response to Notice of Filing Report, Findings of Fact, and Non-Final Order of the Administrative Law Judge". This response was placed before the Commission and considered as "objections" filed under IC 4-21.5-3-29 and 310 IAC 0.6-1-12.

7. The Commission considered the findings of fact and nonfinal order of the administrative law judge, as well as the objections of Amelio, during its regular public meeting of September 23, 1993. Amelio appeared by counsel and tendered documents and exhibits not then in the record. The Commission did not finally dispose of this proceeding, but it instead remanded the case to the administrative law judge with instruction that he consider the offer of additional evidence tendered by Amelio.

8. After both Amelio and Krivak, by counsel, presented written documentation in favor of their positions, the administrative law judge resubmitted the case for disposition by the Commission during its regular monthly meeting of March 30, 1994. Argument was then received from counsel for Amelio, for Krivak, and for the Department. Following the conclusion of argument, the Commission determined not to affirm the findings and nonfinal order of the administrative law judge, but it instead orally entered substituted findings of fact and an order and directed that the director of the Commission's division of hearings reduce them to writing. The following are the findings of fact and order of the Commission and constitute a final disposition of this proceeding.

9. This proceeding involves a dispute among neighbors owning adjacent lands, or an interest in adjacent lands, on the shore of Bass Lake, a "public freshwater lake" under IC 13-2-11.1 and 310 IAC 6-2. Most particularly, the dispute centers upon the placement of temporary piers.

10. A permit may be required by the Department under IC 13-2-11.1-3 (a) and IC 13-211.1-2 for the placement of temporary piers on a public freshwater lake. See, also, Zapffe v. Srbeny (1992), Ind. App., 587 N.E.2d 177.

11. The Department authorizes the placement of temporary piers without a permit under IC 13-2-11.1 where the pier meets each of a series of conditions set forth in 310 IAC 6-2-14.

[VOLUME 6, PAGE 177]

Where the temporary pier does not satisfy any of those conditions, however, a permit is required. One of the conditions is set forth in 310 IAC 6-2-14 (a)(9),with the effect that a permit is required if the temporary pier is objected to by an affected person. Since the subject permit was objected to by an affected person, a permit was required for the Krivak temporary pier.

12. The onshore boundaries of a riparian tract extend into the lake in a line perpendicular to the shoreline, where the shoreline approximates a straight line. Bath v. Courts (1984), Ind. App., 459 N.E.2d 72 as cited in Zapffe at 587 N.E.2d 179.

13. Bath is not directly applicable to this case, however, because the onshore boundaries of the property owners approach the shoreline at other than a perpendicular. Bath was itself founded upon a Wisconsin decision, Nosek V. Stryker (1981), 103 Wis.2d 633, 309 N.W.2d 868; and, as agreed by the parties, Nosek is persuasive.

14. A riparian owner along a lake shall cause pier placement ( or "wharf out") in the most direct manner to the nearest water that can be navigated. Nosek and 1 "waters and Water Rights section 6.01 (a) (2), footnote 138.

15. Where, as in this case, the onshore boundaries of the property owners are approximately parallel to one another, and nearly but not exactly perpendicular to the shoreline, the most direct and expedient manner for pier placement is at the same angle as the onshore boundaries of the neighbors.

16. The subject permit as given initial determination by the Department is as the same angle as the onshore boundaries of the neighbors and meets the spirit and intent of Nosek. The subject permit should be affirmed as set forth in Exhibit "A" and as conditioned by the Department in its initial determination.

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[NOTE: CADDNAR citation does not apply to the Starke Circuit Court entry.]

STARKE CIRCUIT COURT ORDER OF DISMISSAL

This matter came on for hearing on the Motion of Respondent Intervenor nick Amelio to Dismiss Petitioner Joseph Krivak's Petition for Judicial Review and the Court having taken the matter under advisement is now duly advised.

This action is governed by the Administrative orders and Procedures Act, I.C. 4-21.5-1-1, et seq. The Act requires the Petitioner to "transmit to the Court the. . . agency record for judicial review" within thirty (30) days after the petition if filed unless further time is allowed by the Court or other law. IC 4-21/5-5-5-13(a) (1988). The Act further provides that the failure to file the record within the time is cause for dismissal of the Petition on the Court's own motion or the motion of any party of record. I.C. 4-21.5-5-5-13(b) (1988). The appellate courts have held that this statutory requirement is jurisdictional and delay on raising the issue is not fatal. Indianapolis yellow Cab, Inc. v. Indiana Civil Rights Commission, (1991), Ind. App., 570 N.E.2d 940, 942. No request for extension of time to file the record was filed.

The Petition for Judicial Review was filed on may 13, 1995, and the agency record was filed with the Court on Tuesday, June 14, 1994. The statutory time to file the agency record lapsed on June 12, 1994. Since June 12, 1994 was a Sunday, T.R.6(A) extended the deadline to Monday, June 13, 1994.

Petitioner argues that Ind. Trial Rule 6(E) allows him an additional three (3) days for mail service. Reliance on TR6(E) is misplaced. I.C. 4-21.5-5-13(a) requires the record to be filed within thirty (3) days of the filing of the Petition for Judicial Review. Thus, the triggering of the thirty (3) days is the filing of the Petition and not the service of the Petition. See Annon II, Inc. v. Rill, (1992), Ind. App., 597 N.E.2d 320.

Since the filing of the agency record within thirty (30)days is jurisdictional and the record was not filed within that time period the Motion for Intervenor Nick Amelio to Dismiss the Petition for Judicial Review must be granted.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by the Court that the Motion of Intervenor Nick Amelio to Dismiss the Petition of Joseph Krivak for Judicial Review be, and it hereby is, granted and that the Petition of Joseph Krivak for Judicial Review be, and it hereby is, dismissed. Costs v. Petitioner.

Dated this 21st day of September, 1995.