CADDNAR

 

Shorewood Conservation Development, LLC & Baker v. Drew, 17 CADDNAR 5

 

Administrative Cause Number:      22-041W

Administrative Law Judge:             Aaron Bonar

Petitioner Counsel:                           Bill D. Eberhard, JR., Charity A. Murphy, and

Rachel Tran

Respondent Counsel:                        Stephen R. Snyder

 

 

Date:                                                   May 17, 2024

 

 

[See Editor’s note at end of this document regarding change in the decision’s original format.]

 

 

 

FINAL ORDER

 

1.      Upon the determination of the Kosciusko County Superior Court in 43D04-2207-PL-000064, the riparian line diving the parties’ properties shall be drawn “by extending the onshore boundaries into the public waters” of Lake Wawasee.

 

2.      Both parties are to maintain no less than five (5) feet of clear space on their respective sides of the riparian line, creating a total of 10 feet of open, clear, navigable space between the parties’ respective piers.

 

3.      The five (5) feet of clear space maintained by each party must be kept free of piers, moored watercraft, boatlifts, and other structures.

 

  1. At no time may either party leave less than five (5) feet of clear space, including space occupied by piers, moored watercraft, and/or boatlifts, available from the riparian line between the parties’ respective riparian zones.

 

  1. At no time may any watercraft moored at either party’s pier cross into or otherwise infringe on the other party’s riparian zone beyond infringement caused by the temporary entry to and exit from the parties’ respective riparian zones.

 

  1. The parties are responsible for adjusting their piers, moored watercraft, boatlifts, and other structures, if necessary, to comply with this order.

 

 

           

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER

 

Procedural Background and Jurisdiction

 

1.      On June 23, 2022, Shorewood Conservation Development, LLC. and Robert E. Baker (hereinafter Baker) filed correspondence (hereinafter Petition) with the Natural Resources Commission (hereinafter Commission) alleging that William C. and Diane M. Drew (hereinafter Drews) extended a pier into Lake Wawasee that interfered with Baker’s use of his riparian area. See Petition.

 

2.      Baker sought to have the parties’ respective riparian zones defined and to resolve the dispute involving Drews’ pier so as to respect Baker’s riparian rights. Id.

 

3.      By filing his Petition, Baker initiated a proceeding governed by Indiana Code 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. See IC 4-21.5-3-1, et seq.

 

4.      Administrative Law Judge (ALJ) Aaron Bonar was appointed under IC 14-10-2-2 to conduct this proceeding and was assigned this case on or around July 1, 2022.

 

5.      A telephonic prehearing conference was held on July 14, 2022. Counsel for Drews stated that Drews would likely file a quiet title action in the Kosciusko County Superior Court related to a landward property dispute between the parties and a motion to stay this action pending the outcome of the quiet title action.

 

6.      Drews filed a quiet title action on July 18, 2022, and filed a Motion to Stay This Action Pending a Final Order by Kosciusko Superior Court in this matter on September 6, 2022. The stay was granted by ALJ Bonar during a telephonic conference held on September 6, 2022.

 

7.      At the parties’ request, a telephonic status conference was held on August 7, 2023. The parties acknowledged that the Kosciusko County case was ongoing, but that any ruling in that case would have minimal impact on the issues in this matter. The parties agreed that the only issue to be heard in this case is the amount of open, navigable space each party will have to maintain on their respective sides of a dividing riparian line.

 

8.      The parties agreed to hold an administrative hearing on October 11, 2023. At the hearing, Baker, Baker’s counsel Bill Eberhard, Drews, and Drews’ counsel Stephen Snyder, appeared in person at the Commission Hearing Room at the Indiana Government Center in Indianapolis, Indiana.

 

9.      The following witnesses testified at the administrative hearing: Ryan Weber, Kent Baker, Gloria Novotny, and William C. Drew.

 

10.  Baker’s Exhibits A-X and Drews’ Exhibits 1-36 were admitted into the record by stipulation at the administrative hearing.

 

11.  The parties filed post-hearing briefs on November 13, 2023.

 

Findings of Fact

 

12.  Baker owns real property abutting Lake Wawasee in Kosciusko County, IN. The property is commonly known as 6582 E. Waco Drive, Syracuse, IN 46567. See testimony of Kent Baker (Baker testimony) and Exhibit H.

 

13.  Baker’s family has owned the property for at least two generations. Baker’s father holds a life estate in the property. On the death of Baker’s father, the remainer of the property will vest in Shorewood Conservation Development, LLC., Baker’s company. See Baker testimony and Exhibit B.

 

14.  Drews own real property abutting Lake Wawasee in Kosciusko County, IN. The property is commonly known as 6574 E. Waco Drive, Syracuse, IN 46567. Drews purchased the property in 2018. See testimony of William C. Drew (Drew testimony) and Exhibit 32.

 

15.  Ryan Weber is a licensed surveyor in Indiana. Weber testified that Baker’s and Drews’ properties share a common property line that runs north and south, with the Drews’ property being immediately west of Baker’s property. The north-south property line terminates northward into Lake Wawasee. See testimony of Ryan Weber (Weber testimony) and Exhibits F, H (excerpt below), and W.

 

 

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16.  Drews’ property consists of two lots, giving Drews approximately 80 feet total of combined shorefront. Baker’s property, consisting of one lot, has approximately 50 feet of shorefront. See Weber testimony, Baker testimony, testimony of Gloria Novotny (Novotny testimony), and Exhibits H and F.

 

17.  No evidence was presented that the parties had any issues concerning their respective pier placements before 2021. See totality of the evidence and Exhibits 29 and X (old pier placements).

 

18.  By September 2021, Drews’ pier had been expanded and was closer to the riparian line dividing the Baker and Drews riparian zones. See Exhibits S and W.

 

19.  In November 2021, Baker emailed Drews noting that Baker believed that Drews’ pier and accessories likely cross into the “safety zone” between the Drews’ and Baker’s piers. Baker asked Drews not moor any watercraft on Drews’ pier in such a way as to “push further into the riparian rights zone allowing in/out unimpeded access to our shoreline.” See Baker testimony and Exhibit D.

 

20.  In 2022, Drews reconfigured their pier, including placing a boatlift on the east side of the lakeward end of the pier. This reconfiguration did not address the concerns raised by Baker but raised further safety concerns for Baker’s family and guests due to the narrowed clearance between the parties’ piers. See Baker testimony, Novotny testimony, and Exhibits S and 5.

 

21.  An overlay of an aerial photograph on Weber’s survey shows Drews’ pier is between 5.9 and 7.1 feet away from the boundary dividing the riparian zones. Baker’s pier is between 10.8 and 9.6 feet away from the shared riparian line. This creates a total of approximately 16.7 feet of space between the two piers. See Exhibits F and 6.

 

22.  In July 2022, Drews filed a quiet title action in the Kosciusko County Superior Court. This case was pending at the time of the hearing. The parties agree that the quiet title action is limited to the parties’ onshore property boundaries. See totality of the record and pleadings in 43D04-2207-PL-000064.

 

23.  However, the parties seek to have the Commission establish the extent of the riparian safety zone (clear space). The parties agree that the outcome of the Kosciusko County Court case will have minimal impact on this matter as the dividing line between the two riparian zones is unlikely to create a significant difference in the size of the parties’ respective riparian zones. See totality of the record.

 

24.  As of the hearing date, the piers were in the same location as they were after the 2022 reconfiguration. As of 2023, Drews have a “jut out” that makes the space between the parties’ piers narrower. See Baker testimony; Drew testimony; and Exhibits P, T, U, and 11.

 

25.  To date, there have been no collisions of watercraft owned by the parties or their guests due to the nearness of the parties’ respective piers. See Drew testimony and Baker testimony.

 

Conclusions of Law

 

26.  Lake Wawasee is a Public Freshwater Lake located in Kosciusko County, Indiana. Information Bulletin #61 Listing of Public Freshwater Lakes (Eighth Amendment), DIN 2021020-IR-312210447NRA (IB61).

 

  1. IC 14-26-2-5, also known as the Lake Preservation Act, provides that the State “has full power and control of all the public freshwater lakes in Indiana … [and] hold and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.” See IC 14-26-2-5(d)(1-2).

 

  1. The Commission has jurisdiction over public freshwater lakes and has the power to make administrative rules to implement relevant sections of the Indiana Code. See IC 14-10-2, 14-15-7-3, 14-26-2-23[1], and 4-22-2.

 

  1. A “riparian owner” is “the owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake.” 312 IAC 11-2-19.

 

  1. In general, the owner of property that abuts a lake possesses certain rights associated with ownership of that property. Bass v. Salyer, 923 N.E.2d 961, 971 (Ind. Ct. App. 2010). Those rights 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 . . ..” Parkison v. McKue, 831 N.E2d 118, 128 (Ind. Ct. App. 2005).

 

  1. It is not disputed that the parties all own real estate abutting Lake Wawasee and are therefore riparian owners. As such, they each may be permitted to extend a qualifying temporary structure lakeward of the shoreline of Lake Wawasee provided that the structure meets several criteria, including that the structure does “[n]ot infringe on the access of an adjacent landowner to the public freshwater lake” and does “[n]ot unduly restrict navigation.” See 312 IAC 11-3-1(b).

 

32.  The Commission is required to consider the guidance provided in Information Bulletin #56 (IB56) when asked to determine parties’ riparian boundaries. 312 IAC 11-1-4 and Information Bulletin #56, Riparian Zones within Public Freshwater Lakes and Navigable Rivers (Third Amendment), DIN 20220209-IR-312220025NRA.

 

  1. IB56 does not have the effect of law; however, it is widely followed to provide guidance for determining riparian boundaries. England v. Ball & Arend, 15 CADDNAR 77, 79 (2019).

 

  1. The parties agree that IB56’s second principle applies in this matter and agree that the riparian line dividing their properties will extend straight into Lake Wawasee from the landward property line determined in the Kosciusko County Court case. See IB56 at page 3.

 

  1. IB56 also states, in relevant part, “[t]o 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.” See IB56 at page 2.

 

  1. While IB56 recommends that parties maintain a total of 20 feet of clearance between lakeward structures, the Commission has sometimes ordered parties to maintain less clearance space. The Commission has also found a ten (10) foot clearance space to be an adequate safety zone. See N.G. Hatton Trust v. Young & Pfeiffer, 14 CADDNAR 176 (2017); Xanders v. Nixon Trust, 14 CADDNAR 33 (2015); Lawson v. Halliwill, 13 CADDNAR 146 (2013).

 

  1. The parties agree that there is 16.7 feet of space between their respective piers. Both piers are set back at least five (5) feet from the riparian zone boundary line. Indeed, regardless of which possible line is drawn, Baker’s pier is nearly 10 feet from the potential riparian line and Drews’ pier is at least six (6) feet from the same line.

 

  1. Both parties seem to be confused as to what constitutes a “safety zone” in terms of riparian rights. A safety zone is not to be used for mooring boats or placing boatlifts but is to be kept free of “piers and moored boats” as well as other structures. See IB56 at page 2.

 

  1. Given the Commission’s history of finding a 10-foot safety zone adequate to satisfy the guidance of IB56, the 16.7-foot distance between the parties’ piers, and the lack of any collisions or safety incidents due to the piers’ current configurations as of the hearing date, the ALJ finds that the parties must maintain no less than five (5) feet of space clear from any piers, moored watercraft, and/or boatlifts from the riparian boundary line as established by the final order in the Kosciusko County Court case.

 

  1. At no time may either party leave less than five (5) feet of clear buffer space, including space occupied by moored watercraft, available from the riparian line between the parties’ respective riparian zones.

 

  1. At no time may any watercraft moored and/or docked at either party’s pier cross into or otherwise infringe on the other party’s riparian zone beyond infringement caused by the temporary entry to and exit from the parties’ respective riparian zones.

 

  1. The parties are responsible for adjusting their piers, moored watercraft, and/or boatlifts, if necessary, to comply with this order.

 

 

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format.  The Final Order has been relocated to the beginning of this document.]

 

 

 

                                                                       

 

 

 

 

 


[1] IC § 14-26-2-23(e)(3) was repealed by the Indiana legislature, effective July 1, 2023. However, as this petition was filed on June 23, 2022, the Commission retained jurisdiction over this matter.