West & Wallace v. Leazier (22-061W), 16 CADDNAR 24
Administrative Cause Number: 22-061W
Administrative Law Judge: Elizabeth Gamboa
Petitioner Counsel: pro se
Respondent Counsel: pro se
Date: November 1, 2023
[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.]
FINAL ORDER
52. The Wests were granted an Easement to access Shriner Lake, including the right to extend a pier and moor boats thereto, by judicial decree. No additional order from the Commission is required to grant this right to the Wests.
53. The order of the Whitely Circuit Court does not specify a location from which Wests may extend their pier. The resolution of that issue is a landward property issue, resolution of which is beyond the jurisdiction of the Commission. Rather, it is a property matter that must be resolved in a court of competent jurisdiction.
54. Wallaces have not presented sufficient evidence to establish interference from the Leaziers.
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
Procedural Background and Jurisdiction
1. On September 22, 2022, John West filed an Appeal Request Form (hereinafter Petition) with the Natural Resources Commission (hereinafter Commission). West alleged that Donald and Joanne Leazier (hereinafter Respondents) are interfering with Petitioner’s access to Shriner Lake. See Petition.
2. Materials submitted with the Petition included the names of Emily West, Brian Wallace, and Jennifer Wallace (hereinafter referred to collectively as Petitioners) as complaining parties See Id.
3. By filing the Petition, West 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. Shriner Lake is located in Whitley County, Indiana, and is listed as a public freshwater lake in Information Bulletin 61, Listing of Public Freshwater Lakes, (Eighth Amendment), DIN 21233030-IR-312210447NRA.
5. The Commission has jurisdiction over the subject matter of and the parties to this dispute.
6. Administrative Law Judge (ALJ) Elizabeth Gamboa was appointed under IC 14-10-2-2 to preside over this matter.
7. Respondents were notified of the filing of the Petition and provided a Notice of Telephonic Prehearing Conference (PHC) by the Commission on September 27, 2022. The Notice scheduled the PHC for October 1, 2022.
8. Greggory Hockemeyer, counsel for Petitioners, clarified at the PHC that Emily West, Brian Wallace, and Jennifer Wallace were to be included as Petitioners. The parties were informed that the Commission could not address the Petitioners’ allegations involving the Respondents’ use of the property because the allegations are not related to Petitioners’ right to access Shriner Lake. A Telephonic Status Conference (TSC) was scheduled by agreement of the parties for January 10, 2023.
9. A case management order was established at the TSC held January 10, 2023, establishing a deadline for filing any dispositive motions of March 3, 2023. Responses to any dispositive motions were due no later than April 3, 2023, and replies to the responses were ordered to be filed no later than April 18, 2023.
10. Petitioners filed a motion for summary judgment on February 24, 2023. The only evidentiary matter designated by Petitioners in support of their motion for summary judgment was an Order on Default and Entry of Judgment, Under Cause No. 92C01-2109-PL-000892 from the Whitley Circuit Court.
11. Respondents did not file a response to the motion for summary judgment.
12. Petitioners’ motion for summary judgment was denied by order dated June 15, 2023.
13. A Final TSC was held as scheduled on June 27, 2023. The parties confirmed their desire that the hearing be held remotely, using the WebEx videoconferencing platform.
14. An administrative hearing took place on July 12, 2023 using Webex. The video-conferencing function was not operating properly. The hearing was held using audio only by agreement of the parties. Petitioners appeared with counsel Gregory Hockemeyer. Respondents appeared and were self-represented. The participants appeared from their respective remote locations.
15. The following witnesses provided testimony at the administrative hearing: John West, Brian Wallace, Ronald Leazier and JoAnne Leazier.
16. Petitioners’ Exhibits A through F were admitted into evidence without objection. Respondents’ Exhibits 1-5, photographs containing text superimposed on the images, were admitted into evidence with the understanding that the ALJ will not consider the text added to the photographs. Respondents’ Exhibit 6 was excluded from evidence on Petitioners’ relevancy objection.
Findings of Fact[1]
17. John and Emily West (Wests) and Brian and Jennifer Wallace (Wallaces) each own parcels within the plat of the North Shore Addition to Tri-Lake Resort Company (Addition) in Whitely County, Indiana. Testimony of John West (West Testimony), Testimony of Brian Wallace (Wallace Testimony), and Exhibits C - F.
18. Wests purchased Lot 13 in the Addition, commonly known as 5540 N. Willow Avenue, Columbia City, Indiana, in 2010. West Testimony.
19. Wallaces own Lot 12 in the Addition, commonly known as 2670 E. Beach Avenue, Columbia City, Indiana. Wallace Testimony.
20. Leaziers own property “back away from” the Lake and not within the Addition. West Testimony.
21. Leaziers were expecting to close on the purchase of Lot 11 in the Addition by the end of July 2023. Testimony of R. Leazier (R. Leazier testimony).
22. The platted lots in the Addition do not abut Shriner Lake. A road, which roughly spans the length of the Addition, is located lakeward, or roughly south of the Addition’s residential lots. Lakeward of the road is a platted 1.87-acre lot (Easement) that spans the length of the road and is adjacent to Shriner Lake.
23. Piers are extended from the Easement into Shriner Lake. Exhibit C. The following image, excerpted from Exhibit C, shows the area of the Addition relevant to this dispute:
24. Petitioners filed a quiet title action in Whitley Circuit Court under Cause No. 92C01-2109-PL-000892 to clarify their easement rights because, according to West, the “previous deed gave them only the right to walk across the ground.” West testimony.
25. Neither the Wests’ deed nor the Wallaces’ deed mention the Easement. Exhibits E and F.
26. The Whitley Circuit Court entered a judgment quieting title to an easement in favor of the Petitioners across the Easement, including the right to extend piers and moor boats to the piers. The court’s order includes a legal description of the 1.87-acres lot. Exhibits A and D.
27. The easement rights granted by the Whitley Circuit Court to the Petitioners “include unimpaired access to Shriner Lake, together with the right to erect piers, moor boats and related accessory functions.” The order provides:
Plaintiffs’ appurtenant easement rights upon the Servient Estate are hereby forever quieted against any and all claims or demands of the Defendants Tri-Lake Resort Company and its assigns and successors, and any person claiming under Defendants to any estate, right, title lien or interest in the Servient Estate.
Defendants, Tri-Lake Resort Company and its assigns and successors, and all persons claiming under Defendants are hereby permanently enjoined from asserting any claim or interest impairing or overburdening Plaintiffs’ rights in the Servient Estate or any part thereof.
Id.
28. Wests maintain a pier roughly south of the property line between Lots 10 and 11, approximately 150 feet from Wests’ property. Wests’ pier is shown as the eighth pier from the left (or west) in Exhibit C, shown above. West Testimony and Exhibit C.
29. A previous owner of Wests’ property told Wests the dock located directly south of their property belonged to Wests. West testimony.
30. Wallaces maintain a pier located roughly south of their property which is shown above as the fifth pier from the left. Testimony of Wallace.
31. Only a few of the owners of property in the Addition maintain a pier in the area directly south of their property. Testimony of J. Leazier. (J. Leazier testimony).
32. R. Leaziers’ mother was a previous owner of Lot 13. Respondents have maintained their pier in its current location directly south of Lot 13 for over 30 years. Respondents’ pier is shown as the fourth pier from the left in Exhibit C. Totality of the record.
33. Respondents told West they had the right to leave their pier in front of Lot 13 because their mother had once lived there. West Testimony.
34. West researched Respondents’ deed and testified there is no mention in Respondents’ deed of an Easement within the Addition. Id.
35. Wallaces first placed a pier in Shriner Lake in 2020. In 2023, B. Wallace moved his pier about three feet closer to the Leaziers’ pier. The Wallaces’ pier is approximately fourteen feet from Respondents’ pier. Wallace testimony.
36. Wallaces moor an eight-feet-wide pontoon on the west side of their pier, leaving approximately six feet between the Respondents’ pier and the moored boat. Id., J. Leazier Testimony.
37. Wallace has experienced interference with his ability to access the Lake because of how close his pier is to the Respondents’ pier. However, Wallace did not describe the interference in detail, other than to say he must be careful sometimes when going out into the Lake and returning to his pier due to children swimming and playing in the area between the piers. Id.
Conclusions of Law
38. Petitioners raised several issues regarding the Respondents’ use of the land adjacent to the Lake in their Petition. At the Telephonic Prehearing Conference, Petitioners clarified that the issue is whether “Respondents possess riparian rights in the easement for non-exclusive access such that they may maintain a pier lakeward of the easement.” Report from Telephonic Prehearing Conference.
39. Shriner Lake in Whitely County is identified as a Public Freshwater Lake in IB 61.
40. 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).
41. 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, I.C. § 14-15-7-3, I.C. § 14-26-2-23, and I.C. § 4-22-2.
42. Pursuant to I.C. § 14-26-2-23(e)(3),[2] the Commission established a process under Ind. Code 4-21.5 for the mediation of disputes among persons with competing interests relating to the exercise of riparian rights on Indiana public freshwater lakes.
43. A riparian owner is an “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.
44. The rights associated with riparian ownership include “(1) the right to 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.” Center Townhouse Corp v. City of Mishawaka, 882 N.E2d 762, 771 (Ind. Ct. App. 2008).
45. In general, a person may place and maintain a temporary structure lakeward of the shoreline of a public freshwater lake under a general license if the temporary structure meets the requirements of 312 IAC 11-3-1(b). Among the requirements is that the temporary structure “be placed by a riparian owner or with the written approval of a riparian owner.” 312 IAC 11-3-1(b)(9).
46. The Indiana Court of Appeals recognized the jurisdiction of the Commission to determine the scope of a landward property, including an easement, to the extent necessary to carry out the process of issuing permits for the placement of piers on public freshwater lakes. Kranz v. Meyers Subdivision, et al., 969 N.E.2d 1068, 1078 (Ind. Ct. App., 2012). The Commission exercises that authority with restraint. Bowman v. Walls, 14 CADDNAR 85, 89 (2016).
47. Petitioners were granted an easement over the 1.87-acre lot adjacent to Shriner Lake by order of the Whitley Circuit Court. Wests argued at the hearing that the easement rights include the right to extend their pier immediately south of their property.
48. The court’s order does not, however, specify an area within the Easement from which Petitioners are permitted to extend their pier.
49. Wests’ request extends beyond establishing the scope of the Easement. Rather, Wests seek an order from the Commission to define the specific location within the Easement from where he may extend his pier into Shriner Lake. This is not a question involving the use of the Lake but a question landward property issue. Resolution of landward property issue is a matter beyond the jurisdiction of the Commission.
50. Wallaces did not raise any issues regarding the placement of their pier. Rather, the Wallaces’ argument appears to be limited to the interference to which B. Wallace testified.
51. Wallaces did not present sufficient evidence to establish the interference.