CADDNAR
Byall v. Diller, 17 CADDNAR 2
Administrative Cause Number: 23-038W
Administrative Law Judge: Aaron Bonar
Petitioner Counsel: Christopher Dubes and Scott Federoff
Respondent: pro se
Date: March 19, 2024
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
Procedural Background and Jurisdiction
1. On June 21, 2023, Troy and Shari Byall (hereinafter Byalls) filed correspondence (hereinafter Petition) with the Natural Resources Commission (hereinafter Commission) alleging that Chad and Darlene Diller (hereinafter Dillers) placed a boat in the Byalls’ riparian zone, which infringed on Byalls’ ability to fully use and enjoy their riparian zone. See Petition.
2. Byalls seek to have Dillers move their boat out of Byall’s riparian zone, and/or to have the Dillers move their pier so that Dillers’ boats do not infringe on Byalls’ riparian zone. Byalls also seek to have the Commission determine the riparian line that divides the parties’ respective riparian zones. Id.
3. By filing their Petition, Byalls 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 June 26, 2023.
5. A telephonic prehearing conference was held on July 26, 2023. The parties agreed during that prehearing conference to set an administrative hearing date of October 25, 2023.
6. On October 10, 2023, due to a conflict, the ALJ vacated the October 25, 2023 hearing date and set a telephonic status conference for October 18, 2023. At the October 18, 2023 status conference, the parties agreed to hold an administrative hearing on November 13, 2023.
7. At the November 13, 2023 administrative hearing, Byalls, counsel for Byalls Christopher Dubes, and Dillers all appeared in person at the Commission Hearing Room at the Indiana Government Center in Indianapolis, Indiana.
8. The following witnesses provided testimony at the administrative hearing: Troy Byall, Chad Diller.
9. Byalls’ Exhibits A-E and Dillers’ Exhibits 1-11 were admitted into the record by stipulation.
10. Both parties filed post-hearing briefs on November 27, 2023.
Findings of Fact
11. Byalls own property in Noble County, Indiana commonly known as 9340 North Steinbarger Lake Road, Wawaka, IN 46794. See testimony of Troy Byall (Byall testimony) and Exhibit B.
12. Dillers own property in Noble County, Indiana commonly known as 9350 North Steinbarger Lake Road, Wawaka, IN 46794. The Dillers’ property is immediately north of Byalls’ property. See testimony of Chad Diller (Diller testimony) and Exhibit B.
13. The Byalls and Dillers share a common property line that extends and terminates into Steinbarger Lake. See Exhibits D, E, and 1 (excerpt below).
14. The Byall and Diller properties were originally one lot, Lot 9, of the Idylwild Retreat – South Bluff subdivision. Sometime in 1933, Lot 9 was split into north and south sections. See Byall testimony and Diller testimony.
15. The Dillers have owned their property since at least 2014. The Byalls have owned their property for approximately six years. See Byall testimony and Diller testimony.
16. In September 2014, Scott Zeigler, a licensed surveyor in the State of Indiana, was commissioned by the previous owners of the Byalls’ property to conduct a land survey. The survey identified, among other items, the landward property lines separating the Byalls’ and Dillers’ properties. See Exhibit A.
17. Dillers dispute the property lines as depicted in the survey and/or believe that the markers placed by Byalls to mark that property line are incorrectly placed. Dillers submitted several photographs to support their opinion on where the landward property line and the shared riparian line are located. See Diller testimony, Exhibit C, and Exhibits 3-11.
18. Both parties agree that their properties each have 11.5 feet of shoreline that abuts Steinbarger Lake. See Byall testimony and Diller testimony.
19. In May 2023, Byalls observed that Dillers’ watercraft, which was moored to Dillers’ pier, crossed into Byall’s riparian zone. Byalls asked Dillers to move the watercraft, but Dillers refused. See Byall testimony.
20. Dillers believe that their watercraft did not infringe on Byall’s riparian zone and believe that their watercraft was firmly within the boundaries of Dillers’ riparian zone as they believed it to be drawn. See Diller testimony.
Conclusions of Law
21. Steinbarger Lake is a Public Freshwater Lake located in Noble County, Indiana. Information Bulletin # 61 Listing of Public Freshwater Lakes (Eighth Amendment), DIN 2021020-IR-312210447NRA (IB61).
- 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] holds 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).
- 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.
- 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.
- 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).
- It is not disputed that the parties all own real estate abutting Steinbarger Lake and are therefore riparian owners. As such, they each may be permitted to extend a qualifying temporary structure lakeward of the shoreline of Steinbarger Lake. 312 IAC 11-3-1(b).
- 312 IAC 11-3-1 grants a general license to place a temporary structure, including a pier, in or on a lake provided the structure meets each of the following relevant criteria:
(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.
(3) Not unduly restrict navigation.
See 312 IAC 11-3-1(b).
28. 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. IB56 does not have the effect of law; however, it is widely followed to provide guidance for determining riparian boundaries. See England v. Ball & Arend, 15 CADDNAR 77, 79 (2019); Information Bulletin 56, Riparian Zones within Public Freshwater Lakes and Navigable Rivers (Third Amendment), DIN 20220209-IR-312220025NRA.
29. The evidence shows that the shoreline bordering the two properties is approximately a straight line. This creates a similar situation to IB56’s third principle, which provides:
Where the shore approximates a straight line, and where the onshore boundaries approach the shore at obtuse or acute angles, the boundaries of riparian zones are generally determined by extending a straight line at a perpendicular to the shore. If the boundaries of two owners intersect at the shore, or in proximity to but landward of the shore, the boundaries of the riparian zones may be formed by a perpendicular to the shore from the point of intersection of the onshore boundaries. Application of the third principle is most compelling where land owners in the vicinity have historically used a perpendicular line to divide their riparian zones, but the principle should not be applied where a result is to deprive a riparian owner of reasonable access to public waters.
See IB56 at pages 3-5.
- The Commission’s power to determine and/or evaluate landward disputes is severely limited and the Commission exercises that power with restraint. See Kranz v. Meyers Subdivision Prop. Owners Ass’n, 969 N.E.2d 1068, 1075 (Ind. Ct. App. 2012)(citing Howell v. Indiana-American Water Co., 669 N.E.2d 1272, 1275 (Ind. Ct. App., 1996)); Bowman v. Walls, 14 CADDNAR 85 (2016)(citing Kranz, 969 N.E.2d 1068).
- Given the limits of the ALJ’s ability to determine landward property boundaries and the presence of a properly created survey in evidence, the ALJ finds that Zeigler’s survey correctly identifies the landward boundaries of the parties’ properties. The parties may need to conduct an additional survey if they are unclear on the exact boundaries of the landward property lines as depicted in the Zeigler survey.
- The ALJ finds that the third principle of IB56 applies to this matter. The riparian line dividing the two properties shall extend into Steinbarger Lake perpendicular to the shoreline.
33. This also creates a riparian zone for each party extending into Steinbarger Lake that is approximately 11.5 feet wide given the similar size of the parties’ shorefront and the riparian zones associated with the shorefront.
- IB56 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.” Id at 2.
- As both parties’ riparian zones are only 11.5 feet wide, requiring either party to maintain a minimum of ten (10) of clear space on both sides of the shared riparian line would result in both parties retaining only 1.5 feet of usable riparian zones. This would severely limit the ability of either party to fully use and enjoy their riparian zones.
- The Commission has faced similar dilemmas in previous cases and has found that a smaller amount of clear space may be maintained where necessary. 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).
- Accordingly, given the relative narrowness of each party’s riparian zone, the ALJ finds that both parties shall maintain an open, clear space of no less than three (3) feet on their respective sides of the shared riparian line. This space must remain free of moored or docked watercraft and structures at all times.
FINAL ORDER
1. The riparian line dividing the parties’ properties extends at a perpendicular to the shoreline and terminates in Steinbarger Lake.
2. Both parties shall maintain an open, clear space of no less than three (3) feet on their respective sides of the shared riparian line. This space must remain free of moored or docked watercraft and structures at all times.
- Each party may extend a pier into Steinbarger Lake that is no wider than three (3) feet at the pier’s widest point.
- 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 their respective riparian zones.
- Both parties are responsible for adjusting their piers and changing how they moor their watercraft, if necessary, to comply with this order.