ILNews

Court rules on 2 water-related cases

Michael W. Hoskins
January 1, 2008
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The Indiana Court of Appeals decided two environmental cases today involving issues pertaining to lake levels and the rights lakefront property owners enjoy.

In Center Townhouse Corp., et al. v. City of Mishawaka, No. 71A04-0612-CV-707, the court tackled an issue it hasn't specifically dealt with before and decided not to expand Indiana's riparian rights, or those privileges extended to waterfront property owners, to include the right of unobstructed view of the water.

A group of eight townhome owners brought an inverse condemnation action against the city and local parks board after it constructed a pedestrian bridge over the St. Joseph River as part of a riverwalk project. The trial court had determined the city took property interests belonging to the community and owners without just compensation, but a jury returned a no-damage verdict. Owners appealed for damages and the city cross-appealed, arguing that a taking of rights had not even occurred. The appellate court affirmed the lower court's rulings.

The appellate court analyzed state statute but determined the law isn't completely clear about what's entailed in riparian rights as far as unobstructed views. Judges relied on caselaw from Michigan, Florida, New Jersey, and Georgia that has addressed this issue and adopted those as legally protected rights.

"Landowners urge us to follow suit and hold that, in Indiana, riparian rights include the right to an unobstructed view of the water creating those riparian rights such that a loss of view is compensable in an inverse condemnation action," Judge James Kirsch wrote. "After careful consideration, we are unwilling to do so. Deciding the scope of a landowner's view (how high, how far, from what vantage point, etc.), and, if obstructed in some way for some reason, determining how much obstruction is too much, is inappropriate, if not impossible for this court."

Rather, the court pointed out that this is a policy decision best left to legislators who can work with state resource officials and local planning officials to make the best decisions.

"Those authorities, not an appellate court, should decide on proper views over and across neighboring properties and waterways, as they are in the best position to prescribe reasonable restrictions in order to protect people who have paid large sums of money in order to border Indiana's lakes, rivers, and streams," Judge Kirsch wrote.

A second decision today in Larry Bowyer d/b/a Lakes Limited Liability Corp. v. Indiana Department of Natural Resources, No. 09A02-0612-CV-1116, involves the water level of Lake Cicott in Cass County. The DNR filed a complaint against Bowyer, who'd been dumping construction debris into the public lake and altering its shoreline and water level without a permit. The trial court determined the lake was public, not a private lake as the parties had argued, and was subject to the DNR's regulation of its water level.

The appellate court affirms that decision, while indicating the state statute doesn't clearly map the process for determining what a lake level should be. The court determined Bowyer's contentions are without merit.
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  1. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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