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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