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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.