State and local Indiana governments are hungry

March 27, 2015 | By MARK MILLER

The State of Indiana and Town of Long Beach want to gobble private property for free. Photo licensed via a Creative Commons 2 license at Wiki Commons by Bobisbob.

The shoreline of the Great Lakes has given rise to many interesting property rights disputes between property owners and hungry governments looking to take private property without obeying the Constitution. Add the case of LBLHA, LLC, v. Town of Long Beach, Indiana, to that list.

The states bordering the Great Lakes have a history of trying to grab land for free from private property owners (see here for an example in Michigan, and here for an example in Ohio). Like its neighbors, Indiana recently tried to take this land upland of the waterline on Lake Michigan, all the way to a fictional, administratively created “ordinary high water mark” that encroaches well into private property all along the lake in Indiana.

Not surprisingly, the Indiana town of Long Beach—which borders Lake Michigan—then followed the State’s lead. Long Beach told its law enforcement officers to stop enforcing trespassing laws upland of the water line below that fictional “ordinary high water mark.”

In turn, the private property owners along Lake Michigan sued Long Beach for declaratory relief regarding their ownership of the land in dispute and for a regulatory taking. When they asked the trial court to add the State of Indiana as a necessary party, the court refused. The property owners appealed and Pacific Legal Foundation filed a friend of the court brief in support of the property owners.

This week, the Indiana Court of Appeals granted relief to the private property owners. In a detailed, 30-page opinion, the Court explained that the trial court erred as a matter of law when it refused to add the State of Indiana as a party to the lawsuit.

This article at the Indiana Lawyer describes the decision well. The article explains:

Property owners along Lake Michigan will have another chance to make their arguments in a dispute over which part of the beach belongs to them and which belongs to the public.

The Indiana Court of Appeals overturned an order for summary judgment in LBLHA, LLC, Margaret L. West, and Don H. Gunderson v. Town of Long Beach, Indiana, Alliance for the Great Lakes and Save the Dunes, Long Beach Community Alliance, Patrick Cannon, et al., 46A05-1404-PL-146. The unanimous panel found the LaPorte Circuit Court had improperly granted summary judgment to the town.


The Court of Appeals said[:] “… the trial court did not determine the ownership rights of the Lakefront Owners or public rights to the beach area at issue and thus did not rule on the substantive allegations set forth under Count I of the Lakefront Owners’ complaint,” Judge Elaine Brown wrote. “While the trial court stated that it did not reach that determination because it had determined there was no taking, we observe that the Town did not establish that the Lakefront Owners are precluded from requesting the court to determine their relative property rights notwithstanding whether the designated evidence may or may not establish as a matter of law that there was not an impermissible taking.”

Consequently, the Court of Appeals concluded the trial court should have joined the state as a party to the proceedings. Indeed, the panel noted even the town and the intervening defendants, Alliance for the Great Lakes and Save the Dunes, asserted the owners’ claims are actually against the state.

Yet, the court maintained that adding the state as a defendant does not mean the property owners have no separate claim against the town. The 2012 resolution is a policy for enforcement of the town’s public property ordinances in the disputed area, the appeals court held, and the owners are objecting to the town’s ordinances.

The Court of Appeals remanded for further proceedings with the state of Indiana to be added as a party.

Read the whole thing. So to sum up: Indiana needs to answer for whether it thinks it owns the private property of Lake Michigan property owners, and the Town of Long Beach needs to answer for whether its actions amount to a taking of those property owners’ property.  In our book, that counts as a win.  We look forward to seeing what comes next.