312 IAC 6-1-5 - Lawful nonconforming uses
Authority: IC 14-10-2-4; IC 14-15-7-3; IC 14-26-1-8
Affected: IC 4-21.5; IC 14-15; IC 14-29-1-8
Sec. 5.
(a) A
structure or facility that was lawfully placed before the effective date of a
provision of:
(1) IC
14-29-1-8; or
(2) a section of this article; which would be
unlawful if placed after that date, is eligible for qualification under this
section as a lawful nonconforming use.
(b) This subsection governs the establishment
of a lawful nonconforming use as follows:
(1)
A person who claims a lawful nonconforming use has the burden of proof for
establishing:
(A) the existence of the use;
and
(B) that the use was lawful;
when the new or amended statutory or rule section became effective. Except as
provided in subdivision (2), a use must have been in existence when the new or
amended section became effective and not merely at some time before it became
effective.
(2) If a
rule section that governs the placement of a temporary structure becomes
effective outside the boating season, but a temporary structure was used during
the previous boating season, the use is considered to have been in existence
when the section became effective. As used in this subdivision, the boating
season is from April 1 through October 31.
(3) The department may consider the following
documentation in determining the existence of a lawful nonconforming use:
(A) Ground level or aerial
photographs.
(B) Blueprints or
engineering drawings.
(C) Pier
installation company records.
(D)
Inventories of piers that are nonconforming uses. These inventories shall be
maintained by the department's division of law enforcement at the district
headquarters for the district in which the structure is located.
(E) CAD drawings.
(F) Deeds, plats, and similar recorded
documents.
(G) Adjudications by the
commission or by a court, including those determining the intent or consequence
of an easement.
(H) GPS units or
range finders.
(I) USDA
documentation.
(J) County GIS
programs and documentation.
(K)
Statements from riparian owners and others familiar with the site may also be
considered, but a determination may not be based solely on those
statements.
(4) A person
may deliver a written request and supporting documentation in support of a
claim to any lawful nonconforming use that arises under IC
14-29-1-8 or this article. A
person who does not deliver a request under this subdivision is not prohibited
from asserting the benefits of a lawful nonconforming use as an affirmative
defense or otherwise in a proceeding under IC 4-21.5.
(5) The department shall provide notice under
IC 4-21.5-3-5 of a determination that
a structure qualifies or does not qualify as a lawful nonconforming use under
subdivision (4).
(6) The department
shall maintain a public file or files to memorialize any determinations under
this subsection. The department may include in the file a determination that a
structure qualified or did not qualify as a lawful nonconforming use even if
the determination was made before the effective date of this
subsection.
(c) This
subsection governs the maintenance of or modification to a lawful nonconforming
use as follows:
(1) Except as provided in
subdivision (2), a lawful nonconforming use may be maintained, but the use
cannot be modified or repaired unless a person satisfies the requirements of IC
14-29-1 and this article that are in effect at the time of the modification or
repair. In performing modification or repair under this subdivision, the:
(A) location;
(B) size; and
(C) configuration; of the use must be
maintained.
(2) The
department may authorize a modification or repair to a lawful nonconforming use
if it determines that the resulting change to the:
(A) location;
(B) size; or
(C) configuration; would better serve a
public right or a vested right, as protected by IC 14-29-1 or this article,
than does the existing lawful nonconforming use.
(d) This subsection governs the
removal of a lawful nonconforming use as follows:
(1) The director or the director's designee
may order the removal of a lawful nonconforming use if the structure or
facility is either of the following:
(A) A
nuisance that is likely to pose a significant adverse effect to any of the
following:
(i) Navigability.
(ii) The environment.
(iii) The enjoyment of life or
property.
(iv) The public
trust.
(B)
Abandoned.
(C) Modified in a manner
for which a license is required under IC 14-29-1 or this article, but for which
no license has been obtained.
(2) The department has the burden of proof to
establish a lawful nonconforming use should be removed under this
subsection.
(3) A structure
adversely affects navigability under subdivision (1)(A)(i) if the structure is
any of the following:
(A) Extended or located
more than one hundred (100) feet from the ordinary high watermark of the
waterway.
(B) Submerged or
otherwise obscured from the view of a boater or other person using a
lake.
(C) In a derelict condition.
A structure is in a derelict condition if:
(i)
so neglected by the owner that it has become ineffective for the intended
purposes; or
(ii) following a
reasonable inquiry, the owner of the structure cannot be identified.
(4) Generally, a use is
abandoned if not exercised for a period in excess of one (1) year. A person
may, however, present evidence of special factors that would reasonably excuse
a failure to maintain the use. These factors include the following:
(A) Pending litigation relating to the lawful
nonconforming use.
(B) Unusual
environmental conditions.
(e) IC
4-21.5-3-8 controls an order issued
under subsection (d) unless an emergency exists, in which event IC 4-21.5-4
applies.
(f) Nothing in this rule
affects the department's right to seek injunctive or other relief under IC
14-29-1 or another applicable law.
Notes
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