[CITE: Roberts v. Beachview Properties, LLC, ., 9 CADDNAR 163 (2004)]

[NOTE: ON JULY 19, 2005, A FINAL DISPOSITION WAS MADE IN THIS MATTER. SEE Roberts v. Beachview Properties LLC, et al. 10 CADDNAR 125 (2005).]

By May 28, 2004:

2. Roberts, Harbour Condominums and Beachview LLC are each provided until August 1, 2004 to either:

1. The proceeding was initiated when, on April 1, 2004, Glen Roberts and Martha Roberts ("Roberts") filed a letter petitioning for an administrative hearing to seek modification of Beachview Properties, LLC's ("Beachview") placement of a pier on the shoreline of Lake Maxinkuckee.

2. Lake Maxinkuckee is located in Marshall County, Indiana and is a "public freshwater lake" under Ind. Code 14-26-2-3. Lake Maxinkuckee is subject to Ind. Code 14-26-2 (sometimes referred to as the "Lakes Preservation Act"). The Natural Resources Commission (the "Commission") has adopted rules at 312 IAC 11 to assist in the administration of the Lakes Preservation Act.

3. In addition, the waters of Lake Maxinkuckee are "public waters" under Ind. Code 14-8-2-226 and are subject to Ind. Code 14-15-3 (sometimes referred to as the "Watercraft Operations Act"). The Commission has adopted rules at 312 IAC 5 to assist in the administration of the Watercraft Operations Act.

4. The Lakes Preservation Act and the Watercraft Operations Act (and rules adopted under those acts) are administered by the Department of Natural Resources (the "DNR"). The Commission is the "ultimate authority" for the DNR under Ind. Code 14-10-2-3 and Ind. Code 4-21.5-1-15.

5. The proceeding is governed by Ind. Code 4-21.5, et seq., (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA"). The Commission has adopted a rule in multiple sections at 312 IAC 3-1 to assist in its administration of AOPA. Stephen Lucas is the Commission's administrative law judge for the proceeding under AOPA and 312 IAC 3-1. However, Judge Lucas recused himself from adjudicating this matter since he had served as a mediator to antecedent proceedings among the parties under Commission Cause No. 96-186W, PL-16,757. On May 7, 2004, Judge Lucas appointed Mary L. Davidsen, Director and Chief Environmental Law Judge, Office of Environmental Adjudication, to serve as special administrative law judge per Ind. Code 4-21.5-3-9.

6. The Respondents

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are Beachview Properties, LLC, Harbour Condominiums ("Harbour") and the DNR.

7. Each of the Respondents has been served by U.S. Mail with notice of this proceeding, and is represented by an attorney who has entered a written appearance.

8. The Commission has jurisdiction over the subject matter and over the persons of Roberts and the Respondents.

9. For consideration is a dispute involving the propriety of the placement of seasonal or temporary piers at a site on the west side of Lake Maxinkuckee.

10. Per the Commission's May 7, 2004 Report of Prehearing Conference and Notice of Hearing [on Temporary Relief]", the parties were to file written petitions for relief, pertaining to the stay hearing, by May 17, 2004. A Motion for Stay Relief and Removal of Temporary Pier Installed by Respondent Beachview Properties, LLC, Without License Required by 312 IAC 11-3-1 was filed by Claimants Roberts on May 13, 2004 and by Respondent Harbour Condominiums on May 17, 2004. On May 17, 2004, Beachview filed its response to the above Motions and its Petition for Relief. Harbour's Response to Beachview's Petition for Relief was filed on May 21, 2004.

11. More particularly, for consideration is a temporary pier extending from a lot owned by Beachview at 312 East Jefferson Street in Culver (the "Beachview" pier), and its adjacent piers; to the north (the "Harbour" pier), and to the south (the "Roberts" pier). The three adjacent piers and their vicinities are referred to as the "subject area".

12. Although several provisions of the Lakes Preservation Act and the Watercraft Operations Act are relevant to pier placement on Lake Maxinkuckee, the most pertinent is Ind. Code 14-26-2-23. This section provides for dispute resolution and authorizes the Commission to adopt rules for "the placement of a temporary or permanent structure...over, along, or within a shoreline or waterline" of a public freshwater lake.

13. A temporary structure is defined by rule at 312 IAC 11-2-25. As applicable to this proceeding, the definition provides:

14. Under 312 IAC 11-3-1(b), a temporary pier qualifies for placement under the terms of a general license if the pier is characterized by or does each of the following:

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15. An aggrieved person may seek administrative review of the placement, pursuant to a general license, of a temporary pier. 312 IAC 11-3-2(a). Where that occurs, the Commission will consider the configuration of the pier and its relationship to other piers and structures. Matters that are considered include the correlative rights of riparian owners (including persons, such as easement holders, who are the beneficiaries of riparian rights). The public trust is also considered, including the impact of pier placement upon safety, the environment, and the enjoyment of public waters. Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992), Piering v. Ryan and Caso, 9 Caddnar 123 (2003); and, Snyder, et al. v. Linder, et al., 9 Caddnar 45 (2002).

16. A complete resolution of issues may require a professional survey and the application of legal principles to precisely delineate the boundaries of riparian rights lakeward of the shoreline. See Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984) and Nosek v. Stryker, 103 Wis.2d 633, 309 N.W.2d 868 (1981 Wis.) applied in Rufenbarger v.Lowe, et al., 9 Caddnar 150 (2004).

17. Exhaustive inquiry into these principles may be required to bring a full resolution to the instant dispute.

18. The scope of administrative review currently under consideration is narrower but of great import to the parties and to the general public. For immediate consideration is whether the placement of a pier or related structure, within the subject area, may cause an unreasonable impediment to navigation or pose a hazard to safety. "Report of Prehearing Conference and Notice of Hearing [on Temporary Relief]" entered on May 7, 2004.

19. Following a hearing, an administrative law judge may grant temporary relief, under Ind. Code 4-21.5-4, et seq., to address such an emergency. A hearing for this purpose was conducted in Culver, Indiana on May 21, 2004. The resulting order must include a brief statement of the facts and the law that justifies an agency decision to take the specific action under Ind. Code 4-21.5-4. This brief statement of the facts and the law is made pursuant to Ind. Code 4-21.5-4-2.

20. Evidence received at hearing indicates the Roberts property has approximately 150 feet of shoreline and that the Roberts' pier extends approximately 120 feet lakeward from the seawall; therefore less than 120 feet from the shoreline of Lake Maxinkuckee. Beachview's shoreline is approximately 55 feet, and its pier extends 186 feet, 8 inches from the shoreline. Harbour's shoreline is approximately 245 feet; its two piers extend approximately 154 feet and 94 feet from the seawall, therefore less than 154 and 94 feet from the shoreline. Harbour's piers and Beachview's piers have attachments along and at their ends farthest from the shorelien, including fingers and extensions. Roberts' pier is a straight pier with a boat lift attached near the shoreline, but Roberts desire to place boat lifts on either side of their pier as they have done in past years.

21. An antecedent riparian rights dispute before the Commission under cause no. 96-186W addressed the subject area; while Beachview was not a party, its successor in interest was a party. Cause No. 96-186W was resolved by entry of an Agreed Order, approved as a Final Order by the Commission on January 9, 1998. Stipulated Exhibit A (referred to in this Order as "1998 Order"). The 1998 Order was recorded in the Marshall County' Record's office on April 2, 2002. In summary, the 1998 Order incorporated and/or modified site-specific permits granted to each of the riparian rights owners by the DNR under the Lakes Preservation Act. The site-specific permit issued to Roberts was PL-16,793, the permit issued to Beachview's predecessor in interest was PL-16,757, and the permit issued to Harbour was PL-17,210. Under their configuration on May 21, 2004, all three of the piers are disqualified from a general license by 312 IAC 11-3-1(b)(5); a license is required under the Lakes Preservation Act for these piers.

22. The current placement of the piers is depicted in Exhibit BB, a drawing from professional survey completed for Harbour by licensed surveyor Craig Cultice.

23. The evidence presented indicated that none of the piers were placed as authorized in the 1998 Order. Under the 1998 Order, none of the piers were placed in conformance with a commonly used principal that piers were placed parallel to the riparian owner's property lines extended hypothetically into the lake. Instead, the Harbour's piers were placed slightly (a highly disputed term given some definition in diagrams as

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approximately five degrees) closer than perpendicular to the shoreline, then the other two piers to be placed parallel to the Harbour piers. The Roberts' pier is almost twice as long as authorized in the 1998 Order, is placed along the Roberts' north property line shared with Beachview, angling toward Beachview's pier, while the permit and 1998 Order require Roberts' pier to be placed approximately 71 feet south of the Roberts' north property line. Beachview conceded that its pier did not conform to the 1998 Order and required but did not have a site-specific license; the preponderance of the evidence indicated that Beachview's pier crossed over Roberts' lakeward-extended property lines approximately thirty feet from the shoreline. Even if reduced to 150 feet from the shoreline, the Beachview and Roberts pier would still be less than 8 feet apart at their closest extremities. The preponderance of the evidence concerning Harbour's piers indicated that Harbour's piers were in substantial compliance with the 1998 Order, but had some minor deviations of approximately a few feet.

24. Lt. John Sullivan is an experienced officer with the DNR's Division of Law Enforcement, having served for 28 1/2 years with DNR; presently as the commanding officer for the Division's District 1 that includes Lake Maxinkuckee. Lt. Sullivan testified the length and placement of the Beachview pier poses a hazard to navigational safety, particularly to members of the boating public traveling on Lake Maxinkuckee near the piers, as the pier configuration is too close for safe navigation of the size of boats utilizing the lake. Lt. Sullivan testified that based on the average length and beam of boats navigating on Lake Maxinkuckee, that the appropriate distance between ends of boat slips should be at least 16 to 20 feet, and that such distance was currently as little as 5 feet. Lt. Sullivan testified that he was not aware of law enforcement officers being called to the scene of incidents or disputes in the subject area. All witnesses agreed that the Beachview pier had not been placed in its present configuration in prior years. Lt. Sullivan presented persuasive evidence that a safety hazard is presented, both to the parties and to the boating public, and that the Beachview pier should be removed or modified.

25. Based upon a very preliminary estimation of the delineation of boundaries of riparian interests, Lt.. Sullivan presented a proposed modification of the Beachview and Harbour piers. Exhibit F. Presently, the Beachview pier is placed approximately perpendicular to the shoreline, and the Harbour piers are placed approximately three to five degrees closer than perpendicular to the Beachview pier, in substantial compliance with the 1998 Agreed Order. Lt. Sullivan's proposed modification relocated the Beachview pier and the southern Harbour pier to run parallel to the shoreline. However, such a configuration would place the two Harbour piers in an unsafe distance from each other for navigation purposes.

26. Mr. Roberts testified that he and his extended family utilized the waters in front of their home since they purchased their home in 1995. Mr. Roberts testified that the Roberts' bass boat, placed on a lift adjacent to the Beachview pier, is difficult to navigate between the piers when conditions are calm, and is out of control in windy conditions. Mr. Roberts testified that he was not able to use two of his boats because he could not place the boat lifts next to his pier. Mr. Roberts testified about an incident in a prior year when he was fishing with his 3-year-old grandchild from his pier, and the child's fishing equipment was tugged with unsafe force when the fishing line became tangled with the propeller of a boat navigating along the Beachview pier, placed farther from Roberts' pier than the 2004 configuration. Harbour's association president, Chuck Blazevich, testified that Harbour, a 20-unit condominium complex, has been placing piers on the lake since the 1980's. Mr. Blazevich testified that the Beachview pier is currently in an unsafe and hazardous position, stating that in calm waters, it is barely possible to navigate boats from the pier into the body of the lake, and in rough, windy waters, the piers are too close to allow control. Mr. Blazevich further stated that the piers are so close that he expects to get his hand smashed while navigating between boats along the piers, and that so much attention has to be given watching the back of other boats and the piers, that it would be easy to hit people swimming in the water.

27. Beachview's

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Secretary/Treasurer, Chris Collins, testified that the pier's length and placement did not comply with the Agreed Order, but sought this Court's relief to achieve a resolution, as less adversary means would not be productive. Mr. Collins testified that he is trained and employed in the real estate field, and that construction of Beachview's 10 units should be completed in late June, July and August, with use of the piers occurring at any time. Mr. Collins presented a proposed configuration depicted in Exhibit A, which provided Beachview with a pier width of 45 feet, including extensions, noting that Lt. Sullivan testified that an additional twenty feet was needed for safe navigation from the pier. Beachview's proposed configuration, Exhibit C, also assumed modifications would be required to reduce the length and increase the distance of the Roberts' pier, and to change the angle of Harbour's southern pier. While Mr. Collins further conceded that a resulting 85 feet of shoreline would be used, in excess of Beachview's 55 feet, Mr. Collins testified that the proposed configuration would be safe and nonhazardous to navigation.

28. Where human safety is at issue, and a full evaluation of site conditions is incomplete, a cautious approach must properly be taken. The evidence is persuasive that a safety hazard may be presented, primarily to the parties, between the three piers and near their lakeward extremities.

29. As more particularly described in the Temporary Order, relief must properly be accorded to address the potential for an unreasonable impediment to navigation or hazard to safety.