CADDNAR

[CITE: Patterson, et al. v. Wildwood Property Owners Assoc., and DNR, 10 CADDNAR 417 (2005)]

 

[VOLUME 10, PAGE 417]

 

Cause #: 04-117W

Caption: Patterson, et al., v. Wildwood Property Owners Assoc. and DNR

Administrative Law Judge: Jensen

Attorneys: Grogg (Claimants); pro se (Wildwood); Knotek (DNR)

Date: June 7, 2005

 

 

FINAL ORDER ON SUMMARY JUDGMENT

 

1.  Permit # PL-19708, issued by the Department to Wildwood on May 17, 2004 is hereby revoked and remanded to the Department’s Division of Water.

 

2.  The sole purpose of this remand is to provide Wildwood and the Department, at Wildwood’s option, to correct the irregularities relating to notice and recommence review of Wildwood’s application for Permit # PL-19708 consistent with this order and I.C. 14-26-2, I.C. 14-11-4-1(2), 312 IAC 2-3-3, I.C. 14-11-4-5(a)(1), I.C. 14-11-4-7 and I.C. 4-21.5-3-1.

 

3.  This order is issued solely on the matter of notice and does not reach the merits of any other issue raised by any party to this proceeding.

 

4.  This order is issued without prejudice in the event Wildwood chooses to pursue its application for Permit # PL-19708.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

 

STATEMENT OF THE CASE:

 

1.      At issue in this proceeding is Permit # PL-19708, approved by the Department of Natural Resources (hereinafter “Department”) and issued to the Wildwood Property Owners Association (hereinafter “Wildwood”) on May 17, 2004 authorizing Wildwood to control the placement of piers on Big Turkey Lake within the confines of Wildwood-By-The-Lake First, Second, Third and Fourth Additions located in Steuben County, Indiana.

 

2.      This proceeding was commenced when correspondence was filed with the Natural Resources Commission on June 2, 2004 by Dennis Patterson, Mary Kenney, Richard Kenney, Tom Slater, Judy Slater, Rog Horstman, Diane Horstman, Brian L. Evans, Alan Haunhorst, Michael J. Garman, Cynthia Nickells, Donna Van Horn, David Van Horn, Jeffrey H. Walborn, Dan Speakman, Deb Smith, Roger Smith, Mitchell Benae, Karen Surface, Catherine Haman, Betty Bolton, Janet E. Naylor and Mary P. Towns, (hereinafter “Claimants”) who are individual owners of real property within Wildwood-By-The-Lake.

 

[VOLUME 10, PAGE 418]

 

3.      This proceeding is controlled by I.C. 4-21.5 (the “Administrative Orders and Procedures Act” or “AOPA”).  The Indiana Natural Resources Commission (hereinafter “Commission”) has adopted administrative rules at 312 IAC 3-1 to assist in its administration of “AOPA,” and 312 IAC 3-1 is also applicable to this proceeding.

 

4.      Pursuant to 312 IAC 3-1-1(b), a person who is aggrieved or adversely affected by a determination of the Department may seek administrative review of the determination under I.C. 4-21.5 and 312 IAC 3-1.

 

5.      Big Turkey Lake, located in Steuben County Indiana is a “public freshwater lake” within the meaning of I.C. 14-26-2-3.

 

6.      The Commission has jurisdiction over the subject matter of this proceeding and the persons of the parties.

 

7.      A prehearing conference was held on July 28, 2004 and a supplemental prehearing conference was held on February 1, 2005.

 

8.      On April 4, 2005, Brian L. Evans, by counsel, sought to be dismissed as a Claimant to this proceeding.  Such motion was granted on April 7, 2005.

 

9.      At the heart of this proceeding is the Claimants’ contention that Wildwood failed to provide notice of its application for Permit # PL-19708 as required by I.C. 14-26-2, I.C. 14-11-4-1(2), 312 IAC 2-3-3, I.C. 14-11-4-5(a)(1), I.C. 14-11-4-7 and I.C. 4-21.5-3-1.  The Claimants additionally allege that several individual property owners possess, by deed or survey, full riparian rights and that Wildwood did not possess appropriate standing to submit the application for Permit # PL-19708.

 

10.  Wildwood, to the contrary, maintains that it, as the owner of the real property abutting Big Turkey Lake, was the proper entity to submit the application for Permit # PL-19708.  Wildwood also contends that notice of application for Permit # PL-19708 was provided as required by the Department. 

 

11.  Through the course of this proceeding it has become apparent that a long-standing controversy exists with respect to the ownership of the real property abutting Big Turkey Lake within Wildwood-By-The-Lake First, Second, Third and Fourth Additions.  This long-standing property ownership controversy has in turn resulted in a history of disputes between certain property owners and Wildwood regarding the placement of piers. 

 

12.  Wildwood contends that a grant of summary judgment in favor of the Claimants solely on the issue of notice regarding Permit # PL-19708 “ultimately will not resolve this ongoing issue…” Wildwood’s Response to Request for Summary Judgment, Introduction.

 

[VOLUME 10, PAGE 419]

 

13.  Wildwood’s belief in this regard is well taken, however the only matter properly raised for the Commission’s consideration is whether the Department’s issuance of Permit # PL-19708 to Wildwood was proper.

 

14.  The Claimants have sought summary judgment in their favor solely on the basis that Permit # PL-19708 should be revoked due to Wildwood’s complete failure to provide notice of its application for Permit # PL-19708 as required by law.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

 

15.  Permit # PL-19708 was issued in accordance with I.C. 14-26-2 (lakes preservation act).

 

16.  Notice requirements applicable to I.C. 14-26-2 are found at I.C. 14-11-4.  I.C. 14-11-4-1(2).

 

17.  The applicant for a permit under I.C. 14-26-2 is required to “notify at least one (1) of the owners of each parcel of real property reasonably known to be adjacent to the affected real property.”  I.C. 14-11-4-5(a)(1), 312 IAC 2-3-3(c).

 

18.  Real estate “adjacent to the affected real property” is defined as real property owned by a person, other than a permit applicant, that is either within one quarter mile (1/4) of or shares a boundary with the property where activity authorized by a license will take place.  312 IAC 2-3-2.

 

19.  Wildwood has presented the position that it owns a twenty-foot strip of land located between that property owned by the Claimants and the shoreline of Big Turkey Lake. Under Wildwood’s theory the Claimants’ property is not only within one-quarter mile of the property affected by activity authorized in Permit # PL-19708, but the Claimants’ property actually borders that affected property.[1]

 

20.  There is no question that the Claimants are reasonably known to Wildwood as owners of property “adjacent to the affected real property.”

 

21.  The notice mandated by I.C. 14-11-4-5(a)(1) is required to be provided in the same manner as prescribed at I.C. 4-21.5-3-1 and must refer to the license application and explain the options available to the person receiving service.  I.C. 14-11-4-7.

 

[VOLUME 10, PAGE 420]

 

22.  Wildwood, as the applicant for Permit # PL-19708, was obliged to provide notice to the Claimants referencing the application and advising the Claimants of options available to them by U.S. mail or personal service. I.C. 4-21.5-3-1(a)(1) & (b).

 

23.  Claimants have provided evidence that Jeffrey H. Walborn was not provided any notice of Wildwood’s application for Permit # PL-19708.  “Memorandum in Support of Claimants’ Motion for Summary Judgment,” Affidavit of Jeffrey H. Walborn.

 

24.  Furthermore, each of the Claimants has alleged in their correspondence initiating this proceeding that they did not received notice of Wildwood’s application for Permit # PL-19708.

 

25.  The Claimants have set forth in their “Memorandum in Support of Claimant’s Motion for Summary Judgment” that the proof of service document associated with Wildwood’s application for Permit # 19708 additionally proves Wildwood’s non-compliance with the notice requirements.  However, the Claimants have failed to provide or designate Wildwood’s proof of service document as material for consideration.

 

26.  Wildwood has stated that “the permit in question was mentioned at several different meetings and they were posted on the bulletin board as soon as they were received.”  Wildwood’s “Motion for Denial of Stay of Effectiveness,” paragraph 8. 

 

27.  In “Wildwood’s Response to Request for Summary Judgment,” it merely cites that “the Indiana Department of Natural Resources/Division of Water provided a 30 day public Notice…” 

 

28.  The Claimants appropriately point out that I.C. 14-11-4 identifies certain sensitive classes of permits, including those issued under I.C. 14-26-2, the lakes preservation act, to be of a nature that requires the notification of adjacent property owners and entitles those adjacent property owners to participate in the permitting process.  Wheeler et al. v. Peabody, DNR and Town of Zionsville, 9 CADDNAR 193 (2004).

 

29.  Wildwood has stated with respect to the Claimants that, “Most of them do not attend meetings, or socials, or anything until after the fact.  How can they expect to know what is going on?” Wildwood’s “Motion for Denial of Stay of Effectiveness”

 

30.  The method by which the Claimants may have expected to know about Wildwood’s application for Permit # PL-19708 was for Wildwood to provide notice in compliance with I.C. 14-26-2, I.C. 14-11-4-1(2), 312 IAC 2-3-3, I.C. 14-11-4-5(a)(1), I.C. 14-11-4-7 and I.C. 4-21.5-3-1.

 

[VOLUME 10, PAGE 421]

 

31.  At no time has Wildwood disputed the Claimants’ allegation that it failed to provide them with notice as required by Indiana law and administrative rule.

 

32.  Not only is it clear that Wildwood failed to provide the Claimants in this proceeding with notice, it may also be clearly inferred that Wildwood failed to provide the requisite notice to any owner of land reasonably known to be adjacent to the affected property.

 

33.  “Where notice requirements regarding licensure are lacking or fundamentally flawed, the appropriate remedy is to remand the proceeding to the Department and to order the correction of the licensing process.”  Wheeler, supra, see also Fair, et al. v. Noble County Drainage Board and DNR, 9 CADDNAR 82 (2002) and Citizens Against the Pit by Rebecca L. Tennill v. DNR and Sliver Creek Sand and Gravel Co., Inc. 7 CADDNAR 140 (1996).

 

34.  Wildwood’s complete failure to provide notice not only to the Claimants, but also to all persons rightfully entitled to receive notice has created a fundamentally flawed permit process relating to Permit # PL-19708.

 

35.  This fundamentally flawed permitting process prevented the Claimants from realizing their statutory entitlement to review Wildwood’s application for Permit # PL-19708, provide input on that application or to solicit a sufficient number of petition signatures as a prerequisite to requesting a public hearing.

 

36.  The Department’s issuance of Permit # PL-19708, in light of the fundamental notice errors committed by Wildwood, was erroneous.