CADDNAR

[CITE: Rufenbarger & Rufenbarger v. Blue, et al., 11 CADDNAR 185 (2007)]

 

[VOLUME 11, PAGE 185]

 

Cause # 06-246W

Caption: Rufenbarger & Rufenbarger v. Blue, et al.

Administrative Law Judge: Lucas

Attorneys: Snyder (Rufenbarger); Helm (Blue); Lloyd and Romig (Faas Group); Knotek (DNR)

Date: September 21, 2007

 

 

[NOTE: ON OCTOBER 24, 2007, PETITIONERS BLUE, ET AL. FILED FOR JUDICIAL REVIEW IN KOSCIUSKO SUPERIOR COURT (43D01-0710-PL-894). ON JUNE 11, 2008, THE KOSCIUSKO SUPERIOR COURT GRANTED THE "INDIANA NATURAL RESOURCES COMMISSION'S [INRC] MOTION TO DISMISS", DISMISSED THE [INRC] FROM THE "JUDICIAL REVIEW PROCEEDING WITH PREJUDICE", AND DENIED PETITIONERS' MOTION TO AMEND CAPTION AND CLARIFY PARTIES. COURT DECISION. ON APRIL 24, 2008, THE INRC FILED ITS MOTION TO DISMISS, WHICH THE COURT GRANTED ON JUNE 11, 2008. ON JULY 11, 2008, PETITIONERS FILED MOTION TO CORRECT ERRORS. ON DECEMBER 11, 2008, THE COURT ENTERED ORDER DENYING MOTION TO CORRECT ERRORS.]

 

FINAL ORDER

 

(1) A common line exists between Lot 40 and Lot 41 in the 1^st Addition to Yarnell Point, a subdivision in Kosciusko County, Indiana.  The common line is the midpoint line of the platted public way between these two lots.  As the fee owners of Lot 40, Stephen B. Rufenbarger and Constance A. Rufenbarger (the “Rufenbargers”) are the owners of the underlying fee to the public way south of the common line.  As the fee owners of Lot 41, Terry W. Blue and Nancy A. Blue (the “Blues) are the owners of the underlying fee to the public way north of the common line.

 

(2) Following vacations by the Common Council of the City of Warsaw of portions of a public easement located between Lot 40 and the shoreline of Winona Lake in 1993, and between Lot 41 and the shoreline of Winona Lake in 2005, the Rufenbargers adjacent to Lot 40 and the Blues adjacent to Lot 41 are the riparian owners.

 

(3) The common line extended generally easterly to the shoreline of Winona Lake identifies the common point on the shoreline from which to commence the boundaries of the respective riparian areas of the Rufenbargers and the Blues within Winona Lake.  This common line extended additionally in a straight line into Winona Lake, and subject to the test of reasonableness as to length, separates the riparian areas of the Rufenbargers and the Blues.  North of the line, the Blues may exercise the rights of riparian owners.  South of the line, the Rufenbargers may exercise the rights of riparian owners.

 

(4) For an area described within and pursuant to the terms of a Grant of Easement set forth in Finding 7, the Blues are the servient estate and have granted rights to Don Faas; Loni Faas; Dodge R. Elkins; Kimberly Elkins; Larry E. Downs; Londa A. Downs; Steven Scott Pippinger; Angalina Kay Pippenger; Carl E. Ellis, Trustee; Patricia S. Ellis, Trustee; Clayton R. Kreicker; Cathy L. Kreicker; Michael Shearer; Susan Shearer; Mary Clemens; George Clemens; Naomi A. Hartle Revocable Trust; and the Carl E. Ellis Revocable Trust (collectively the “Faas Group”).

 

(5) Exercise of the rights of the Rufenbargers, the Blues, and the Faas Group are subject to IC 14-26-2 and 312 IAC 11 as administered by the Department of Natural Resources (the “DNR”).

 

(6) In Winona Lake and within five feet of either side of the common line, the Rufenbargers, the Blues, and the Faas Group must refrain from placing a pier or similar structure and must also refrain from mooring a boat.

 

[VOL. 11, PAGE 186]

 

(7) The DNR’s Denial Notice to the Faas Group for PL-20493 and dated January 26, 2007 is affirmed.  However, authorization is granted to the Faas Group, consistently with the foregoing Findings of Fact and Conclusions of Law, for a temporary group pier to be placed in front of the Grant of Easement frontage to provide access and mooring facilities on the north side of the pier.  The number and configuration of boats to be moored to the group pier are subject to prior approval by the DNR’s Division of Law Enforcement for navigation safety and effectiveness.  The pier must not exceed three feet wide and must not extend more than 100 feet from the shoreline into Winona Lake.  The pier shall be supported by two inch auger poles, which shall be placed in the lakebed using hand-held tools, or shall be placed in sockets installed in the lakebed. 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Case and Jurisdiction

 

1. Stephen B. Rufenbarger and Constance A. Rufenbarger (the “Rufenbargers”) are the owners of the following described real estate located adjacent to Winona Lake in Kosciusko County, Indiana:

 

Lot 40, together with the north 25 feet of Lot Number 39 in the 1st Addition to Yarnell Point.

Also, that portion of the public easement described on the Plat of the 1st Addition to Yarnell Point, as recorded in Plat Book 4, page 98, in the Office of the Recorder of Kosciusko County, Indiana, lying south of the north line of Lot Number 40 extended to the water’s edge and north of the south line of the North 20 feet of Lot Number 39, extended to the water’s edge.

 

2. Terry W. Blue and Nancy A. Blue (the “Blues”) are the owners of the following described real estate located adjacent to Winona Lake in Kosciusko County, Indiana:

 

Lot 41 and Lot 42 in the 1^st Addition to Yarnell Point.

3. Don Faas; Loni Faas; Dodge R. Elkins; Kimberly Elkins; Larry E. Downs; Londa A. Downs; Steven Scott Pippinger; Angalina Kay Pippenger; Carl E. Ellis, Trustee; Patricia S. Ellis, Trustee; Clayton R. Kreicker; Cathy L. Kreicker; Michael Shearer; Susan Shearer; Mary Clemens; George Clemens; Naomi A. Hartle Revocable Trust; and Carl E. Ellis Revocable Trust (collectively the “Faas Group”) are the owners of various tracts in Kosciusko County.[1]  These tracts are not within the 1st Addition to Yarnell Point and are not adjacent to Winona Lake.

 

[VOL. 11, PAGE 187]

 

4. The plat of the 1st Addition to Yarnell Point (the “Plat”) was recorded on February 10, 1926 and shows an area described as a “public easement” between the easterly lot lines of the lots in the Plat and the shoreline of Winona Lake. In addition, between Lots 15 and 16, Lots 20 and 21, Lots 24 and 25, Lots 29 and 30, Lots 34 and 35, Lots 40 and 41, and Lot 46 and an adjacent tract, there are strips of land typically 15 feet wide. The strips appear to provide access from the public street to the public easement. These strips begin at the edge of the right-of-way of a public street and end at the westerly edge of the public easement along the shoreline. As platted in 1926, the lots in the 1st Addition to Yarnell Point did not extend to the shoreline of Winona Lake, but rather they terminated at the westerly edge of the public easement.

 

5. In 1992, Norman L. Hoffer and Betty L. Hoffer (the “Hoffers”) were the owners of Lot 41 in the 1^st Addition to Yarnell Point. On October 2, 1992, the Hoffers granted a nonexclusive easement to the Faas Group or the Faas Groups’ predecessors in interest (the “original easement”)[2]. The original easement was set forth in an instrument titled “Grant of Use” and described a lineal, rectangular parcel more particularly defined as:

A tract commencing at the northwest corner of Lot No. 40, thence eastward approximately 130 feet, more or less, to the shore of Winona Lake, thence northward along the shore of Winona Lake eight (8) feet, thence westward by parallels eight (8) feet parallel to the north lot line of Lot No. 40 to the edge of the right-of-way of Country Club Drive (eight (8) feet of the place of beginning) thence southward along the right-of-way of Country Club Drive eight (8) feet to the place of beginning....

6. In the original easement, the Hoffers also provided “an additional ten (10) feet of use” of the Hoffers’ “riparian rights within the waters of Winona Lake, so as to allow flexibility in the docking of boats; this additional grant will extend docking of boats northward into waters that are otherwise the riparian waters of [Hoffers] and will grant a total of eighteen (18) feet of riparian rights, including eight (8) feet of the easement granted herein and ten (10) feet additional northward area parallel and adjacent thereto.”

 

[VOL. 11, PAGE 188]

 

7. On October 28, 2005, the Blues caused to be recorded with the Office of the Recorder of Kosciusko County a Grant of Easement (the “amended easement”) which provided in substantive part as follows:

The undersigned, Terry W. Blue and Nancy A. Blue, make this Grant of Easement under the following terms, conditions and recitals:

1. The undersigned, Terry W. Blue and Nancy A. Blue, are the owners of Lot #41 and Lot #42 in Willams First Addition to Yarnelle Pointe, Warsaw, Kosciusko County, Indiana, and adjacent vacated areas between the lots and Winona Lake.

2. Terry W. Blue and Nancy A. Blue (hereinafter the “Blues”) are the successors in interest to Norman L. Hoffer and Betty L. Hoffer (hereinafter the “Hoffers”).

3. Hoffers executed and created a Grant of Use which was recorded in the Office of the Recorder of Kosciusko County, Indiana, on October 2, 1992, as Document No. 92-10-0159.

4. Blues desire to amend that “Grant of Use” described in the preceding paragraph, however, nothing in this document is intended to limit or reduce the rights created by the 1992 Grant of Use.

5. Blues, by reason of their ownership of Lot #41 are, as a matter of Indiana law, also the owners of the feet title to part of the adjacent tract lying between Lot #40 and Lot #41.  More specifically, Blues are the owners of the fee title to the north one-half of the tract which lies between the north line of Lot #40, extended and the south of Lot #41, extended (hereinafter “The Tract”).

6. The Tract was created as a part of the plat of the 1^st Addition to Yarnelle Pointe.

7. As referred to in this document, “The Tract” constitutes a roughly triangular parcel lying between Lot #40 and Lot #41, bounded by Country Club Drive on the west and narrowing to a point to the east by the extension of the lot lines of Lot #40 and Lot #41.

8. The 1992 Grant of Use created riparian uses for certain grantees; the scope of that use was further construed by the Natural Resources Commission under Administrative Cause No. 03-047L.

9. The Final Order in Administrative Cause No. 03-046L limited the riparian uses of grantees under the 1992 Grant of Use to areas north of the north line of Lot #40, extended into the waters of Winona Lake.

10. Blues desire to provide the Grantees the right to use any and all riparian areas to which Blues are entitle[d] by reason of their ownership of Lots #41 and #42 in the 1^st Addition to Yarnelle Point and adjacent vacated areas, including the areas determined in the prior Grant of Use as well as any additional riparian areas to which Blues [are] entitled, and lying south of the area determined in Administrative Cause No. 03-046L Final Order, but north of the midpoint line of The Tract, extended into the waters of Winona Lake.

 

[VOL. 11, PAGE 189]

 

11. To the extent that the rights of Blues are determined by an extension of the south line of Lot #41 eastward into the waters of Winona Lake, that area of riparian use is also granted to the Grantees under the 1992 Grant of Use.  Blues acknowledge that the north line of Lot #40 currently owned by Stephen B. Rufenbarger and Constance A. Rufenbarger, and the south line of Lot #41, do intersect.  To the extent the Rufenbargers claim that their rights are determined by an extension of the north line of Lot #40, in like manner, Blues assert the same rights by extending the south line of Lot #41 eastward.

12. The Grantees under this Grant of Easement are the successors in interest to the original Grantees under the 1992 Grant of Use, and are…:

            a. Cynthia L. Elliott;

            b. Lary E. Downs and Londa A. Downs;

            c. Cameron D. Bayne and Kathy L. Bayne;

            d. Michael A. Shearer and Susan M. Schearer;

            e. Carl E. Ellis Revocable Living Trust undivided ½ interest and Patricia S. Ellis Revocable Living Trust undivided ½ interest, Carl E. Ellis and Patricia S. Ellis LE & Trustees;

            f. Donald R. Faas and Linda Marie Faas; and,

            g. Naomi A. Hartle Revocable Trust, James F. Hartle, Jr. Trustee.

13. The Grantees are entitled to use, in addition to the easement described in the 1992 Grant of Use, an additional easement eight feet in width…and described as follows:

An 8.00 foot wide ingress and egress easement over, under and across a tract of land, more particularly described as follows:

Commencing at a PK nail on the Southest corner of Lot 41; thence South 14º-37’-54” East, 15.45 feet to the point of beginning; thence North 87º-55’-59” East, 133.67 feet, more or less, to the shoreline of Winona Lake; thence south 03º-53’-54” East, along said shoreline, 8.00 feet; thence South 87º-55’-59” West, 132.14 feet, more or less; thence North 14º-37’-54” West, 8.20 feet to the point of beginning.

Subject to all legal highways and easements of record.

This Grant of Easement is intended to include all riparian rights within the waters of Winona Lake as set forth in this Grant of Easement….

14. The intent of this Grant of Easement is to provide additional riparian use easements to the Grantees, thereby shifting the riparian area southward to the limit of property rights vested in or controlled by Blues.  The original 1992 Grant of Use provides an additional ten (10) feet “of the use of the Grantors’ riparian rights within the waters of Winona Lake…” to provide additional space for docking of boats.  To the extent Grantees are able to relocate their pier and/or riparian use southward by virtue of this Grant of Easement, it is the intent that the additional use of riparian rights shall shift southward as well; in other words, that the Grantees shall have the use of eighteen (18) feet of riparian rights, within the waters of Winona Lake, in conjunction with pier and boat docking.  It is not the intent of this Grant of easement to enlarge the total of eighteen (18) feet of use by the Grantees.

 

[VOL. 11, PAGE 190]

 

8. On March 15, 1993, the Common Council of the City of Warsaw vacated the public easement between the southerly line of Lot 37 (extended to the shoreline) and the northerly line of Lot 40 (extended to the shoreline).  Within Winona Lake and adjacent to the site of this vacated public easement, the Rufenbargers are the riparian owners.

 

9. On June 20, 2005, the Common Council of the City of Warsaw vacated the public easement between the southerly line of Lot 41 (extended to the shoreline) and the northerly line of Lot 42 (extended to the shoreline).  Within Winona Lake and adjacent to the site of this vacated public easement, the Blues are the riparian owners.

 

10. The members of the Faas Group are not riparian owners. Yet a determination that persons are not “riparian owners does not settle the question of whether they are entitled to install and use a dock in the property enjoyment of their easement for right-of-way purposes.” An easement holder does not have riparian ownership status but may use the riparian rights of the servient tenant who has given the easement holder access to the lake. Klotz v. Horn, 558 N.E.2d 1096, 1097 (Ind. 1990), citing Farnes v. Lane, 281 Minn. 222, 161 N.W.2d 297, 301 (Minn. 1968).  The intentions of the riparian owner are to be implemented in construing an easement.  The clear language in a plat or other recorded conveyance controls. 

 

11. The Natural Resources Commission (the “Commission”) found in Rufenbarger v. Lowe, et al., 9 Caddnar 150, 151 (2004) [Administrative Cause No. 03-046L][3] that the original easement by the Hoffers was sufficient to provide the Faas Group, including their predecessors in interest, a nonexclusive easement to the shoreline. The original easement expressed unambiguously an intention that it would confer riparian rights. In addition to an eight-foot corridor extending lake-ward from the terrestrial easement, ten more feet of shoreline were provided for enjoyment of the Faas Group.  The parties to the instant proceeding do not contest the validity of this finding from Rufenbarger 1.  The same legal status is accorded to the amended easement as to the original easement.

 

12. Evidence presented at hearing in Rufenbarger 1 indicated that, before the Hoffers granted the original easement, the Faas Group or the Faas Groups’ predecessors in interest used the shoreline of the public easement for recreational purposes.  Temporary piers were placed.  Although these piers seem most often to have been located north of the northern boundary of Lot 40 extended into Lake Winona, both testimony and exhibits suggested they were sometimes placed south of that line.  Over the passage of time, usage of the site was dynamic and expanding.  The evidence demonstrated an evolution of use

 

[VOL. 11, PAGE 191]

 

patterns typical of desirable public freshwater lakes.  Upon proper facts, a prescriptive easement could establish access to the shoreline of a public freshwater lake, including the opportunity to place a pier in the lake. Bromelmeier v. Brookhart, 570 N.E.2d 90 (Ind. App. 1991).  Yet prescriptive easements are not favored by the law.  On land, physical evidence may help establish adverse use, and an unexplained use of a path or road for over 20 years offers a presumption of adverse use. There is not a similar presumption “in favor of a party trying to establish a prescriptive easement for the recreational use of a body of water.... Recreational use (especially of water which leaves no telltale path or road)...seems...likely to be permissive” rather than adverse.  Carnahan v. Moriah Property Owners Ass’n, 716 N.E.2d 487 (Ind. 1999).  In Rufenbarger 1, the Commission found the evidence did not demonstrate use by the Faas Group, south of the northern boundary of Lot 40 extended into Lake Winona, sufficient to establish a prescriptive easement. Upon these facts, the Commission concluded in Rufenbarger 1 that any rights of the Faas Group to place piers were derived from the easement. 

 

13. The parties stipulated into evidence a transcript of Rufenbarger 1.  The preponderance of the evidence in the instant action continues to support the Commission’s findings of fact and conclusions of law as set forth in Finding 12, but with the noteworthy caveat that the riparian boundary between the Rufenbargers and Blues was not articulated by Rufenbarger 1.  The Blues were not then parties, and the vacation referenced in Finding 9 had not occurred. 

 

14. The DNR is the state agency primarily responsible for administering IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”).  As provided in IC 14-26-2-23(e)(2), objective standards are to be provided by rule with respect to the configuration of piers, boat stations, platforms and similar structures.  A process shall be provided, which includes an opportunity for mediation, for the resolution of disputes between persons with competing interests or between persons and the DNR in the use of waters of a public freshwater lake.

 

15. Winona Lake in Kosciusko County is a “public freshwater lake” and subject to the Lakes Preservation Act.

 

16. The Commission has adopted rules at 312 IAC 11 to assist with administration of the Lakes Preservation Act.  Included among these are standards pertaining to the configuration of piers and similar structures, the use of mediation, and an opportunity for the resolution of disputes between persons with competing interests or between persons and the DNR in the use of waters of a public freshwater lake.  Temporary piers are among the structures requiring either a general license or an individual license.  A “group pier” is disqualified from a general license by 312 IAC 11-3-1(b)(8).

 

[VOL. 11, PAGE 192]

 

17. Pursuant to IC 14-10-2-3, the Commission is the “ultimate authority” for the Lakes Preservation Act and 312 IAC 11.

 

18. The Rufenbargers sought relief from the Commission for the resolution of a dispute with the Blues and the Faas Group regarding competing interests on Winona Lake.  The DNR was added as an additional party.  At the same site, the Faas Group sought an individual license for a group pier under the Lakes Preservation Act, and the DNR denied the application.  The Faas Group sought administrative review of the denial.  By agreement of the parties, the review initiated by the Rufenbargers and the review initiated by the Faas Group were consolidated as Administrative Cause Number 06-246W in this proceeding.  The Commission has jurisdiction over the subject-matter and over the persons of the parties.

 

19. This proceeding came for hearing in Columbia City on June 19, 2007.  At the opening of the hearing, a “Stipulate of the Parties” was entered by which the following issues were presented for review by the Commission:

 

A. The determination of the appropriate rule and location for extending the common property line between Lot 40 (Rufenbargers) and Lot 41 (Blues) into the waters of Winona Lake, and [t]he derivative and respective riparian uses and rights of the parties with respect to that line.

 

B. Whether the determination of the Department of Natural Resources on January 26, 2007 denying the Application for a Group Pier Permit under Administrative Number PL-20493 was improperly denied on the basis that it was unusually long relative to similar structures in the vicinity and would infringe on the access of an adjacent landowner and, whether the Group Permit Permit Application satisfies the criteria specifically identified in 312 IAC 11-3-3 for Group Pier Permits, in light of the May 3, 2004 Final Order of the Natural Resources Commission that addresses substantially the same issues presented in the Permit Application.

 

C. Whether the denial of the Group Pier Permit Application will impose a severe hardship on the [Faas Group].

 

20. Following the completion of the hearing on June 19 and agreed supplementation of the transcript of Rufenbarger 1, the parties were provided until July 23, 2007 to file simultaneous post-hearing briefs.  With expiration of the time for filing briefs, the proceeding is ripe for disposition.

 

[VOL. 11, PAGE 193]

 

B. Appropriate Rule and Location for Extending the Common Property Line between Rufenbargers’ Lot 40 and Blues’ Lot 41 into the Waters of Winona Lake, and the Derivative and Respective Riparian Uses and Rights of the Parties with Respect to that Line

 

21. By its express terms, Rufenbarger 1 did not address the relationship between the Rufenbargers, as owners of Lot 40, with respect to the owners of Lot 41 (now the Blues).  Even if Rufenbarger 1 had done so, the factual circumstances are changed by the subsequent vacation of the public easement adjacent to Lot 41 as described in Finding 9.

 

22. Before the vacations described in Finding 8 and Finding 9, neither Lot 40 nor Lot 41 extended to the shoreline of Winona Lake.  With the vacations, both Lot 40 and Lot 41 extend to the shoreline of Winona Lake.

 

23. Before the vacations described in Finding 8 and Finding 9, the northern boundary of Lot 40 and the southern boundary of Lot 41 were separated by a platted public way, although the length of separation decreased as the boundaries progressed easterly toward Lake Winona.  With the vacations, the extended northern boundary of Lot 40 and the extended southern boundary of Lot 41 intersect before reaching the shoreline of Lake Winona.

 

24. A common line exists between Lot 40 and Lot 41.  The common line is the midpoint line of the platted public way between these two lots.  As stated in AmRhein v. Eden, 779 N.E.2d 1197 (Ind. App. 2002), the owners of lots own the underlying fee title of an adjacent way to the centerline of the public way. 

 

25. Riparian rights exist as a part of fee simple ownership of the shoreline.  Brown v. Heidersbach, 172 Ind. App. 434, 440, 360 N.E.2d 614, 619 (Ind. App. 1977).  Since the Rufenbargers and the Blues own to the centerline of the platted public way, the common line division of their fee simple ownership should properly be extended to the shoreline.  The common line extended easterly to the shoreline may also be described as a bifurcation of the angle formed by the intersection of the extended northern boundary of Lot 40 and the extended southern boundary of Lot 41.  The common line would identify the common point on the shoreline from which to commence the boundaries of their respective riparian areas into Winona Lake.

 

26. Where the shoreline approximates a straight line and where the onshore property boundaries are perpendicular to the shore, the boundaries are determined by extending the onshore boundaries into the lake.  Bath v. Courts, 459 N.E.2d 72, 73 (Ind. App. 1984).

 

27. Where the common line described in Finding 25 intersects the shoreline of Winona Lake, the shoreline approximates a straight line and the intersection occurs at a perpendicular to the shore.  The riparian areas of the Rufenbargers and the Blues in Winona Lake are properly bounded by continuing the extension of the centerline as a straight line into the lake.

 

[VOL. 11, PAGE 194]

 

28. North of the line into Winona Lake that is described by Finding 27, the Blues may exercise the rights as riparian owners for such activities as access, swimming, fishing, bathing and boating.  These rights may include the placement of piers and similar structures.  For the area described within the amended easement, the Blues are the servient estate and have accorded riparian rights to the Faas Group.  South of the line described by Finding 27, the Rufenbargers may exercise these same rights as riparian owners.  The rights of the Blues, the Faas Group and the Rufenbargers are governed by a reasonableness test, and the control of the DNR to protect the public rights described by the Lakes Preservation Act.  Bath cited previously and Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992).

 

29. Lieutenant John Sullivan is an experienced Conservation Officer and is the Commander for District 1 which includes Winona Lake.  He is familiar with conditions on Winona Lake as they pertain to boating and the placement of piers, including matters pertaining to navigation and the potentials for hazards to navigation.  Sullivan personally inspected the site at issue to evaluate the application contained in PL-20493 for a group pier, and he again personally inspected the site in anticipation of the hearing in this proceeding.

 

30. Sullivan testified that to accommodate navigation, there ideally should be ten feet of clearance on both sides of the dividing line (for a total of 20 feet) between riparian owners in a lake.  At a minimum, a total of ten feet of clearance would be required to provide for appropriate navigation and to implement the Lakes Preservation Act.  Sullivan’s testimony in this regard was essentially unrefuted and is persuasive.  In addition, Sullivan’s testimony is consistent with previous decisions by the Commission.  See recently Havel & Stickelmeyer v. Fisher, et al., 11 Caddnar 110 (2007).

 

31. Within five feet of either side of the line described in Finding 27, the Blues, the Faas Group, and the Rufenbargers should properly refrain from placing a pier or similar structure licensed under the Lakes Preservation Act and should properly refrain from mooring a boat.[4]

 

C. Propriety of DNR’s Denial of Application PL-20493 on the Basis the Proposed Group Pier was Unusually Long Relative to Similar Structures in the Vicinity and would Infringe on the Access of an Adjacent Landowner and Whether the Application Satisfies the Criteria Identified in 312 IAC 11-3-3 for Group Piers in Light of Rufenbarger 1

 

[VOL. 11, PAGE 195]

 

32. In application PL-20493, the Faas Group sought a group pier in front of the amended easement to provide access and mooring facilities on the north side of the pier for eight boats.  The proposed pier would be three feet wide and would extend 175 feet into Winona Lake.  The pier would be temporary and be supported by two-foot auger poles, which would be placed in the lakebed using hand-held tools or would be placed in sockets installed in the lakebed. 

 

33. The evidence discloses that the Blues share a pier with their neighbor on Lot 43 to the north, and this pier is approximately 90 feet long.  The Rufenbargers’ pier is approximately 85 feet long.  Testimony of Stephen Rufenbarger, Terry Blue, and Claimants’ Exhibit F (Walker & Associates survey of June 15, 2007).

 

34. Lieutenant John Sullivan is familiar with the size and length of piers in the vicinity of the application for PL-20493.

 

35. Based upon his experience, knowledge of navigation factors on Winona Lake, familiarity with pier lengths in the vicinity, and inspection of the site, Sullivan determined that (1) the proposed 175-foot long group pier described in PL-20493 would be unusually long relative to similar structures in the vicinity; and, (2) the proposed pier would infringe on the access of an adjacent landowner.  These were also the exclusive grounds cited by the DNR for denying the application for the group pier.

 

36. For those matters contained in Finding 35, the Faas Group has the burden of persuasion and the burden of going forward (sometimes collectively referred to as the “burden of proof”) with establishing the DNR erred.  Since the DNR did not identify other grounds for denying the application, a party asserting other grounds would be responsible for identifying and then proving them. Evidence received at hearing did not establish grounds other than those described in Finding 35 upon which application PL-20493 should properly be denied. 

 

37. At hearing, Sullivan testified the grounds described in Finding 35 were derived from concerns for navigability.  The core purposes of the Lakes Preservation Act support safe and effective navigation.  The public of Indiana has a vested right in the use of public freshwater lakes for recreational purposes, including fishing and boating.  IC 14-26-2-5.  Factors which the DNR may properly consider in determining whether to issue a permit under the Lakes Preservation Act include public rights to recreational purposes and the management of boating activities.  IC 14-26-2-23(e)(3) and IC 14-26-2-23(e)(4).

 

[VOL. 11, PAGE 196]

 

38. The DNR’s conclusion was appropriate that the proposal in PL-20493 for a group pier, which would be 175 feet long, should be denied.

 

39. Sullivan also testified if the length of the group pier were reduced to a range of 90 feet to 110 feet, and the piers at the site were properly configured, his concerns for adverse impacts to navigability would be alleviated.  Sullivan’s testimony is persuasive.

 

40. The Faas Group should be authorized to place a group pier that does not exceed 100 feet in length from the “shoreline or water line” (as described by IC 14-26-2-4) of Winona Lake.  The authorization should be limited by the terms described in Finding 32.  In addition, the Faas Group should place no pier and moor no boat to a pier outside the area described by the amended easement. 

 

41. The authorization described in Finding 40 should be made consistently with the application in PL-20493, and as outlined in Finding 32, except that no finding should be made as to the number of boats which may be effectively and safely moored.  The authorization in favor of the Faas Group should be contingent upon a determination by the DNR that the configuration for mooring boats does not pose a hazard to navigation.  If the members of the Faas Group were unable to achieve such a configuration to their mutual satisfaction, or unable to achieve a configuration to the satisfaction of the DNR, they may seek an arrangement for common use as anticipated by IC 14-26-2-23(e)(2)(A).

 

42. This proceeding is governed by IC 4-21.5.  The purpose is to provide hearing de novo with respect to the licensure action by the DNR in denying application PL-20493.  The administrative law judge shall weigh evidence and reaching conclusions, rather than defer to an initial determination by the DNR.  The standard of review is by the preponderance of the evidence.  Indiana Dept. of Natural Resources v. United Refuse, 615 N.E.2d 100 (1993 Ind.) and Dowden v. Department of Natural Resources, 6 Caddnar 25 (2001).  Consistently with these principles, the Commission may appropriately grant approval of a license with terms that are the same as or different from those sought in an application if supported by the preponderance of the evidence.

 

43. Based upon the preponderance of the evidence and within the terms described in these Findings, the Commission may appropriately grant approval to the Faas Group for a group pier that conforms to the Lakes Preservation Act and 312 IAC 3-1, including 312 IAC 11-3-3.

 

 

D. Whether the Denial of the Group Pier Permit Application Would Impose a Severe Hardship on the Faas Group

 

44. In Bath cited previously, the court noted there was “no set rule in Indiana for establishing the extension of boundaries into a lake”, as between riparian owners. Additionally, the court noted that riparian rights do not extend to the center of a public freshwater lake.  Rather, “the State of Indiana holds in trust for public use and enjoyment all freshwater lakes.  The opportunity to place a pier is subject to lateral limitation for the enjoyment of other riparian owners and to perpendicular limitation for the enjoyment of the public.  A riparian owner “may build a pier within the extension of his shore boundaries only so far out as not to interfere with the use of the lake by others.”  See, also, Rufenbarger 1.

 

[VOL. 11, PAGE 197]

 

45. The number of persons who can obtain riparian rights for a segment of shoreline is infinite.

The shorelines and resources of public freshwater lakes are finite, and riparian owners and the public must enjoy them in balance.  With the enactment in 1947 of the antecedent statutes[5] to the Lakes Preservation Act, the Indiana General Assembly made a clear policy determination that the enjoyment of riparian rights must not overwhelm the public trust.  This policy determination was underlined with more recent statutory amendments to the Lakes Preservation Act that are now codified at IC 14-26-2-23.[6]  Notable is IC 14-26-2-23(e)(2).  An individual who has riparian rights to access a public freshwater lake is not guaranteed the right to place a pier. 

 

46. The disposition in the Final Order to these findings would provide the members of the Faas Group the opportunity to enjoy access to Winona Lake.  The disposition is appropriate to their riparian rights and to the purposes of the Lakes Preservation Act.  A severe hardship is not imposed to the Faas Group.