CADDNAR

[CITE: Island Prop. Owners Ass’n., Inc. v. Clemens and DNR, 12 CADDNAR 56 (2009)]

 

 

[VOLUME 12, PAGE 56]

 

Cause #: 08-075W

Caption: Island Prop. Owners Ass’n, Inc. v. Clemens and DNR

Administrative Law Judge: Lucas

Attorneys: Refior (Island Prop.); Snyder (Respondents); Wyndham (DNR)

Date: April 20, 2009

 

 

[NOTE: ON MAY 15, 2009, ISLAND PROP. OWNERS ASS'N FILED FOR JUDICIAL REVIEW IN THE KOSCIUSKO CIRCUIT COURT (CAUSE NO. 43C01-0905-MI-260). ON OCTOBER 28, 2009, THE KOSCIUSKO CIRCUIT COURT ENTERED ORDER GRANTING STIPULATION FOR DISMISSAL WITH PREJUDICE.] 

 

FINAL ORDER

 

(1) The license for a group pier, which was issued by the Department of Natural Resources to the Island Lake Property Owners Association, Inc. for application PL-20435, is revoked.

 

(2) The general license on which Adam Clemens placed a pier, within the easement created by Mary C. Clemens, is revoked.

 

(3) Island Lake Property Owners Association, Inc. and Adam Clemens are ordered to remove, by April 17, 2009, any piers, boat stations, platforms, or similar structures from the waters of Winona Lake.

 

(4) Island Lake Property Owners Association, Inc. and Adam Clemens are ordered to refrain from replacing any piers, boat stations, platforms, or similar structures in the waters of Winona Lake except pursuant to a new license or licenses issued under IC 14-26-2 and 312 IAC 11-1 through 312 IAC 11-5. 

 

(5) The 150-foot minimum length requirement, which Roger L. Clemens and Karol P. Clemens sought to impose on the placement of any pier by Adam Clemens, is declared unenforceable as to the Department of Natural Resources (and as to the Natural Resources Commission, on administrative review) in the implementation of IC 14-26-2 and 312 IAC 11-1 through 312 IAC 11-5.

 

(6) Nothing in this Order shall be construed, however, to prohibit an agreement among all parties for the placement of piers that would be effective for a period not extending later than December 31, 2009.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Case

 

1. On May 1, 2008, Island Lake Property Owners Association, Inc. (“ILPOA”) filed its Petition and Request for Stay Hearing (the “Petition”) in which ILPOA sought relief from the Natural Resources Commission (the “Commission”) under IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) against Roger L. Clemens, also known as Rocky Clemens, (“R. Clemens”), Karol P. Clemens (“K. Clemens”) and Adam Clemens “(A. Clemens”).  R. Clemens, K. Clemens, and A. Clemens are collectively the “Respondents”. 

 

[VOLUME 12, PAGE 57]

 

2. The Petition initiated a proceeding which is governed by IC 4-21.5, also known as the “Administrative Orders and Procedures Act” or “AOPA”, and rules adopted by the Commission at 312 IAC 3-1 to assist with its implementation of AOPA. 

3. The Petition indicates that for consideration is a temporary pier placed by A. Clemens (the “A. Clemens Pier”) in an area of Winona Lake which is located in the City of Warsaw, County of Kosciusko, State of Indiana.  The Petition urges that the A. Clemens Pier interferes with reasonable use by the members of a ILPOA with respect to a group pier licensed to ILPOA (the “ILPOA Pier”) on land adjacent to the site of A. Clemens Pier.

 

4. Upon receipt of the Petition, the Commission appointed an administrative law judge under AOPA and 312 IAC 3-1 to conduct this proceeding.  The administrative law judge scheduled a prehearing conference for May 8, 2008 in which the Department of Natural Resources (the “DNR”) was added as a party on the basis the DNR is the state agency with licensing authority under the Lakes Preservation Act.

 

5. On May 15, 2008, ILPOA filed its Amended Petition and Request for Stay Hearing.  In the amended petition, ILPOA alleged “the Respondents are not entitled to place or use” the A. Clemens Pier at the end of an easement held by A. Clemens, and the A. Clemens Pier “interferes with the access, navigation, use and enjoyment by the members of [ILPOA], of the [ILPOA] Property and of the [ILPOA] Pier and the related riparian rights within the [ILPOA’s] riparian zone….  There is a need, because of the start of the 2008 lake season, for the [Commission] to schedule an expedited hearing of this case for the purpose of determining whether or not it should enter an order of stay requiring the Respondents to remove the [A. Clemens Pier] until the [Commission] fully adjudicates this case.”

 

6. A hearing on the stay was set for June 12, 2008 in Columbia City, Indiana and was conducted as scheduled.  On June 20, 2008, the administrative law judge entered an Order for Stay, In Part, from Placement of a Temporary Pier.

 

7. A hearing on the merits was set for November 19, 2008 in Columbia City and was conducted as scheduled.  The parties were provided until December 19, 2008 to file and serve simultaneous post-hearing briefs.  The Post-Trial Brief of Adam Clemens was filed on December 17; the Third Party Respondent Department of Natural Resources Post-Hearing Brief was filed on December 19; and, the Post-Trial Brief of Claimant was filed on December 19, 2008.  The proceeding is ripe for final disposition by the Commission.

 

B. Hearing de Novo, Burden of Proof, and Issues for Administrative Review

 

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8. Administrative review of a DNR licensure determination is conducted de novo.  Rather than deferring to the DNR determination, de novo review requires the administrative law judge to consider and apply proper weight to the evidence.  Burke’s Vinyl Seawalls & Reynolds v. DNR, 11 Caddnar 345, 346 (2008) applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).

 

9. At each stage of a proceeding, a party requesting that an agency take action or asserting an affirmative defense has the burden of going forward and the burden of persuasion (sometimes collectively referred to as the burden of proof) with the evidence.  IC 4-21.5-3-14(c).  A person seeking to contest the placement of a pier on a public freshwater lake, pursuant to a general license, has the burden of proof.  Adochio, et al. v. Kranz, et al., 11 Caddnar 400 (2008). 

 

10. Findings under AOPA must be based upon evidence that is “substantial and reliable”.  IC 4-21.5-3-27(d) and Citizens Action Coalition of Ind. v. N. Ind. Pub. Serv. Co., 796 N.E.2d 1264 (Ind. App. 2003). 

 

11. Typically, the standard of review under AOPA is “preponderance of the evidence”.  Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993) and Dowden v. Department of Natural Resources, 6 Caddnar 25 (2001). 

“Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not.  Bivens v. State, 642 N.E.2d 928 (Ind. 1994).  The trier of fact must be convinced from a consideration of all evidence that the issue for which a party has the burden is more probably true than not true.  Ken Schaefer Auto Auction v. Trustison, 198 N.E.2d 873 (Ind. App. 1964).

 

12. The standard of review for establishing adverse possession or prescriptive easement is clear and convincing.  Adochio, cited previously, applying Fraley v. Minger, 829 N.E.2d 476, 483 (Ind. 2005) and Wilfong v. Cessna Corp., 838 N.E.2d 403 (Ind. 2005).  “Clear and convincing” evidence has been described as more than a preponderance of the evidence but less than beyond a reasonable doubt.  Clear and convincing proof will be shown where the truth of the facts asserted is highly probable.  Adochio citing Black’s Law Dictionary, 6^th Edition (West Publishing Co. 1990), p. 251.

 

13. The hearing in this proceeding is conducted by the Commission de novo.  The hearing is not a DNR proceeding, and the Commission is not governed by the actions of the DNR.  The Commission is the “ultimate authority” under IC 14-10-2-3 and IC 4-21.5-1-15. 

 

C. Easement of A. Clemens

 

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14. An easement is appurtenant if it passes with the dominant tenement by conveyance or inheritance.  An easement is in gross if it is a mere personal right which cannot be granted to another person or transmitted by descent.  Jeffers v. Toschlog, 363 N.E.2d 457, 458 (Ind. App. 1978) citing Brown v. Heidersbach, 360 N.E.2d 614 (Ind. 1977).

 

15. When instruments creating an easement are construed, the intentions of the parties must be discovered and given effect.  Jeffers at 458 citing GTA v. Shell Oil Co., 358 N.E.2d 750 (Ind. 1977).

 

16. An easement must not be presumed to be in gross when it can be construed fairly to be appurtenant to the land.  Jeffers at 459 citing Sanxay v. Hunger, 42 Ind. 44 (Ind. 1873).

 

17. Where an easement is determined to be appurtenant to the land, a deed of conveyance for the dominant estate need not expressly mention the easement in order to convey it.  Jeffers at 459 citing Parish v. Kaspare, 106 Ind. 586, 10 N.E. 109 (Ind. 1887).

 

18. A. Clemens placed the A. Clemens Pier, asserting the authority of an easement established on February 28, 1994 by his grandmother, Mary C. Clemens.  Mary Clemens became the servient tenement for a parcel on the north six feet of Lot Numbered 43 in William’s Addition to Yarnelle Point to Winona Lake.  As set forth by Mary Clemens in a Grant of Easement to her son and daughter-in-law, Gordon X. Clemens and Dana M. Clemens, she provided: “The easement granted herein shall run with the land and shall give the Grantees, their successors and assigns, the right to ingress and egress over and across the easement to the shores of Winona Lake and shall further give the Grantees, their successors and assigns, riparian rights and usage as they deem appropriate for their own needs from time to time, including such things normal to riparian use as erection of a pier or boat dockage, swimming access from the pier and similar uses.”  The holders of the dominant tenement became Gordon X. Clemens and Dana M. Clemens.  Claimant’s Exhibit 8.

 

19. Another Grant of Easement was made by Mary C. Clemens to Gordon X. Clemens and Dana M. Clemens, for the same real estate, on March 30, 2000.  This easement also referenced the north six feet of Lot Numbered 43 in William’s Addition to Yarnelle Point as follows: “The easement granted herein shall run with the land and shall give the Grantees, their successors and assigns, the right to ingress and egress over and across the easement to the shores of Winona Lake and shall further give the Grantees, their successors and assigns, riparian rights and usage as they deem appropriate for their own needs from time to time, including such things normal to riparian use, such as erection of a pier or boat dockage, swimming access from the pier and similar uses.”  Claimant’s Exhibit 9.

 

[VOLUME 12, PAGE 60]

 

20. A Corrective Grant of Easement was made by Mary C. Clemens to Gordon X. Clemens and Dana M. Clemens, for the same real estate, on April 13, 2000.  This easement initially referenced the north six feet of Lot Numbered 43 in William’s Addition to Yarnelle Point and provided the following recitation: “The easement granted herein shall run with the land and shall give the Grantees, their successors and assigns, the right to ingress and egress over and across the easement to the shores of Winona Lake and shall further give the Grantees, their successors and assigns, riparian rights and usage as they deem appropriate for their own needs from time to time, including such things normal to riparian use, such as erection of a pier or boat dockage, swimming access from the pier and similar uses.” Subsequently in the Corrective Grant of Easement, however, language reduced the easement to “three feet in width”.  Claimant’s Exhibit 10.

 

21. Except as to width, each of the three expressions of intent by Mary C. Clemens is unequivocal and consistent.  She intended to establish an easement that is appurtenant to the land.  Mary C. Clemens intended to provide Gordon X. Clemens and Dana M. Clemens, together with their successors and assigns, the opportunity to enjoy the riparian rights of the servient estate along either the northern six feet or the northern three feet of Lot 43, including the erection of a pier or boat dockage, swimming access from the pier, and similar uses. 

 

22. Gordon X. Clemens and Dana M. Clemens did not consent to the Corrective Grant of Easement described in Exhibit 10.  Gordon Clemens testified, however, that he understood his mother intended to reduce the easement to three feet wide.  On July 13, 2000, with this understanding and with assent to his mother’s wishes, Gordon X. Clemens and Dana M. Clemens provided a Warranty Deed to Tony G. Boley, including reference to the easement on which they enjoyed the dominant estate, that reduced the width of the easement from six feet to three feet.  Claimant’s Exhibit 11.

 

23. Giving full effect to the intentions of Mary C. Clemens, she established an easement which is appurtenant to the land.  Gordon X. Clemens and Dana M. Clemens, together with their successors and assigns, would enjoy the riparian rights of the servient estate for the north three feet of Lot 43, including the erection of a pier or boat dockage, swimming access from the pier, and similar uses.  The rights of the dominant estate are correlative to the rights of other riparian owners and subject to the public trust.

 

24. On January 22, 2003, Tony G. Boley and Lisa A. Boley conveyed to Janine M. Orban the dominant tract without any reference to the appurtenant easement.  On March 7, 2008, Janine M. Orban, now known as Janine M. Campbell, conveyed to A. Clemens the dominant tract noting that it carried an ingress and egress easement to Winona Lake over the north three feet of Lot 43.  Claimant’s Exhibit 15.

 

25. Because the easement is appurtenant to land owned by A. Clemens, no reference to the easement is required in deeds conveying the dominant estate subsequent to its establishment by Mary C. Clemens.  A. Clemens enjoys the easement established by Mary C. Clemens as described in Finding 23. 

 

[VOLUME 12, PAGE 61]

 

D. Public Freshwater Lakes and Piers

 

26. Winona Lake in Kosciusko County, Indiana is a “public freshwater lake” as the phrase is defined at IC 14-26-2-3 of the Lakes Preservation Act (IC 14-26-2).  The Commission adopted rules at 312 IAC 11-1 through 312 IAC 11-5 to assist with its implementation of the Lakes Preservation Act.  As a consequence, Winona Lake is subject to the regulatory requirements of the Lakes Preservation Act and of 312 IAC 11-1 through 312 IAC 11-5.

 

27. Under IC 14-26-2-23, the Indiana General Assembly directed the Commission to adopt rules to provide objective standards for the licensure of piers, boat stations, platforms, and similar structures within public freshwater lakes.  The standards are to exempt any class of activities from licensing, including temporary structures, if the Commission finds that the class is unlikely to pose more than a minimal potential for harm to the public rights described in IC 14-26-2-5.  IC 14-26-2-23(e).

 

28. The “public rights” referenced in IC 14-26-2-5 are “natural resources and the natural scenic beauty of Indiana”.  “Natural scenic beauty” means the natural condition as left by nature without manmade additions or alterations.  The public of Indiana has a “vested right” in (A) the preservation, protection, and enjoyment of all the public freshwater lakes; and, (B) the use of public freshwater lakes for recreational purposes.  A “recreational purpose” means fishing, boating, swimming, the storage of water to maintain water levels, and any other purpose for which lakes are ordinarily used and adapted.  The State holds and controls all public freshwater lakes in trust for the use of all the citizens of Indiana for recreational purposes.  IC 14-26-2-5.

 

29. The Lakes Preservation Act is “[p]ublic trust legislation” intended to recognize “the public’s right to preserve the natural scenic beauty of our lakes and to recreational values upon the lakes.”  Even so, “Riparian landowners...continue to possess their rights with respect to a public freshwater lake, but their rights are now statutory and must be balanced with the public’s rights.”  Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001).

 

30. Applying these statutory authorities, and particularly IC 14-26-2-23(e), the Commission developed a regulatory design that authorizes the placement of temporary piers and similar structures under a partial exemption that is commonly referred to as a “general license”.  A qualified structure can be placed within a public freshwater lake without obtaining a prior written license (or what is sometimes called an “individual license”) from the DNR.  Clauss v. DNR, 11 Caddnar 150, 152 (2007).

 

31. As provided in pertinent part at 312 IAC 11-3-1(a) and (b):

 

(a) The placement of a temporary structure…is authorized without a written license issued by the [DNR under the Lakes Preservation Act and 312 IAC 11-3] if the temporary structure qualifies under this section.

 

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(b) In order for a temporary structure to qualify, the structure must satisfy each of the following:

(1) Be easily removable.

(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.

(3) Not unduly restrict navigation.

(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.

(5) Not extend more than one hundred fifty (150) feet from the…shoreline [or water line].

(6) If a pier, not extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the…shoreline [or water line].

(7) Not be a marina.

(8) Not be a group pier.

(9) Be placed by…a riparian owner.

 

32. A person who acts under 312 IAC 11-3-1(a) and (b) has a general license with conditions that have been codified by rule, and a person who purports to act under the rule’s authority but who violates the conditions, violates the license.  A general license which does not satisfy each condition in the rule may be revoked.

 

33. A person who wishes to place a temporary pier or other temporary structure, which does not meet each of the conditions of 312 IAC 11-3-1, is disqualified from obtaining a general license.  The person is not disqualified from obtaining an individual license.  A person may be entitled to an individual license if the person demonstrates to the DNR that granting the license would not harm the riparian rights of others or the public rights otherwise protected by the Lakes Preservation Act. 

 

34. A person who is disqualified from a general license, and who seeks an authorization for a “group pier” under 312 IAC 11-3-1(b)(8), must demonstrate to the DNR that the totality of an individual license would not violate riparian rights and public rights.  Because the Commission has determined the potential for harm posed by a “group pier” is greater than that for a lesser temporary structure, the demonstration is required before rather than after the structure is placed.  Stites, et al. v. RCI Development & DNR, 11 Caddnar 381 (2008).

 

E. Notices Governing License Applications for a Group Pier

 

35. Two distinct sets of notice requirements apply to license applications for activities governed by the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5.  Applications for licenses to place group piers are among those governed by these requirements.  Properly implemented, the two sets of notice requirements serve critical but disparate functions.

 

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36. The first notice requirements are set forth at IC 14-11-4.  The Commission has adopted rules at 312 IAC 2-3[1] to assist with implementation of IC 14-11-4.

 

37. Notice under IC 14-11-4 and 312 IAC 2-3 must be given at least 30 days before the DNR can properly issue a license governed by these laws.  IC 14-11-4-4.  Notice must be provided to each person “adjacent to the affected real property”, a concept identified in IC 14-11-4-5 and defined at 312 IAC 2-3-2.  An opportunity is accorded to potentially affected persons to participate in the license review process, and, upon the receipt of signatures from 25 qualified persons, to participate in an informal public hearing.  IC 14-11-4-8 and 312 IAC 2-3-6.  “The public hearing is a nonevidentiary hearing and neither the rules of evidence nor” AOPA apply.  312 IAC 2-3-6(c).

 

38. The applicant is responsible for providing notice under IC 14-11-4 and 312 IAC 2-3.  IC 14-11-4-5(a).

 

39. Effective notice under IC 14-11-4 and 312 IAC 2-3 allows neighbors to become aware of construction and facilities which may affect their enjoyment of a public freshwater lake, to offer information to assist the DNR in evaluating and conditioning a permit, and to seek informal accommodations before the issuance of an agency action.

 

40. Notice under IC 14-11-4 must comply with the provisions governing service of notices under AOPA.  IC 14-11-4-7 cross-referencing IC 4-21.5-3-1.  The Indiana General Assembly states explicitly, however, that the notice required by IC 14-11-4-7 “is not the notice required” by AOPA.  Emphasis added.

 

41. Where compliance with the notice requirements of IC 14-11-4 and 312 IAC 2-3 are lacking or fundamentally flawed, “the appropriate remedy is to remand the proceeding to the [DNR] and to order correction of the licensing process.”  Wheeler, et al. v. Peabody, DNR, and Town of Zionsville (Intervenor), 9 Caddnar 193, 195 (2004).

 

42. The second set of notice requirements are prescribed by AOPA and do not arise until after the licensing agency has completed its analysis of an application.  The notice provisions for most individual licenses, including those issued under the Lakes Preservation Act, are set forth in IC 4-21.5-3-5. 

 

43. AOPA creates minimum procedural rights for affected persons and imposes minimum procedural duties upon the licensing agency.  IC 4-21.5-2-1.  Except as precluded by law, an affected person may waive any right conferred by AOPA, but the agency cannot abrogate a procedural duty imposed by AOPA.  IC 4-21.5-2-2.

 

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44. AOPA recognizes the type of informal pre-licensure hearing opportunity that is afforded by IC 14-11-4 and 312 IAC 2-3, and AOPA includes citizens who participate among those entitled to notice of an agency licensure determination under IC 4-21.5-3-5.  “If a statute requires the agency to solicit comments from the public in a nonevidentiary hearing before issuing an order” described by IC 4-21.5-3-5(a), the agency shall announce at the opening and the close of the public hearing how a person may receive notice of the order” under IC 4-21.5-3-5(b).  IC 4-21.5-3-5(e).

 

45. As pertinent to this proceeding, IC 4-21.5-3-5 provides:

 

Sec. 5. (a) Notice shall be given under this section concerning the following:
            (1) The grant…of a license….

(b) When an agency issues an order described in subsection (a), the agency shall give a written notice of the order to the following persons:

(1) Each person to whom the order is specifically directed.

(2) Each person to whom a law requires notice to be given.

….
(5) Each person who has a substantial and direct proprietary interest in the subject of the order.

(c) The notice required by subsection (a) must include the following:
        (1) A brief description of the order.
        (2) A brief explanation of the available procedures and the time limit for seeking administrative review of the order under [IC 4-21.5-3-7].

 

46. In contrast to an applicant’s responsibility for providing notice under IC 14-11-4, the agency is responsible for serving notice under IC 4-21.5-3-5.  IC 4-21.5-3-5(b).

 

47. A licensure process which satisfies the notice requirements of IC 4-21.5-3-5 can bring closure to the rights of affected persons.  This closure may later be urged through res judicata, estoppel, or another similar mechanism.  If an agency does not provide adequate notice, an affected person is not generally bound by the agency decision.  May v. Department of Natural Resources, State of Ind., 565 N.E.2d 367 (Ind. App. 1991).  An appropriate procedural remedy is remand to the DNR to perform a complete licensure review which includes participation by the affected person.  Wheeler cited previously.

 

F. ILPOA Group Pier License

 

48. On July 5, 2006, the DNR issued an individual license to ILPOA for a “group pier” on property adjacent to the easement described in Finding 23 where the A. Clemens Pier was located.  This license for a group pier was designated by DNR as PL-20435.  Both ILPOA and the DNR place reliance on the legal effect of the license granted for application PL-20435.

 

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49. On April 25, 2006, ILPOA attempted notice under IC 14-11-4 and 312 IAC 2-3 upon the Estate of Mary Clemens, upon the Hossein Hashemi Revocable Trust, and upon Janine Orban.  During the period DNR reviewed ILPOA’s license application for the group pier, Janine Orban was an adjacent landowner and held the easement described in Finding 23.  Orban is a predecessor in interest to A. Clemens.

 

50. In April 27, 2006 correspondence to ILPOA, the DNR noted the proof of public notice described in Finding 49 set forth a date which was effective before ILPOA filed its application for the group pier license.  The DNR required ILPOA to provide another notice under IC 14-11-4 and 312 IAC 2-3, after the application was submitted, to adjacent landowners.[2]

 

51. On May 11, 2006, ILPOA sought notice under IC 14-11-4 and 312 IAC 2-3 upon R. Clemens, upon the Hossein Hashemi Revocable Trust, and upon Janine Orban.  An affirmation by ILPOA’s agent states personal service was made upon R. Clemens, but certified mail was used for service upon the Hossein Hashemi Revocable Trust and upon Janine Orban.  Claimant’s Exhibit 70.

 

52. The DNR’s business records do not indicate when Janine Orban received the notice described in Finding 51, but in testimony she acknowledges receipt.  A reasonable inference is that she received the notice shortly after May 11, 2006.

 

53. The notice to Janine Orban under IC 14-11-4 and 312 IAC 2-3 indicated that ILPOA sought a license on Winona Lake for the “[e]rection and maintenance of a group pier” under the Lakes Preservation Act.  The notice also stated DNR’s “jurisdiction under the Lakes Preservation Act is confined to the area at or lakeward of the shoreline of the lake and any impact which the project may have on: (a) the natural resources and/or scenic beauty of the lake; (b) the water level or contour of the lake below the waterline; (c) fish, wildlife or botanical resources.  Additionally, the [DNR] must consider the cumulative effects of the above items.”

 

54. Janine Orban, now Janine Campbell, testified she assumed the notice described in Finding 51 was some type of environmental notice.  Since the notice did not inform her that the installation of the group pier might effect the easement described in Finding 23, she perceived no reason to respond to the notice.

 

55. The perceptions of the recipient of a notice are not necessarily controlling, but upon the facts pertaining to the notice described in Finding 51, Janine Orban’s perceptions were reasonable.  The notice lacked specificity as to the terms of the group pier. 

 

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56. Perhaps more critically, the notice described in Finding 51 incorrectly stated the scope of the DNR’s jurisdiction to review the license application.  In addition to the three factors cited in Finding 53, the DNR should have stated it has jurisdiction to consider: (d) the management of boating operations; and (e) the interests of a landowner having property rights abutting the public freshwater lake or rights to access the public freshwater lake.  IC 14-26-2-23(c)(4) and IC 14-26-2-23(c)(5). 

 

57. For some types of licenses under the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5, DNR’s failure to identify its jurisdiction, over boating operations and over the property rights of landowners abutting a public freshwater lake, might be harmless error.  With respect to ILPOA’s application for a group pier, these were the factors most likely to have alerted Janine Orban to the importance for her participation in the licensure action.  The result of DNR’s erroneously narrow statement of jurisdiction was not merely lack of direction, it was misdirection.

 

58. The notice described in Finding 51, with the specifications referenced in Finding 53, did not accomplish the purposes intended by IC 14-11-4 and 312 IAC 3-2.  The notice was defective and erroneous.

 

59. Even so, IC 14-11-4 does not provide a due process review.  While an important legislative policy directive, the process is largely intended to assist the DNR in performing its analyses prior to action on licensure.  AOPA, with its opportunity for a de novo hearing, provides due process review.   Wawasee Property Owners, et al. v. Wawasee Real Estate & DNR, 11 Caddnar 88, 94 (2007).  Proper implementation of AOPA can cure the harm resulting from a defective and erroneous notice under IC 14-11-4 and 312 IAC 3-2.

 

60. On July 5, 2006, the DNR issued its licensure determination with respect to the group pier.  The determination included general conditions and special conditions regarding the terms of the license.  An address was provided for seeking administrative review from the Commission under AOPA.  Claimant’s Exhibit 70.  The license provided a reasonable basis for an interested person to understand the authorization which it would provide to ILPOA. 

 

61. Included in the files of the DNR’s Division of Water was the “service list” for persons notified of issuance of the license for PL-20435.  In addition to ILPOA, ILPOA’s agent and personnel within the DNR, those served with notice were as follows: the Kosciusko County Area Plan Commission, the Kosciusko County Soil and Water Conservation District, the Louisville District of the U.S. Army Corps of Engineers, and the Warsaw Planning Department.  Claimant’s Exhibit 70.

 

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62. The DNR did not provide AOPA notice to R. Clemens, the Hossein Hashemi Revocable Trust, or Janine Orban.

 

63. AOPA requires in IC 4-21.5-3-5(b)(1)[3] that notice be given to each person to whom the order is specifically directed.  The order for the licensure of the group pier was specifically directed to ILPOA, and ILPOA was given notice.

 

64. AOPA requires in IC 4-21.5-3-5(b)(2) that notice be given to each person to whom a law requires notice to be given.  By requiring an opportunity at IC 14-11-4-5(a)(1) for participation in the licensure process by “the owners of each parcel of real property reasonably known to be adjacent to the affected real property”, the reasonable conclusion could be drawn that the Indiana General Assembly determined R. Clemens, the Hossein Hashemi Revocable Trust, and Janine Orban should receive notice under this subdivision.  The conclusion is unnecessary to this proceeding, however, because of the applicability of IC 4-21.5-3-5(b)(5).

 

65. AOPA requires in IC 4-21.5-3-5(b)(5) that notice be given to each person who has a substantial and direct proprietary interest in the subject of the order.  R. Clemens, the Hossein Hashemi Revocable Trust, and Janine Orban each had riparian rights which could be affected by issuance of PL-20435 to their immediate neighbor, ILPOA.  4-21.5-3-5(b)(5) required that R. Clemens, the Hossein Hashemi Revocable Trust, and Janine Orban be provided with AOPA notice of the licensure order.  Failure to provide them with the requisite notice under AOPA was harmful error. 

 

66. The harmful error by failure to provide R. Clemens, the Hossein Hashemi Revocable Trust, and Janine Orban with the requisite notice under AOPA deprived them, individually and collectively, of due process.[4]  The appropriate remedy to correct the error is to revoke the license for a group pier issued by the DNR for PL-20435.

 

G. Lawful Nonconforming Use, Adverse Possession, and Prescriptive Easement

 

67. ILPOA urges that the license for the group pier authorized the expansion of an existing usage as opposed to a new usage.  The testimonies of all parties are consistent with this general premise.  None of the parties assert that ILPOA is not entitled to exercise riparian rights along its shoreline on Winona Lake.  As goes the cliché, however, the demon is in the detail.

 

68. Usage by ILPOA which predates its application for a group pier does not, in itself, establish an entitlement.  “First in time first in right is not a viable factual or legal principle for determining the rights of riparian owners or those of the public on the waters of public freshwater lakes.”  Belcher & Belcher v. Yager-Rosales, 11 Caddnar 79, 82 (2007) and Barbee Villa Condominium Owners Assoc. v. Shrock, 10 Caddnar 23, 24 (2005). 

 

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69. ILPOA may assert claims to usage based upon lawful nonconforming use, adverse possession, prescriptive easement, or another legal concept which would provide it with riparian rights beyond those to which ILPOA would otherwise be entitled.  The record to date is inadequate to evaluate any such claims, but ILPOA may assert these claims to the DNR in a new licensure action.

 

H. Piers, Boat Stations, Platforms, and Similar Structures on Site

 

70. Without an equitable allocation of usage, the waters of Winona Lake that are adjacent to the ILPOA land and to the easement described in Finding 23 are insufficient to provide for the reasonable enjoyment of ILPOA and A. Clemens and for the public trust. 

 

71. The group pier placed by ILPOA and the pier placed by A. Clemens both conflict with efforts by the other to enjoy riparian rights, and the structures may additionally violate the public trust.

 

72. ILPOA and A. Clemens should be ordered to remove, by April 1, 2009, any piers, boat stations, platforms, or similar structures from the waters of Winona Lake.  In addition, ILPOA and A. Clemens should be ordered to refrain from replacing these structures except pursuant to a new license or licenses issued under IC 14-26-2 and 312 IAC 11-1 through 312 IAC 11-5.  Whether a license application is for a group pier or another structure (including a pier which might otherwise qualify for a general license), the applicant should provide notice as required under IC 14-11-4 and 312 IAC 2-3.  When taking a licensure action, the DNR should provide notice under AOPA (and, particularly, IC 4-21.5-3-5) and 312 IAC 3-1.

 

73. R. Clemens and K. Clemens have sought to impose a 150-foot minimum length on any pier placed by A. Clemens.  Paragraph 3.3 of Claimant’s Exhibit 16.  The imposition of a private requirement for a minimum pier length can be contrary to the purposes of the Lakes Preservation Act.  The imposition of such a requirement can also violate the “reasonableness” test enunciated by Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992).  The 150-foot minimum length sought to be imposed by R. Clemens and K. Clemens is unenforceable as to the DNR (and, as to the Commission, on administrative review).

 

74. ILPOA has not provided evidence to support a finding, that in 2008, R. Clemens and K. Clemens placed a pier or were otherwise conducting an activity which is subject to the Lakes Preservation Act and which caused ILPOA harm.  R. Clemens and K. Clemens may continue to treat their temporary pier, as qualified under a general license, if the structure is placed within the footprint used in the 2008 boating season.