CADDNAR

[CITE: Rekeweg v. Nix, 12 CADDNAR 75 (2009)]

 

[VOLUME 12, PAGE 75]

 

 

Cause #09-079W

Caption: Rekeweg v. Nix

Administrative Law Judge: Lucas

Attorneys: Rekeweg (pro se); Nix (pro se)

Date: June 25, 2009

 

 

FINAL ORDER

 

Gerbers & Buhr, et al. v. Nix, et al., 9 Caddnar 132 (2004) is controlling.  No basis is established in law or in fact by which Jackie Rekeweg may supersede or set aside the decision or by which she may obtain relief against Edward F. Nix and Marcia Nix in placing their pier, with pier tent, in its current configuration.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW  

 

A. Statement of the Proceeding and Jurisdiction

 

1. On April 21, 2009, Jackie Rekeweg (“Rekeweg”) filed correspondence with the Natural Resources Commission (the “Commission”) which requested review of the seasonal placement of a temporary pier by Edward F. Nix and Marcia Nix (the “Nixes”) within Lake James in Steuben County, Indiana.   Included in the correspondence were photographs depicting the pier, real estate owned by the Nixes to which the pier is attached, and adjacent real estate in which Rekeweg has a proprietary interest.  

 

2. Lake James is a “public freshwater lake” and is subject to IC § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted by the Commission at 312 IAC § 11-1 through 312 IAC § 11-5 to assist with implementation of the Lakes Preservation Act.

 

3. The correspondence referenced in Finding 1 initiated a proceeding before the Commission that is governed by IC § 4-21.5 (sometimes referred to 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.

 

4. Stephen L. Lucas was appointed as the Commission’s administrative law judge for this proceeding. 

 

5. The Commission is the “ultimate authority” for agency determinations under the Lakes Preservation Act and 312 IAC § 11-1 through 312 IAC § 11-5, including those derived from competing interests in the placement of piers, boat stations, platforms, and similar structures in public freshwater lakes.  IC 14-10-2-4 and IC 14-26-2-23.  Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008), transfer denied.

 

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6. On April 28, 2009, the administrative law judge entered a “Notice of Prehearing Conference” and attempted service of the notice, as well as the correspondence and copies of the photographs described in Finding 1, to be made upon the Nixes.  The initial attempt at service was unsuccessful due to an insufficient address, but Rekeweg provided an alternate address on May 13, 2009.  A “Supplemental Notice of Prehearing Conference”, including the attachments in the original “Notice of Prehearing Conference”, was entered on May 14, 2009 and successfully served upon the Nixes.  The prehearing conference (the “prehearing conference”) was scheduled for May 29, 2009 in Columbia City, Indiana, and Rekeweg and the Nixes appeared in person for the prehearing conference.  The Commission has jurisdiction over the persons of the parties and over the subject matter of the proceeding.

 

7. In an email dated May 26, 2009, the Nixes averred the subject of this proceeding was previously decided in two consolidated proceedings identified by Administrative Cause Number 03-031L and Administrative Cause Number 03-034L. 

8. In preparation for the prehearing conference, the administrative law judge reviewed the Commission’s records.  From this review, he determined a “Notice of Filing Report, Findings of Fact, and Final Order of the Natural Resources Commission” was entered and served on the parties on February 13, 2004 in the following consolidated proceedings: Kathy Gerbers, Donalyn Melcher, Jacquelin Rekeweg and Carolyn Hirsch v. Ed Nix and Marcia Nix (03-034L) and Elmer Buhr and Vera Buhr v. Ed Nix and Marcia Nix (03-031L).  The Notice stated Sylvia Wilcox, former Commission administrative law judge, issued findings and a nonfinal order to which none of the parties filed “objections”.  In addition, the Commission records for Administrative Cause Number 03-034L and Administrative Cause Number 03-031L did not reveal that any party sought judicial review of the Commission’s resulting final order.  The decision for the two consolidated proceedings was published on the Commission’s website as Gerbers & Buhr, et al. v. Nix, et al., 9 Caddnar 132 (2004).  During the prehearing conference, the administrative law judge took official notice of this Commission decision under IC 4-21.5-3-26(f)(2).

9. Gerbers & Buhr, et al. v. Nix, et al. considered a temporary pier and a “pier tent” maintained by the Nixes in association with the temporary pier.  The Final Order stated: “The pier tent of Ed Nix and Marcia Nix meets the standards of 312 IAC § 11-3-1 for a temporary structure.  This pier tent is not a boathouse, is easily removable, and does not infringe on the access of adjacent landowners to Lake James.”

10. During the prehearing conference, the administrative law judge asked whether the Nixes’ temporary pier was in the same location as when Gerbers & Buhr, et al. v. Nix, et al. was rendered in 2004.  Rekeweg and the Nixes agreed that it was.

11. During the prehearing conference, the administrative law judge stated his informal perspective Gerbers & Buhr, et al. v. Nix, et al. had res judicata effect and the Nixes’ use of their temporary pier a “lawful nonconforming use”, even if the use did not conform to rules since adopted.  He added, however, other persons on administrative review, judicial review, or appeal could overrule him with a differing legal opinion.

 

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12. During the prehearing conference, Rekeweg stated she was seeking a disposition from the Commission as to whether recent rule amendments for public freshwater lakes would cause a different result than what was rendered in Gerbers & Buhr, et al. v. Nix, et al.  In particular, she referenced recent Commission pronouncements concerning how the lines between riparian owners are delineated and extended into a lake, as well as set-back requirements from those lines for structures and boats.  In this regard, she observed the Nixes’ temporary pier is removed and replaced seasonally.

13. During the prehearing conference, Rekeweg stated that she desired a written decision by the administrative law judge which she could share with others who had riparian interests bordering the Nixes.  After consulting with the others, she would determine whether to file objections, and, depending upon the disposition of the objections, potentially whether to later seek judicial review.

14. During the prehearing conference, the administrative law judge responded he would enter a written nonfinal order, with findings of fact and conclusions of law, and serve the nonfinal order upon Rekeweg and the Nixes.  The nonfinal order would include a cover sheet explaining how either of them could file “objections” to it.  The undisputed facts adduced at the prehearing conference, and the applicable law, would form the basis for issuance of the nonfinal order.

B. Delineating Boundaries of Riparian Zones

15. Indiana common law establishes a framework and principles to help delineate the boundaries of the riparian zones within a public freshwater lake that are adjacent to the land of a riparian owner.  This framework and these principles have particular application to the installation of piers, boat stations, platforms, and similar structures.  Walther, et al. v. Pier 343 Condominium Owners Assoc., 12 Caddnar 12 (2009).

 

16. A “reasonableness test” is applied to how far a pier may extend into a lake from the shoreline.  The installation of a pier by a riparian owner is unreasonable if the pier interferes with use of a public freshwater lake by others.  “One point is well settled….  [T]he boundaries of riparian property do not extend to the middle of the lake.”  Any extension of a pier or similar structure beyond the point required for the mooring and launching of boats may be considered unreasonable.  Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992).

 

17. Boundaries between neighboring riparian owners are delineated according to principles that seek to accommodate the diverse characteristics of Indiana’s numerous public freshwater lakes.  They are designed to provide riparian owners with equitable access to public waters.  Zapffe v. Srbeny at page 181 and Roberts v. Beachview Properties, LLC, et al., 10 Caddnar 125 (2005).

 

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18. Based primarily upon decisions rendered by the Court of Appeals of Indiana, the Commission has identified four basic principles to assist with delineating boundaries between riparian zones. 

 

First principle: Where persons purchased their properties pursuant to a homeowner association's constitution and bylaws, or a similar document intended to govern their respective riparian rights, the document determines the riparian rights of those persons.

 

Second principle: Where the shore approximates a straight line, and where the onshore property boundaries are approximately perpendicular to this line, the boundaries of riparian zones are determined by extending the onshore boundaries into the public waters.

 

Third principle: Where the shore approximates a straight line, and where the onshore boundaries approach the shore at obtuse or acute angles, the boundaries of riparian zones are generally determined by extending a straight line at a perpendicular to the shore. If the boundaries of two owners intersect at the shore, or in proximity to but landward of the shore, the boundaries of the riparian zones may be formed by a perpendicular to the shore from the point of intersection of the onshore boundaries. Application of the third principle is most compelling where land owners in the vicinity have historically used a perpendicular line to divide their riparian zones, but the principle should not be applied where a result is to deprive a riparian owner of reasonable access to public waters.

 

Fourth principle: Where the shore is irregular, and it is impossible to draw lines at right angles to the shore for a just apportionment, then the lines forming the boundaries between riparian zones should be run to divide the total navigable waterfront in proportion to the length of the shores of each owner taken according to the general trend of the shore. If the navigable waterfront borders a lake that is substantially round, or is a bay that is substantially round except for its connection to the main body of the public waters, the riparian zones may be made by running lines from each owner's shore boundaries to the center of the lake or bay. If the navigable waterfront borders a long lake or other public waters that are not substantially round, the riparian zones may be made by identifying a line through the center of the public waters, with deflected lines run from each owner's shore boundaries to intersect the centerline at perpendiculars.

 

See, particularly, Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984), Daisy Farm Ltd. Partnership v. Morrolf, 888 N.E.2d 604 (Ind. App. 2008), and Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008).  These decisions have an origin in a Wisconsin Supreme Court case, Nosek v. Stryker, 103 Wis.2d 633, 309 N.W.2d 868 (Wis. 1981).  To assist with understanding and consistent implementation of these decisions, and subordinate decisions published in Caddnar,[1] the Commission adopted a nonrule policy document, “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (First Amendment) at www.in.gov/legislative/iac/20081210-IR-312080891NRA.xml.html.

 

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19.  “Riparian Zones within Public Freshwater Lakes and Navigable Waters” is a nonrule policy document, not a rule, so the publication does not have the force of law.  The Indiana Court of Appeals decisions cited in the publication do have legal effect, but the legal effect is derived from the courts not the agency.  The Bath decision and the Nosek decision were both issued before Gerbers & Buhr, et al. v. Nix, et al. decision.   Bath and Nosek were already the law when Gerbers & Buhr, et al. v. Nix, et al.  was decided.  The Daisy Farm Ltd. Partnership decision the Lukis decision are not new directions but merely clarifications of Bath, and both of these 2008 decisions cite Bath and Nosek.  Daisy Farm Ltd. Partnership, in particular, underlines the concept that delineating lines between riparian owners must be a flexible process with considerable latitude given to the fact finder.

 

20. As early as 1994, the Commission applied Nosek to a shoreline configuration for which the facts in Bath were not analogous.  Krivak v. DNR, Dempsey, et al., 6 Caddnar 176 (1994).

 

21. Subsequent to the 2004 decision in Gerbers & Buhr, et al. v. Nix, et al., the Commission has neither adopted nor changed rules regarding the delineation of riparian zones.  The Court of Appeals of Indiana has provided further clarification to this process, but the clarification has not changed the fundamentals of the common law existing before 2004.  The Commission has approved a nonrule policy document, “Riparian Zones within Public Freshwater Lakes and Navigable Waters”.  This document does not have the effect of law.  The document assembles precedents and provides a more coherent and convenient means for implementing the common law.  No legal changes made since 2004 would have necessitated a change to the decision in Gerbers & Buhr, et al. v. Nix, et al. pertaining to delineation of the riparian zones of Rekeweg or the Nixes.

 

C. Minimum Set-Backs for Temporary Structures and Boats from Riparian Lines

 

22. The Commission recognized in 2005 that set-back requirements might reasonably be required for a dispute among riparian owners concerning the placement of temporary piers.  See Roberts v. Beachview Properties, LLC, et al., 10 Caddnar 125 (2005), affirmed on judicial review by the Marshall Superior Court, which required a setback of “10 feet for the base of all temporary structures, and watercraft moored to such structures.”  Similar setback requirements were subsequently imposed in Havel & Stickelmeyer v. Fisher, 11 Caddnar 110, 119; Rufenbarger, et al. v. Blue, et al., 11 Caddnar 185, 194 (2007); and, McColloch v. Day & Schramm, 12 Caddnar 40, 54 (2009).  No Commission decision has been located in support of the proposition that set-back requirements cannot be required.

 

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23. Rekeweg could have sought set-back requirements in Gerbers & Buhr, et al. v. Nix, et al.  She did not, or Judge Wilcox determined the circumstances did not warrant their imposition.  In either event, objections were not filed, and judicial review was not taken, so Judge Wilcox’s nonfinal order became a final order.

 

24. Under the doctrine of res judicata, once a judgment is rendered, no further relief can be accorded to the same parties on the same claim or cause of action.  Amoco Oil Co. v. Johnstone, 699 F. Supp. 178 (1987), Aff. 856 F.2d 967.

 

25. Res judicata effect is properly accorded to decisions of Indiana state administrative agencies where each of the following four criteria are satisfied:

 

(1) The issues sought to be estopped were within the statutory jurisdiction of the agency.

(2) The agency was acting in a judicial capacity.

(3) Both parties had a fair opportunity to litigate the issues.

(4) The decision of the administrative tribunal could be taken to a court on judicial review. 

 

Weiss v. Indiana FSSA, 741 N.E.2d 398, (Ind. App. 2000), trans. den. 753 N.E.2d 13.

 

26. These four criteria are satisfied: 

 

(1) The issues sought by the Nixes to be estopped are within the statutory jurisdiction of the Commission.  They pertain to the disposition of riparian rights and the placement of a temporary pier on a public freshwater lake.

(2) Through Judge Wilcox, the Commission was acting in a judicial capacity under AOPA.

(3) Rekeweg and the Nixes had a fair opportunity to litigate the issues in Gerbers & Buhr, et al. v. Nix, et al.

(4) The Commission’s final order in Gerbers & Buhr, et al. v. Nix, et al. could have been taken on judicial review to a court pursuant to IC 4-21.5-5.

 

27. The principles of administrative res judicata hold that absent a change in conditions or circumstances, the agency should not indiscriminately or repeatedly consider the same evidence and announce a contrary decision.  To do so would be unacceptable.  Lindemann v. Wood, 799 N.E. 2d 1230, 1234, (Ind. Tax 2003).

 

28. For the Commission to reconsider the same evidence as was considered in Gerbers & Buhr, et al. v. Nix, et al. would either result in a redundancy or in a contrary decision.  To do so would be unacceptable under the principles of administrative res judicata.

 

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29. Gerbers & Buhr, et al. v. Nix, et al. must now properly be given res judicata effect to preclude consideration of set-back requirements in a new proceeding based upon the same evidence.

 

30. Effective January 1, 2009, the Director of the Department of Natural Resources adopted a temporary rule to govern “group piers” on a public freshwater lake.  See LSA Document #08-933(E) posted in the Indiana Register on December 31, 2008.

 

31. As defined in LSA Document #08-933(E), a “group pier” refers to “a pier that provides docking space for any of the following:

 

(1) At least five (5) separate property owners.

(2) At least five (5) rental units.

(3) An association.

(4) A condominium, cooperative, or other form of horizontal property.

(5) A subdivision or an addition.

(6) A conservancy district.

(7) A campground.

(8) A mobile home park.

(9) A club that has, as a purpose, the use of public waters for boating, fishing, hunting, trapping, or similar activities.”

 

32. In SECTION 5(d)(1)(B), LSA Document #08-933(E) requires the Department of Natural Resources to condition a new group pier to provide a reasonable buffer between the pier and “the riparian zone of adjacent property owners to provide for reasonable navigation by the adjacent property owner and by the public.  Except as otherwise provided in this clause, the [D]epartment shall require at least five (5) feet of clearance on both sides of a riparian line (for a total of ten (10) feet).  The [D]epartment may require as much as ten (10) feet of clearance on both sides of a riparian line (for a total of twenty (20) feet), if based upon the opinion of a qualified professional that additional clearance is required for reasonable navigation.  The [D]epartment may approve an exception to this clause where adjacent riparian owners use a common pier along their mutual property line, and the purposes of this clause are satisfied by waters elsewhere within their riparian zones.”

 

33. The Nixes’ temporary pier does not meet the definition of a “group pier”.  LSA Document #08-933(E) does not apply.  Rekeweg cannot assert the provisions of LSA Document #08-933(E) against the Nixes.

 

34. Even if the Nixes’ pier were a “group pier”, LSA Document #08-933(E) and other temporary rules and permanent rules typically have only prospective application.  A structure lawfully placed within a public freshwater lake before the effective date of a new statute or rule can be maintained as a lawful nonconforming use under 312 IAC 11-5-2. 

 

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35. Although a person not exercising a lawful nonconforming use may “abandon” the use by inactivity, the period of inactivity must exceed one year.  “Generally, a use is abandoned if not exercised for a period in excess of one (1) year.”  312 IAC § 11-5-2(d)(4).[2]  This subdivision allows for the seasonal removal and replacement of a temporary pier or similar structure, and the replacement of the structure in the same footprint, without causing loss of its status as a lawful nonconforming use.

 

36. Rekeweg’s claim is barred by application of administrative res judicata.  Even if it were not barred, the law pertaining to the Nixes’ pier has not changed.  Additionally, the Nixes would be entitled to assert a lawful nonconforming use.  For each of these reasons, individually or taken together, Rekeweg’s claim for relief must properly be denied.