CADDNAR


 

 [CITE: Skilbred, et al. v. Spaw, et al., 13 CADDNAR 99 (2013)]

 

 

[VOLUME 13, PAGE 99]

 

Cause #: 11-160W; (11-161W; 11-162W)

Caption: Skilbred, et al. v. Spaw, et al.

Administrative Law Judge: Jensen

Attorneys: Neizer, Murphy (Claimants); Kuchmay (Respondents); Wyndham (DNR)

Date: March 15, 2013

 

 

[NOTE: ON MAY 3, 2013, ASHLEY FILED VERIFIED PETITION FOR JUDICIAL REVIEW IN THE ALLEN SUPERIOR COURT IN CAUSE NO. 02-D01-1305-MI-9514. SEE ALSO RELATED MATTER, Skilbred, et al. v. Ward, et al., 13 CADDNAR 125 (2013); ADMINISTRATIVE CAUSE NO. 12-014W).]

 

 

FINAL ORDER ALONG WITH ORDER DENYING PETITIONERS’ MOTION FOR STAY OF EFFECTIVENESS

 

1. Permit PL-21697, issued by the Department to Jeffrey A. and Holly Spaw, David A. and Mary J. Remenschneider, Roger W. and Melissa F. Selking, and the Secretary of Housing and Urban Development by and through its Agent, Ofori 7 Associates, is hereby affirmed without modification or revision.

 

2. Permit PL-21704, issued by the Department to Steven G. and Karen Ybarra, David W and Diana L. Jennings, Alan Macklin and Gregory O. King, is hereby affirmed without modification or revision.

 

3. Permit PL-21717, issued by the Department to Mark A. and Patricia Lorntz, Al Ensley, Scott Ensley and Greg Ensley, is hereby affirmed without modification or revision.

 

4. Based upon the totality of the findings of fact and conclusions of law as stated herein, the Petitioners’ motion for stay of effectiveness of Permit PL-21697, Permit PL-21704 and Permit PL-21717 is denied.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Procedural Background and Jurisdiction:

 

1.      On September 6, 2011, the Petitioners, Lawrence J. Skilbred, Patricia L. Skilbred, James A. Williams, Patricia A. Williams, John D. Gross, Lynn E. Fisher and Betty J. Fisher as Trustees of the Revocable Living Trust of Lynn E. Fisher & Betty J. Fisher dated July 2, 2008, Michael M. Ashley, Lana S. Ashley, Lloyd A. Bickel, Karen A. Bickel, Carl Ray Mosser, Margaret M. Mosser, Phillip E. Lake, Karen M. Lake, Debra Ann Cozmas Parkinson, Page D. Liggett as Trustee of The Page and Carole Liggett 2005 Trust dated November 1, 2005, Roger N. Meyer, Beverly A. Meyer, Long View Financial, LLC, Thomas A. Hare, III, Regina K. Hare, James R. Morris and Mary Jane Johnson, (referred to collectively as “the Petitioners”), by counsel Barrett & McNagny LLP, filed the above captioned proceedings for the administrative review of the Department’s approval of three Permits identified as Permit PL-21697, Permit PL-21717, and Permit PL-21704 (referred to collectively as “the Permits”) .

 

2.      The Petitioners, through the initiation of the instant proceeding, also sought an order staying the effectiveness of the Permits.

 

3.      The parties agreed that the Petitioners’ arguments in opposition to the Permits are factually and legally similar and that judicial efficiency would be served by conjoining the three administrative proceedings with respect to all motions, orders, pleadings, hearings and actions of any sort.  However, it was also determined that each of three proceedings should retain separate and distinct administrative cause numbers.  See Report of Prehearing Conference, dated October 31, 2011

 

4.      Each of the Permits was issued to multiple Lot owners within Long Lake Park who had jointly submitted applications to the Department after agreeing to combine their individual six foot riparian easements as established in the plat of Long Lake Park in order to construct one pier extending into Big Long Lake that would be shared by the multiple Lot owners to whom the Permits were respectively issued. (See Spaw v. Ashley, 12 CADDNAR 233 (2010), affirmed in a Memorandum Decision of the Indiana Court of Appeals on April 17, 2012).

 

5.      Permit PL-21697 authorizes the construction of a pier under specified conditions “in front of four adjoining lot owners’ deeded easements for Lots 92 through 97 owned by Jeffrey and Holly Spaw, Dave and Mary Remenschneider, Roger and Melissa Selking, and the Secretary of Housing and Urban Development (managed by Ofori & Associates)[1] that combine for a total of 36’ of shoreline.”  Exhibit B.  Permit PL-21697 is the subject of Administrative Cause Number 11-160W involving Respondents, Jeffrey A. and Holly Spaw, David A. and Mary J. Remenschneider, Roger W. and Melissa F. Selking, Secretary of Housing and Urban Development by and through its agent Ofori 7 Associates and the Department of Natural Resource (“Department”). 

 

6.      Permit PL-21704 authorizes the construction of a pier under specified conditions “in front of four adjoining lot owners’ deeded easements for Lots 81 through 86 owned by Steven Ybarra, David Jennings, Gregory King and Alan Macklin that combine for a total of 36’ of shoreline.”  Exhibit E.  Permit PL-21704 is the subject of Administrative Cause Number 11-162W involving Respondents, Steven G. and Karen Ybarra, David W. and Diana L. Jennings, Gregory O. King, Alan Macklin and the Department. 

 

7.      Permit PL-21717 authorizes the construction of a pier under specified conditions “in front of two adjoining lot owners’ deeded easements for Lots 65 through 69 owned by Mark and Patricia Lorntz, Al Ensley, Scott Ensley and Greg Ensley that combine for a total of 30’ of shoreline.”  Exhibit H.  Permit PL-21717 is the subject of Administrative Cause Number 11-161W involving Respondents, Mark A. and Patricia Lorntz, Al Ensley, Scott Ensley, Greg Ensley and the Department. 

 

[VOLUME 13, PAGE 100]

 

8.      The Respondents to this proceeding who are the holders of Permit PL-21717, Permit PL-21704 and Permit PL-21697 will be referred to collectively as “Applicant Respondents”.  Future references to “Respondents” will be a reference to the Applicant Respondents as well as the Department.

 

9.      Big Long Lake is a public freshwater lake.  Indiana Code § 14-26-2-3, Spaw v. Ashley, 12 CADDNAR 233 (2010).

 

10.  The Department is the administrative agency responsible for the administration of Indiana Code § 14-26-2, commonly referred to as the Lake Preservation Act, and 312 IAC 11-1 through 312 IAC 11-5 adopted for the purpose of implementation of the Lake Preservation Act under which the Permits were issued.

 

11.  Procedurally, Indiana Code §§ 4-21.5-3, commonly referred to as the Administrative Orders and Procedures Act, or AOPA, and 312 IAC 3, adopted for the purpose of the Commission’s implementation of AOPA, govern this proceeding.

 

12.  The Commission is the ultimate authority for proceedings involving the Lake Preservation Act. Indiana Code § 14-10-2-3 and 312 IAC 3-1-2. 

 

13.  The Commission is possessed of jurisdiction over the subject matter and over the persons of the parties involved in the instant proceedings. 

 

14.  Throughout, the Petitioners have been represented by counsel, Thomas M. Niezer, Patrick G. Murphy and Kyle M. Baltes, of Barrett & McNagney, LLP and the Respondent, Department, has been represented by counsel, Eric L. Wyndham.  Each person who joined in applying for the Permits have been identified as Respondents in the instant proceeding and were provided notice in accordance with Indiana Code § 4-21.5-3-1 although not all of those applicants have actively participated in the litigation.  Counsel, Jason M. Kuchmay, of Federoff Kuchmay, LLP, initially appeared on behalf of Jeffrey A. and Holly Spaw, David A. and Mary J. Remenschneider, Mark A. and Patricia Lorntz, David W. and Diana L. Jennings and Steven G. and Karen Ybarra.  Following the completion of briefing with respect to motions for summary judgment, Mr. Kuchmay, with leave of the administrative law judge and on behalf of Federoff Kuchmay, LLP, withdrew as counsel for David A. and Mary J. Remenschneider, David W. and Diana L. Jennings and Steven G. and Karen Ybarra but continued in the representation of Jeffrey A. and Holly Spaw and Mark A. and Patricia Lorntz.  Scott Ensley and Alan Macklin, Respondents to Administrative Cause Number 11-161W, appeared pro se for the Prehearing Conference conducted on October 11, 2011.  David A. Remenschneider, David W. Jennings and Steven G. and Karen Ybarra, Al Ensley and Scott Ensley appeared for and participated in the administrative hearing conducted on April 3, 2012.  The remaining Respondents have not appeared or otherwise participated in the proceeding in any way.

 

15.  Each of the identified Applicant Respondents will be bound by the determination herein.  To consider a final disposition applicable to less than all of the Respondents would fail to fully adjudicate the matters presented.  Bieda v. B&R Development and DNR, 9 CADDNAR 1, (2001). 

 

16.  At the Prehearing Conference conducted on October 11, 2011 a schedule for briefing associated with motions for summary judgment was established along with a deadline for the filing of witness and exhibit lists.  A final telephone status conference was scheduled for March 27, 2012 with an administrative hearing being set for April 3, 2012.  The scheduling of a hearing on the Petitioners’ motion for stay of effectiveness of the Permits was deferred.

 

17.  The Petitioners and the Applicant Respondents who were represented by Mr. Kuchmay filed cross motions for summary judgment and following the grant of one extension of time, briefing with respect to the motions for summary judgment was completely timely.  The administrative law judge heard oral argument on the motions on February 2, 2012.  No other party filed briefs with respect to the summary judgment motions but counsel for the Department did engage in oral argument related to the motions on file. 

 

18.  An interlocutory “Order on Parties’ Cross Motions for Summary Judgment” was issued on March 13, 2012 granting partial summary judgment in favor of the Respondents. 

 

19.  A hearing on the Petitioners motion for stay of effectiveness of the Permits was scheduled and conducted on March 19, 2012.  The parties agreed that the evidentiary submissions from the summary judgment filings would constitute the entirety of the evidence and sought only to present oral argument at that time.  The order on the Petitioners’ motion for stay of effectiveness is incorporated herein.

 

20.  The parties stipulated that all designated evidentiary material filed in support of the summary judgment motions would be admitted as evidence for purposes of the administrative hearing.  See “Stipulation” filed March 9, 2012.  Following the parties’ stipulation, the administrative law judge assigned Stipulated Exhibit Numbers to each of the exhibits previously designated for purposes of the summary judgment motions.  See “Entry with Respect to Identification of Stipulated Exhibits for Administrative Hearing” issued March 30, 2012.  For this reason the same exhibit will be identified differently in the “Order on Parties’ Cross Motions for Summary Judgment” from the way it will be identified in this nonfinal order.

 

21.  It is noted that during the administrative hearing certain exhibits were referred to as a document at “tab ‘x’” in reference to a binder of exhibits prepared by Mr. Kuchmay.  For purposes of consistency in the identification, these documents are cited within this nonfinal order by the correlating identification as set forth in the “Stipulated Exhibit Identification List”.

 

22.  The administrative hearing was conducted as scheduled on April 3, 2012 to address two issues that were not determined on summary judgment.

 

23.  The parties stipulated during the administrative hearing that “there are no pending pier applications other than what have already been admitted into evidence here in connections with the summary judgment findings.”

 

PRECEDING LITIGATION:

 

24.  Many of the parties to the instant administrative cause were previously involved in litigation relating to a determination of riparian rights resulting from grants contained within the plat of Long Lake Park from the developer, Lee J. Hartzell.  This proceeding was borne of activities undertaken subsequent to the issuance of decisions in the previous litigation and it is believed that a brief synopsis of the findings from the previous litigation will provide a degree of perspective useful to understanding the discussion that follows.[2]

 

25.  The first such proceeding, Spaw v. Ashley, 12 CADDNAR 233, (2010),was decided by the Commission on July 28, 2010 and the second, Altevogt, et al. v. Brand, et al., Cause No. 44C01-0811-MI-066, was decided by the LaGrange County Circuit Court on May 6, 2011.  Exhibits L & N. 

 

[VOLUME 13, PAGE 101]

 

26.  The Commission’s final order in Spaw was affirmed on Judicial Review by the Allen County Circuit Court in an order entered on July 8, 2011, Ashley, et al. v. Spaw, et al., Cause No. 02C01-1008-MI-1178 (See Exhibit Q4) and was also affirmed by the Indiana Court of Appeals in a Memorandum Opinion issued on April 17, 2012.  Ashley, et al. v. Spaw, et al, Cause No. 02A03-1108-MI-340. The Petitioners below did not seek transfer.

 

27.  The LaGrange County Court’s order in Altevogt, was affirmed by the Indiana Court of Appeals at Altevogt, et al. v. Brand, et al., No. 44A03-1106-MI-237, March 15, 2012.  See Applicant Respondents’ Exhibit a.  The Petitioners below did not seek transfer.  

 

28.  No order was ever entered staying the effectiveness of either of these decisions.

 

29.  In Spaw it was determined that through one grant contained within the Long Lake Park plat the “drives, alleys and walks”, which with respect to Block 7 and Block 8 of Long Lake Park, including Shawnee Drive, Sioux Drive, Miami Drive, a three-pronged alley existing within both Block 7 and Block 8, and Indian Trail, are available for use by any Lot owner within Long Lake Park. 

 

block7_8.jpg

Spaw at 245.

 

30.  The Spaw decision also found that by a separate and distinct grant contained within the plat of Long Lake Park, an easement six feet in width on the shoreline of Big Long Lake that “conveyed riparian rights to the lot owners as the dominant tenants” was created for each individual Lot owner as a “boat landing”.  Id.  The six foot easements (hereinafter referred to as “riparian easements”) were identified by Lot number and geographically situated by consecutive numbering beginning at the northern most point of the Block within which the Lot was located and continued southerly until all Lots within the Block were provided a six foot segment of shoreline, which did not require the use of the entire shoreline within either Block 7 or Block 8.  Spaw at 238.   It was determined in Spaw that the riparian easements were for use as “boat landings”, which included the right to place a pier.  Spaw at 243.

 

31.  On judicial review and before the Indiana Court of Appeals, the appellants, many of whom are Petitioners in the instant proceeding, sought review of the Commission’s decision in Spaw only with respect to whether the “back-lot owners’”, the Applicant Respondents to the instant proceeding, claims to riparian rights associated with the riparian easements were barred by the doctrine of laches or had been abandoned.  Ashley, et al. v. Spaw, et al., Cause No. 02A03-1108-MI-340.  The Commission’s determinations, as relevant to this proceeding, finding (1) the establishment of riparian rights through the grant of six foot riparian easements to each Lot owner within Long Lake Park, (2) that the grant of riparian rights included the right of the Lot owners to maintain piers and (3) the boundaries of the riparian zones associated with the riparian easements, were not further contested on judicial review or appeal and may not now be questioned.  

 

32.  In Altevogt, the LaGrange County Circuit Court denied the Plaintiffs’ Petition seeking a determination that by dedication, adverse possession or otherwise that, as relevant here, the owners of Lots 71 through 74 in Block 7 and of Lots 87 through 90 in Block 8, actually own the Indian Trail immediately adjacent to their Lots.  In denying their claim of ownership of the Indian Trail, the Altevogt decision states that “Plaintiffs cannot prove any of the elements of CONTROL, INTENT, or NOTICE by clear and convincing evidence, even though to prevail Plaintiffs must prove not one, but all of these elements.” At pg. 17   It was concluded that “[i]t was the intent of the Developer, Lee J. Hartzell, as expressed in the plat and restrictions, that all lot owners in the Plat of Long Lake Park to be co-tenants as to all drives, alleys and walkways, including the Indian Trail.  At pg. 20.  The Court of Appeals, in affirmation, stated “the Plaintiffs have not established title by adverse possession.” 

 

33.  The Court of Appeals further clarified that the LaGrange Circuit Court’s reference to the Lot owners as “co-tenants as to all drives, alleys and walkways, including the Indian Trail” did not mean “title to the Indian Trail has been quieted in all lot owners as co-tenants.” Instead, the Court of Appeals concluded: “what is clear is that all lot owners have an easement to use the Indian Trail, regardless of the fee owner, and that the [Petitioners] have not established title by adverse possession.”  Altevogt, et al. v. Brand, 963 N.E.2d 1146, 1155, (Ind. App. 2012).

 

OVERVIEW OF ISSUES PRESENTED:

 

34.  The Petitioners maintain that the Applicant Respondents are without legal authority under common law to aggregate multiple riparian easements to create one larger riparian zone within which they may place a pier.  The Petitioners argue that in doing so the owner of each dominant estate, in this case each of the Applicant Respondents, are unlawfully subjecting the servient estate attached to one riparian easement to greater burdens associated with service to multiple Lots instead of to one Lot as contemplated by the grantor of the easement.  For this reason the Petitioners also contend that the Department’s approval of the Permits is likewise unlawful.

 

[VOLUME 13, PAGE 102]

 

35.  The Petitioners argue that the Permits and the construction authorized by the Permits will frustrate the rights of adjoining or surrounding riparian owners with respect to access to Big Long Lake and utilization of riparian rights and navigation.

 

36.  The Petitioners advance the position that the Department’s approval of the Permits violates   “Riparian Zones within Public Freshwater Lakes and Navigable Waters,” Information Bulletin #56 (Second Amendment), Legislative Services Agency, 20100331-IR-312100175NRA (March 31, 2010), (hereinafter referred to as IB #56).

37.  The Petitioners charge that the Applicant Respondents attempted to subvert group pier permitting under 312 IAC 11-2-11.5 and that the Permits should properly have been reviewed by the Department under the more stringent rules associated with group piers.

 

38.  The Petitioners, under a claim of fee ownership in the Indian Trail, claim that the construction authorized by the Permits will infringe upon real property and riparian rights and occasions a “taking of Petitioners’ real property interests without just compensation.”

 

SUMMARY JUDGMENT STANDARD:

 

39.  Under AOPA, summary judgment motions shall be considered in the same manner as a court that is considering a motion filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.  Indiana Code § 4-21.5-3-23

 

40.  “The judgment sought shall be rendered forthwith if the designated evidentiary material shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be.”  Indiana Rules of Trial Procedure, Trial Rule 56(C).

 

41.  “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.  A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.”  Rosheck v. Mader Dental, 12 CADDNAR 251 (2010), (internal citations omitted). 

 

42.  “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.”  Wells v. Hickman, 657 N.E.2d 172, 175, (Ind. App. 1995). 

 

43.  “A party or parties moving for summary judgment have the burden of proof with respect to summary judgment, regardless of whether it or they would have the burden in an evidentiary hearing.”  Save Our Rivers, et al. v. Guenther, Ford & DNR, 10 CADDNAR 213 (2006) citing Regina Bieda v. B & R Development and DNR, 9 CADDNAR 1 (2001).

 

44.  “A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties.”  Trial Rule 56(C).

 

45.  If a judgment is not rendered upon the entirety of the case, the administrative law judge shall “make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”  Trial Rule 56(D).

 

ISSUES DETERMINED BY SUMMARY JUDGMENT UPON WHICH THERE IS NO ISSUE OF MATERIAL FACT AND UPON WHICH JUDGMENT WAS GRANTED AS A MATTER OF LAW:

 

46.  After consideration of the motions for summary judgment, briefs in support and in opposition to the motions for summary judgment, designated evidentiary material and argument on the motions, certain facts and issues, as specified in findings 47 through 60, were determined to be without substantial controversy.

 

47.  The Lot owners within Long Lake Park, including the Petitioners, are not owners of the servient estates associated with either the appurtenant riparian easements or the easement in gross to Indian Trail granted by the plat to Long Lake Park.  Consequently and as applicable to this proceeding, the Petitioners are not “aggrieved or adversely affected” persons qualified under Indiana Code § 4-21.5-3-7(a)(1)(B) to initiate the instant proceeding to address allegations that the piers authorized by the Permits will increase burdens upon servient estates.

 

48.  Application of common law with respect to the exercise of riparian rights was abdicated by the enactment of Indiana Code §§ 14-26 et seq., commonly referred to as the Lakes Preservation Act, and applicable administrative rules found at 312 IAC 11, which place Indiana’s public freshwater lakes under the governance of the Department in trust for the benefit of all citizens of the state.  Included in the Department’s authority is the ability to require common usage by multiple riparian owners of one structure placed within a public freshwater lake. 312 IAC 11-3-4(b).

 

49.  The Petitioners’ contention that common law principles associated with the appurtenant easements should be applied to prohibit the Applicant Respondents from aggregating their individual six foot riparian easements into the 30 and 36 foot shoreline segments necessary for the construction of the piers authorized by the Permits is incorrect.

 

50.  All of the Lot Owners within Long Lake Park are co-tenants of the dominant estate authorizing their use of the Indian Trail.  One such use would be the authority to traverse the Indian Trail without being subjected to interference by any other Lot owner.  

 

51.  The Permits do not authorize any activity landward of the shoreline of Big Long Lake and therefore, the pier construction as authorized by the Permits will in no way encroach upon the Indian Trail or interfere with other Lot owners’ use of the Indian Trail. 

 

52.  Petitioners, who are not owners of the real property associated with the Indian Trail and who do not possess riparian rights associated with the Indian Trail, but who possess only the right to traverse the Indian Trail, have not had their property rights violated and have not been subjected to a “taking” without just compensation.

 

53.  The activity authorized by the Permits occurs within appropriate aggregated riparian zones.

 

[VOLUME 13, PAGE 103]

 

54.  The pier construction authorized by the Permits will have “minimal impacts on local fish, wildlife, and botanical resources” and the combination of the Applicant Respondents’ riparian easements will actually reduce lakebed impacts caused by shadowing and boat traffic, which is consistent with the Department’s obligation to hold the Big Long Lake in trust for the citizens of the state.

 

55.  IB #56 is inapplicable to a side of a riparian zone on which there is no competing riparian interest. 

 

56.  No Lot owner within Long Lake Park has acquired any riparian rights associated with the drives, alleys and walks, including Indian Trail, Shawnee Drive located to the north of Block 7, and Sioux Drive located between Block 7 and Block 8, and Miami Drive located to the south of Block 8.    

 

57.  Consequently, to the extent that the piers authorized by the Permits abut waters lakeward of Sioux Drive, Shawnee Drive, Miami Drive or that portion of the Indian Trail south of the riparian easement associated with Lot 80 in Block 7 and south of the riparian easement associated with Lot 97 in Block 8 of Long Lake Park, there are no competing riparian zones and IB #56 is inapplicable to these areas.

 

58.  The construction authorized by the Permits is compliant with the minimum setback requirements established by IB #56.

 

59.  The Order on Parties’ Cross Motions for Summary Judgment issued on March 13, 2012 is hereby attached as Exhibit A and incorporated by reference as if set forth herein. 

 

60.  Following the conclusion of the administrative hearing in the instant proceeding and in accordance with Indiana Rules of Trial Procedure, Trial Rule 56(D), these matters are deemed established.

 

ISSUES NOT DETERMINED ON SUMMARY JUDGMENT:

 

61.  The issues not determined on summary judgment motions for which the administrative hearing was conducted and to which the remainder of this Order is dedicated, relate to considerations of “‘the management of watercraft operations under I.C. 14-15’ and ‘the interests of a landowner having property rights abutting the public freshwater lake or rights to access the public freshwater lake’ as specified at Indiana Code § 14-26-2-23(c)(4 & 5)” Order on Parties’ Cross Motions for Summary Judgment. 

 

62.  For ease of reference, from this point forward specific riparian easements will be referred to by the associated Lot number.  For instance the riparian easement correlating to Lot 92 will be referred to as “Riparian Easement 92” and the riparian easement associated with Lot 93 will be referred to as “Riparian Easement 93” and so forth. 

 

Watercraft Operation and Navigational Safety

 

63.  Indiana Code § 14-26-2-23(c)(4) states: 

(c)  The department may issue a permit after investigating the merits of the application.  In determining the merits of the application, the department may consider any factor, including cumulative effects of the proposed activity upon the following:

….

   (4) The management of watercraft operations under IC 14-15.

 

64.  In large part Indiana Code §§ 14-15 focuses on “careful and prudent” watercraft operation giving due regard to “the rights, safety, and property of other persons”, “conditions and hazards, actual and potential, then existing, including weather and density of traffic,” and “possible injury to the person or property of other persons.”  Indiana Code § 14-15-3-3.  As applicable here, persons are prohibited from operating a boat in a manner that “unnecessarily endangers the person or property of another person,” “unnecessarily interferes with the safe and lawful use of public waters by another person.” Indiana Code § 14-15-3-6.  Similarly, persons are disallowed to operate a boat at speeds greater than those “reasonable and prudent, having due regard for the conditions and hazards, actual and potential, then existing, including weather and density or traffic” or that would prevent the person “in the exercise of reasonable care, to bring the boat to a stop within the assured clear distance ahead.”  Indiana Code § 14-15-3-7. 

 

65.  Indiana Code § 14-15-3-17 specifies that a “motorboat may not approach or pass within two hundred (200) feet of the shore line of a lake…except for trolling or for the purpose of approaching or leaving a dock, pier, or wharf or the shore of the lake or channel” and as relevant to the present proceeding “a motorboat may not approach or pass within two hundred (200) feet of the shore line of a lake…at a speed greater than idle speed.”  Indiana Code § 14-15-3-17.

 

66.  "‘Idle speed’ means the slowest possible speed, not exceeding five (5) miles per hour, so as to maintain steerage whereby the wake or wash created by a boat is minimal.”  312 IAC 5-2-17.

 

67.  The Petitioners allege that approval of the Permits “would either frustrate the ability of an adjoining or surrounding riparian owner from accessing public freshwater lakes and utilizing attendant riparian rights; or cause navigation would [sic.] be unduly restricted” and in support of this proposition focused upon the setback requirements established by IB #56.   Petition to Intervene, for Stay of Effectiveness and for Administrative Review.

 

68.  Corporal Anthony D. Runyon (“Runyon”) reviewed the Applicant Respondents’ applications for the Permits under the supervision, further evaluation and concurrence of his commanding officer, Lieutenant Gary Whitaker (“Whitaker”), a 20 year veteran Conservation Officer who has experience in the evaluation of permit applications similar to those at issue here.  Testimony of Runyon, Testimony of Whitaker.

 

69.  Runyon, a 33 year veteran Conservation Officer with the Department’s Division of Law Enforcement, has, during the full span of his career, been responsible for reviewing applications involving the Public Freshwater Lakes Act with respect to navigation and safety issues.  The responsibility to review permit applications, conduct pier inspections and address problems relating to piers has become more prevalent in the latter 23 years of his career.  Testimony of Runyon.  Throughout his career, Runyon has had occasions to visit and become familiar with Big Long Lake.  Id.

 

[VOLUME 13, PAGE 104]

 

70.  Brian Grieser (“Grieser”), is a Licensed Professional Engineer and Certified Safety Professional who through his employment as a Safety Consultant at Applied Safety and Ergonomics, Inc. has a primary responsibility to “evaluate products, premises even occupational settings according to codes, regulations, standards, recommended practices, technical literature” as determined applicable. Testimony of GrieserGrieser has a degree in Naval Architecture and Marine Engineering, the study for which included components of boat and ship design, design of structures in water as well as watercraft maneuverability.  Id. He also possesses a Master’s Degree in Industrial and Operations Engineering.  IdGrieser stated “I have been doing a variety of boating safety projects…” but offered no elaboration regarding the application of any principle gleaned from those projects or how his professional experience as a safety consultant provides a level of expertise in boating safety or pier configurations.  IdGrieser emphasized that his area of expertise relates to researching and applying “codes, regulations, standards, recommended practices, or technical literature” in “determining if a premises, product or occupational setting” is in compliance.  Grieser’s testimony was based solely upon his review of IB #56 and general principles gleaned from his research, but his research did not include a review of the Spaw or Altevogt decisions and did not include a review of the Indiana Code or Indiana Administrative Code regarding restrictions and regulations on the construction of piers in public freshwater lakes or regulations relating to boating safety.  Testimony of Grieser and Claimants’ Exhibit 1.  With the exception of his activities relating to this proceeding, Grieser has never conducted research relating to safety associated with pier configurations and has never been qualified as an expert in any court with respect to boating safety relating to pier design.  Testimony of GrieserGrieser did not visit the site applicable to the Permits although he did review satellite photos of the area.  Id.  The evidence of education and experience does not support Grieser’s qualification to provide opinion testimony as an expert witness but because of his education relating to watercraft navigation, propulsion, maneuverability as well as water dynamics he was afforded the opportunity to offer opinion testimony as a lay witness regarding safety and navigation issues relating to the piers authorized by the Permits.   Indiana Rules of Evidence, Rule 701 & Rule 702

        

71.  The review of the Applicant Respondents’ applications in this proceeding was somewhat unusual because there are no structures in the water.[3]  This required Runyon to visualize or create “mental pictures” to consider the contours of the shoreline and the topography of the lake in reviewing the Permits.  Testimony of Whitaker, Testimony of Runyon.  In the view of the Department, consideration of the impact the proposed piers would have upon safety and navigation related “not just to the applicants but to the general boating public.  Our main concern is we want to make sure we’re not blocking access to any portion of the lake by the placement of these structures” because the entirety of Big Long Lake is open to use by the public for multiple recreational uses including swimming, fishing, boating, etc.  Testimony of Whitaker.

 

72.  The Permits do not contain any restrictions or special conditions relating to the size of boats or watercraft that may be moored.  Testimony of Hebenstreit, Stipulated Exhibits B, E & H.

 

73.  The focal point of the Department’s safety consideration with respect to the Permits involved the impact of the authorized piers upon that portion of the lake 200 feet lakeward of the shoreline and the possibility of a boat traveling at greater than idle speed colliding with the pier.  Testimony of Runyon, Testimony of Whitaker. 

 

74.  The longest pier authorized by the Permits extends only 106 feet lakeward of the shoreline, which provides 94 feet between the end of the pier and the portion of Big Long Lake that may be lawfully navigated in excess of idle speed.  Indiana Code § 14-15-3-17 and Stipulated Exhibit E.   

 

75.  The Department determined that no navigation and safety concerns existed with respect to the piers and the operation of boats or other watercraft on waters 200 feet or greater from the shoreline.  Testimony of Runyon, Stipulated Exhibit W.  The Petitioners offered no evidence disputing this conclusion.  

 

76.  Further consideration of the Permit applications involved matters of ingress, egress and maneuverability in and around the piers proposed by the Permits.  Testimony of Runyon, Testimony of Grieser & Testimony of Whitaker.  Navigation and safety in and around the piers approved by the Permits was not the focal point of the Department’s review of the applications “because inside of that 200 foot buffer there are so many laws already in place that provide for safety and navigation that if we see someone using that area in an unsafe…they’re exceeding idle speed or they’re using that area for not one of the approved purposes under Indiana Code then we stop them and address it with them.  We address those safety and navigation concerns through the law enforcement end of it.”  Testimony of Whitaker, Indiana Code §§ 14-15.

 

77.  However, the matter of safety and navigation for ingress, egress and near the piers authorized by the Permits is the issue at the heart of the Petitioners’ allegations and formed the core of Grieser’s evaluation of the piers. Testimony of Grieser, Claimants’ Exhibit 1, Stipulated Exhibits C, F & I.

 

78.  Based upon familiarity, Whitaker explained that the most common boats and watercraft frequenting Big Long Lake are 16 to 18 foot “runabouts” (ski boats), “john boats’ (fishing boats), various types of personal watercraft and 16 to 21 foot pontoon boats.  Whitaker explained that a 21 foot pontoon boat is a “large one” for Big Long Lake and he’s seen very few that are longer than that.  The majority of the runabouts found on Big Long Lake are inboard/outboard or outboard boats with few being inboard.  Testimony of Whitaker.

 

79.  While Petitioners’ counsel frequently questioned witnesses regarding navigational issues associated with boats of 24 to 28 feet in length, the Petitioners offered no evidence contrary to Whitaker’s observations with respect to the lengths and types of watercraft customarily frequenting Big Long Lake.

 

80.  As is pertinent to the instant proceeding, IB #56 states that

 

To assist with safe navigation, as well as to preserve the public trust and the rights of neighboring riparian owners, there ideally should be 10 feet of clearance on both sides (for a total of 20 feet) of the dividing line between riparian zones. At a minimum, a total of 10 feet is typically required that is clear of piers and moored boats, although the area may be used for loading and unloading boats and for active recreation.” 

IB #56, pg. 2.

 

81.  As was noted in Spaw, the riparian easements being only six feet in width provide “modest” accommodations for watercraft. At pg. 241.  It is reasonable to presume that an individual riparian easement would be of utility only for the purpose of launching and bringing ashore a small watercraft such as a canoe, kayak, rowboat, paddleboat or a similar vessel or to allow for passengers to board or disembark from a watercraft.  It is observed that application of the minimum five foot setback requirements established by IB #56 would act to prohibit the issuance of a permit allowing the mooring of any watercraft or the construction of any pier within an individual riparian zone of only six feet in width.  Testimony of Hebenstreit.  In fact, an owner of two contiguous Lots within Long Lake Park, who by virtue of his or her Lot ownership, also owned two adjoining riparian easements for a total of 12 feet of shoreline could not construct and pier and moor a boat without violating the five foot setback requirements of IB #56.  Testimony of Grieser.  Therefore, for the riparian easement to be of reasonable utility it is necessary for multiple Lot owners to aggregate their individual riparian easements similar to what the Applicant Respondents have attempted to do in applying for the Permits.

 

[VOLUME 13, PAGE 105]

 

82.  A person may navigate a watercraft within the riparian zone of another person and within the setback areas required by IB #56 for purposes of ingress and egress and the loading and unloading of passengers because a “temporary use of this nature does not unreasonably infringe on the riparian rights” of another person.   Barbee Villa Condominium Owners Assoc. v. Shrock, 10 CADDNAR 23, 27, (2005); Testimony of Whitaker.

 

83.  However, a boat or other watercraft may not be moored to a pier in such a manner that the boat or watercraft extends beyond the boundary of a riparian zone or within the setback area required by IB #56.  Galbreath v. Griffith, 11 CADDNAR 224, 232 (2007), citing Barbee Villa.

 

Watercraft Operations Relating to Permit PL-21717

 

84.  The pier approved by Permit PL-21717 (“PL-21717 Pier”) will be constructed in a riparian zone established by 30 feet of shoreline associated with Riparian Easements 65 through 69 in Block 7 of Long Lake Park.  Stipulated Exhibit H.  Riparian Easement 65 is the riparian easement located furthest north in Block 7 of Long Lake Park and abuts Shawnee Drive, from which no Lot owner derives riparian rights.  (See Finding 56)  The southern boundary of Riparian Easement 69, the southern-most riparian easement associated with Permit PL-21717, is shared with the northern boundary of Riparian Easement 70.  Stipulated Exhibit U2.

 

85.  The PL-21717 Pier will consist of a three foot pier extending 70 feet lakeward of the legal shoreline with a 10 foot by 10 foot boat lift affixed to the south side of the pier at the lakeward end.  Stipulated Exhibit H.  There exists a five foot setback, as required by Permit PL-21717 Special Condition #6 and IB #56, between the south side of the boat lift and the southern riparian zone boundary, which accomplishes compliance with IB #56.  Id. and Stipulated Exhibit O.  Landward of the boat lift will be open space on the south side of the pier of approximately 10 feet wide by 60 feet long between the shoreline and the most landward point of the boat lift.  Stipulated Exhibit H.  Twelve feet of useable mooring space exists on north side of the pier, which terminates at the boundary of the riparian zone shared with the area lakeward of Shawnee Drive, where no Lot owners possesses riparian rights.  Id.

 

86.  Grieser concluded that the mooring of more than one boat on the north side of the PL-21717 Pier would be unsafe in relationship to a pier placed to the north because the ingress and egress of the boat furthest landward would be impeded by a structure or boats moored to a structure placed to the north of the Permit PL-21717 riparian zone.  Grieser’s conclusion indicates a lack of comprehension that the Lot owners do not possess riparian rights in the area lakeward of Shawnee Drive located to the immediate north of the Permit PL-21717 riparian zone, and therefore no Lot owner may place any structure or moor any type of watercraft in that area. (See Finding 56) 

 

87.  Boats moored at any location on the north side of the PL-21717 Pier may navigate the waters lakeward of Shawnee Drive for ingress and egress and consequently there is no navigational safety concern with boats so moored.  Testimony of Whitaker, Testimony of Runyon, Testimony of Lorntz.

 

88.  Lorntz noted his opinion that because there is open water lakeward of Shawnee Drive to the north of the pier that two large boats, such as pontoon boats, could be moored on the north side of the PL-21717 Pier. 

 

89.  A permit application has been submitted to the Department by Lot owners within Block 7, two of whom are Petitioners in this proceeding, proposing the construction of piers in multiple locations across the entire shoreline of Block 7.  Exhibit Z.  On October 28, 2011, the Department issued an “Incomplete Application Notice” with respect to this application indicating that the consent of all Lot owners in Block 7 was required and further that pending permit applications or approved permits associated with Block 7 would have to be withdrawn before review of the application would continue.  Exhibit GG.  Additional direct evidence does not exist in the record with respect to this permit application but because certain Lot owners within Block 7 are involved in this proceeding with respect to Permit PL-21717, which has obviously not been withdrawn, it is reasonable for the trier of fact to conclude that this permit application has not been approved by the Department.  The following conclusion that must be reached is that at the present time there is no authority to place any structures within a riparian zone associated with Riparian Easements 70 through 74, which together consume 30 feet of shoreline to the immediate south of Riparian Easement 69[4]

 

90.  Because there are presently no structures authorized for placement within 30 feet south of the Permit PL-21717 riparian zone there is presently an open area approximate 30 feet in width extending lakeward from Riparian Easements 70 through 74.  Thus there are presently no navigational impediments or safety concerns associated with activities occurring on the south side of the PL-21717 Pier.

 

91.  The evidence is without dispute that the future existence of a pier or watercraft moored to a pier associated with Riparian Easement 70 will likely alter the ability of certain watercraft to access the south side of the PL-21717 Pier landward of the boatlift.  Testimony of Grieser, Testimony of Runyon, Testimony of Whitaker.  However, the boat lift would remain accessible by any boat for which the boat lift is designed.  Testimony of Grieser.  Mark Lorntz (“Lorntz”), one of the applicants for Permit PL-21717, testified that the present intended use of the boatlift would be for his 21’ x 8 ½’ Ski Nautique ski boat. 

 

92.  In the future, similar to the five foot setback to the south of the PL-21717 Pier’s boatlift, IB #56 would require the same minimum five foot setback be imposed upon the north side of any structure or moored watercraft placed in a riparian zone associated with Riparian Easement 70.  Testimony of Whitaker, Testimony of Hebenstreit.  This would establish a minimum navigational lane of 10 feet between the south side of the PL-21717 Pier’s boatlift and the northernmost point of a pier or moored watercraft placed in a riparian zone associated with Riparian Easement 70.  Id. That 10 foot navigation lane would present the only means of ingress and egress associated with the 10 foot wide by 60 foot long space located landward of the PL-21717 Pier’s boatlift.  Stipulated Exhibit H, Stipulated Exhibit O, Testimony of Grieser, and Testimony of Runyon. 

 

93.  While access to the area of the PL-21717 Pier landward of the boatlift may be impacted, that area will not be rendered useless by the placement of a structure or mooring of a watercraft within the riparian zone associated with Riparian Easement 70.  Testimony of Grieser, Testimony of Runyon. 

 

[VOLUME 13, PAGE 106]

 

94.  Grieser calculated that a boat of eight and one half feet in width would be provided less than one foot of clearance on each side of the 10 foot navigation lane, which he characterized as “threading a needle” under even mild to moderate winds.  Lorntz, however, expressed the opinion that he would even be able to maneuver his 18’ x 8’ pontoon boat into and back out of that space as well.  It is certain that jet skis, row boats, paddleboats, kayaks and aluminum fishing boats could navigate the 10 foot lane for mooring between the boatlift and the shoreline.  Testimony of Grieser, Testimony of Runyon.  Runyon added that the “majority of all the fishing boats”, which he characterized as being 12 to 14 feet in length, could safely navigate the 10 foot navigation lane between the south side of PL-21717 Pier’s boatlift and the northernmost point of a pier or moored watercraft placed in the riparian zone associated with Riparian Easement 70.  Testimony of Runyon.  Furthermore, a fishing boat of 12 – 14 feet in length can negotiate a complete u-turn within 18 feet of space.  Id.

 

95.  The mooring space landward of the PL-21717 Pier’s boatlift being 10 feet in width plus an additional 10 feet of navigational space provided by IB #56’s required setbacks creates the existence of a 20 foot wide area within which a 12 to 14 foot fishing boat can safely navigate forward into the space landward of the boatlift, carefully negotiate a U- turn enabling egress from the space to be made in a forward direction.     

 

96.  It is accepted that larger watercraft, unable to negotiate a U-turn within the 20 feet of space, would be required to navigate the 10 foot lane in reverse with little lateral clearance making egress difficult thereby diminishing operational safety.  Testimony of Runyon, Testimony of Grieser

 

97.  Lorntz expressed willingness to accept a condition limiting the size of watercraft that may be moored on the south side of the PL-21717 Pier between the boatlift and the shoreline. 

 

98.  It is recognized that a watercraft of any size under the control of an experienced operator may be navigated in a manner fully compliant with Indiana Code §§ 14-15, while a less experienced operator would be unable to maneuver a boat of even a small size through a 10 foot wide navigation lane to reach the mooring space between the PL-21717 Pier’s boatlift and the shoreline.  With this understanding the flexibility and professional judgment of law enforcement officers whose responsibility it is to enforce Indiana Code §§ 14-15 is a more appropriate means of addressing issues relating to the mooring of watercraft in that space than is the arbitrary establishment of a size of watercraft allowed to be moored in that space.  (See finding 76)

 

99.  Michael Ashley (“Ashley”), the owner of Lots 70, 71 and one-half of Lot 72 in Block 7 of Long Lake Park with associated Riparian Easements located immediately south of the Permit PL-21717 riparian zone, offered that the PL-21717 Pier should be relocated to the north.  Ashley offered that this would provide additional space on the south side of the PL-21717 Pier, which would provide additional space between that pier and any structure eventually place in a riparian zone involving Riparian Easements 70 through 74.  In offering this suggestion, Ashley fails to consider that boats moored in association with the PL-21717 Pier cannot extend beyond the northern boundary of the Permit PL-21717 riparian zone.  Barbee Villa, supra.  If the applicants for Permit PL-21717 were to accommodate Ashley’s request, they would decrease or effectively eliminate the useable space between the north side of the PL-21717 Pier and the northern boundary of the Permit PL-21717 riparian zone, thereby restricting the use of their own riparian zone for the benefit of the owners of Lots 70 through 74.  The applicants for Permit PL-21717 are not obligated to relinquish their own riparian rights for the benefit of a holder of neighboring riparian interests.  See generally Barbee Villa, Bath v. Courts, 459 N.E.2d 72, (Ind. App. 1984), Abbs v. Syracuse, 655 N.E. 2d 114, (Ind. App. 1995). 

 

Watercraft Operations Relating to Permit PL-21697

 

100.          The pier authorized by Permit PL-21697 (“PL-21697 Pier”) is three feet in width and extends 100 feet lakeward of and perpendicular to the legal shoreline. On the south side of the main pier will be four - three foot wide by 20 foot long wings.  The wings are situated at an angle to the pier and as a result will extend laterally only an approximate distance of 18 feet from the pier placing their terminal end on or very near the southern boundary of the riparian zone.  The PL-21697 Pier is located 13 feet from the northern boundary of the riparian zone with the diagram depicting a swim area nearest the shoreline and testimony indicating the possible use of the remainder of the north side of the pier for small watercraft.  Stipulated Exhibit B, Testimony of Spaw.  Watercraft moored on the north side may not protrude more than eight feet from the north side of the pier in order to maintain the five foot setback required by IB #56 and comply with Permit PL-21697’s Special Condition #5, which requires maintenance of “a five foot buffer between any watercraft moored on the north side of the pier and the dividing line between riparian zones” of Riparian Easement 92 and Riparian Easement 91 to the north.  Stipulated Exhibit B.  The pier as approved can be placed within the riparian zone associated with the Riparian Easements 92 through 97 in Block 8 of Long Lake Park. Id.

 

101.          Riparian Easements 92 through 97 are the southern-most riparian easements in Block 8 with the southern boundary of Riparian Easement 97 being located adjacent to land within Long Lake Park that does not provide riparian rights to any Lot owner.  (See Finding 56) Stipulated Exhibit U3, Testimony of Whitaker.  For this reason no setback is required by IB #56 on the south side of the Permit PL-21697 Pier.  (See Finding 57)  

 

102.          Grieser offered that the winged design of the Permit PL-21697 Pier required watercraft moored on the south side of the pier to back out and that this would create navigational impediments and safety concerns with respect to riparian zones to the south of Riparian Easement 97. Testimony of Grieser.  Once again Grieser’s opinion reflects a lack of knowledge relating to the matters at issue because no Lot owner within Long Lake Park possesses riparian rights in the area along the shoreline of Big Long Lake south of Riparian Easement 97. Grieser’s opinion with respect to navigation being impeded by the use of other riparian zones to the south of the Permit PL-21697 riparian zone is without merit. 

 

103.          With respect to watercraft moored on the south side of the PL-21697 Pier Runyon was accurate in stating, “There is nothing that’s going to prevent the boat from backing out into that open water and turning around either way.”    

 

104.          Five Lot owners within Block 8, three of whom are Petitioners to this proceeding, have submitted a permit application for a permit relating to the placement of piers across the entire shoreline of Block 8.  Stipulated Exhibit AA.  However, on October 28, 2011 the Department issued an “Incomplete Application Notice” advising the applicants that further review of the application would not occur until all Low owners in Block 8, which would include the applicants for Permit PL-21697 and Permit PL-21704, consented to the application and pending permit applications and previously approved permit applications, which would include Permit PL-21697 and Permit PL-21704, with withdrawn.  Under the circumstances that this proceeding remains in an adjudicatory posture it is reasonably concluded that the Department has ceased review of the application and that no permit has been issued by the Department for the placement of piers or other structures in the riparian zones associated with Riparian Easements 87 through 91.  Stipulated Exhibit HH, Stipulation of the Parties.  Therefore, at the present time there is no authority to place a structure or moor watercraft within the area lakeward of Riparian Easements 87 through 91 to the north of the PL-21697 Pier.  Testimony of Runyon, Testimony of Grieser & Stipulated Exhibits U3, AA & HH.

 

[VOLUME 13, PAGE 107]

 

105.          Consequently, at the present time there is no navigational impediment for approximately 30 feet to the north of the Permit PL-21697 riparian zone and ingress and egress is not hampered. Testimony of Grieser, Testimony of Whitaker. 

 

106.          It is noted that any watercraft moored on the north side of the PL-21697 Pier must remain within eight feet of the pier so the watercraft on this side will logically be smaller, in any event, including watercraft such as jet skis, paddleboats, kayaks and rowboats.  Stipulated Exhibit B, Testimony of Spaw.

 

107.          If, in the future, a permit is granted for the placement of a structure, or structures, within a riparian zone involving Riparian Easement 91, located to the immediate north of the riparian zone associated with Permit PL-21697, IB #56 dictates that a five foot setback would be required to the north of the southern boundary of a riparian zone involving Riparian Easement 91.  Stipulated Exhibit O, Testimony of Runyon, Testimony of Hebenstreit.   A five foot setback associated with Riparian Easement 91 added to the five foot setback required on the south edge of the riparian zone associated with Permit PL-21697 would establish a 10 foot lane of navigation between any structure moored on the north side of the PL-21697 Pier and structures, or watercraft moored at structures, placed in any riparian zone involving Riparian Easement 91.  Testimony of Runyon.  By adding the two – five foot setbacks plus the eight foot wide mooring area associated with the PL-21697 Pier, the total space within which a watercraft could maneuver between the Permit PL-21697 structure and a structure or watercraft located in the riparian zone associated with Riparian Easement 91 would be 18 feet.  Testimony of Grieser, Testimony of Runyon, Claimants’ Exhibit 3. 

 

108.          Without question the placement of a structure in a riparian zone immediately north of the Permit PL-21697 Pier would not interfere with the ingress and egress of watercraft such as wave runners, runabouts, paddleboats, canoes and kayaks to safely navigate the 10 foot navigational lane in order to occupy a mooring space on the north side of the PL-21697 Pier, which was the intention of the applicants for Permit PL-21697.  Testimony of Spaw, Testimony of Runyon.  The applicants for Permit PL-21697 stated the willingness to have a condition placed on Permit PL-21697 to restrict the north side of the pier to those types of uses.  Testimony of Spaw.

 

109.          The width of watercraft that may moor on the north side of the PL-21697 Pier is already restricted by the configuration of the pier as authorized by Permit PL-21697.  Further restriction in the size of watercraft that may moor on the north side of the pier is unnecessary for the reasons reflected in Finding 98.

 

110.          As was previously discussed in Finding 94, Runyon testified that a fishing boat of 12 to 14 feet in length can safely accomplish a complete U-turn within an18 foot wide space and can also safely navigate a 10 foot navigation lane.  Runyon acknowledged that less experienced operators of even the 12 to 14 foot length boats may have to pull forward and back up multiple times to make the complete turn-around, but such a turn can be accomplished safely.  It is noted that while such a length fishing boat could negotiate a U-turn in the space between the PL-21697 Pier and a structure placed to the north in the future, there is no evidence upon which to determine whether a fishing boat of that length can be moored within eight feet of lateral space as required for the north side of the PL-21697 Pier.

 

111.          If a boat is of such a length that it cannot accomplish a U-turn within the provided 18 feet of space it would be required to navigate the 10 foot navigation lane in reverse with minimal side clearance which would understandably diminish safety margins.  Testimony of Grieser.

 

112.          Runyon explained that through his experience with congested areas on public freshwater lakes “a lot of people even grab the boat next to them and pull themselves out.”  Testimony of Runyon.  While Runyon accepted that the latter described method of ingress and egress may be “inconvenient”, he added that such boat maneuvering can be accomplished safely without endangerment to any person or any property. Id.

 

113.          Grieser expressed the opinion that by moving the PL-21697 Pier to the south there would be additional space created between the Permit PL-21697 riparian zone and Riparian Easement 91’s riparian zone to the north.  However, to follow Grieser’s recommendation would require the PL-21697 Pier to protrude beyond the Permit PL-21697 riparian zone, which is disallowed.  Testimony of Spaw, Stipulated Exhibit B, Barbee Villa Condominium Owners Assoc. v. Shrock, 10 CADDNAR 23 (2005).

 

114.          The result of moving the PL-21697 Pier to the south would be the loss of use by the applicants of their riparian zone associated with Riparian Easements 92 through 97 to accommodate the desires of the Petitioners.  The holders of Permit PL-21697 are not required to offer such accommodation.

 

Watercraft Operations Relating to Permit PL-21704

 

115.          The pier authorized by Permit PL-21704 (“PL-21704 Pier”) is also located in Block 8 of Long Lake Park on 36 foot of shoreline associated with Riparian Easements 81 through 86, which are the northern-most riparian easements in Block 8.  Stipulated Exhibit E & U3.  The northern boundary of the riparian zone associated with Riparian Easement 81 abuts open water lakeward of Sioux Drive where no Lot owner possesses riparian interests (See finding 56) and the southern boundary of the riparian zone, associated with Riparian Easement 86, also forms the northern boundary of the riparian zone associated with Riparian Easement 87.  Stipulated Exhibit E.

 

116.          The PL-21704 Pier is three feet wide, affixed to the legal shoreline five feet north of the southern boundary of the combined riparian zone and extending 106 feet lakeward of and perpendicular to the legal shoreline with four - 24 foot wings extending perpendicular to the pier from the north side.  The total width of the PL-21704 Pier is approximately 27 feet. Stipulated Exhibit E.

 

117.          Placement of the PL-21704 Pier five feet from the southern boundary of the riparian zone in combination with a Department imposed special condition that “no watercraft shall be moored to the south side of the pier” provides compliance with IB #56.  Stipulated Exhibit E.  The inability to moor watercraft on the south side of the pier also eliminates concerns for navigation or safety associated with ingress to and egress from that side of the PL-21704 Pier that abuts another riparian zone.  Petitioners’ witness, Grieser, observed that “if there are no boats on that side you’re not going to infringe on the neighboring riparian zone…”

 

118.          Grieser, on behalf of the Petitioners, offered that the design of the PL-21704 Pier, with wings located on the north side, would restrict the use of a riparian zone established to the north because of the need for watercraft moored at the pier to back out of the winged slips.  Again Grieser failed to recognize that the north side of the Permit PL-21704 riparian zone abuts an area of open water lakeward of Sioux Drive where no Lot owner possesses riparian rights.  There can be no competing riparian zone created to the north of the PL-21704 Pier and the setbacks established by IB #56 are not applicable to the north side of the pier.  (See findings 56 & 57) 

 

[VOLUME 13, PAGE 108]

 

119.          With a prohibition on the mooring of watercraft on the south side and open water on the north side of the PL-21704 Pier, there were no navigation or safety concerns established as it pertains to the Permit PL-21704.

 

120.          Grieser offered that navigation and safety as between the PL-21704 Pier and the riparian zones to the south could be improved by moving the PL-21704 Pier to the north.  However, it is noted that to move the PL-21704 Pier north by more than a few feet would cause the wings on the north side to extend beyond the northern most limit of the Permit PL-21704 riparian zone, which is impermissible.  Stipulated Exhibit E, Barbee Villa, supra.

 

121.          Ashley, consistent with Grieser, expressed that by relocating the PL-21697 Pier to the south and moving the PL-21704 Pier to the north, additional space would be afforded to the owners of Riparian Easements 87 through 91.  Again, Ashley concerns himself only with the desires of the owners of Riparian Easements 87 through 91 and ignores the impact of his suggestion upon the riparian rights of the owners of Riparian Easements 92 through 97 (Permit PL-21697) and Riparian Easements 81 through 86 (Permit PL-21704).  

 

122.          The wings on the PL-21697 Pier are within approximately two feet of the southern boundary of the riparian zone and one must consider that a boat moored at the pier will likely extend beyond the wings.  To relocate the pier southward would cause the Pier’s lateral wings, or boats moored, to protrude beyond the southern boundary of the riparian zone associated with Permit PL-21697.  Stipulated Exhibit B.

 

123.          Similarly, the wings on the PL-21704 Pier extend to within approximately three feet of the northern boundary of the riparian zone associated with that Permit and it must be considered that boats moored at the pier will likely extend a short distance beyond the wings.  Stipulated Exhibit E.  If the pier is relocated to the north it would be required that the wings be eliminated. 

 

124.          The elimination of the wings on the PL-21697 Pier and the PL-21704 Pier decreases significantly the capacity of the piers. This results from the inability to moor boats perpendicular to the pier requiring that boats now be moored parallel to the piers. 

 

125.          Grieser’s and Ashley’s suggested relocation of the piers authorized by the Permits would result in nothing more than the Applicant Respondents being divested of a portion of their riparian rights for the purpose of granting those rights to the owners of Riparian Easements 70 through 74 in Block 7 and Riparian Easements 81 through 86 in Block 8 of Long Lake Park. 

 

Interests of a Landowner Having Property Rights Abutting the Public Freshwater Lake or Rights to Access the Public Freshwater Lake

 

126.          The Petitioners’ evidence reflects a failure to recognize that their piers may not be placed at locations outside the specific riparian easements as designated in the plat to Long Lake Park.  Stipulated Exhibits Z & AA, Testimony of Ashley. 

 

127.          The permit application associated with Block 7 of Long Lake Park that is referenced in finding 89, identified by the Department as Application PL-21917, was submitted to the Department by Petitioners, Michael M. and Lana S. Ashley, Lloyd A. and Karen A. Bickel, and Carl Ray and Margaret M. Mosser,[5], seeking to place individual piers at locations generally situated in front of Lots 71, 73 and 74 for the sole use of those Petitioners, while constructing two larger piers, one extending into waters lakeward of Shawnee Drive and the other extending into waters lakeward of Sioux Drive for use by the owners of Lots 65 through 69 and Lots 75 through 76 and Lot 80, all of which are owned by Applicant Respondents.  Stipulated Exhibits U1, Z3, Z5 & Z8.  The locations proposed for the placement of piers in the application are not relational to the locations established within the plat to Long Lake Park.  Stipulated Exhibit U1, U2 & U3 

 

128.          The permit application associated with Block 8 of Long Lake Park that is referenced in finding 104, identified by the Department as Application PL-21919 was submitted to the Department by Petitioners, Karen M. and Phillip E. Lake, Debra Ann Cozmas Parkinson, Page D. Liggett as Trustee of the Page and Carole Liggett 2005 Trust and Roger N. and Beverly A. Meyer[6], seeking to place piers “centered on” Lots 87, 88, 89 and 90 solely for use by those Petitioners, while maintaining one larger pier extending into an area lakeward of Miami Drive for the benefit of the multiple owners of Lots 81 through 86, who are Applicant Respondents to this instant proceeding, and a second larger pier extending into the area lakeward of Sioux Drive for the benefit of the multiple owners of Lots 92 through 97, who are also Applicant Respondents to this instant proceeding.  Stipulated Exhibits U1, AA3, AA-5 & AA8.  The locations proposed within the PL-21919 Application for the construction of piers do not correlate to the locations of the riparian easements as established by the Long Lake Park plat.  Stipulated Exhibits U1, U2 & U3.    

 

129.          As was noted previously, Application PL-21917 and Application PL-21919 were submitted to the Department without the agreement of any of the Respondent Applicants, except Alan Macklin, even though the permit applications, if approved, would alter the ability of the Respondent Applicants to exercise their riparian rights as granted by the plat of Long Lake Park. 

 

130.          It is noted here that during the administrative hearing Petitioners’ counsel expressed an interpretation of the “Order on Parties’ Cross Motions for Summary Judgment” (“Order”) that would authorize the Department to modify the location of an individual’s riparian property rights.  During the administrative hearing the administrative law judge emphasized that the findings in the Order do not state and cannot realistically be interpreted to support the position expressed by Petitioners’ counsel.  In fact, Finding 78 of the Order states clearly, “‘Riparian landowners, however, 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, 401, (Ind. App. 2001).”  Nothing about this long-standing principle has ever been interpreted, and was not presented in the Order in a manner to support an interpretation that the Lakes Preservation Act authorizes the Department to simply ignore individual property rights as the Petitioners urge through this proceeding by seeking a relocation of riparian zones.[7]

 

[VOLUME 13, PAGE 109]

 

131.          “Riparian rights are a proprietary interest derived from ownership of the fee title to land that abuts the lake. ‘With regard to riparian rights, a riparian owner acquires his rights to the water from his fee title to the shoreland.’”  Barbee Villa, at 25, citing Abbs v. Syracuse, 655 N.E.2d 114, 115, (Ind. App. 1995).  By definition, a riparian owner includes a person who is “the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake.” 312 IAC 11-2-19.

 

132.          While the Lakes Preservation Act does impact the exercise of riparian rights lakeward of the shoreline of any public freshwater lake, it does not impact the location of the “shoreland” from which those riparian interests are derived. 

 

133.          It is acknowledged that the Department has approved permits for certain Blocks within Long Lake Park, most notably Block 10 and Block 13, authorizing the placement of piers at the ends of drives and at other locations different than the specific locations established by the Long Lake Park plat.  Testimony of Ashley.    However, such permits have only been approved by the Department based upon the agreement of every Lot owner within the affected Block.  Id

 

134.          It is noted that the Spaw decision is of limited applicability in that is determines only the riparian rights of the Lot owners within Block 6, Block 7 and Block 8 of Long Lake Park based upon the factual determinations applicable to those Blocks.  The riparian rights of Lot owners within other Blocks of Long Lake Park may be the same or may be different based upon factual determinations peculiar to those other Blocks.  The issuance of permits authorizing the placement of piers along the shoreline of other Blocks within Long Lake Park is not at issue here.  

 

135.          Conversely, the riparian easements and riparian zones of the Lot Owners within Block 6, Block 7 and Block 8 were definitively established in Spaw and must be adhered to in this proceeding.  

 

136.          Prior to the Spaw and Altevogt decisions, the Petitioners herein who are owners of Lots within Block 7 and Block 8 of Long Lake Park maintained piers solely for their individual use in front of their respective homes and the Applicant Respondents maintenance of piers generally occurred at the lakeward terminus of Sioux Drive, Shawnee Drive and Miami Drive.  Spaw at 243.  The maintenance of piers at that time occurred without regard for the location of or other restrictions associated with the riparian easements as established by the Long Lake Park plat. Id.  Through the previous litigation the Petitioners attempted, without success, based on various legal theories including laches, abandonment of easement and adverse possession, to terminate the riparian easements granted to owners of Lots that do not abut Indian Trail, namely the Applicant Respondents in the instant proceeding.  Spaw, supra and Altevogt, supra.  The Petitioners’ failure to succeed in the claims espoused in Spaw and Altevogt effectively eliminates their ability to maintain piers for their sole use located in front of the Lots they own.  However, undaunted, the Petitioners now seek, through the submission of Application PL-21917 and Application PL-21919, to reinstate their ability to maintain those piers and force the Applicant Respondents, the majority of whom have not consented to Application PL-21917 or Application PL-21919, to accept piers located within the waters lakeward of Sioux Drive, Shawnee Drive and Miami Drive.  Testimony of Ashley, Stipulated Exhibits Z & AA.  The action of the Petitioners who own Lots in Block 7 and Block 8 of Long Lake Park in submitting Applications PL-21917 and Application PL-21919, without the consent of the Applicant Respondents is viewed simply by the trier of fact as an attempt by those Petitioners to circumvent to results of the Spaw and the Altevogt decisions.   

 

137.          Under these circumstances, the trier of fact views as disingenuous the Petitioners’ claim that they wish to have the Permits denied simply to level the playing field so that negotiations amongst the Lot owners in Block 7 and Block 8 of Long Lake Park may proceed to resolve the issue of riparian rights in a way that “meets the needs of everyone across the Block”.  Testimony of Ashley.  Viewed as equally insincere and self-serving is Ashley’s further testimony, “I think that the only way this is ever going to get resolved equitably is if we all have exactly the same incentives and we all have exactly the same circumstances when we have these discussions. If we have a group that already has piers that prevent the others from putting in piers it makes for a very one-sided discussion as you can imagine.”

 

138.          Apparent is the straightforward fact that the Petitioners desire to maintain what they once had, which was in excess of the riparian rights they possess.

 

139.          By virtue of their purchase of Lots 70 through 74 in Block 7 and Lots 87 through 91 in Block 8, those Lot owners also acquired Riparian Easements 70 through 74 and Riparian Easements 87 through 91. Spaw at 238.  These owners are now confined to the boundaries of the riparian zones established by the riparian easements they acquired.  See Barbee Villa, supra; Bath, supra; Abbs, supra; Belcher & Belcher v. Yager-Rosales, 11 CADDNAR 79 (2007); Ray v. Blackburn and Lukis, et al., 10 CADDNAR 400 (2006), affirmed Lukis v. Ray, 888 N.E. 2d 325, (Ind. App. 2008). 

 

140.          Neither the Department, nor the Commission through the instant proceeding may authorize the placement of piers or mooring of boats in areas where these owners do not possess riparian rights. Id.

 

141.          Similarly, the Department and the Commission are without legal authority to require any person with adjoining riparian interests to relinquish any portion of their riparian interests for the benefit of other persons with competing riparian interests.  Id

 

142.          While the Petitioners riparian easements cannot be relocated and no other Lot owner is obligated to relinquish or can be forced to relinquish their riparian rights for the benefit of the Petitioners, Indiana Code § 14-26-2-23(C)(5) prevents one possessor of riparian rights from unduly interfering with or restricting the riparian  rights of another.

 

143.          Indiana Code § 14-26-2-23(c)(5) states:

 

(c) The department may issue a permit after investigating the merits of the application.  In determining the merits of the application, the department may consider any factor, including cumulative effects of the proposed activity upon the following:

 

  (5) The interests of a landowner having property rights abutting the public freshwater lake or rights to access the public freshwater lake.

 

144.          The piers proposed by the Permits are located within the respective applicants’ aggregated riparian zones.  Testimony of Runyon, Stipulated Exhibits B, E, H, U, U1, U2 & U3.  The Petitioners offered no evidence disputing this conclusion. 

 

145.          Within Block 8 of Long Lake Park, Riparian Easements 81 through 86 are associated with Permit PL-21704 and Riparian Easements 92 through 97 are involved with Permit PL-21697.   Stipulated Exhibits U1 & U3.  Of the remaining five Block 8 Riparian Easements, four, Riparian Easement 87, 88, 90 and 91, are owned by Petitioners, Karen M. and Philip E. Lake, Debra Ann Cozmas Parkinson, Page D. Liggett as Trustee of the Page and Carole Liggett 2005 Trust, and Roger N. and Beverly A. Meyer.  Riparian Easement 89 is owned by Kathleen R. Smith Revocable Living Trust, which is not a party to the present adjudicatory proceeding. Id.

 

[VOLUME 13, PAGE 110]

 

146.          Within Block 7, Riparian Easements 65 through 69 are associated with Permit PL-21717.  Riparian Easements 75[8] through 79 are involved with Permit PL-21897[9], which is not involved in the instant proceeding.  Stipulated Exhibits U1 & U2.  The remaining Riparian Easements, 70 through 74, are owned by Petitioners, Michael M. and Lana S. Ashley, Lloyd A. and Karen A. Bickel and Carl Ray and Margaret M. MosserId.

 

147.          If combined, Riparian Easements 70 through 74 in Block 7 and Riparian Easements 87 through 91 in Block 8 would provide a riparian zone consistent with 30 feet of shoreline.

 

148.          Ashley conveyed that application of IB #56’s setback requirements will result in the imposition of a minimum five foot setback on each side of a riparian zone associated with Riparian Easements 70 through 74, which results in useable space of only 20 feet for construction of a pier and mooring of boats.  Ashley also offered that there are lily pads in the far southern portion of this riparian zone that will further complicate the use of this riparian zone.  With respect to Permit PL-21897, the Department imposed a condition prohibiting any boat from being moored closer than 80 feet to the shore for the protection of the lily pads.  Testimony of Ashley.   Ashley explained that although the riparian zone includes the same amount of shoreline as the riparian zone associated with Permit PL-21717 and Permit PL-21897, he stated that “we do not have the space” to be able to have something equivalent to what is being provided by the riparian zones associated with Permit PL-21717 and Permit PL-21897. 

 

149.          Ashley offered the opinion that the inability of the riparian zone associated with Riparian Easements 70 through 74 to accommodate something equivalent to what is possible with respect to the riparian zones associated with Permit PL-21717 and Permit PL-21897 results from “the sequence of applications” for pier construction being submitted and approved by the Department.    Testimony of Ashley.  Alternatively, Ashley observed in other testimony, as quoted above, that the restriction on the use of the riparian zone associated with Riparian Easements 70 through 74 is a function of the space provided by those easements and not the use of adjoining riparian zones.  Ashley also noted that any riparian zone associated with Riparian Easements 70 through 74 do not possess the flexibility of the riparian zones associated with Permit PL-21717 and Permit PL-21897 because the latter riparian zones share one boundary with open waters.  Ashley’s observations about the limiting characteristics associated with Riparian Easements 70 through 74 in Block 7 are equally true with respect to Riparian Easements 87 through 91 in Block 8.

 

150.          The timing and sequence of the permit applications and the Departments review and approval of those permits in no manner impacts the straightforward fact that each Riparian Easement is six feet wide and the combined riparian zone associated with Riparian Easements 70 through 74 will be based upon 30 feet of shoreline.  The size of the riparian zones, either individual or combined, remains constant regardless of the sequence by which any permits are applied for or approved.  The same conclusion is equally applicable with respect to riparian zone(s) associated with Riparian Easements 87 through 91 in Block 8.

 

151.          To the extent a riparian zone based upon 30 feet of shoreline associated with Riparian Easements 70 through 74 and Riparian Easements 87 through 91 are insufficient, the inadequacy, relates solely to the size and location of those riparian easements along with the desired use to be made of the easements. 

 

152.          With respect to the size and location of the Petitioners’ riparian easements it is noted that each individual owner within Long Lake Park purchased their respective Lot(s) subject to covenants and restrictions within the Long Lake Park plat with full knowledge, or the ability to be fully knowledgeable, of the riparian rights associated with the Lot purchased.[10]  Testimony of Ashley.  That now, Ashley and the other Petitioners find themselves restricted in the use of their riparian rights, that restriction is simply a function of the Lot, and associated riparian easement, that they each one purchased.   See Barbee Villa, supra; Bath, supra; Abbs, supra; Belcher, supra; and Ray, supra.    In any event, the Petitioners are only entitled to the use of the riparian interests they possess.  Id

 

153.          Accepted is the conclusion with respect to Riparian Easements 70 through 74 in Block 7 and Riparian Easements 87 through 91 in Block 8 of Long Lake Park that it would be a physical impossibility to accommodate a minimum five foot setback on both the north and south sides of the riparian zone and construct a pier with mooring space parallel to the pier on both sides for full sized boats of eight to eight and one-half feet in width.  Testimony of Grieser, Testimony of Ashley, Testimony of Whitaker.  For example, with a five foot setback required by IB #56 on each side of the riparian zone, a three foot pier extending perpendicular to the shoreline and approximately nine feet of mooring space on each side of the pier, the width of this configuration of pier would be 31 feet.  Testimony of Grieser.  The inability to maintain a pier of this configuration is, therefore, related solely to the size of the riparian zone provided by the riparian easements that correlate to the Lots purchased by the Petitioners.  The inability to place a pier of this configuration is impossible regardless of the piers associated with the Permits. 

 

154.          Grieser elaborated, however, that within a riparian zone associated with Riparian Easements 70 through 74 and Riparian Easements 87 through 91, the setback required by IB #56 could be maintained while constructing a pier that would accommodate eight to eight and one half foot wide boats moored on one side with smaller personal watercraft moored on the opposing side.  Testimony of Grieser.

 

155.          The owners of Riparian Easements 70 through 74 in Block 7 and Riparian Easements 87 through 91 in Block 8 of Long Lake Park would potentially have space for the construction of a pier of a winged configuration; however, such a pier could not be made functional.  Testimony of Grieser, Testimony of Ashley, Testimony of Hebenstreit, Testimony of Whitaker.  Within the approximate 30 foot riparian zone the five foot setbacks required by IB #56 must be maintained, which would, as Ashley testified leave only 20 feet of construction and mooring space.  Throughout the testimony the parties have considered that a pier extending lakeward from the shoreline would be three feet in width and this would require the lateral wings extending from the pier to be no greater than 17 feet in length, which is shorter than is customary. 

 

[VOLUME 13, PAGE 111]

 

156.          Assuming that the 17 foot wings were sufficient, use of the pier is impossible, however, because there is simply no space by which boats can enter and leave.  Testimony of Grieser, Testimony of Ashley, Testimony of Hebenstreit, Testimony of Whitaker.  “The general rule of thumb for fairway sizing has been to make the clear distance between boat extremities no less than 1.5 times the longest boat length…”  Petitioners’ Exhibit 1, Testimony of GrieserGrieser offered that fairness dictates that the owners of piers on opposing sides of the fairway would each contribute “0.75 times the longest expected boat length to assure safe navigation…”  Stipulated Exhibits C, F & I.  By Grieser’s opinion, in order to moor a 20 foot boat at a winged pier there must be open navigational space of 30 feet with the owners of Riparian Easements 70 through 74 in Block 7 and the owners of Riparian Easements 87 through 91 in Block 8 contributing 15 feet of that space.  At best the owners of Riparian Easements 70 through 74 in Block 7 and the owners of Riparian Easements 87 through 91 in Block 8 could contribute five feet, which is the setback required by IB #56.  This would require persons possessing the neighboring riparian interests, the Applicant Respondents or the holders of Permit PL-21897, to contribute an inequitable 25 feet of space.   The result would be that some or all of the Applicant Respondents (and/or the holders of Permit PL-21897) would be required to forego the use of up to 25 feet of their riparian zones in order to accommodate the desires of the owners of Riparian Easements 70 through 74 in Block 7 and the owners of Riparian Easements 87 through 91 in Block 8. 

  

157.          In the same manner as the Applicant Respondents cannot, by virtue of the use of their own riparian rights, unduly restrict or unreasonably interfere with the riparian interests of the Petitioners, the Petitioners would not be allowed to place piers of a winged configuration because to do so would effectively eliminate the use of a portion of a riparian zone granted to another person by the plat of Long Lake Park.  Indiana Code § 14-26-2-23(c)(5).

 

158.          The impossibility to construct a pier of a winged design on a riparian zone comprised of Riparian Easements 70 through 74 or Riparian Easements 87 through 91, again, results from the size and location of those riparian easements and not from any other cause.   

 

159.          Jim Hebenstreit (“Hebenstreit”) is Registered Professional Engineer and a 38 year employee with the Department.  For the past 25 years Hebenstreit has served as an Assistant Director with the Department’s Division of Water where he “oversees the permitting programs”, including permitting under the Lakes Preservation Act and four other statutory programs, along with other responsibilities.  Hebenstreit is the individual within the Department who actually issued the Permits. Testimony of Hebenstreit. 

 

160.          In reviewing the Permit PL-21704 and Permit PL-21697 applications, Hebenstreit considered whether the proposed piers would encroach upon or unduly impede access or hinder utilization of Riparian Easements 87 through 91 in Block 8.  Testimony of Hebenstreit, Respondent’s Exhibit I.  Hebenstreit concluded that if the Riparian Easements 87 through 91 were joined to create one riparian zone a permit could likely be approved for a pier to be constructed that would allow for boats to be moored on one side safely  Id, Testimony of Whitaker.  It is reasonable that the same would be true for a riparian zone associated with the combination of Riparian Easements 70 through 74.

 

161.          At the time of Hebenstreit’s review of the application for Permit PL-21717 there had been no other application submitted to the Department with respect to Block 7.  Testimony of Hebenstreit.  For this reason there was no potential for interference with other proposed piers in that Block.  Testimony of Hebenstreit.

 

162.          Through the manner in which the piers authorized by the Permits are configured, the owners of Riparian Easements 70 through 74 and Riparian Easements 87 through 91 are not required to forego the use of any portion of a riparian zone to accommodate navigation, except as required by IB #56.

 

163.          Even Grieser acknowledged that within a riparian zone associated with the combination of Riparian Easements 70 through 74 and Riparian Easements 87 through 91 it would be possible to design a pier to provide access to Big Long Lake by “limiting the number of boats and where they are located… it is possible but it’s restricted what can be done with that.”  Testimony of Grieser.

 

164.          Alternatively, within a 30 foot riparian zone, the minimum five foot setback required by IB #56 could be provided on both sides with a three foot wide pier situated on the setback line on one side.  In this manner one five foot setback plus a 3 foot wide pier plus a customary boat width of eight and one half feet would consume only approximately 17 feet of the 30 foot riparian zone.  Testimony of Grieser, Claimants’ Exhibit 3.  Within the riparian zone there remains an area of approximately 13 feet, which includes the five foot setback required by IB #56 within which there may be no obstruction placed but which may be used for navigational purposes.  IB #56, pg. 2.  In addition, there exists a second five foot setback area from the neighboring riparian zone, which likewise may not be obstructed but may be used for navigational purposes.  Id.  It is clear that under this alternative a total of approximately 18 feet of open water exists to one side for navigational purposes providing ingress and egress.  Testimony of Grieser, Claimant’s Exhibit 3.  It is further understood that the space within which a boat is moored provides an additional width of water area, approximately eight and one-half feet, for a typical boat, within which to maneuver once the boat is underway.  This eight and one-half feet added to the existing 18 feet of open water creates a space of approximately 26 ½ feet in width in which a boat may negotiate a complete U-turn.  Claimants’ Exhibit 3.  In 26 ½ feet of lateral space it is reasonable to conclude that boats of a size customary to Big Long Lake could negotiate a complete U-turn such that egress from the landward point of the pier could be made in a forward direction. 

 

165.          Grieser responded in one instance that a 150 to 200 foot pier associated with Riparian Easements 70 through 74 and Riparian Easements 87 through 91 would accommodate more boats in a safer manner stating, “yeah cause the boats out towards the lake would be…they wouldn’t have a neighboring pier…because the pier would extend out past the end of the neighboring pier…so you wouldn’t have to worry about that clearance there would be no fairway.”  However, Grieser in later testimony explained that a longer pier failed to provide access because “it gets to be very expensive and time consuming and a lot of work putting in piers that are that long.”  

 

166.          The trier of fact observed that when Grieser’s professional experience as well as mathematical calculations yielded responses unfavorable to the Petitioners’ desires and legal position he attempted to discount those responses in favor of positions more favorable to the Petitioners’ contentions.  For this reason, Grieser’s testimony has been carefully scrutinized and given due credence as appropriate.

 

167.          It is acknowledged that it may be difficult or even impossible for certain in-board ski boats that reverse in only one direction (such as a Mastercraft or a Ski Nautique) to moor at a location where it would be required to make ingress or egress in a reverse direction.  Just as Lorntz placed the boatlift for his Ski Nautique at the end of the PL-21717 Pier for this reason the Petitioners will likewise be required to consider these factors when deciding upon locations for the boats they choose to moor at whatever pier they design. Testimony of Lorntz.

 

[VOLUME 13, PAGE 112]

 

168.          Spaw testified on cross examination that a pier previously placed at the shoreline off Miami Drive and extending 120 feet lakeward was made somewhat unstable by boat traffic in the area and that water occasionally washed over the pier.  Spaw elaborated however that the reason for the instability related only in part to the length of the pier noting further that the pier’s location was near a narrow portion of the lake between the “big basin” and “small basin” which increased the effect of wake and wash from passing boats.  Testimony of Spaw.  The further north a pier is located from Miami Drive, which forms the southern boundary of Block 8 in Long Lake Park, the less impact the wake and wash of boats traveling through the “narrows” will have upon the pier.[11]  Testimony of Spaw.  Riparian Easements 87 through 91 are located more than 100 feet from the northern boundary of Miami Drive.  Stipulated Exhibit U1.  Petitioners offered no additional evidence to support a conclusion that a pier of 150 to 200 feet in the area of Riparian Easements 70 through 74 or Riparian Easements 87 through 91 could not be constructed in a manner to provide stability.    

 

169.          It is acknowledged that at some point a boat would simply be of such great length that it could not complete a U-turn in 26 ½ feet.  However, again, this relates not to the Petitioners’ ability to utilize their riparian rights but it instead relates to the Petitioners’ organization of boats on a pier and the realistic restrictions that exist and are imposed not only on the Petitioners but upon every Lot owner within Long Lake Park by virtue of the size and location of the riparian easements granted by the plat to Long Lake Park.

 

170.          It is important to reiterate here that while Permit PL-21717 does not restrict the size of the watercraft that may be moored on the south side of the pier landward of the boatlift there are physical restrictions to the ability to moor watercraft in that location.  Similarly, Permit PL-21704 was issued by the Department with a special condition prohibiting the mooring of watercraft on the south side of the pier.  Likewise, any watercraft moored on the north side of the PL-21697 Pier may not protrude in excess of eight feet from the pier.  These restrictions highlight the fact that every Lot owner within Block 7 and Block 8 of Long Lake Park are restricted by the size and location of their respective riparian easements.   

 

171.          The capacity restrictions upon the Permits are obvious.  The Permit PL-21717, which will serve five Lots owned by Mark and Patricia Lorntz and three brothers, Al Ensley, Scott Ensley and Greg Ensley, is expected to provide mooring space for probably only three full sized boats along with miscellaneous smaller watercraft lakeward of the boatlift.  Stipulated Exhibit H, Testimony of Lorntz.  The PL-21697 Pier that, at the time of application would have been used by four Lot owners but will now, by virtue of Jeffrey and Holly Spaw’s purchase of Lots 96 and 97, be used by three Lot owners and will provide mooring space for approximately seven full sized boats on the winged side and only smaller watercraft on the opposing side.  Stipulated Exhibit B, Testimony of Spaw.  Similarly, the PL-21704 Pier will be used by four Lot owners, Steven G. and Karen Ybarra, David W. and Diana L. Jennings, Gregory O. King and Alan Macklin, but provides mooring space only on one side for approximately seven full sized boats and miscellaneous small watercraft landward of the wing nearest the shore.  Stipulated Exhibit E.  

 

172.          Three Lot owners are associated with Riparian Easements 70 through 74 in Block 7.  Stipulated Exhibit U2.  Testimony reflects that a pier of a length of 150 to 200 feet with boats moored parallel on one side would be safe and could likely be approved by the Department with respect to these riparian easements.  Testimony of Grieser, Testimony of Hebenstreit.    It is noted here that the PL-21717 Pier, which occurs lakeward of Block 8 is 70 feet in total length with the expectation that two full sized boats could be moored parallel to the north side; from this it is calculated that mooring space for boats will begin at a point approximately 30 feet from the shoreline.  Testimony of Lorntz.  Presuming therefore, that a pier placed for the benefit of the owners of Riparian Easements 70 through 74 could moor a boat at 30 feet from the shoreline a pier of 150 to 160 feet in length could accommodate approximately six - 20 foot long boats, two for each Lot owner using the pier. [12]  This use is consistent with the use being made of the riparian easements by the Applicant Respondents by virtue of the Permits. 

 

173.          There are five Lot owners associated with Riparian Easements 87 through 91.  However, ownership of Lots 90 and 91 by “undivided one-half interests” by two individual owners requires that the extent to which these owners have the ability to exercise their riparian rights should reasonably reflect their respective ownership interests in Lots 90 and 91.  See Petition to Intervene, for Stay of Effectiveness and for Administrative Review.  Therefore, effectively, with respect to Riparian Easements 87 through 91 in Block 8, there are four Lot owners to be considered.  Again, the evidence reflects that a pier of a length of 150 to 200 feet with boats moored parallel on one side would be safe and could likely be approved by the Department.  Testimony of Grieser, Testimony of Hebenstreit.  As it relates to Block 8, the Permit PL-21697 Pier proposes the mooring of a boat approximately 30 feet from the shoreline while the PL-21704 Pier proposes the mooring of a boat approximately 23 feet from the shoreline.  Stipulated Exhibit B & E.    The conclusion therefore, is that the most landward boat would be positioned approximately 30 feet from the shoreline. Based thereon, mathematics reveals that again a pier of 150 to 160 feet in length could accommodate approximately six – 20 foot boats and if necessary a longer pier could potentially be approved.  Again, this use is consistent with the use provided to the Applicant Respondents by virtue of the Permits.

 

174.          The Petitioners do, in fact, have sufficient space to utilize their riparian rights to a degree similar to the utilization made by the Applicant Respondents of their riparian rights. Testimony of Grieser



[1] Jeffrey A. Spaw testified that while the instant proceeding has been pending, he and his wife, Holly Spaw, have purchased Lots 96 and 97 in Long Lake Park, which were, at the time the application for PERMIT PL-21697 was submitted to the Department, owned by HUD.

[2] To a certain extent the synopsis provided here is duplicitous with the summary provided in the Order on Parties’ Cross Motions for Summary Judgment issued on March 13, 2012

[3] Previously there had been piers placed along the shoreline of Block 7 and Block 8 within Long Lake Park but those piers had, at the time of Runyon’s on site visits, been removed from the water as a consequence of the previous litigation discussed infra.  

[4] It is noted that the Department has approved a permit, identified as Permit PL-21897, for the placement of a pier in a riparian zone established by the aggregation of Riparian Easements 75 through 79 in Block 7 of Long Lake Park.  This permit is presently the subject of litigation before the Commission in a proceeding captioned Skilbred et al. v. Ward, et al. and the Department of Natural Resources, Administrative Cause No. 12-014W.

[5] One additional Lot owner, Alan Macklin, who is an Applicant Respondent to the instant proceeding (Administrative Cause No. 11-162W) and the owner of Lots 80 in Block 7 joined in this application.

[6] One additional Lot owner, Alan Macklin, who is an Applicant Respondent to the instant proceeding (Administrative Cause No. 11-162W) and the owner of Lots 81 & 82 in Block 8, and others persons, Ricky P. & Connie C. Stout, owner of Lot 89 in Block 8 is unknown, have also joined in this application.

[7] In sustaining the objections of Mr. Wyndham and Mr. Kuchmay, the administrative law judge clarified the Order stating, “My order does not say that.  … The only thing that the Lakes Preservation Act will allow is anything lakeward of the shoreline.  It does not permit, and my order does not say in any way, shape or form that the Lakes Preservation Act in any way can modify the riparian easements that are owned or…not owned…but the dominant estate of these riparian easements that are possessed by any Lot owner in Long Lake Park.  I cannot say that any more straightforward.  My order does not say that and I will not allow it to be characterized that way.”

[8] It is noted that PERMIT PL-21717states simply that Riparian Easement 75 is included within the riparian zone associated with that permit, while the evidence reveals that a part of Lot 75, thus a part of Riparian Easement 75, is owned by Carl Ray and Margaret M. Mosser. See Stipulated Exhibit U.

[9] See footnote 3 above.

[10] Ashley maintains however that, at his own fault, he did not review the restrictions or covenants prior to making the purchase of his Lots.

[11] It is noted here that despite Petitioners obvious knowledge regarding the instability of a 120 foot pier extending from Miami Drive, Application PL-21919 submitted by the Petitioners, proposes the placement of a pier extending 100 feet lakeward of the shoreline extending into the area lakeward of Miami Drive.  Stipulated Exhibit AA-5.

[12] Testimony that the Department’s approval of Permit PL-21897, also occurring in Block 8, included a condition that boats could not be moored closer than 80 feet to the shoreline in order to protect lily pads in the area is acknowledged.  While information about the lily pads is not detailed in the record, Ashley’s testimony reflects that the lily pads occur only in the far southern portion of the riparian zone associated with Riparian Easements 70 through 74.  Therefore, it is reasonable to conclude that a pier placed in the northern portion of the riparian zone would avoid harm to the lily pads and if the mooring of boats as close as 30 feet to the shoreline is not possible the testimony reflects that pier’s length could potentially be increased.