[CITE: Sudlow v. Slocum, et al., 14 CADDNAR 46 (2015)]
[VOLUME 14, PAGE 46]
Cause # 12-119W
Caption: Sudlow v. Slocum
Administrative Law Judge: Jensen
Attorneys: Synder (Sudlows); Helm (Slocum); Palmison (Kitch)
Date: December 1, 2015
[See Editor’s note at end of this document regarding change in the decision’s original format.]
FINAL ORDER
53. South Shore Condominium Association as the owner of two tracts maintained in a horizontal property regime situated on Lake Wawasee in Kosciusko County shall be entitled to a riparian zone established by the extension of straight lines lakeward perpendicular to the shoreline.
54. Kitch Acceptance Corporation, as the owner of Lot 16 and a portion of Outlot 3 in Vawter Park fronting on Lake Wawasee in Kosciusko County, shall be entitled to a riparian zone established by the extension of straight lines lakeward perpendicular to the shoreline.
55. Craig D. and Lee A. Doyle, as the owners of Lot 15 and a portion of Outlot 3 in Vawter Park fronting on Lake Wawasee in Kosciusko County, shall be entitled to a riparian zone established by the extension of straight lines lakeward perpendicular to the shoreline.
56. The Doyle Land Trust by Trustees Mark G. Doyle and Gordon P. Doyle, as the owners of Lot 14 in Vawter Park fronting on Lake Wawasee in Kosciusko County, shall be entitled to a riparian zone established by the extension of straight lines lakeward perpendicular to the shoreline.
57. Don Ermal and Marilyn Lois Marsh, as the owners of Lot 13 in Vawter Park fronting on Lake Wawasee in Kosciusko County, shall be entitled to a riparian zone established by the extension of straight lines lakeward perpendicular to the shoreline.
58. Thomas A. and Nancy A. Yoder, as the owners of Lot 12 in Vawter Park fronting on Lake Wawasee in Kosciusko County, shall be entitled to a riparian zone established by the extension of straight lines lakeward perpendicular to the shoreline.
59. Anna C. Sudlow and Constance Sudlow Heckaman, as the owners of Lot 18 and Lot 19 in Vawter Park fronting on Lake Wawasee in Kosciusko County, shall be entitled to a riparian zone having an east boundary established by extending their east onshore boundary lakeward.
60. Joan M. Slocum, as the owner of Lot 17 and a portion of Outlot 3 in Vawter Park fronting on Lake Wawasee in Kosciusko County, shall be entitled to a riparian zone having a west-northwest boundary established by the extension of a straight line lakeward at a perpendicular to the shoreline consistent with the establishment of the Kitch Acceptance Corporation’s riparian zone, as set forth in Finding 54.
61.The Sudlows’ and Slocum’s shared riparian zone boundary shall be established by extending a straight line lakeward from the point at which the shared onshore property boundary intersects with the shoreline. The line established shall divide the total waterfront proportionate with the Sudlows’ ownership of 63.8 % and Slocum’s ownership of 36.2% of the shoreline taken according to the general trend of the shore consistent with the Fourth Principle of IB #56.
62. It is recognized that certain of the parties to this proceeding may be required to commission a professional survey to properly identify the boundaries of their respective riparian zone as established by this order.
63. With respect to each of the established riparian zones, the respective owner shall maintain five (5) feet of clearance from each riparian zone boundary to aid in safe navigation and to preserve the public trust.
64. No portion of a temporary structure, including watercraft moored to the temporary structure, may be maintained outside of the established riparian zone.
65. The orders issued herein shall apply to each of the parties to this proceeding as well as to their heirs and assigns. Upon proper recordation with the Recorder of Kosciusko County, the orders will apply to subsequent purchasers of the Lots to which this adjudication relates.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Procedural Background and Jurisdiction:
1. Anna C. Sudlow and Constance Sudlow Heckaman (“the Sudlows”), by counsel, Stephen R. Snyder, filed their Petition for Administrative Review with the Natural Resources Commission (“Commission”) on July 19, 2012 alleging that Joan M. Slocum (“Slocum”) had “placed a pier and docks boats in the waters of Lake Wawasee in a fashion that encroaches into the riparian area” of the Sudlows.
2. Lake Wawasee is a public freshwater lake. Indiana Code § 14-26-2-24 and Natural Resources Commission, Information Bulletin # 61 (Fourth Amendment) “Listing of Public Freshwater Lakes”, October 1, 2014.
3. As required by Indiana Code § 14-2-26-23(e)(3), the Commission adopted administrative rules addressing the initiation, mediation and adjudication of disputes among riparian owners using the shoreline along a public freshwater lake. 312 IAC 11-1-3.
4. The Commission possesses jurisdiction over the subject matter and the parties to this proceeding and serves as the ultimate authority pursuant to 312 IAC 3-1-2. Indiana Code 4-21.5-1-15.
5. On August 13, 2012, Slocum, by counsel, Richard K. Helm, filed her “Answer to Petition for Administrative Review” and her “Request to Require Joinder of Additional Necessary Parties.” Thereafter, Slocum filed her “Memorandum as to Joinder of Additional Parties” on November 29, 2012.
6. Kitch Acceptance Corporation (“Kitch”), by counsel, Andrew L. Palmison, consented to Slocum’s request for joinder and was recognized as a Third Party Respondent through an order issued on October 11, 2012.
7. On January 17, 2013, then presiding Administrative Law Judge Stephen L. Lucas recused himself and appointed the undersigned administrative law judge to preside. See “Order Providing Extended Opportunity to Respond to Respondent’s (Joan Slocum’s) Motion to Join Additional Parties and Recusal and Appointment of Substitute Administrative Law Judge, January 23, 2013.
[VOLUME 14, PAGE 47]
8. With the exception of Kitch, each of the persons or entities identified by Slocum as necessary parties, objected to Slocum’s motion. However, in an order issued on February 27, 2013, Administrative Law Judge Jensen observed that the Sudlows’ petition for administrative review included a diagram of riparian zones the result of which “clearly has the potential to impact all of the individuals Slocum seeks to join as parties…” Through that order Craig D. and Lee A. Doyle (collectively referred to as “the Doyles”) , Mark G. Doyle and Gordon P. Doyle as Trustees for the Doyle Land Trust (referred to as “the Doyle Trust”), Don Ermal and Marilyn Lois Marsh (collectively referred to as “the Marshes”), Thomas A. and Nancy A. Yoder (collectively referred to as “the Yoders”), and South Shore Condominium Association (referred to as “South Shore”) were joined and identified as Third Party Respondents.
9. On October 10, 2014, the Department of Natural Resources (“Department”) filed its motion to intervene. The motion was granted on October 14, 2014.
10. Throughout the pendency of this proceeding various parties have reported attempts to resolve the issues presented but ultimately it became necessary to schedule an administrative hearing that, after necessary continuances, was conducted on July 6, 2015.
Findings of Fact:
11. Each of the properties at issue is situated in John T. Vawter’s First Addition to Vawter Park (“Vawter Park”) and front on Lake Wawasee in Kosciusko County.
12. More particularly, the Sudlows are the owners of Lots 18 & 19 and Slocum owns Lot 17 along with a portion of Outlot 3. The Slocum property shares an east/southeast property line with the Sudlows and a west/northwest property boundary with Kitch, which owns Lot 16 and a portion of Outlot 3. The remaining parties, with the exception of the Department, own Lots traversing the shoreline of Lake Wawasee in a west/northwest direction from the Kitch property. The Doyles own Lot 15 and a portion of Outlot 3 while the Doyle Trust owns Lot 14. Lot 13 is owned by the Marshes and Lot 12 is owned by the Yoders. South Shore is the owner of the property adjacent to the west/northwest boundary of the Yoders’ property consisting of two tracts maintained in a horizontal property regime.
13. The evidence is not in dispute that the shoreline of Lake Wawasee correlating with the Lots owned by the Doyles, the Doyle Trust, the Marshes, the Yoders and South Shore forms a generally straight line. It is also not contradicted that the onshore property lines of each of these properties intersect the principally straight shoreline at obtuse angles. Testimony of John Heckaman, Rodney Neese and Kevin Michael, Claimants’ Exhibit 8, Slocum Exhibit B and DNR Exhibit A.
14. The Doyles, the Doyle Trust, the Marshes, the Yoders and South Shore have historically extended piers into Lake Wawasee in a manner suggesting that the riparian zones associated with these properties were established by the extension lakeward of lines perpendicular to the shoreline. Id. The piers extending from the shoreline of these properties today are in essentially the same locations and configurations as they have been for 30 or more years.
15. It is also not disputed that the Sudlow and the Slocum properties are situated along a stretch of shoreline transitioning from an east-west direction, to the east of the Sudlow property, to a southeast-northwest direction, to the west of the Slocum property. Testimony of Rodney Neese and Kevin Michael, DNR Exhibit A and Slocum Exhibit B.
16. Rodney Neese (“Neese”) and Kevin Michael (“Michael”), who are both licensed professional land surveyors having experience with the laws, rules and guidelines applicable to surveying and establishing riparian zones, agree that the appropriate manner to establish the riparian zones for the Sudlows’ and Slocum’s properties is through a pro-ration of the shoreline associated with those properties. Id. Both Neese and Michael acknowledged their reliance upon “Riparian Zones Within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (Second Amendment) published in the Indiana Register on March 31, 2010, http://www.in.gov/legislative/iac/20100331-IR-312100175NRA.xml.pdf, (“IB #56”) in reaching their respective conclusions.
17. Neese and Michael agree that apportioning the waters lakeward of the Sudlow and the Slocum properties would appropriately begin with the establishment of the Sudlows’ east riparian zone boundary by extending that onshore boundary line lakeward consistent with the historically established riparian zones of properties situated along the straight shoreline to the east of the Sudlow property. Id.
18. Whether Kitch’s property is most appropriately considered to be in the transitional curve similar to the Sudlows’ and Slocum’s property or whether it lies on the chiefly straight shoreline area, similar to the Doyles’, the Doyle Trust’s, the Marshes’, the Yoders’ and South Shore’s properties, is a point of disagreement in the evidence.
19. With respect to the western most limit for shoreline apportionment, Neese advocates that only the Sudlows’ and Slocum’s riparian zones be established by apportionment while Michael believes that a just apportionment can only be accomplished if Kitch’s riparian zone is also determined in that fashion. Id.
20. Using Neese’s method requires Slocum’s west-northwest boundary line, shared with Kitch, to be determined by extending a line perpendicular to the shoreline lakeward from the point at which the shared Kitch/Slocum onshore boundary intersects with the shoreline. This would establish a riparian zone consistent with the zone historically utilized by Kitch and consistent with the recognized riparian zones of the properties to the west-northwest of Kitch. Using Neese’s method only the riparian zones of Slocum and the Sudlows would be apportioned and Kitch’s historically relied upon riparian zone established by lines extended lakeward perpendicular to the shore would be unaffected. Testimony of Neese, Testimony of Chester Kitch, Slocum Exhibit B and DNR Exhibit A.
21. Conversely, Michael’s apportionment of the shoreline would involve the extension of a line perpendicular to the shoreline from the point at which the onshore boundary Kitch shares with the Doyles intersects the shoreline.
22. Through Michael’s approach the riparian area of Kitch, Slocum and the Sudlows would be established through an apportionment of the shoreline associated with Kitch’s, Slocum’s and the Sudlows’ properties. Testimony of Michael and Slocum Exhibit B.
23. Application of Michael’s methodology would clearly reshape and decrease the size of Kitch’s riparian zone from its historic footprint. The evidence fails to disclose the degree to which Kitch’s historically recognized riparian zone will be altered.
24. Similarly, there is no evidence in the record from which to ascertain what impact the inclusion or exclusion of Kitch’s shoreline in the apportionment will have upon the size or shape of the Sudlows’ or Slocum’s resulting riparian zones.
25. While Michael concludes that the Kitch riparian zone should be established by apportionment, Michael makes what appears to be a contradictory conclusion in his report. Michael states,
There are five owners between the South Shore Condominium property and the Slocum property. All of their piers are oriented approximately perpendicular to the shoreline….
The third principle in Bulletin #56 is appropriate in this area. The third principle states, ‘Where the shore approximates a straight line, and where the onshore boundaries approach the shore at obtuse or acute angles, the boundaries of riparian zones are generally determined by extending a straight line at a perpendicular to the shore.’ The property owners appear to be placing their piers consistent with the third principle. There is no need to change their riparian zones.
Slocum Exhibit B. One of the five properties located between South Shore’s and Slocum’s properties is the Kitch property.
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26. Michael also testified that the curve in the shoreline is “more pronounced” between the Kitch’s and the Doyles’ properties. This conclusion is not supported by a comparison of the surveys and photographs. Slocum Exhibit C, Yoder Exhibit D, Claimant’s Exhibit 8.
27. The Sudlows added a third boat stall to the west side of their pier in 2010 and added a boat lift to the west side of that boat stall in 2012. If the Sudlow riparian zone is determined by apportionment, whether Kitch is included in the apportionment as proposed by Michael or whether the apportionment involves only the riparian zones of the Sudlows and Slocum as proposed by Neese, the most recently added boat lift and possibly the third boat stall added in 2010 will exceed the width of the Sudlows’ riparian zone and be located, either wholly or partially, within the riparian zone that would be established for Slocum. Claimants’ Exhibits 10(B) and 11.
28. In an effort to accommodate the third boat stall and the boat lift, the Sudlows developed a third alternative to apportion the waterfront as between themselves and Slocum. Testimony of John Heckaman, Claimants’ Exhibit 10(B).
29. John David Heckaman (“Heckaman”) is the owner of Sudlows Pier Shop, which is the family pier shop where he has been employed since approximately 1974. Heckaman is knowledgeable with respect to the installation and maintenance of piers and is very familiar with the lakeshore at issue in this proceeding. Heckaman developed a third alternative method of apportionment (this alternative will be referred to as “the Sudlow Proposal” or “Sudlows’ Proposal”). Id.
30. Sudlows’ Proposal accepts Neese’s and Michael’s conclusion that the Sudlows’ east riparian zone boundary should be established by extending the onshore property boundary lakeward. The Sudlow Proposal offers no input or opinion regarding the most appropriate means of establishing Slocum’s west-northwest riparian zone boundary. The focus of Sudlows’ Proposal is the riparian zone boundary shared by Slocum and the Sudlows, which Heckaman established by extending the shared onshore boundary lakeward for a distance of approximately 30 feet before angling the riparian zone boundary line towards the east at a degree allowing for the riparian zone line to run parallel to and 11 feet east of Slocum’s existing pier.
31. Neese explained that his proposal considers Slocum’s ownership of 59.0 feet of shoreline and the Sudlows’ ownership of 104.0 feet of shoreline. Further, Neese elaborated that his calculations were based on a line of the general curvature of the shoreline at a distance of approximately 175 feet lakeward of the shoreline. Neese concluded that with a total shoreline length of 163 feet, Slocum’s share is 36.2% as compared to the Sudlows’ 63.8% share. Through his pro-ration, based on the respective shoreline lengths at a distance of 175 feet from the shoreline, Slocum will be granted a riparian zone consisting of 36.2% of the total waterfront and the Sudlows will be granted a riparian zone comprised of 63.8% of the total waterfront. Testimony of Neese.
32. Neese acknowledged that calculations would be necessary to determine whether the Sudlow Proposal achieves the goal of creating a fair distribution of the waterfront based upon Slocum’s and the Sudlows’ percentage of shoreline ownership. However, Neese offered the opinion that Sudlows’ Proposal appears to provide the Sudlows with a riparian zone larger than is consistent with percentage of shoreline owned.
33. There exists no other evidence in the record by which to determine whether the Sudlow Proposal accomplishes an appropriate distribution of the waterfront consistent with the percentages of shoreline owned by Slocum and the Sudlows in establishing the riparian zones.
Conclusions of Law:
34. IB #56 establishes as its Second Principle that riparian zones associated with properties situated on a shoreline approximating a straight line having onshore boundaries meeting the shoreline at an approximately perpendicular angle should be established by extending the onshore property boundaries lakeward.
35. The parties to this proceeding do not include the owner of any property located to the east of the Sudlows. However, it is not disputed that the riparian zones for the properties located immediately to the east of the Sudlows’ property are appropriately determined using the Second Principle of IB #56. For this reason the evidence supports the conclusion that the Sudlows’ eastern riparian zone boundary must be established by extending the Sudlows’ east onshore property boundary lakeward.[1]
36. The parties to this proceeding owning properties located to the west-northwest of Kitch, including the Doyles, the Doyle Trust, the Marshes, the Yoders and South Shore; undisputedly own properties situated on a generally straight shoreline with onshore property boundaries meeting that shoreline at obtuse angles. The evidence clearly supports the conclusion that the riparian zones for these properties be established in a manner consistent with the Third Principle of IB #56, which states,
Where the shore approximates a straight line, and where the onshore boundaries approach the shore at obtuse or acute angles, the boundaries of riparian zones are generally determined by extending a straight line at a perpendicular to the shore.
37. Application of the Third Principle in establishing the Doyles’ riparian zone will simultaneously establish Kitch’s west-northwest riparian zone boundary in accordance with the Third Principle as well.
38. The evidence in this proceeding is also undisputed with respect to the need to apply the Fourth Principle of IB #56 for establishing the riparian zones of Slocum and the Sudlows.
39. The Fourth Principle of IB #56 provides,
…the lines forming the boundaries between riparian zones should be run to divide the total navigable waterfront in proportion to the length of the shores of each owner taken according to the general trend of the shore.
40. The threshold determination whether Kitch’s riparian zone should be fully determined by application of the Third Principle or whether Kitch’s east riparian zone boundary should be established through pro-ration consistent with the Fourth Principle must precede the ultimate conclusion regarding the establishment of Slocum’s and the Sudlows’ riparian zones.
41. Slocum sought the joinder of Kitch as a party to this proceeding. As between Slocum and Kitch, Slocum bears the burden of proof.
42. The only evidence presented in support of establishing Kitch’s riparian zone by apportionment as prescribed by the Fourth Principle of IB #56 came from Michael who testified that a more appropriate apportionment was achieved by the inclusion of Kitch.
43. IB #56 states that the use of the Third Principle, establishing riparian zones by extending lines lakeward at a perpendicular to the shoreline, is “most compelling where land owners in the vicinity have historically used a perpendicular line to divide their riparian zones…, whereas establishing riparian zones using pro-ration under the Fourth Principle is for use “Where the shore is irregular, and it is impossible to run lines at right angles to the shore for a just apportionment…”
44. Overall, the evidence establishes that the shoreline associated with Kitch’s property is not “irregular” and that Kitch has historically used a riparian zone established by extending lines lakeward at a perpendicular to the shoreline. The evidence presented by Slocum contains contradictions. Most importantly, Slocum has failed to provide any evidence supportive of a conclusion that a just apportionment cannot be accomplished without including Kitch in the pro-ration.
45. As between Slocum and Kitch, Slocum has failed to meet her burden of proof.
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46. The riparian zone associated with the Kitch property shall be wholly established through application of the Third Principle of IB #56.
47. As between the Sudlows and Slocum, the Sudlows bear the burden of proof.
48. The Sudlows seek to establish Slocum’s and the Sudlows’ riparian zones through the use of a unique method of apportioning the waterfront.
49. IB #56 is an agency statement adopted in accordance with Indiana Code § 4-22-7-7; a guidance document that while broadly followed does not have the effect of law. The Fourth Principle set forth in IB #56 offers a variety of methods by which an appropriate apportionment may be accomplished dependent upon the fact pattern presented. Again, these methodologies are not exclusive and in the appropriate case, with the appropriate evidence, a novel or unconventional method of pro-ration may prove useful.
50. However, any method of apportionment applicable in establishing riparian zones must “divide the total navigable waterfront in proportion to the length of the actual shorelines of each owner taken according to the general trend of the shore.” Nosek v. Stryker, 309 N.W.2d 868, 872, (Wis. Ct. App., 1981) cited favorably in Lukis v. Ray, 888 N.E.2d 325, (Ind. Ct. App., 2008).
51. The Sudlows failed to present any evidence whatsoever that the Sudlow Proposal achieves a division of the waterfront in a manner proportionate to Slocum’s 36.2% and the Sudlows 63.8% ownership of the shoreline. For this reason the Sudlows’ invitation to deviate from tested apportionment methods, such as was employed by the Department, is rejected.
52. The evidence supports the conclusion that Slocum’s and the Sudlows’ riparian zones shall be established through the application of the Fourth Principle of IB #56 such that Slocum’s riparian zone is comprised of approximately 36.2% of the waterfront and the Sudlows’ riparian zone approximates 63.8% of the waterfront.
[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, Paragraphs 53 through 65, have been relocated to the “Final Order” section at the beginning of this document.]
[1] It is acknowledged that this order is not binding upon any person who is not a party to this proceeding.