CADDNAR


[CITE: Hazelett, et al. v. Walbridge, et al. and DNR, 10 CADDNAR 39 (2005)]

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Cause #: 04-026W
Caption: Hazelett, et al. v. Walbridge, et al. and DNR
Administrative Law Judge: Jensen
Attorneys: Simerman; Helmke;Snyder; Knotek
Date: March 24, 2005

FINAL ORDER ON MOTION FOR SUMMARY JUDGMENT

[NOTE: RESPONDENTS G. CHARLES WALBRIDGE, SOUTHWEST DEVELOPMENT GROUP, LTD., COVES OF LAKE JAMES, LLC AND GREGORY C. WALBRIDGE TOOK JUDICIAL REVIEW ON APRIL 21, 2005,IN THE ALLEN SUPERIOR COURT (CAUSE NUMBER 02D01-0504-PL-178). ON JUNE 7, 2005, THE ALLEN SUPRIOR COURT GRANTED MOTION TO DISMISS FOR LACK OF JURISDICTION. THE ALLEN SUPERIOR COURT DECISION FOLLOWS THE ADMINISTRATIVE LAW JUDGE'S "FINDINGS OF FACT AND CONCLUSIONS OF LAW." ]

1. Summary judgment is appropriate when the moving party has sufficiently established that there exists no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Indiana Department of Environmental Management v. Schnippel Construction, Inc., 778 N.E.2d 407 (Ind. App. 2002). The moving party bears the burden of proving that no genuine issue of material fact exists and all inferences must be made in favor or the non-moving party. ID.

2. The Claimants have sustained their burden in establishing that there exists no genuine issue of material fact as to the issue of the length or width of the Walbridge Piers in relation to other piers in the vicinity of Eli's Point on Lake James and the Claimants are entitled to judgment as a matter of law as to this issue.

3. The Walbridge Piers do not meet the qualifying criteria set forth at 312 IAC 11-3-1(b)(4), which prohibits the placement of a temporary structure under a general license if that structure is unusually wide or long in comparison to other similar structures within the vicinity the same public freshwater lake.

4. The Walbridge Piers therefore, do not qualify for placement and maintenance under the general licensing provisions of 312 IAC 11-3-1(a).

5. Disqualification of the Walbridge Piers from placement under the general licensing provisions of 312 IAC 11-3-1(a) as set forth in paragraphs 1 through 4, above, being dispositive of this administrative cause, makes moot the remaining issue regarding whether the Walbridge Piers constitute a "marina" within the meaning of 312 IAC 11-2-12.

6. The Respondents, or any one of the Respondents, shall not place or maintain the Walbridge Piers lakeward of the shoreline of the subject property, without first obtaining a written license from the Department pursuant to 312 IAC 11-3-3.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Lake James is located in Steuben County Indiana and is a "public freshwater lake," as defined at IC 14-26-2-3, subject to IC 14-26-2 et seq., commonly referred to as the "Lakes Preservation Act."

2. Administrative rules, found at 312 IAC 11 et seq., were adopted by the Natural Resources Commission (hereinafter "Commission") to assist in the administration of the Lakes Preservation Act and are also applicable to this proceeding.

3. The Lakes Preservation Act is administered by the Indiana Department of Natural Resources (hereinafter "Department") and pursuant to IC 14-10-2-3 and IC 4-21.5-1-15, the Commission is the "ultimate authority" for the Department.

4. Contained within the Lakes Preservation Act is a directive requiring the Commission to adopt

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administrative rules to assist in its application. IC 14-26-2-23. Included therein is the requirement that the Commission provide for objective licensing standards for the placement of temporary structures that "exempt any class of activity from licensing if the commission finds that the class is unlikely to pose more than a minimal potential for harm..." IC 14-26-2-23(2)(A) & (B).

5. The Commission adopted administrative rules authorizing the placement of qualifying temporary structures under a general license, which expressly enumerates eight (8) criteria for use in determining whether a temporary structure qualifies for placement without a written license issued by the Department. 312 IAC 11-3-1(a) & (b).

6. A "temporary structure" includes a structure that can be installed and removed from the waters of a public freshwater lake without using a crane, bulldozer, backhoe, or similar heavy or large machinery..." 312 IAC 11-2-25, and includes a pier supported by auger poles resting on the lake bed that are not mounted in or comprised of concrete and do not exceed three and one-half inches (3-1/2") in diameter. 312 IAC 11-2-25(b)(1).

7. A "marina" is defined as "a structure that: (1) can service simultaneously at least five (5) watercraft; and (2) provides, for a fee, one (1) or more of the following: (A) [w]atercraft engine fuel. (B) [d]ocks. (C) [w]atercraft repair. (D) [w]atercraft sales or rental." 312 IAC 11-2-12.

8. The Commission was additionally directed to establish by administrative rule a mechanism for the mediation and determination of disputes among riparian owners. IC 14-26-2-23(3)(A) & (B). 312 IAC 11-3-2 established a procedure by which individuals may request administrative review pursuant to IC 4-21.5 of disputes relating to the placement of temporary structures.

9. This proceeding is governed procedurally by IC 4-21.5 et seq. (commonly referred to as the "Administrative Orders and Procedures Act" or "AOPA"). The Commission has adopted administrative rules to assist in the administration of AOPA at 312 IAC 3-1 et. seq., which are also applicable to this proceeding.

10. Between February 11, 2004 and March 27, 2004, Thomas E. Hazelett, Mel Hathaway, Kenneth E. Buchan, Michael and Sharon Whalen (hereinafter "the Whalens"), Bill and Pat Mansfield (hereinafter "the Mansfields"), David and Pam Boon (hereinafter "the Boons"), John R. Urbahns and Joseph M. Sweeney, as President of the Lake James Association, Inc. (hereinafter collectively "Claimants"), filed correspondence with the Natural Resources Commission, which correspondence originally initiated eight (8) individual proceedings.[FOOTNOTE 1]

11. A concurrent initial prehearing conference was conducted on April 6, 2004 for each of the administrative causes at which time the parties agreed that judicial efficiency would be served by the consolidation of the individual administrative causes. The proceedings were consolidated under the caption Thomas E. Haxelett, et al. v. Rita Schindler and Department of Natural Resources, Administrative Cause No. 04-026W.

12. It was further agreed during the April 6, 2004 prehearing conference that for efficiency and clarity the parties would prepare statements of contentions that would supersede any complaints, responses or other pleading previously filed.

13. Claimants, Hazelett, Hathaway, Urbahns, the Boons, the Mansfields, and the Whalens (hereinafter collectively "Hazelett et al."), by counsel, filed their "Complaint" on April 29, 2004.

14. Claimant, Lake James Association, Inc., by counsel, filed its "Complaint" on May 5, 2004.

15. Claimant, Kenneth E. Buchan, did not file any additional complaint, pleading or statement of contentions.

16. Claimants, Hazelett et al. and Buchan are owners of real property located on Eli's Point, Lake James, Fremont, Steuben County, Indiana.

17. Claimant, Lake James Association, Inc., is a voluntary corporate association of approximately six hundred (600) owners of real property located on Eli's Point, Lake James, Fremont, Steuben County, Indiana.

18. At issue in this proceeding are two piers constructed and installed lakeward of a lakefront

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parcel of real estate located at 140 Lane 510 FA, commonly referred to as Lot Number 1 in the Plat of Eli's Point on Lake James, in Steuben County, Indiana, (hereinafter "subject property") owned by the Respondent, Schindler.

19. The subject property was transferred during the pendency of this proceeding to Respondent, G. Charles Walbridge.

20. The Claimants allege that the piers (hereinafter "Walbridge Piers") do not qualify for construction and installation under the general licensing authorization of 312 IAC 11-3-1, although it is not disputed that the Walbridge Piers are "temporary structures" as defined at 312 IAC 11-2-25(b)(1).

21. On May 11, 2004, Rita Schindler, by counsel, filed her Motion for Substitution of Respondent, along with an "Answer of Respondent to Complaint of Thomas E. Hazelett, Et Al.," "Answer of Respondent to Complaint of the Lakes James Association, Inc.," and "Affirmative Defenses."

22. During a supplemental prehearing conference conducted on June 4, 2004, G. Charles Walbridge, to whom the subject property was transferred after the initiation of this proceeding, was substituted as the Respondent, without objection.

23. During the June 4, 2004 supplemental prehearing conference it was the consensus of the parties that mediation as required by 312 IAC 11-3-3(c) was unlikely to meet with success. The parties filed their "Agreement Regarding Mediation" on June 17, 2004 waiving the mandatory participation in mediation prior to the commencement of formal discovery or the setting of a hearing in this proceeding.

24. On June 30, 2004, Claimants, Hazelett et al., followed by Claimant, Lake James Association, Inc., on July 1, 2004, filed their respective Motions to File Amended Complaints seeking to add the Coves of Lake James, LLC (hereinafter "the Coves"), Southwest Development Group, Ltd. (hereinafter "Southwest"), and Gregg Walbridge, an officer, member, director, and/or owner of Southwest and/or the Coves, as Respondents to this proceeding. The Claimants' Motions were granted, without objection on August 23, 2004.

25. On August 31, 2004, Respondents, G. Charles Walbridge, the Coves, Southwest and Gregg Walbridge, (hereinafter collectively "Respondents") by counsel, filed their "Answer to Amended Complaint of Lakes James Association, Inc." and "Answer to Amended Complaint of Thomas E. Hazelett, et al."

26. The Commission has jurisdiction over the subject matter and over the persons of the parties.

27. Claimants, Hazelett et al., filed "Claimants' Motion for Summary Judgment and Designation of Supporting Evidence" and "Claimants' Brief in Support of Motion for Summary Judgment" (hereinafter collectively "Hazelett Summary Judgment") on December 16, 2004.

28. Claimant, Lake James Association, Inc., filed "Lake James Association, Inc. Brief in Support of Motion for Summary Judgment" and "Lake James Association, Inc. Motion for Summary Judgment and Designation of Supporting Evidence" (hereinafter collectively "LJA Summary Judgment") on December 17, 2004.

29. The Motions for Summary Judgment filed by the Claimants present two bases in support of their position that the Walbridge Piers are not qualified for placement under the general license authorization of 312 IAC 11-3-1.

30. Specifically, the Claimants allege that the Walbridge Piers do not meet the qualifying criteria set forth at 312 IAC 11-3-1(b)(4) because of their unusual length and width relative to similar structures within the same vicinity on Lake James.

31. The Claimants secondly maintain that the Respondents are "providing docks for a fee within the meaning of 312 IAC 11-2-12" and as such the Walbridge Piers constitute a marina, which also eliminates them from qualification for placement under a general license. 312 IAC 11-3-1(b)(7).

32. On January 24, 2005, Respondents filed their "Memorandum in Opposition to Claimants' Motion for Summary Judgment" and "Designation of Issues and Materials Relied On" (hereinafter Summary Judgment Response")

33. On February 10, 2005, Claimants, Hazelett et al., by counsel, filed "Claimants' Reply Brief in Support of Their Motion for Summary Judgment."

34. Claimant, Lake James Association, Inc., by

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counsel, filed "Reply of Lake James Association, Inc. as to the Memorandum in Opposition to Claimant's Motion for Summary Judgment," on February 10, 2005.

35. Because this proceeding involves the review of an issue over which the Department is the regulatory authority, and is common to the claim of Claimant, Buchan, to consider a final disposition that would not fully adjudicate the proceeding would render the disposition worthless. Therefore, despite the fact that Respondent, Department, and Claimant, Buchan, have made no submissions regarding summary judgment, the Department will nonetheless be a benefactor of Respondent, Walbridge et al.'s, Memorandum and Buchan will similarly, be a benefactor of Claimant, Hazelett, et al.'s and Claimant, Lake James Association, Inc.'s, Motions and Replies.

DO THE WALBRIDGE PIERS CONSTITUTE A MARINA?

36. It is not disputed that the Walbridge Piers are capable of providing dock space for thirty-eight (38) watercraft simultaneously. Hazelett Summary Judgment, Exhibits 1, 2, 3A, 3B & 8; LJA Summary Judgment, Exhibits A, B, C, F & G; Summary Judgment Response, Department of Natural Resources Letter Dated March 25, 2003, Deposition of G. Charles Walbridge.

37. It is further undisputed that in developing the Coves, Southwest, which is owned by Gregory C. Walbridge, and G. Charles Walbridge as the owner of the subject property, intended to utilize the subject property for providing condominium owners of the Coves and potentially other third parties with dock space and access to Lake James. Hazelett Summary Judgment, Exhibits 1, 2, 3A, 8 & 9; LJA Summary Judgment, Exhibits A, B, F & G; Summary Judgment Response, Deposition of G. Charles Walbridge, Deposition of Gregory Walbridge.

38. Additional factual material not in dispute is that G. Charles Walbridge intended to receive, through some mechanism, compensation for providing third parties, either owners of the Coves condominiums or otherwise, dock space and access to Lake James through the subject property owned by him. Hazelett Summary Judgment, Exhibit 1; LJA Summary Judgment, Exhibit A; and Summary Judgment Response, Deposition of G. Charles Walbridge.

39. The Claimants contend that the Respondents', or any one of the Respondent's, receipt of compensation in return for providing dock space to third parties at the Walbridge Piers constitutes the receipt of a fee for providing such dock space and as such the Walbridge Piers constitute a marina as defined at 312 IAC 11-2-12.

40. Respondents, to the contrary, maintain that compensation received through the conveyance of an interest in real property is not a fee within the meaning of 312 IAC 11-2-12(2), but is instead "proceeds" of a real estate transaction. As such the receipt by Respondents, or any one of the Respondents, of proceeds of a real estate transaction, by which a third party would be granted use of dock space at the Walbridge Piers, does not, of necessity, constitute the creation of a marina within the meaning of 312 IAC 11-2-12.

41. Because 312 IAC 11-3-1(b)(7) disqualifies a marina from being placed or maintained pursuant to the general license authorization of 312 IAC 11-3-1(a), the determination as to whether the Walbridge Piers constitute a marina is important with respect to the qualification of the Walbridge Piers for placement under a general license.

42. Evidence presented by the Claimants and the Respondents, present totally divergent theories by which the Respondents, or any one of the Respondents, intend to obtain compensation for providing dock space at the Walbridge Piers.

43. The Claimants contend that Respondent, G. Charles Walbridge, intends to sell the docks to the public and that thereafter those members of the public to whom the docks are sold would be responsible for the additional payment of periodic maintenance fees. This contention on the part of

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the Claimants is supported by the undisputed deposition testimony of G. Charles Walbridge, which reads:

Q. Are the piers for sale then?
A. Yes.
Q. And who are they for sale to?
A. Anybody at this time.
...
Q. I assume when you say sale of the piers, you're talking about a sale of a boat slip, or am I wrong on that?
A. Yeah, yeah. My concept would be a boat slip, yes.
Hazelett Summary Judgment, Exhibit 1, page 25, lines 1 - 4 & 10 - 12; LJA Summary Judgment, Exhibit A, page 25, lines 1 - 4 & 10 -12; Response to Summary Judgment, Deposition of G. Charles Walbridge, page 25, lines 1 - 4 & 10 -12, and;

Q. You also said that they would share in the maintenance. Would there be an extra fee for that, or would that be part of the total purchase price, or what do you mean by that?
A. There would be a purchase price and then there would be a maintenance fee to maintain their property.
Q. Like a yearly or monthly fee?
A. Haven't got that far yet.
Q. But it'd be an annual fee. I mean....
A. Yes. There's, there's gonna be maintenance and costs to operating the piers, obviously, on a yearly basis.
Summary Judgment Response, Deposition of G. Charles Walbridge, page 26, lines 23 - 25 & page 27, lines 1 - 8.

44. Respondents, however contend that there would in actuality be no sale or lease of dock space at the Walbridge Piers and that Respondent, G. Charles Walbridge, intends instead to convey interests in real estate related to the subject property after which he will maintain no interest in the subject property such as to enable the collection of periodic maintenance fees. Similar to the Claimants' contention, this theory is also supported by deposition testimony of G. Charles Walbridge, which reads:

Q. I think we started down this road when you said you were going to grant or had granted an easement. Is that - again, the easement is something that's not in writing at this point.
A. That's right.
Q. So that's something that's a concept, correct?
A. Yes.
Summary Judgment Response, Deposition of G. Charles Walbridge, page 26, lines 8 - 14.

45. Respondents' contention that the plan to provide dock space and access to Lake James through the conveyance of an interest in the subject property is further supported by the handwritten note found on the "Summary of Consulting Activities for Lake James Project prepared by Larry Macklin," which states "create an easement for riparian rights." Hazelett Summary Judgment, Exhibit 7 and LJA Summary Judgment, Exhibit E.

46. While the opposed theories of both the Claimants and the Respondents are supported by the evidence presented, the actual mechanism by which the Respondents, or any one of the Respondents,

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intends to provide dock space to third persons and/or provide continuing maintenance for the subject property thereafter, is unclear. A complete reading of the designated portions of the deposition testimony of G. Charles Walbridge, reveals that any plans to sell dock space or interests in real estate relating to the subject property are "in the concept stage right now." Furthermore, the record is void of any evidence designated by any party indicating that there has been any sale of any dock at the Walbridge Piers or any conveyance of any interest in the subject property to any third party by any of the Respondents. Hazelett Summary Judgment, Exhibit 1; LJA Summary Judgment, Exhibit A; and Summary Judgment Response, Deposition of G. Charles Walbridge.

47. A genuine issue of material fact exists when facts necessary for the disposition of a proceeding are either (1) in dispute or (2) not in dispute but capable of supporting differing inferences on the same issue. Indiana Department of Environmental Management v. Schnippel Construction, Inc., 778 N.E.2d 407 (Ind. App. 2002).

48. The evidence as it has been presented is not particularly in dispute. However, due to the uncertain nature of the Respondents' plans and the lack of Respondents' action in furtherance of the theory promoted by either the Claimants or the Respondents, the evidence submitted is not sufficiently developed so as to conclude that no genuine issue of material fact exists.

ARE THE WALBRIDGE PIERS UNUSUALLY LONG OR WIDE RELATIVE TO SIMILAR STRUCTURES WITHIN THE VICINITY OF ELI'S POINT ON LAKE JAMES?

49. Respondents contend that a determination as to the "unusual" length or width of a pier in relation to other similar structures in the vicinity must be made taking into consideration the respective real property lakefront width.[FOOTNOTE 2]

50. Respondents further contend that 312 IAC 11-3-1(b)(5) authorizes temporary piers to extend to one hundred fifty (150) feet where the water depth is less than six (6) feet, and that this provision's specific authorization controls over the generalized language of 312 IAC 11-3-1(b)(4).

51. Rules of statutory construction prohibit the construction or interpretation of clear and unambiguous statutes. Indiana Alcoholic Beverage Commission v. Osco Drug, Inc., 431 N.E.2d 823 (Ind.App.1982) In construing administrative rules, the same rules of statutory construction are applicable, State v. Molnar, 803 N.E.2d 261 (Ind. App. 2004), and require that multiple statutes "be construed together so as to produce a harmonious system." IABC, supra; Robinson v. Wroblewski, 704 N.E.2d 467, 474 (Ind. 1998). Every word of a statute is to be given effect and no part may be held meaningless. Union Township School Corporation v. State ex rel. Joyce, 706 N.E.2d 183 (Ind. App. 1998).

52. 312 IAC 11-3-1(b), which controls the qualification for the placement of temporary structures, including temporary piers, is unambiguous. It states, in pertinent part;

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

...
(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.
(5) Not extend more than one hundred fifty (150) feet from the legally established or average normal waterline or shoreline.
(6) If a pier, not extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the legally established or average normal waterline or shoreline.
Emphasis added by the Commission.

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53. The eight (8) criteria, set forth in 312 IAC 11-3-1(b), for determining the qualification of a temporary structure to be placed without need for a Department issued written license, are not individual authorizations as Respondents infer. Instead, they constitute a combination of conditions, each of which must be satisfied before a temporary structure may be placed under the general licensing authorization of 312 IAC 11-3-1(a).

54. Therefore, it is of no significance to the consideration of 312 IAC 11-3-1(b)(4) that the Walbridge Piers are undisputedly in compliance with 312 IAC 11-3-1(b)(6).

55. What must yet be determined is whether the Walbridge Piers are unusually long or wide when compared to similar structures located on Lake James and more particularly within the vicinity of Eli's Point. 312 IAC 11-3-1(b)(4).

56. "Vicinity" is an undefined term used within the administrative rules. "Vicinity" is defined as:

1. The state of being near in space or relationship; proximity: two restaurants in close vicinity.
2. A nearby, surrounding, or adjoining region; a neighborhood.
3. An approximate degree or amount: houses priced in the vicinity of $200,000.
Dictionary.com, Source: The American Heritage Dictionary of the English Language, Fourth Edition, and as "A surrounding or nearby region..." Dictionary.com Source: WordNet 2.0, 2003 Princeton University.

57. The plain language of 312 IAC 11-3-1(b)(4) reveals that the proper comparison of length and width of piers shall be made with respect to not only piers on the same lake, but more specifically piers within a particular vicinity on the same lake. In this instance that vicinity is properly identified as Eli's Point and those areas immediately surrounding or adjoining Eli's Point.

58. "Unusual" is likewise not defined within the administrative rules. Unusual is defined as, "not usual, common, or ordinary," Dictionary.com, Source: The American Heritage Dictionary of the English Language, Fourth Edition, and also means "1: not usual or common or ordinary...2: being definitely out of the ordinary and unexpected; slightly odd or even a bit weird...3: not commonly encountered." Dictionary.com, Source WordNet 2.0, 2003 Princeton University.

59. Evidence presented by Claimant, Hazelett et al., and Claimant, Lake James Association, Inc., as to the length of the piers includes a Department of Natural Resources, Division of Law Enforcement, Memorandum dated June 16, 2004 and written by F. /Sgt. William G. Snyder. Hazelett Summary Judgment, Exhibit 7; LJA Summary Judgment, Exhibit E.

60. F. /Sgt. Snyder's memorandum relates that on June 1, 2004, Officer Don Warner and F. /Sgt. Snyder inspected and measured the Walbridge Piers. The memorandum memorialized that "the pier furthest to the east measured 110 feet, with four (4) T-sections, including the end section...The second pier, running from in front of the cottage, was 150 feet with six (6) T-sections, including the end section." Id.

61. Evidence presented by Respondents as to the length of the Walbridge Piers includes a revised pier alignment diagram attached to a letter dated March 25, 2003, written by James J. Hebenstreit, P.E. Assistant Director, Department's Division of Water, addressed to Mr. Larry D. Macklin. The revised pier alignment diagram clearly indicates that one of the Walbridge piers approximates one hundred fifty (150) feet in length. Summary Judgment Response, "Department of Natural Resources Letter Dated March 25, 2003.

62. Respondents also provided an affidavit of Respondent, Gregg Walbridge, which states that the one of the piers measures one hundred forty-six (146) feet in length, and the second measures ninety-eight (98) feet in length. Summary Judgment Response, Affidavit of Gregory C. Walbridge. This affidavit confirms that with a twenty (20) foot watercraft moored in place, each pier would measure forty-four (44) feet in

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width.

63. It is therefore undisputed that one of the Walbridge Piers is between one hundred forty-six (146) feet and one hundred fifty (150) feet in length and the second measures between ninety-eight (98) feet and one hundred ten (110) feet in length. Both of the Walbridge Piers measuring forty-four (44) feet in width when a twenty foot boat is moored on each side.

64. Claimants, Hazelett et al., submitted three (3) aerial photographs taken on June 1, 2004 of "the area of Lake James in Steuben County, Indiana, known as Eli's Point." Hazelett Summary Judgment, Exhibit 4, Affidavit of Jeff Bell, consisting of Exhibits "A," "B," and "C."

65. Claimants, Hazelett et al.'s Exhibit 4 depicts the Walbridge Piers along with a vast array of additional piers located lakeward of the shoreline on and near Eli's point as well as piers located lakeward of the shoreline on the opposing side of Lake James from Eli's Point. While the Walbridge Piers utilize perpendicular mooring of watercraft, nearly all remaining piers depicted involve a parallel mooring, which significantly reduces the width of those piers in comparison to the Walbridge Piers. With the exception of the Walbridge Piers, only one pier is constructed with the use of full T-sections and perpendicular mooring, making it nearly the same width as the Walbridge Piers, but that pier accounts for only approximately one-half (1/2) the length of the shorter Walbridge Pier. Two other piers depicted are of a length comparable to the length of the shorter Walbridge Pier, however, one of those piers utilizes parallel moorings and the other utilizes angled moorings on only one side creating a significantly decreased width. The overwhelming majority of the piers depicted involve significantly less length than the shorter Walbridge Pier and only approximately one-third (1/3) the width of both Walbridge Piers.

66. Respondents submitted sixty (60) evidentiary aerial photographs of the whole of Lake James, some of which depict the Eli's Point area specifically, in electronic format with individual photograph designations beginning with DSC 01259 and ending with DSC 01319. Summary Judgment Response, "Aerial Photos of Lake James."

67. Upon review of the electronic photo files it was discovered that photographs designated at DSC 01259 through DSC 01264, DSC 01271 and DSC 01297 through DSC 01319 are irrelevant to this proceeding, as they do not depict Lake James or any portion thereof. Summary Judgment Response, "Aerial Photos of Lake James."

68. The vast majority of Respondents' aerial photographs, depicting pier lengths and widths for the whole of Lake James, do not reveal piers of a length or width similar to the Walbridge Piers. In fact, Respondents' aerial photographs depict piers of lengths and widths on the whole of Lake James that are generally consistent with those piers depicted in Claimant's Exhibit #4. Hazelett Summary Judgment, Exhibit 4, Affidavit of Jeff Bell, consisting of Exhibits "A," "B," and "C;" Summary Judgment Response, "Aerial Photos of Lake James," Photo Files DSC 01266, DSC 01268 - DSC 01270, DSC 01272, DSC 01273, DSC 01276 - DSC 01281, DSC 01284 - DSC 01289, DSC 01292 - DSC 01296.

69. Respondents' aerial photographs of the area known as Eli's Point depict piers consistent with the piers depicted in Claimants' Exhibit 4. Hazelett Summary Judgment, Exhibit 4, Affidavit of Jeff Bell, consisting of Exhibits "A," "B," and "C;" Summary Judgment Response, "Aerial Photos of Lake James," Photo Files DSC 01277, DSC 01278, DSC 01284 -DSC 01288, DSC 01292 - DSC 01296.

70. In fact, Respondents' aerial photographs depict only six (6) instances of piers, or groups of piers, of a length and width similar to or exceeding the Walbridge Piers on the whole of Lake James, including:

- DSC 01265 in the upper middle quadrant of the photo depicts three piers each of which is greater in length with one being as wide while the remaining two are approximately one-half the width.

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- DSC 01267, in the upper middle quadrant of the photo depicts one pier of a similar width that consists of slightly less length than the shorter Walbridge Pier.

- The upper portion of DSC 01274 and DSC 01291 depicts a group of four (4) piers similar in length and width. The bottom portion depicts a single pier consisting of less length but that is significantly wider because of the placement of T-sections parallel to the shoreline.[FOOTNOTE 3]

- DSC 01282 depicts a group of five (5) piers significantly longer than the Walbridge Piers and of approximately the same width.

- DSC 01283 depicts, in the upper middle quadrant, two piers consistent in length and width to the Walbridge Piers.

However, these instances do not occur in the area known as Eli's Point. Summary Judgment Response, "Aerial Photos of Lake James," Photo Files DSC 01265, DSC 01267, DSC 01274 [FOOTNOTE 4], DSC 01275, DSC 01282, DSC 01283, and DSC 01291.

71. Respondents point out that there exists an obvious difference of opinion within the Department regarding the Walbridge Piers' qualification for placement under 312 IAC 11-3-1(b).

72. F. /Sgt. William Snyder, of the Department's Division of Law Enforcement, in his June 16, 2004 memorandum concludes that the Walbridge Piers "as they are presently placed, do constitute an unusually wide or long pier, relative to similar structures presently within the vicinity of Eli's Point on Lake James, and do not qualify for general licensing." Hazelett Summary Judgment, Exhibit 7; LJA Summary Judgment, Exhibit E.

73. Contrary to F. /Sgt. Snyder's memorandum, however, the Department's Division of Water, in a letter written on March 25, 2003 by Assistant Director, James J. Hebenstreit, P.E., concluded that "[b]ased upon your revised submittal and the description of the pier construction contained in your earlier submittal, the proposed piers would now appear to meet the requirements for a general license as contained in 312 IAC 11..." Summary Judgment Response, "Department of Natural Resources Letter Dated March 25, 2003."

74. The two Divisions of the Department having reached opposing determinations as to the qualification of the Walbridge Piers for placement under the general licensing authorization of 312 IAC 11-3-1 does not, of necessity, signify that the undisputed facts are capable of supporting two divergent conclusions relevant to the issue of unusual length or width of the Walbridge Piers.

75. In fact, the conclusions of the Department's Division of Water, as memorialized in the March 25, 2003 letter from James J. Hebenstreit to Larry D. Macklin, expressly states that its determination is based upon Schindler's submittals and the description of the Walbridge Piers. There exists no reference in the Division of Water's March 25, 2003 letter indicating that the issue of unusual length or width in comparison to other piers on Eli's Point was an issue under consideration at that time. To the contrary, F. /Sgt. Snyder's memorandum relates strictly to the consideration of the unusual length and width of the Walbridge Piers and in all other respects is consistent with the Division of Water's March 25, 2003 determination.

76. Respondents' position with respect to the length and width of the Walbridge Piers in comparison to other piers located in the vicinity of Eli's Point on Lake James is not one based upon disputed facts or undisputed facts capable of supporting two outcomes. Respondents' position is one of law based upon their interpretation of 312 IAC 11-3-1(b)(4) and that section's relation to 312 IAC 11-3-1(b)(6).

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77. In fact, Respondent, G. Charles Walbridge's, deposition testimony, which reads:

Q. And there is two (2) piers on your lot, Lot 1, (referred to herein as "the subject property") currently, correct? A. Yes.
Q. And would you agree, at least from this picture, it looks like the piers next to Lot 1 do not have room for more than two (2) or three (3) boats?
A. That would be my assessment, yes.
Q. And would you agree that the piers on Lot 1 (referred to as the Walbridge Piers herein) would be larger, stick out farther into the lake, and hold more boats that the piers depicted in this picture?
A. Yes.
Hazelett et al. Summary Judgment, Exhibit 1, page 122, actually supports the Claimants' position.

78. The photographic evidence provided by both the Claimants and the Respondents presents no dispute that within the vicinity of Eli's Point, including areas on the opposite side of Lake James from Eli's Point, there exists not one pier of a length or width consistent with either of the Walbridge Piers. 79. Consequently, the Walbridge Piers are of a length and width not common to the vicinity of Eli's Point on Lake James.

FOOTNOTES

1 The eight individual proceedings included: Hazelett v. Schindler and DNR, Administrative Cause No. 04-026W; Hathaway v. Schindler and DNR, Administrative Cause No. 04-039W; Buchan v. Schindler and DNR, Administrative Cause No. 04-040W; Whalen v. Schindler and DNR, Administrative Cause No. 04-047W; Mansfield v. Schindler and DNR, Administrative Cause No. 05-054W; Boon v. Schindler and DNR, Administrative Cause No. 04-053W; Urbahns v. Schindler and DNR, Administrative Cause No. 04-056W; and Lake James Association, Inc. v. Schindler and DNR, Administrative Cause No. 04-077W.

2 In support of this position, Respondents cite 312 IAC 11-2-12(4), which is a non-existent administrative rule citation. Diligent search has failed to identify any portion of 312 IAC 11 that states that the length or width of a temporary pier is to be considered in relation to the width of the real property's lake frontage.

3 The individual wide pier depicted in the bottom portion of DSC 01274 and DSC 01291 is also depicted in DSC 01275.

4 Photo File DSC 01274 shows the same area of Lake James as Photo File DSC 01291

______________________________

DECISION OF THE ALLEN SUPRIOR COURT

Petitioners appear by Attorney Stephen R. Snyder. The Respondents, Thomas E. Hazelett, Mel Hathaway, David L. Boon, Pamela C. Boon, Bill Mansfield, Pat Mansfield, Michael Whalen, Sharon Whalen and John Urbahns appear by Attorneys Patrick Murphy and Anne Simerman. Respondent, Lake James Association, Inc., appears by Attorneys Walter Helmke and R. David Boyer, II. Respondent, Department of Natural Resources of the State of Indiana, appears by Attorney Tim Junk. Prior to the commencement of evidence on Petitioner’s Verified Petition for Judicial Review, a hearing is conducted on Respondents’ Motion to Dismiss for Lack of Jurisdiction Over the Case.

Respondents move for a dismissal of the Petition for Review of Administrative Decision pursuant to Indiana Trial Rule 12(b)(6) alleging that the Court does not have jurisdiction over this case because the Petitioners have failed to meet the jurisdictional requirements of the Administrative Orders and Procedures Act. (AOPA), I.C. 4-21.5-5. The question put forth to the Court is, did the Petitioners comply with the procedural requirements as set forth at I.C. Section 4-21.5-5-7. Failure to satisfy the statutorily provided procedures prevents the trial court from assuming jurisdiction.

Here, Respondents allege specifically that Petitioners have failed to meet I.C. 4-21.5-5-7(b)(1), requiring the name and mailing address of the petitioner. As a result, Respondents argue that their Motion to Dismiss should be granted because of this jurisdictional defect. Petitioners respond that Indiana Trial Rule 3.1(A) satisfies the requirement of IC 4-21.5-5-7(b)(1). Specifically, Petitioners state that at the time their action was commenced, the name, address and telephone number of Petitioners’ attorney was included on the appearance form. As such, Petitioners argue that their attorney’s mailing address constituted the mailing address pursuant to IC 4-21.5-5-7(b)(1).

Commissioner, Indiana Department of Environmental Management v. Bethlehem Steel Corporation, 703 N.E.2d 680 (Ind. Ct. App. 1998) is a case on point. In that action, the Indiana Department of Environmental Management (IDEM) failed to include the Petitioners’ mailing address in the petition for review. The Court first outlined the requirements of a party filing a petition for judicial review. The jurisdiction of the Trial Court may not be invoked until the plaintiffs have complied with the statutorily provided procedures. Id at 682. There, IDEM failed to include the petitioner’s mailing address. The Court sated [sic. stated] that the petition must comply with Indiana Code 4-21.5-5-7.

I.C. 4-21.5-5-7(b) sets forth the following requirements:

A petition for review must be verified and set forth the following:
(1) The name and mailing address of the petitioner.
(2) The name and mailing address of the agency whose action is at issue.
(3) Identification of the agency action at issue, together with a copy, summary, or brief description of the agency action.
(4) Identification of persons who were parties in any proceedings that led to the agency action.
(5) Specific facts to demonstrate that the petitioner is entitled to obtain judicial review under section 2 of this chapter.
(6) Specific facts to demonstrate that the petitioner has been prejudiced by one (1) or more of the grounds described in section 14 of this chapter.
(7) A request for relief, specifying the type and extent of relief requested.

Although Petitioners argue Trial Rule Court 3.1 complies with the statutory requirements, the two do not address the same issues. Trial Rule 3.1 requires that the initiating party must file with the Clerk an Appearance Form, which contains certain information. Separately, I.C. 4-21.5-5-7(b) sets forth the requirements of what must be contained in a petition for review. These are not the same things.

I.C. 4-21.5-5-7(b) specifically states that a petition for review “must” include certain enumerated items. One of those items is the name and the “mailing address of the petitioner”. The statute does not permit the substitution of the mailing address of the attorney for the petitioner’s mailing address.

It is undisputed that the mailing address of the Petitioners was not included in the petition for review. As a result, Petitioners have failed to comply with the jurisdictional prerequisites. Their Petition must be dismissed with prejudice.

Respondents’ Motion to Dismiss the Petition for Review of Administrative Decision pursuant to Indiana Trial Rule 12,(b)(6) is GRANTED. The Petition is dismissed. Costs are assessed to the Petitioners.

June 7, 2005
Nancy Eshcoff Boyer, Judge
Allen Superior Court