[CITE: Ray v.
[VOLUME 10, PAGE 400]
Cause #: 05-101W
Caption: Ray v.
Administrative Law Judge: Jensen
Attorneys: Martin;
Date: December 16, 2006
FINAL ORDER
130. Riparian zones of the respective parties are determinable by extending their onshore property lines lakeward. Lukis’, Ray’s and the Blackburns’ riparian zones are conclusively depicted in Exhibit II, page 1, which is attached and incorporated as Appendix A. The exact boundaries of the riparian zones controlled by the Wehrenbergs and Scheele will likely require a survey.
131. Absent a written agreement between impacted parties, each of the parties are obligated to maintain any temporary structure, as well as all appendages to the temporary structure (including watercraft), within their own individual riparian zone.
132. Consistent with the mandate of 312 IAC 11-3-1(b)(2 & 3) no party may place or maintain any temporary structure or any appendage to a temporary structure (including watercraft) within Lake James in a manner that infringes upon another riparian owner’s or the public’s access to Lake James or that serves as an impediment to navigation.
133. Notwithstanding findings 130 through 132, any party whose riparian zone overlaps the riparian zone of any other party shall be prohibited from placing or maintaining any temporary structure or appendage to a temporary structure (including watercraft) within that overlapping riparian area.
134. Notwithstanding findings 130 through 133, to improve navigational safety as well as provide for unimpeded ingress and egress for the benefit of adjacent riparian owners and the public as specified at 312 IAC 11-3-1(b)(2 & 3), Lukis shall remove the boatlift depicted in Exhibit II, page 2, which is attached and incorporated as Appendix B, from the east side of his temporary pier and is further restricted in his use of his riparian zone to the extent that any temporary structure or appendage to any temporary structure (including watercraft) shall not be placed or maintained closer to Lukis’ eastern property line extended than what is depicted in Exhibit II, page 1, see Appendix A.
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
[VOLUME 10, PAGE
401]
BACKGROUND:
1. On May 31, 2005 Dean Ray (Ray)
commenced this proceeding with the filing of correspondence seeking “resolution
of a pier dispute at
2. Ray’s correspondence initiated a proceeding governed by IC
14-26-2-23(e)(3).
3. The Natural Resources Commission (Commission), pursuant to IC 14-26-2-23(e)(3) adopted rules exempting
from licensing requirements those activities that pose a minimal threat of harm
to public freshwater lakes and establishing a process for the mediation and
determination of disputes among persons with competing interests. IC
14-26-2-23-(e)(2)(B) and (3).
4. The Commission’s administrative rule authorizes the placement of
qualifying temporary structures within public freshwater lakes under a general
license. 312 IAC 11-3-1.
5. With respect to disputes amongst persons with competing
interests involving temporary structures placed under the general license
authority of 312 IAC 11-3-1, a person may seek administrative review pursuant
to IC 4-21.5 and 312 IAC 3-1. 312 IAC 11-3-2.
6.
7. The Administrative Orders and Procedures Act, commonly referred
to as “AOPA” found at IC 4-21.5 governs procedurally. The Commission also adopted administrative
rules, found at 312 IAC 3-1, to aid in the implementation of AOPA in
proceedings before it.
8. Pursuant to IC 14-10-2-3 and 312 IAC 3-1-2, the Commission is
the “ultimate authority” for disputes under IC 14-26-2.
9. A prehearing conference was conducted on June 30, 2005 at which
time, Claimant, Ray and Respondents, Michael Lukis (Lukis) and Thomas Blackburn and John Blackburn (collectively “the Blackburns”) appeared. At that time, Lukis was also represented by
Larry D. Macklin of Governmental Relations Consulting.
10. Following the prehearing conference the dispute underlying this
proceeding was committed to mediation as anticipated by 312 IAC 11-3-2(c).
11. During the pendency of the mediation, on September 26, 2005,
Lukis, who was now represented by Counsel, Stephen R. Snyder, filed his “Motion
to Join Indispensable Parties” identified as James Wehrenberg and Thomas
Scheele (Scheele) and his “Cross-Claim
and Counterclaim” against the Blackburns, Ray, James Wehrenberg and Scheele.
[VOLUME 10, PAGE
402]
12. Lukis’ motions were granted in an Order issued September 29,
2005. The Order joining James Wehrenberg
and Scheele, along with a copy of the complete administrative proceeding
record, was sent by
13. On March 3, 2006, the appointed mediator, Stephen L. Lucas,
notified the administrative law judge that the parties were at impasse.
14. A status conference was scheduled and conducted on March 28,
2006, at which time Ray, who had by this time retained the services of Counsel,
appeared in person and by Counsel, George Martin. The Blackburns appeared in person and Lukis
appeared by counsel, Stephen R. Snyder.
Scheele and James Wehrenberg failed to appear.
15. During the status conference the administrative law judge was
advised by the parties appearing that Scheele and James Wehrenberg had not, at
any time, participated in the mediation.
See Report of Status Conference,
dated April 6, 2006.
16. During the status conference an administrative hearing was
scheduled for June 8, 2006 and thereafter notice was issued to Scheele and James
Wehrenberg by
17. Service was obtained by certified mail upon Scheele April 14,
2006. Certified Card 7002 2030 0006 6585
1230
18. Confirmation of receipt of the April 6, 2006 Report of Status
Conference was returned signed by Kelsey Wehrenberg on April 10, 2006. However, the certified mail was returned by
U.S. Priority mail postmarked April 12, 2006 with the notation “James
Wehrenberg does not live at this address and this letter is being returned
unopened.”
19. Eventually service to James Wehrenberg, by U.S. Certified mail,
of a “Temporary Order Pursuant to 312
IAC 11-3-2(d),” which had been sought by Ray and opposed by Lukis, and the
April 6, 2006 “Report of Status Conference,” was accomplished on May 25, 2006. Certified
Cards 7002 2030 0006 6585 1346 and 7002 2030 0006 6585 1353.
[VOLUME 10, PAGE
403]
20. Thereafter, on May 30, 2006, Kim Wehrenberg filed correspondence
with the Commission indicating that he had been retained as Counsel by James
Wehrenberg with respect to the instant proceeding.[1]
21. An impromptu telephone status conference was arranged and
conducted on June 1, 2006 at which Thomas Blackburn, George Martin (on behalf
of Ray), Stephen R. Snyder (on behalf of Lukis) and Kim Wehrenberg (on behalf
of James Wehrenberg) participated.[2]
22. It was determined that the real property associated with James
Wehrenberg (Wehrenberg Property) is
actually co-owned by James Wehrenberg, Kim Wehrenberg and three (3) additional
owners. Kim Wehrenberg was unwilling
without first consulting with the remaining three (3) owners to disclose their
identities or mailing addresses.
23. It was further determined that unless service of process was
accomplished with respect to the three (3) remaining unidentified co-owners of the
Wehrenberg Property, the administrative hearing would not occur on June 8,
2006.
24. On June 5, 2006, Kim Wehrenberg, filed correspondence indicating
that he had been retained as Counsel on behalf of the owners of the Wehrenberg
Property namely James Wehrenberg, Holly (Wehrenberg) Oliver, Gretchen
(Wehrenberg) Stewart and Peter Wehrenberg.
Kim Wehrenberg further indicated his intention to represent himself pro
se.[3]
25. On June 6, 2006, Kim Wehrenberg, Holly (Wehrenberg) Oliver,
Gretchen (Wehrenberg) Stewart and Peter Wehrenberg, were joined as additional
indispensable parties.
26. All parties appeared, by Counsel, in person or both, and the
administrative hearing was conducted as scheduled on June 8, 2006 at the
Department of Natural Resources, Division of Law Enforcement, District 2
Headquarters located in
[VOLUME 10, PAGE
404]
27. The Commission has jurisdiction over the persons of the parties
and of the subject matter of this proceeding.
28. Following the conclusion of the administrative hearing the
parties sought and were provided an opportunity to file Post Hearing Briefs
and/or Proposals.
29. Post hearing briefs were filed by Ray, Lukis and the
Wehrenbergs.
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
30. Scheele is the owner of real property partially described as
“Lots Numbered Sixty-one (61) and Sixty-six (66)[4]
in the FIRST ADDITION TO GLENEYRE BEACH…”
Respondent’s Exhibit L-11 and L-6.
31. The Wehrenbergs are the owners of real estate partially
described as “part of Lot No. 62 in the First Addition to
32. Ray, along with his wife Marilyn, is the owner of real property
partially described as “a part of Lot #62 in the First Addition to
33. The Blackburns are the co-owners of real property partially
described as “Lots 63 and the east part of 64, Gleneyre Beach Addition to
34. Lukis is the owner of real property which “includes the west
part of Lot Numbered 64 and the eastern portion of Lot Numbered 65 in said Plat
of the First Addition to
35. The First Addition to
36. Within the “Plat of First Addition to
37. Gleneyre Association, Incorporated was established with its
express objectives pertaining to the “management, use, and ownership of lots,
property, homes, and cottages in First Addition to Gleneyre Beach, Lake James,
Indiana...” Exhibit I.
[VOLUME 10, PAGE
405]
38. “Rules, Regulations, Restrictions & Covenants” are included
within the Constitution and Bylaws of Gleneyre Association Incorporated.
The provisions referenced herein are for
the mutual benefit and protection of all owners, present or future, or any and
all real property in said addition; and they shall inure to the benefit of and
be enforceable by the owner, or owners, of any land or lots included in said
addition, their respective legal representatives, heirs, successors, grantees
and assignees.
The Association shall have the right to
enforce all restrictions, conditions, covenants, reservations, policies, liens
and charges now or hereinafter imposed by the provision of these covenants and
restrictions. Failure by the Association
or by any lot owner to enforce any covenant or restriction herein contained
shall in no event be deemed a waiver of the right to do so thereafter.
…
The rules and regulations will be made up
of the following and will be contained in separate documents approved from time
to time by the Association:
1. Restatement of the General Plat and Warranty Deed Restrictions
2. Committee Rules
3. Committee Policies
…
Exhibit I.
39. The Grounds Committee of the Gleneyre Association established
rules and regulations including a determination that “each lakefront lot owner
shall have full riparian rights to the lakefront bounded by the respective
property lines extended past the shoreline.”
Exhibit I.
40. The parcels of real property involved in this proceeding are all
located on the lakefront of
41. The parties’ properties exist within a cove the center of which
is essentially located at Lots 62 and 63 of the First Addition of Gleneyre
Beach, owned by the Wehrenbergs, Ray and the Blackburns. Claimant’s
Exhibit B.
[VOLUME 10, PAGE
406]
42. Lukis’ property fronts Lake James in a general southeastern
direction while the Blackburns’ frontage faces almost directly south followed
by Ray’s, the Wehrenbergs’ and Scheele’s properties, each of which front on
Lake James in a south to slightly southwestern direction. Exhibit
II[5],
Claimant’s Exhibit K
43. Lukis’ property, part of Lot 64 and Lot 65 is situated at the
western end of all the Lots contained within the First Addition to
44. Lukis’ east property line (Blackburns’ west property line)
establishes a striking point of demarcation between a shoreline essentially
unpopulated with temporary structures to the west and a portion of lakeshore heavily
populated with temporary structures, to the east. Respondent’s
Exhibit L-1 and Claimant’s Exhibit B (top diagram), Respondent’s Exhibit B-4.
45. Lukis’ lake frontage equals 85.19 feet, whereas the Blackburns’ lake frontage measures 29.93 feet and Rays totals 24.02 feet. Exhibit II.
46. The Wehrenbergs’ real property was not included within the
survey completed for purposes of this proceeding, therefore the exact lake
frontage possessed by the Wehrenbergs is not known. However, the Wehrenberg lake frontage can be
reasonably approximated by subtracting the known lake frontage of the Ray
property, or 24.02 feet, from the total lake frontage for
47. The length of Scheele’s lake frontage is similarly unknown and
was not subject to any survey. However,
the maps maintained by the Steuben County Auditor’s Office indicates that
48. The parties stipulated to the admission of a survey prepared jointly by Ray, Lukis and the Blackburns that depicts each of those parties’ riparian zones by extending their respective property lines lakeward. Exhibit II.
49. While
the survey depicting the parties’ respective riparian zones was stipulated into
evidence, Ray, the Blackburns and the Wehrenbergs dispute the reasonableness of
determining riparian zones by the extension of property lines into
50. That the parties are riparian owners says little about the riparian zones under their respective control.
[VOLUME 10, PAGE 407]
51. Riparian owners’ use of public freshwater lakes is restricted by “lateral limitation for the enjoyment of other riparians and to perpendicular limitations for the enjoyment of the public.” Rufenbarger v. Lowe, 9 CADDNAR 150, 152, (2004).
52. While
there is “no set rule in
53. “Where
a shoreline approximates a straight line and where the onshore property
boundaries are perpendicular to the shore, the boundaries are determined by
extending the onshore property boundaries” lakeward.
54. However,
“when the shoreline is irregular, and drawing lines at right angles to the
shoreline would not accomplish a just apportionment, the boundary lines should
divide the available navigable waterfront in proportion to the amount of
shoreline of each owner…” Id, relying on
55. Based upon the evidence presented in the instant proceeding, the shoreline is generally irregular and the parties’ onshore property lines are not perpendicular to the shoreline.
56. Therefore, Lukis’ complete reliance upon the extension of onshore property boundaries lakeward is somewhat misplaced in this particular case. See Brief of Respondent Michael Lukis, page 7.
57. However, the riparian zones determined by extending onshore property lines lakeward appear to accomplish a just apportionment between the respective parties based upon the “amount of shoreline of each owner.” Rufenbarger, supra.
58. The riparian zones of Ray, the Blackburns and Lukis are definitively identified in Exhibit II. These zones clearly establish that Ray possesses the smallest amount of lakeshore at 24.02 feet and in accordance with an apportionment methodology also possesses the smallest riparian zone. The Blackburns’ 29.93 feet of shoreline is only slightly longer than Ray’s and results in a riparian zone only slightly larger than Ray’s. Lukis, who possesses by far the largest expanse of shoreline at 85.19 feet, controls the largest riparian zone of all the parties. Exhibit II, Claimant’s Exhibit G, and Claimant’s Exhibit H.
59. However, Scheele’s and the Wehrenbergs’ riparian zones must, for purposes of this analysis, be approximated based upon Claimant’s Exhibit K.
[VOLUME 10, PAGE 408]
60. By all appearance, the Wehrenbergs, who possess somewhere between 35.98 feet and 41.6 feet of lakeshore (see finding 46) will be granted a riparian zone larger than the Blackburns, Scheele or Ray and smaller than Lukis, while Scheele’s riparian zone based upon twenty feet of lakeshore, see Claimant’s Exhibit K, will be similar in size to Ray’s.
61. In this particular case, the result of establishing the parties’ riparian zones by extending onshore property lines lakeward, equivocates the apportionment of riparian zones consistent with the amount of shoreline owned by each respective owner[7]. See Rufenbarger.
62. It is hereby determined that establishing Ray’s, Lukis’, the Blackburns’, the Wehrenbergs’ and Scheele’s riparian zones by extending their onshore property lines lakeward is appropriate. Bath, Nosek, Rufenbarger, supra.
63. In the situation presented here, extending the property lines lakeward results in Ray and the Blackburns, each possessing a “pie shaped” riparian zone with the lakeward terminus clearly identified by the point at which their respective east and west property lines extended intersect. Exhibit II.
64. For Ray and the Blackburns, the determination of riparian rights by extending property lines lakeward, results in small zones within their riparian control. Exhibit II.
65. Lukis’ property lines extended, at one hundred feet lakeward of the shoreline, do not intersect. Exhibit II.
66. The Wehrenbergs’ property was not the subject of a survey for purposes of the instant proceeding; however, Wehrenbergs’ west property line is shared with Ray’s east property line. Therefore, a review of Exhibit II reveals that the western extreme of Wehrenbergs’ riparian zone intersects with the eastern extreme of Lukis’ riparian zone at a point approximately eighty (80) feet from their respective shorelines. Exhibit II (measuring Ray’s west property line extended and Lukis’ east property line extended using the scale of 1” = 10’).
67. Consequently, both Lukis and Wehrenberg could place, and have placed, temporary structures immediately behind temporary structures placed by either Ray or the Blackburns. Exhibit II, Claimant’s Exhibit G (top photograph), Claimant’s Exhibit M, Respondent’s Exhibit W-1 (left photograph).
[VOLUME 10, PAGE 409]
68. Not only have both Lukis and the Wehrenbergs’ placed temporary structures immediately behind the riparian zones controlled by the Blackburns and Ray, Claimant’s Exhibit G (top photograph), because Lukis’ and the Wehrenbergs’ riparian zones eventually converge upon one another, they have each also placed temporary structures behind temporary structures maintained by the other. Respondent’s Exhibit W-1 (left photograph), Claimant’s Exhibit M.
69. This result is evidenced by Lukis’ admission that in 2006 he reduced the length of his pier by four (4) feet because of the possibility that it extended into Lake James into an area where Lukis’ and the Wehrenbergs’ riparian zones overlapped. Testimony of Lukis.
70. Further exemplifying this situation is photographic evidence clearly showing that Wehrenbergs’ sailboat is located within the overlapping riparian zone claimed by both the Wehrenbergs and by Lukis. Compare Respondent’s Exhibit L-3 to Claimant’s Exhibit D (top photograph), E (bottom photograph) and H (bottom photograph), Respondent’s Exhibit B-2, and Respondent’s Exhibit W-1.
71. The Scheele property was not the subject of a survey associated with this proceeding but it is approximated from the lot configurations that Scheele’s east property line extended will intersect with Scheele’s own west property line extended before reaching sufficiently lakeward to intersect with Lukis’ east property line extended.[8] Claimant’s Exhibit K.
72. If this approximation is correct, Scheele’s swim raft/basketball hoop shown to be located directly behind Lukis’ temporary pier is outside Scheele’s riparian zone. Respondent’s Exhibit L-13.
73. While Scheele maintains a temporary pier, only his swim raft/basketball hoop was specifically addressed in this proceeding.
74. The
Wehrenbergs maintain both a temporary pier and a sailboat anchored within
75. The sailboat’s location varies within a fifty (50) foot diameter of its anchor point at times being located approximately fifty (50) feet behind the lakeward end of Lukis’ temporary pier. Testimony of Lukis.
[VOLUME 10, PAGE 410]
76. As might be expected Lukis contends that the Wehrenbergs’ sailboat is located within his riparian zone, while the Wehrenbergs contends that the sailboat is within their own riparian zone. Testimony of Lukis, Respondent’s Exhibits L-1, L-3 and L-4.
77. No evidence was presented by any party, including the Wehrenbergs, indicating even an approximate distance of the sailboat from the Wehrenbergs’ lake front;[10] however, the sailboat has been anchored at the same general location since at least 1983. Testimony of Ray, Claimant’s Exhibit D (top photograph), E (bottom photograph) and H (bottom photograph), Respondent’s Exhibit B-2, Respondent’s Exhibit W-1, Respondent’s Exhibit L-3.
78. By all appearances both Lukis and the Wehrenbergs may be correct in their contention that the sailboat is positioned in their riparian zones because the riparian zones of Lukis and the Wehrenbergs overlap. Exhibit II.
79. Scheele testified that removal of the swim raft is not a problem. “My kids don’t even use it. I put it out there for the benefit of all. Mr. Lukis’ kids played on that all last year… I didn’t mind…”
80. Ray testified that the Wehrenbergs’ sailboat has caused no interference to their ingress and egress. Testimony of Ray.
81. Lukis maintains that Scheele’s swim raft/basketball hoop and Wehrenbergs’ sailboat interferes with ingress to and egress from his temporary pier. Respondent’s Exhibit L-3.
82. A
temporary pier has extended lakeward from the western portion of
[VOLUME 10, PAGE 411]
83. The size and configuration of Ray’s temporary pier remained generally unchanged until 2005, except that it was moved approximately three (3) feet to the east in 1996 as a result of the Blackburns being required by Jerry Becker (Becker), the previous owner of the property now owned by Lukis, to move their pier partially out of the riparian zone claimed by Becker. See further discussion infra.
84. Ray also maintains a boatlift on his temporary pier.
85. Ray acknowledged that if riparian zones are determined by property lines extended lakeward, the Blackburn pier did from 1983 to 2005 encroach upon what is now Lukis’ riparian zone and similarly that the lakeward end of his pier has encroached upon the Blackburns’ riparian zone. Testimony of Ray.
86. In 2005, Ray was forced to shorten his temporary pier by twenty (20) feet as a result of Lukis installing his newly configured pier and Lukis’ refusal to allow the Blackburns’ continued encroachment into what Lukis claims as his riparian zone.
87. The Blackburns have maintained a temporary pier at least since 1983. Testimony of Ray, Claimant’s Exhibit D (bottom photograph).
88. Prior to 1996 the Blackburns pier extended lakeward approximately forty (40) feet at which point it “jogged” over approximately seven feet toward what is now the Lukis property and then extended lakeward for another twenty (20) feet. Testimony of Ray, Claimant’s Exhibit D (bottom photograph).
89. In 1995 and part of 1996, the property now owned by Lukis was owned by Becker. During Becker’s ownership he insisted that the “jog” be removed from the Blackburns’ temporary pier because it encroached upon his riparian zone. Testimony of Becker.
90. According
to Becker’s testimony, in 1996 the Blackburn pier was moved as far as possible
out of Becker’s riparian zone without causing a “domino effect” for the
neighbors to the east of
91. Ray agreed that even after the reconfiguration of the Blackburns pier in 1996, it continued to encroach into Becker’s riparian zone as determined by extending the property lines lakeward. Testimony of Ray.
92. Becker testified that in addition to the solution devised for 1996, he had advised the Blackburns that the pier had to be moved entirely out of his riparian zone for the 1997 boating season. Testimony of Becker. However, Becker sold the property in 1996 so no further discussions occurred between himself and the Blackburns. Testimony of Becker.
[VOLUME 10, PAGE 412]
93. The Blackburns’ temporary pier, as modified at the insistence of Becker, continued to encroach into what is now Lukis’ claimed riparian zone until 2005. Testimony of Ray.
94. The Wehrenbergs, Ray, the Blackburns and Scheele took great strides during the administrative hearing, on their own behalf and on behalf of each other, to establish that the Wehrenberg sailboat, the Scheele swimraft/basketball hoop as well as the Ray and the Blackburns piers had been located in certain locations and/or configured and angled in certain ways for a long period of time prior to the installation of Lukis’ pier in 2005.
95. “A
party might present facts to show the existence of a binding agreement with the
other party, adverse possession, a prescriptive easement, or some other event
of legal import that would determine riparian rights. Absent a showing of this
consequence, the history of which structure or which boat was placed in which
configuration and by whom does not present a material fact. First in time first
in right is not a viable factual or legal principle for determining the rights
of riparian owners or those of the public on the open waters of public
freshwater lakes.” Barbee Villa Condominium Owners Association v. Shrock, 10
CADDNAR 23, (2005).
96. The evidence presented in the instant proceeding is insufficient to establish any legal right of the Wehrenbergs, Ray, the Blackburns or Scheele to the use of any portion of the riparian zone of Lukis.
97. That the Wehrenbergs have maintained their sailboat in the same general location for thirty (30) years does not establish any form of adverse possession or prescriptive easement when they at no time contend that the sailboat was ever anchored in the riparian zone now possessed by Lukis. Wehrenbergs’ Proposed Findings of Fact, Conclusions of Law and Proposed Order, paragraphs 21 & 22.
98. Similarly, Scheele maintained throughout the administrative hearing only that his swim raft/basketball hoop was located solely within his own riparian area and furthermore provided no specific evidence as to its exact location.
99. The
Blackburns, primarily through the testimony of Ray, established that their
temporary pier has encroached upon what is now Lukis’ riparian zone since as
early as 1983. However, it is not
disputed that this use was modified and was not always adverse to Lukis’
predecessors in interest. This is
clearly established by the undisputed testimony of Becker, who required a
modification to the
[VOLUME 10, PAGE 413]
100. Prescriptive easements are disfavored and absent the requisite clear and convincing proof any such claims must fail. Rufenbarger, supra.
101. In 2005, Lukis installed a pier extending eighty-nine (89) feet lakeward of the shoreline. Lukis temporary pier at the lakeward end measures 38.5 feet wide, which measurement includes a boatlift attached to the east side of the pier. Exhibit II, page 1 & 2 and Claimant’s Exhibit M.
102. As a result of Lukis’ temporary pier installation, the Blackburns were forced to relocate their temporary pier. Testimony of Ray.
103. In 2005, the Blackburns temporary pier remained at the same length but was no longer angled westward across the shared Blackburn/Lukis property line extended lakeward. Instead, the Blackburns’ pier was relocated to a position entirely within their riparian zone and placed generally perpendicular with their shoreline. Exhibit II, page 1.
104. The relocation of the Blackburns temporary pier forced Ray to shorten his pier by twenty (20) feet because in the past that extension to Ray’s pier had encroached into Blackburns’ riparian zone. Ray installed his twenty (20) foot shorter temporary pier at its past location which resulted in only four feet six inches (4’6”) of space between the lakeward end of Ray’s pier and the lakeward end of the Blackburns’ pier. Exhibit II, page 1.
105. Consequently, Ray could not navigate his eight foot six inch (8’6”) wide pontoon boat through the space remaining between his and the Blackburns’ temporary piers making it impossible for him to moor his boat on the west side of his pier, as he has done since 1983. Testimony of Ray, Exhibit II.
106. Ray, as a temporary measure for the 2005 boating season, obtained permission from the Wehrenbergs to place his boatlift on the east side of his pier, in their riparian zone. Claimant’s Exhibit M, Respondent’s Exhibit W-1, Claimant’s Exhibit G (bottom photograph) and H.
107. Lukis testified that the temporary pier he installed in 2005 is located sixteen (16) feet west of the property line extended that he shares with the Blackburns and the pier extends lakeward in a slight westward angle to increase the distance between the lakeward end of his and the Blackburns’ respective piers. Testimony of Lukis, Exhibit II (page 1).
108. The Blackburns, by installing their pier generally perpendicular to the shoreline, have caused the lakeward end of their pier to be located almost directly on the Blackburns’ eastern property line extended that is shared with Ray. This allows for the lakeward end of the Blackburns’ pier to be positioned as far away from the Lukis pier as is within the control of the Blackburns. Exhibit II.
[VOLUME 10, PAGE 414]
109.
However, the distance between the Lukis and the
Blackburn piers at the lakeward end are significantly reduced by the placement
of boatlifts, by Lukis on the east side of his pier and by
110. Lukis’ boatlift installed on the east side of his temporary pier measures eleven (11) feet wide by twenty-four (24) feet long and extends lakeward beyond the terminus end of his temporary pier. Claimant’s Exhibit M.
111. The Blackburns boatlift, which measures nine feet nine inches (9’9”) wide and twenty-two feet eight inches (22’8”) long also extends lakeward beyond the end of their pier. Claimant’s Exhibit M.
112. No evidence was presented by any party as to the exact distance remaining between Lukis’ and the Blackburns’ boatlifts, but it can be reasonably approximated from the scale of Claimant’s Exhibit M that this distance does not exceed six (6) feet laterally. See also Claimant’s Exhibit P and Respondent’s Exhibit L-1, L-2, L-4.
113. The water depths associated with the entire eighty-nine (89) foot length of Lukis’ temporary pier gradually increase from two feet four inches “(2’4”) at the shoreline to a maximum depth of three feet (3’) at approximately sixty-five feet. The water depth remains consistent at three feet (3’) from sixty-five (65) feet to the lakeward end of the temporary pier. Testimony of Ray and Claimant’s Exhibit M.
114. While it is apparent that Ray wishes to maintain his temporary pier in the location where it has been placed since 1983 and moor his boat to the west side of that pier, this may now be impossible.
115. For example, Lukis appropriately pointed out during the administrative hearing that Ray does have the apparent ability to relocate his pier to his west property line extended thereby allowing him to moor his boat on the east side of his pier while remaining within his own riparian zone. Testimony of Lukis.
116. It is imperative that all of the parties embrace the reality that the old pier configurations, which obligated the Blackburns to encroach upon what is now the Lukis riparian zone in order to allow Ray to encroach upon the Blackburns are no more.
117. In this particular situation, where the water depth is not continuously six (6) feet deep to a distance of one hundred fifty (150) feet, a temporary pier qualifying for placement under a general license provided for at 312 IAC 11-3-1 may not extend beyond 150 feet from the legally established or average normal waterline or shoreline. 312 IAC 11-3-1(c).
[VOLUME 10, PAGE 415]
118. In addition to the restriction on the distance temporary structures may extend beyond the shoreline, those structures may not, within that one hundred fifty (150) foot distance, “infringe on the access of an adjacent landowner to the public freshwater lake,” may not “ unduly restrict navigation” and may not “be unusually wide or long relative to similar structure within the vicinity on the same public freshwater lake.” 312 IAC 11-3-1(b)(2-4).
119.
While 312 IAC 11-3-1(c) authorizes a riparian owner to
place a temporary structure to a distance of one hundred fifty (150) feet from
the shoreline, such authorization may be modified as necessary to afford
adjacent riparians and the public with access and suitable navigation. 312 IAC
11-3-2(b).
120. Ray argues that Lukis’ temporary pier is unusually wide and long in comparison to other temporary piers located in the vicinity. Claimant, Dean Ray’s Post Hearing Brief and Proposed Resolution.
121. Evidence provided in this proceeding establishes no exact dimensions associated with any temporary piers installed and maintained by anyone within the First Addition to Gleneyre Beach except for those pier maintained by Lukis, the Blackburns and Ray.
122.
Much photographic evidence was admitted during the
administrative hearing; however, most of the photographs are taken from ground
level focusing primarily on the temporary piers maintained by the parties to
this proceeding. These photographs do
not provide an opportunity to compare the overall size of temporary piers in
the entire vicinity of the First Addition to
123. Contrary to Ray’s argument, one aerial photograph reveals that the lengths and widths of piers in the area vary greatly.[11] Respondent’s Exhibit B-4.
124. The evidence does not support a determination by a preponderance of the evidence that Lukis’ temporary pier is unusually wide or long in contravention of 312 IAC 11-3-1(b)(4).
125.
However, the claims of certain parties that the
placement of temporary structures by certain of their neighbors infringe upon
their access to the public waters of
[VOLUME 10, PAGE 416]
126. The Wehrenbergs’ sailboat and the Scheele’s swim raft/basketball hoop placed behind the piers of Lukis, Ray and the Blackburns, clearly creates a navigational difficulty and an impediment to access[12].
127. Similarly, Lukis’ act of mooring a watercraft on the east side of his pier, behind and approximately six (6) feet west of the moored watercraft of the Blackburns and directly in line with the angle of Ray’s pier, equally infringes upon their access and presents a navigational obstruction for them.
128. The Blackburns and Ray, and likely Scheele, due to the size and shape of their riparian zones, lack any ability to accommodate their neighbors and only limited ability to improve their own situation.
129. Conversely, particularly Lukis and to a somewhat lesser extent the Wehrenbergs, are permitted some flexibility by the size and shape of their riparian zones. As such, Lukis and the Wehrenbergs who possess the ability to either impede the remaining parties’ access and navigation or improve the situation, must choose the latter.
