CADDNAR

[CITE: DNR v. Freeman Orchard Assoc., Inc., 11 CADDNAR 285 (2008)]

 

 

[VOLUME 11, PAGE 285]

 

Cause #: 07-129W

Caption: DNR v. Freeman Orchard Assoc., Inc.

Administrative Law Judge: Lucas

Attorneys: Knotek; Snyder

Date: March 24, 2008

 

 

FINAL ORDER

 

Based upon the totality of the evidence, the subject pier as described in Finding 7 (and depicted in Finding 38) does not constitute a nuisance under 312 IAC 11-5-2(d)(1)(A)(i).  Freeman Orchard Association, Inc. may continue to maintain the subject pier so long as its maintenance conforms to 312 IAC 11-5-2.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

1. Lake Wawasee in Kosciusko County, Indiana is a “public freshwater lake” as the phrase is defined at IC 14-26-2-3 and at 312 IAC 11-2-7. Lake Wawasee is subject to IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted by the natural resources commission (the “Commission”) at 312 IAC 11-1 through 312 IAC 11-5 to assist in the implementation of the Lakes Preservation Act.

 

2. The purposes of the Lakes Preservation Act are set forth at IC 14-26-2-5:

 

Sec. 5. (a) As used in this section, “natural scenic beauty” means the natural condition as left by nature without manmade additions or alterations.
    (b) As used in this section, “recreational purpose” means the following:
        (1) Fishing.
        (2) Boating.
        (3) Swimming.
        (4) The storage of water to maintain water levels.
        (5) Any other purpose for which lakes are ordinarily used and adapted.
    (c) The:
        (1) natural resources and the natural scenic beauty of Indiana are a public right; and
        (2) public of Indiana has a vested right in the following:
            (A) The preservation, protection, and enjoyment of all the public freshwater lakes of Indiana in their present state.
            (B) The use of the public freshwater lakes for recreational purposes.
    (d) The state:
        (1) has full power and control of all of the public freshwater lakes in Indiana both meandered and unmeandered; and
        (2) holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.
    (e) A person owning land bordering a public freshwater lake does not have the exclusive right to the use of the waters of the lake or any part of the lake.

 

[VOLUME 11, PAGE 286]

 

3. The Lakes Preservation Act does not eliminate riparian rights.  Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992) and Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984). The law is stated succinctly by the Court of Appeals of Indiana in Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001).  The Lakes Preservation Act is “[p]ublic trust legislation” intended to recognize “the public’s right to preserve the natural scenic beauty of our lakes and to recreational values upon the lakes.”  The Court further observed that “Riparian landowners...continue to possess their rights with respect to a public freshwater lake, but their rights are now statutory and must be balanced with the public’s rights.”

 

4. The department of natural resources (the “DNR”) is the agency charged with administration of the Lakes Preservation Act.

 

5. The Commission is the “ultimate authority” under IC 4-21.5 (sometimes referred to as the “administrative orders and procedures act” or “AOPA”) for the DNR.  IC 14-10-2-3 and 312 IAC 3-1-2.  The Commission has adopted rules at 312 IAC 3-1 to assist in its implementation of AOPA.

 

6. This proceeding considers a DNR complaint filed with the Commission, under IC 4-21.5-3-8 and 312 IAC 3-1-3(a)(2), which seeks a determination a temporary pier located on Lake Wawasee, and owned by Freeman Orchard Association, Inc. (“Freeman”), is a nuisance and which further seeks to restrict the temporary pier to a maximum length of 175 feet from the shoreline. 

 

7. Beginning in 1978, a temporary pier was placed seasonally from the shoreline of Freeman’s property into Lake Wawasee at a length of 122 feet.  After 1978, the temporary pier was modified and generally enlarged until achieving its current configuration in 1993, with an approximate length of 198 or 199 feet from the shoreline.  Since 1993, the temporary pier (the “subject pier”) has been installed each season and used by members of Freeman to moor boats typical for Lake Wawasee, those having lengths between 18 and 28 feet. 

 

8. Rules were adopted by the Commission, with an effective date of July 1, 2000, which limit a temporary pier to a maximum length of 150 feet from the shoreline under the authority of a general license.  312 IAC 11-3-1(a)(5).[1] 

 

9. The subject pier would not qualify for a general license if placed after June 30, 2000.

 

[VOLUME 11, PAGE 287]

 

10. As agreed by the parties and supported by the preponderance of the evidence, however, the subject pier qualifies under the Lakes Preservation Act as a “lawful nonconforming use”.

 

11. Although more commonly considered in the context of ordinances, the application of principles of nonconforming uses can arise in the context of rules and similar regulatory structures.  As applied to a rule, a nonconforming use is one that legally existed before the effective date of the rule, and that is permitted to continue subsequent to the enactment of the rule despite the fact it does not conform to the rule.  Providing for nonconforming uses in the context of rules is harmonious with the principle of construction that, absent strong and compelling reasons, rules are given only prospective application.  Brown and Zeller, et al. v. DNR, 9 Caddnar 135, 142 citing Mann v. State Dept. of Highways, 541 N.E.2d 929, 936 (Ind. 1984).

 

12. The law does not generally favor a nonconforming use because it detracts from the purpose of the rule, which is to confine certain classes of uses and structures to certain areas.  Brown and Zeller at 142 citing Kosciusko County Bd. of Zoning Appeals v. Smith, 724 N.E.2d 279 (Ind. App. 2000); transfer denied 741 N.E.2d 1251.

 

13. Lawful nonconforming uses under the Lakes Preservation Act are governed by 312 IAC 11-5-2.  As pertinent to this proceeding, the rule section provides:

 

Sec. 2. (a) A structure or facility that was lawfully placed before the effective date of a provision of:

(1) IC 14-26-2; or

(2) a section of:

   (A) 312 IAC 11-3;… which would be unlawful if placed after that date, is eligible for qualification under this section as a lawful nonconforming use.

     (b) …..

(5) A person must satisfy this subdivision in order to retain the status of a lawful nonconforming use for a pier that is longer than one hundred fifty (150) feet…. By January 1, 2010, the person must deliver, to the [DNR’s] division of law enforcement at the district headquarters for the district in which the lawful nonconforming use is located, a written request and supporting documentation sufficient to demonstrate the existence of the lawful nonconforming use.

….

     (c) This subsection governs the maintenance of or modification to a lawful nonconforming use as follows:

 

[VOLUME 11, PAGE 288]

 

(1) Except as provided in subdivision (2), a lawful nonconforming use may be maintained, but the use cannot be modified or repaired unless a person satisfies the requirements of IC 14-26-2 and this article that are in effect at the time of the modification or repair. In performing modification or repair under this subdivision, the:

   (A) location;

   (B) size; and

   (C) configuration;

of the use must be maintained.

(2) The [DNR] may authorize a modification or repair to a lawful nonconforming use if it determines that the resulting change to the:

   (A) location;

   (B) size; or

   (C) configuration;

would better serve a public right or a vested right, as referenced in IC 14-26-2-5, than does the existing lawful nonconforming use.

     (d) This subsection governs the removal of a lawful nonconforming use as follows:

(1) The director or the director’s designee may order the removal of a lawful nonconforming use if the structure or facility is…the following:

   (A) A nuisance that adversely affects any of the following:

(i) Public safety.

(ii) Natural resources.

(iii) Natural scenic beauty.

(iv) The water level of a public freshwater lake.

   (B) ….

   (C) ….

(2) The [DNR] has the burden of proof to establish a lawful nonconforming use should be removed under this subsection.

(3) A structure adversely affects public safety under subdivision (1)(A)(i) if the structure is any of the following:

   (A) … [E]xtended or located more than one hundred fifty (150) feet lakeward from the shoreline or water line.

   ….

(4) ….

     (e) IC 4-21.5-3-8 controls an order issued under subsection (d) unless an emergency exists, in which event IC 4-21.5-4 applies….

14. Freeman has satisfied the spirit of 312 IAC 11-5-2(b)(5) by demonstrating to the satisfaction of DNR that it is entitled to a “lawful nonconforming use” for the subject pier.[2]

 

15. Under 312 IAC 11-5-2(d), the DNR has the burden of persuasion to require the removal of a lawful nonconforming use.  As applied to this proceeding, the DNR must demonstrate the subject pier constitutes a nuisance under 312 IAC 11-5-2(d)(1)(A).

 

[VOLUME 11, PAGE 289]

 

16. “The first, and most basic, right of a riparian owner is access to the water.”  1 Dellapenna, Waters and Water Rights §6.01(a)(1) (LexisNexis 2007).  A structure in support of navigation, such as pier or wharf, can be a legitimate exercise of riparian rights where its dimensions are reasonable.  Zapffe v. Srbeny cited previously.  A wharf is “not of itself necessarily…a nuisance….  A wharf does not import, per se, irreparable mischief.”  Laughlin v. Lamasco City, 6 Ind. 223 (Ind. 1855).

 

17. The DNR offers an interpretation of “nuisance”, which provides insight into the implementation of 312 IAC 11-5-2(d)(1)(A), that is derived from Blacks Law Dictionary, 5^th Ed., citing Awad v. McColgan, 357 Mich. 386, 98 N.W.2d 571, 573.  “Nuisance comprehends interference with an owner’s reasonable use and enjoyment of his property by means of smoke, odors, noise, or vibration, obstruction of private easements and rights of support, interference with public rights, such as free passage along streams and highways, enjoyment of public parks and places of recreation, and, in addition, activities and structures prohibited as statutory nuisances.” 

 

18. Freeman urges the Commission should adopt the civil standards for nuisance generally applicable to real estate and codified at IC 32-30-6.  In particular, Freeman refers to IC 32-30-6-6 which reflects that what is injurious to health, indecent, offensive to the senses or an obstruction to the free use of property “so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.”  This statutory chapter also reflects that a nuisance is an injury to property or the lessening of personal enjoyment.  IC 32-30-6-7.

 

19. The interpretations offered by the parties are not fundamentally at odds, and both may provide assistance, but the Lakes Preservation Act is concerned with balancing public rights and private rights, while IC 32-30-6 appears concerned primarily with the protection of private rights.  Also, IC 32-30-6 includes a bundle of rights (such as the award of attorney fees in some circumstances) which may confuse implementation of the Lakes Preservation Act.  If the Commission had intended to implement all or a portion of IC 32-20-6 as a governing document for 312 IAC 11-5-2, a cross-reference could have been made to the chapter or to sections within the chapter.  The better construction of the term “nuisance” within 312 IAC 11-5-2 is one which implements the Lakes Preservation Act in an inclusive manner.  To that end, the interpretation from Blacks Law Dictionary is generally better suited to implementation of Commission intent than is IC 32-30-6. 

 

20. Whether applying the DNR’s interpretation or Freeman’s interpretation, however, it is clear that nuisance is not established by a scintilla of interference. 

 

[VOLUME 11, PAGE 290]

 

21. If the Commission is to find that all or a portion of the subject pier must properly be removed as a nuisance under 312 IAC 11-5-2(d), the preponderance of the evidence must demonstrate the structure has sufficient adverse affects public safety, natural resources, natural scenic beauty, or the water level of a public freshwater lake.  The evidence must be demonstrated through factual matters admitted into the record.

 

22. As used in the Lakes Preservation Act, “‘natural resources’ means the water, fish, plant life, and minerals in a public freshwater lake.”  There are no facts in evidence to support a finding the subject pier adversely affects natural resources.

 

23. As used in the Lakes Preservation Act, “‘natural scenic beauty’ means the natural condition as left by nature without manmade additions or alterations.”  IC 14-26-2-5(a).  There are no facts in evidence to support a finding the subject pier adversely affects the natural scenic beauty of Lake Wawasee.

 

24. There are also no facts in evidence to support a finding the subject pier affects the water level of Lake Wawasee.

25. The sole issue is whether the subject pier has sufficient adverse effects upon public safety, under 312 IAC 11-5-2(d)(1)(A)(i), so as to pose a nuisance.  In deciding this issue, the evidence received at hearing must be considered.

 

26. Lieutenant John Sullivan, Commander of DNR’s Division of Law Enforcement, District 1, testified for the DNR.  District 1 includes Lake Wawasee.  Sullivan has been employed by the DNR for 32 years, including ten years as Commander.  Before becoming Commander, he was assigned to Kosciusko County as a Conservation Officer.

 

27. Sullivan testified the Commanders from District 1, District 2 and District 10 (the three Districts along the northern border of Indiana) met and determined 175 feet was the maximum length from the shoreline that a pier should extend, because high-speed boating is authorized 200 feet from the shoreline.  Within 200 feet of the shoreline, motorboats are limited by statute to a maximum of “idle speed”.[3]  He testified the Commanders agreed that 25 feet between the area for high-speed boating and the lakeward extension of a pier was the minimum “buffer” distance needed to provide for public safety.

 

28. During an October 2007 deposition in this proceeding, Sullivan testified the only basis for the complaint was whether the subject pier poses a nuisance in violation of the rule.  At hearing, Sullivan testified he believed the subject pier would constitute a nuisance if it were a “threat to public safety.” 

 

[VOLUME 11, PAGE 291]

 

29. Sullivan testified there have been no boating accidents in the vicinity of the subject pier. 

 

30. Sullivan testified District 1 of the DNR’s Division of Law Enforcement had received no complaints from neighboring riparian owners or from the public, in general, concerning the length of the subject pier.

 

31. Sullivan testified that because the subject pier extended 198 or 199 feet into Lake Wawasee, high-speed boating activities tended to be pushed farther than 200 feet from shore.  The lengthy pier has an impact on navigation and the public trust, but he said “that’s not a safety issue there.  It just keeps [the public] from using a part of the lake that they’re entitled to use”[4] for high-speed boating.  He conceded the average boater probably never even notices an obstruction is posed by the subject pier.

 

32. On cross-examination, Sullivan was shown Claimant’s Exhibit A, an aerial photograph of the area which includes the subject pier.  Sullivan agreed that two other piers depicted from the area were approximately the same length as the subject pier.

 

33. Lance Clark lives at the Freeman site and has maintained a slip on the pier and a boat at the subject pier since 1992.  He is the President of the homeowners’ association that manages Freeman Orchard Addition.

 

34. Clark identified two piers on Claimant’s Exhibit A that are southeast of and in the same area as the subject pier.  Moving southeast along the shoreline, four piers from the subject pier is the pier for the Wawasee Yacht Club.  Two piers southeast of the Wawasee Yacht Club is the pier for the Wawasee Beach Club Condominium.  These are the same piers described by Sullivan in Finding 32.

 

35. Since 1992, Clark testified he has observed no accidents that could be directly attributed to the length of the subject pier.  Neither has he observed any close calls where an accident was narrowly avoided.  Other than the DNR complaint in this proceeding, he had received no complaint from a public or private person concerning the placement of the subject pier. 

 

36. Clark testified he has spent considerable time sitting on the pier, and he has never observed boats moving faster than idle speed within 100 feet of the subject pier.  When launching from the subject pier to enter the high-speed boating portion of Lake Wawasee, he has not encountered problems with other boaters operating at high speeds within ten or 15 feet of the end of the subject pier.

 

[VOLUME 11, PAGE 292]

 

37. Until recently, David Haggeman was employed for 44 years at Sudlow’s Pier Shop (“Sudlow’s”).  Sudlow’s was in the business of installing and removing piers from Lake Wawasee and other lakes in the vicinity.  In the course of the business since 1978, he testified he routinely serviced the pier at the Freeman site.  He testified that Claimant’s Exhibit F was a document maintained in Sudlow’s ordinary course of the business, and Claimant’s Exhibit F accurately depicted the pier configurations as set by Sudlow’s, including the modern configuration which constitutes the subject pier.  Haggeman testified the lakeward end of the subject pier is placed on sockets, and these sockets have been placed in their current configuration since 1993.

 

38. Haggeman testified he was unaware of any accident attributable to the subject pier.  In reviewing the business records of Sudlow’s, he identified “no damage reports”, an indication no one has ever struck the subject pier.

 

38. The subject pier, including references to historic configurations, is accurately depicted in Claimant’s Exhibit F as set forth immediately below:

 

 

 

 

[VOLUME 11, PAGE 293]

 

39. Haggeman testified the Wawasee Yacht Club pier is at least 200 feet long, and the Wawasee Beach Club Condominium pier is approximately 150 feet long.

 

40. Bob Troutman has maintained a slip at the pier on the Freeman site since 1983.  He testified he has never had a problem launching a boat from his mooring to enter the high-speed boating area.  His slip is located near the lakeward end of the pier, and he has had frequent opportunities to observe boating traffic in the vicinity of the pier.  Troutman testified he has never observed a close call for boats striking the end of the pier, and he has seen no accidents caused by the subject pier.  Typically, boats traveling at high speeds pass the subject pier “out 300 feet or more” into Lake Wawasee.

 

41. Steve Eldridge has maintained a slip at the pier on the Freeman site since 1984.  He testified he has never had a problem launching a boat from his mooring and entering the high-speed boating area, although he has sometimes experienced difficulties resulting from shallow water.  Eldridge testified he has never observed any accidents or close calls based on the length of the subject pier.  No person has ever complained to him concerning the length of the subject pier.

 

42. Joe Crisman has lived in the Freeman Orchards Addition since 1980 and has maintained a slip at the pier on the Freeman site since approximately 1990.  He testified he has never seen any accident or close call caused by the length of the subject pier.  In his observation of boats lakeward of the subject pier, they were typically 100 to 150 feet out.

 

43. Based upon the testimony described in Finding 26 through Finding 42, the following facts are determined regarding whether the subject pier has sufficient adverse effects upon public safety, under 312 IAC 11-5-2(d)(1)(A)(i), so as to pose a nuisance:

 

A. The Commanders’ agreement that a minimum buffer of 25 feet is needed for public safety, between the area for high-speed boating and the lakeward extension of a pier, is enough to warrant a yellow card but not enough for a red card.  The Commanders’ expertise is noteworthy, and public safety is a high priority.  Their agreement should cause the careful scrutiny of any temporary pier that is approved as a lawful nonconforming use and exceeding 175 feet in length.  Their agreement cannot, however, form the sole basis for a determination that a nuisance is posed.  If a standard is to have the force of law, the standard must be set forth by statute or rule.  If every pier within a lake that is longer than 175 feet should be removed or reduced to 175 feet, the requirement must be set forth by statute or rule.  To find a pier longer than 175 feet poses a nuisance in violation of 312 IAC 11-5-2(d)(1)(A), evidence particular to the pier must support the finding.

 

B. The preponderance of the evidence is that the subject pier has never been struck by a watercraft operating at high speed, has never been the subject of a close call for a watercraft operating at high speed, and has never caused an accident involving watercraft as a result of its length.  No accidents have been reported in the vicinity of the subject pier.

 

[VOLUME 11, PAGE 294]

 

C. The preponderance of the evidence is that other than in the context of this proceeding, no public person has ever made a complaint based upon the length of the subject pier.

 

D. The preponderance of the evidence is that no private person has ever made a complaint to the DNR or to Freeman based upon the length of the subject pier.

 

E. The preponderance of the evidence is that two other piers in the vicinity of the subject pier are relatively long.  One of these other piers likely exceeds 200 feet in length.

 

F. The preponderance of the evidence is that because of its length, the subject pier has some impact on navigation and the public trust, but no safety issue is posed.  The average boater engaged in high-speed boating on Lake Wawasee is caused to operate at a distance 300 feet or more from the shoreline but probably never notices an unusual obstruction is posed by the subject pier.

 

G. Based upon the totality of the evidence described in this Finding, the subject pier does not pose sufficient adverse effects upon public safety, under 312 IAC 11-5-2(d)(1)(A)(i), so as to pose a nuisance.