CADDNAR

[CITE: Walther, et al. v. Pier 343 Condominium Owners Assoc., 12 CADDNAR 12 (2009)

 

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Cause # 08-038W

Caption: Walther, et al. v. Pier 343 Condominium Owners Assoc.

Administrative Law Judge: Lucas

Attorneys: Harants (Claimants); Snyder (Pier 343)

Date: March 19, 2009

 

 

FINAL ORDER

 

Pier 343 Condominium Owners Association is ordered to refrain from placing any mooring pole or boatlift, and from mooring any boat, nearer than five feet north from its common riparian boundary, as referenced in Finding 16, with Northern Lakes Land Company, LLC.

 

 

FINDINGS OF FACT WITH CONCLUSIONS OF LAW

 

A. Statement of the Proceeding and Jurisdiction

 

1. On February 20, 2008, Karl Walther (“Walther”), Diane Paczesny (“Paczesny”) and Northern Lakes Land Company, L.L.C. (“Northern Lakes”) filed an email with the Natural Resources Commission (the “Commission”) which included correspondence and other attachments.  Walther, Paczensy, and Northern Lakes are collectively the “Claimants”.  In the February 20 email, the Claimants alleged that Pier 343 Condominium Owners Association (“Pier 343 Condominiums”) placed a pier, boatlifts, a mooring, and boats within Lake Wawasee in Kosciusko County, Indiana so as to interfere with the Claimants’ riparian rights. 

 

2. Lake Wawasee 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.  DNR v. Freeman Orchard Assoc., Inc., 11 Caddnar 285 (2008).[1]

 

3. The email referenced in Finding 1 initiated a proceeding before the Commission that is governed by IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC 3-1 to assist with its implementation of AOPA.

 

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4. Stephen L. Lucas was appointed as the Commission’s administrative law judge for this proceeding. 

 

5. The Commission is the “ultimate authority” for agency determinations under the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5, including those derived from competing interests in the placement of piers, boat stations, platforms, and similar structures in public freshwater lakes.  IC 14-10-2-4 and IC 14-26-2-23.  Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008), transfer denied. 

 

6. Competing interests regarding the placement of piers and similar structures along the shoreline are sometimes referred to as “riparian rights disputes”.  This proceeding is a riparian rights dispute where the Claimants seek the modification or elimination of a pier, related facilities, or a moored boat as maintained by Pier 343 Condominiums.  Pier 343 Condominiums doe not seek affirmative relief.

 

7. On February 25, 2008, the administrative law judge entered a notice setting this proceeding for a prehearing conference and caused service of the notice, as well as the email described in Finding 1, to be made upon Pier 343 Condominiums.  The Commission has jurisdiction over the subject matter and over persons of the Claimants and Pier 343 Condominiums.

 

8. Following the conduct of a prehearing conference and multiple telephone status conferences, as well as unsuccessful attempts by the parties to achieve a settlement, the parties agreed a hearing should be conducted to present contested issues of fact.  The hearing was conducted in Columbia City, Indiana on February 12, 2009.  An opportunity was provided to file post-hearing briefs by February 19, 2009.  Both the Claimants and Pier 343 Condominiums timely exercised the opportunity.  The proceeding is ripe for the entry of findings of fact and conclusions of law.

 

 

B. Burden of Proof

 

9. AOPA provides at IC 4-21.5-3-14(c), in pertinent part, that “[a]t each stage of the proceeding, the agency or other person requesting that an agency take action…has the burden of persuasion and the burden of going forward with the proof of the request….”  The burden of persuasion and the burden of going forward are sometimes collectively referred to as the “burden of proof”.

 

10. A riparian owner has the burden of proof where seeking a Commission order, under the Lakes Preservation Act, for the modification or removal of a pier, related facilities, or boats maintained by another riparian owner.  Stites, et al. v. RCI Development & DNR, 11 Caddnar 381 (2008).  The Claimants have the burden of proof to demonstrate their entitlement to relief.  Pier 343 Condominiums have not sought affirmative relief.

 

 

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C. Riparian Zones

 

11. Indiana common law establishes a framework and principles to help delineate the boundaries of the riparian zones within a public freshwater lake that are adjacent to the land of a riparian owner.  This framework and these principles have particular application to the installation of piers, boat stations, platforms, and similar structures.

 

12. A “reasonableness test” is applied to how far a pier may extend into a lake from the shoreline.  The installation of a pier by a riparian owner is unreasonable if the pier interferes with the use of a public freshwater lake by others.  “One point is well settled…the boundaries of riparian property do not extend to the middle of the lake.”  Any extension of a pier or similar structure beyond the point required for the mooring and launching of boats may be considered unreasonable.  Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992).

 

13. Boundaries between neighboring riparian owners are delineated according to principles that seek to accommodate the diverse characteristics of Indiana’s numerous public freshwater lakes.  They are designed to provide riparian owners with equitable access to public waters.  Zapffe v. Srbeny at page 181 and Roberts v. Beachview Properties, LLC, et al., 10 Caddnar 125 (2005).

 

14. At hearing, the parties stipulated the admission of a May 10, 2008 survey by Ronnie L. Justice, Registered Land Surveyor, which depicts the real estate owned by Pier 343 Condominiums.  The real estate owned by Northern Lakes shares a common border and is immediately south of the Pier 343 Condominiums real estate.  The stipulated exhibit includes the following drawing:

 

15. The parties do not dispute that the riparian zones of the Pier 343 Condominiums real estate and the Northern Lakes real estate should be delineated by extending their common boundary in a straight line into Lake Wawasee. 

 

16.  Subject to the “reasonableness test”, the straight-line extension of the common boundary of the Pier 343 Condominiums real estate and the Northern Lakes real estate into Lake Wawasee is the appropriate delineation of the parties’ respective riparian zones.

 

 

D. Setback of Structures from Common Boundary

 

17. Lieutenant John Sullivan, Commander of District 1 of the Division of Law Enforcement for the Department of Natural Resources (the “DNR”), testified the DNR developed a “policy” or “rule-of-thumb” (but not a “regulation”) for setbacks “that we use to help settle disputes between riparian owners.”[2]  He said the DNR’s “thinking was that if two riparian owners would set back their boats ten feet” from the common boundary of their riparian zones, “that would leave 20 feet in the middle for navigational purposes or whatever that area would be needed for.”  He added, “We realized that there are properties around the lakes that they don’t have a lot of lakefront property to work with.  So we took the figure that would be the least amount to give everybody full use of most of their riparian area” in order to fairly treat each riparian owner.  Lt. Sullivan said the policy was developed by former DNR attorney, Ann Knotek, and him, and probably others within the DNR. 

 

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18. Sullivan’s testimony is persuasive, but although his statement that minimum set backs were developed as a policy with no legal consequence may properly chronicle their genesis, the statement does not accurately describe their current legal status.  The current legal status is described subsequently in these Findings.

 

19. Kerry Rookstool, a contractor with more than 30 years of experience in the design, installation, removal, and repair of temporary piers at Lake Wawasee, also testified regarding the need for “freeway” between pier structures.  He testified his company considered a variety of factors (including water depth, prevailing wind direction, boat size and type, daylight, and boater expertise) in designing piers.  Ideally, 40 feet of “freeway” would be provided, but local conditions and the preferences of riparian owners might allow for only 30 feet or less for clearance.  He testified the distances he referenced were between structures.  Structures could be piers, but they could also be mooring poles, boats, or other obstructions to navigation.  This testimony by Rookstool is persuasive.

 

20. The Commission policy for setbacks between riparian zones is published in “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (First Amendment) at www.in.gov/legislative/iac/20081210-IR-312080891NRA.xml.html.

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

 

The Commission policy cites Havel & Stickelmeyer v. Fisher, 11 Caddnar 110, 119 and Rufenbarger, et al. v. Blue, et al., 11 Caddnar 185, 194 (2007).  Although the policy does not have the effect of law, Havel & Stickelmeyer v. Fisher and Rufenbarger, et al. v. Blue, et al. are agency precedents under IC 4-21.5-3-32.

 

21. In Havel & Stickelmeyer v. Fisher, at 119, the Commission found a riparian owner should be ordered to “refrain from placing a pier or mooring a boat that would constrict open water, to less than a width of 16 feet, for ingress or egress” to another pier.  In Rufenbarger, et al. v. Blue, et al., 194, the Commission found: “Within five feet of either side” of the common boundary of their riparian zones, the parties “should properly refrain from placing a pier or similar structure licensed under the Lakes Preservation Act and should properly refrain from mooring a boat.”

 

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22. The Commission’s application of the restriction to boats as well as to piers is consistent with Barbee Villa Condominium Owners Assoc. v. Shrock, 10 Caddnar 23, 26 (2005):

When a boat is moored to a pier, the consequences of the usage are similar to those of the pier, and the boat essentially becomes an extension of the pier. Mooring a boat is an exercise of proprietary rights and would typically be unreasonable in the same locations where a pier would be unreasonable.

 

23. To similar effect, also, is Adochio, et al. v. Kranz, et al., 11 Caddnar 400 (2008), which considered a metal structure, consisting of a single-stem pier, that was accompanied by satellite shore stations with boats attached to individual mooring buoys for the benefit of subdivision lot owners.  The Commission found at 418 and 419:

Although unconventional, the subject pier is no less a “group pier”…. 

The satellite shore stations are integral parts of the subject pier and must properly be considered with it for licensure under the Lakes Preservation Act.  This result is implicit to consideration of the public trust, but the legislative intent is also refocused by 2006 statutory amendments.  P.L. 152-2006, Sec. 3.  In language codified at IC 14-26-2-23(c)(4), the DNR is directed, when conducting licensure under the Lakes Preservation Act, to consider the management of watercraft operations under IC 14-15. 

 

24. See Roberts v. Beachview Properties, LLC, et al., 9 Caddnar 163, 166 (2004) where the Commission relied upon the testimony of Lt. Sullivan that an appropriate distance between ends of boat slips should be at least 16 to 20 feet.  Although there was no evidence any incidents or complaints had occurred, the Commission adopted Lt. Sullivan’s testimony that a safety hazard existed.

 

25. See, also, Sims, et al. v. Outlook Cove, LLC, et al., 10 Caddnar 258, 279 (2006) where the Commission made the following findings:

115. First Sgt. Tim Theriac of the DNR’s Division of Law Enforcement in District 10, which includes Pine Lake, testified that safety is his Division’s paramount concern.  He testified that a minimum of ten feet should be maintained between piers, but a separation of 20 feet is preferred.  Finally, he testified that Outlook Cove is not large enough to lawfully accommodate high-speed watercraft.

 

116. In support of navigational safety, no pier, pier extension, boat lift, similar structure or moored boat should be located closer than ten feet from the riparian boundary formed by the extension of the common boundary between the Simses’ realty and the Outlook Cove, LLC and Ass’n’s realty.

 

26. In an emergency rule to govern the licensure of a “group pier”, the DNR recently addressed setbacks as follows:

SECTION 5.

….

 

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(d) The [DNR] shall condition a license for a group pier or group piers so the placement, configuration, and maintenance:

(1) Provide a reasonable buffer zone between the pier and:…

(B) the riparian zone of adjacent property owners to provide for reasonable navigation by the adjacent property owner and by the public. Except as otherwise provided in this clause, the [DNR] shall require at least five (5) feet of clearance on both sides of a riparian line (for a total of ten (10) feet). The [DNR] may require as much as ten (10) feet of clearance on both sides of a riparian line (for a total of twenty (20) feet), if based upon the opinion of a qualified professional that additional clearance is required for reasonable navigation. The [DNR] may approve an exception to this clause where adjacent riparian owners use a common pier along their mutual property line, and the purposes of this clause are satisfied by waters elsewhere within their riparian zones.

 

LSA Document #08-933(E), SECTION 6, published at www.in.gov/legislative/iac/20081231-IR-312080933ERA.xml.pdf.  The emergency rule became effective January 1, 2009 and has the force and effect of law.

 

27. A “group pier” is defined in LSA Document #08-933(E) as follows:

 

SECTION 2.

….

(b) Notwithstanding 312 IAC 11-2-11.5[3], “group pier” means a pier that provides docking space for any of the following:

(1) At least five (5) separate property owners.

(2) At least five (5) rental units.

(3) An association.

(4) A condominium, cooperative, or other form of horizontal property.

(5) A subdivision or an addition.

(6) A conservancy district.

(7) A campground.

(8) A mobile home park.

(9) A club that has, as a purpose, the use of public waters for boating, fishing, hunting, trapping, or similar activities.

 

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28. Two piers are located on the real estate owned by Pier 343 Condominiums.  These were referred to in the testimony as the “long pier” and the “short pier”.  The long pier is north of the short pier.  The short pier is 36 feet long, and the south edge of the short pier is 9.4 feet north of the riparian zone of Northern Lakes.  Both the long pier and the short pier constitute a “group pier” as defined under SECTION 2(b)(4) of LSA Document #08-933(E).

 

29. One pier is located on the real estate owned by Northern Lakes.  Walther testified Northern Lakes operates a recreational vehicle park on the real estate.  He also testified the pier has 28 slips for rental, at least 25 of which are functional.  This pier is a “group pier” as defined under SECTION 2(b)(2) and SECTION 2(b)(8) of LSA Document #08-933(E).

 

30. Although the exact dimensions of Pier 343 Condominiums’ long pier and the Northern Lakes pier were not determined at hearing, the preponderance of the evidence is that the distances between these piers are at all points adequate to satisfy the precedents cited in Finding 21 through Finding 25, as well as the emergency rule set forth in LSA Document #08-933(E).  At no point is the Pier 343 Condominiums’ long pier or the Northern Lakes pier (including associated boatlifts, moorings, or moored boats for these piers) within ten feet of the common boundary between riparian zones.  Testimonies by Lt. Sullivan and Rookstool indicate the pilot of a boat, which might typically cruise Lake Wawasee, can safely navigate between these structures under ordinary weather conditions and assuming a reasonable level of pilot experience.

 

31. The south edge of Pier 343 Condominiums’ short pier is located 0.6 foot (about seven inches) inside the ten-foot clearance from the Northern Lakes’ pier sought in LSA Document #08-933(E), but it is 4.4 feet outside the minimum distance required by the emergency rule.  On cross-examination, Lt. Sullivan was asked, “If there’s no boat [moored on the south side of the short pier], do you have any problem with the pier?”  Sullivan responded, “No, sir.”  No qualified professional testified that the full ten feet of clearance was required for the short pier under conditions peculiar to the site. 

 

32. The location of Pier 343 Condominiums’ short pier, as depicted on in Finding 14, satisfies the precedents cited in Finding 21 through Finding 25, as well as the requirements of SECTION 5(d)(1)(B).

 

33. Walther testified two mooring posts and a sailboat were moored along the south side of Pier 343 Condominiums’ short pier beginning in 2006.  Pier 343 Condominiums concede that the mooring posts and sailboat are one foot and three feet, respectively, from the common riparian line with Northern Lakes.  “Brief of Respondent Pier 343 Condominium Owners Association” filed on February 18, 2009.  Prior to mooring of the sailboat, two personal watercrafts had been moored along the south side of the short pier.

 

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34. Walther also testified that on two occasions, persons have attempted to moor boats in the northern slips of Northern Lakes’ pier that are adjacent and south of Pier 343 Condominiums’ short pier.  In both instances, the persons experienced difficulties which caused them to give up and move to other slips.  He testified, “Nobody wants to go in those because it’s too hard to maneuver in and out with the position of the sailboat and the pier posts on the line.”

 

35. Rookstool testified the waters adjacent to the Pier 343 Condominiums’ short pier are very shallow and include numerous rocks.  Under normal water level conditions on Lake Wawasee, the water depth varies from eight inches near shore, to 18 inches at the mooring pole nearer to the shore, and to 26 inches at the mooring pole farther from the shore.  He testified that consistent with the curvature of the shoreline, depths at Pier 343 Condominiums’ short pier are less at equivalent distances from that shore than they are at the pier for Northern Lakes.  A boat leaving a mooring on the pier for Northern Lakes would encounter shallower water if it moved north toward Pier 343 Condominiums’ short pier or if it moved east toward shore.  Rookstool stated his opinion was the shallow rocky bottom was the critical factor which limited navigation to the slips within the Northern Lakes pier and not the proximity of the mooring posts and boats on the south side of Pier 343 Condominiums’ short pier.

 

36. The preponderance of the evidence supports a finding that the shallow rocky bottom is the greater limitation to navigation into the northern slips of Northern Lakes’ pier that are adjacent and south of Pier 343 Condominiums’ short pier.  Even so, the placement of mooring posts and a boat nearer than five feet to the common riparian line of Northern Lakes and Pier 343 Condominiums is likely an aggravating factor to navigation and to boating safety.  The precedents cited in Finding 21 through Finding 25 applied to the evidence in this proceeding, as well as the requirements of SECTION 5(d)(1)(B) of the emergency rule, also support a minimum clearance from the common riparian line of at least five feet. 

 

37. Both statute (“idle speed” under IC 14-15-3-17 for any motorboat) and reasonable prudence dictate a pilot would operate a boat at a very slow speed in the congested area of near-shore shallow water between the Northern Lakes’ pier and Pier 343 Condominiums’ short pier.  Under these circumstances, the precedents cited in Finding 21 through Finding 25, as well as the requirements of SECTION 5(d)(1)(B) of the emergency rule, do not require that Pier 343 Condominiums adhere to more than the five-foot minimum clearance from its common riparian line with Northern Lakes.