CADDNAR
Morton v. Shank (22-027W), 16 CADDNAR 29
Administrative Cause Number: 22-027W
Administrative Law Judge: Elizabeth Gamboa
Petitioner Counsel: Bill Eberhard, Rachel Tran, & Charity Murphy
Respondent Counsel: Patrick Murphy & Michael Michmerhuizen
Date: December 28, 2023
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
Procedure
1. On March 30, 2022, Petitioners, Mark Morton and Pamela Morton (“Mortons”), filed a petition with the Natural Resources Commission (“Commission”) alleging a riparian dispute between the Mortons and Kevin Shank and Dawn Shank (“Shanks”). See, Mortons’ Request for Hearing (“Petition”).
2. In summary, Mortons allege they own a “6 ½ foot interest in real estate fronting Hamilton Lake” adjacent to, and north of, Shanks’ property. Mortons allege they and their predecessors in interest have extended a pier from this real estate and have moored a boat on the south side of the pier for decades. Mortons complain they can no longer moor a boat on the south side of their pier because the Shanks’ pier is too close to the Mortons’ pier. According to Mortons, Shanks’ pier improperly prevents Mortons from mooring a boat to their pier. See, Petition.
3. By filing their Petition, Mortons initiated a proceeding governed by Ind. Code § 4-21.5-3, sometimes referred to as the Administrative Orders and Procedures Act (AOPA) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.
4. Administrative Law Judge (ALJ) Elizabeth Gamboa was duly appointed to preside over this matter pursuant to Ind. Code § 14-10-2-2.
5. Shanks were provided a copy of Mortons’ petition by the Commission when the ALJ issued an order setting the matter for a prehearing conference on April 26, 2022. See, Notice of Telephonic Prehearing Conference.
6. Hamilton Lake has been identified as an Indiana public freshwater lake located in Steuben County, Indiana. Listing of Public Freshwater Lakes, Information Bulletin #61 (Eighth Amendment), published in the Indiana Register at http://iac.iga.in.gov/iac//20170531-IR-312170269NRA.xml.pdf.
7. The Commission is responsible for controlling activities occurring “over, along or lakeward of the shoreline or water line of a public freshwater lake,” including the placement and maintenance of temporary structures, such as piers. The Commission is also charged with resolving disputes “among persons with competing riparian interests associated with a public freshwater lake.” Ind. Code § 14-26-2-23(e)(3).[1]
8. The Commission is the ultimate authority with respect to the subject matter of this proceeding. Ind. Code § 14-10-2-3; Ind. Code § 4-21.5-1-15; 312 IAC 3-1-2.
9. The Commission has jurisdiction over the subject matter of this proceeding and over the parties.
10. A Prehearing Conference was held as scheduled on April 26, 2022, during which deadlines for filing of and responding to dispositive motions were established.
11. An Interlocutory Order on Summary Judgment was issued October 12, 2022. The following issues were not resolved by summary judgment:
a. Whether Shanks are entitled to full enjoyment of their riparian zone;
b. Whether the placement of Shanks’ pier on the south side of Shanks’ lot unreasonably interferes with Mortons’ riparian rights; and
c. Whether the placement of Shanks’ pier complies with 312 IAC 11-3-1(b).
12. A Telephonic Status Conference (TSC) was held October 25, 2022. By agreement of the parties, a case management order was created which set the administrative hearing for March 8 and March 9, 2023.
13. The parties participated in mediation on February 1, 2023 but no agreement was reached.
14. By order dated February 9, 2023, the ALJ vacated the March 8 and March 9, 2023 hearing dates and scheduled a TSC for March 28, 2023.
15. On March 23, 2023, Bill Eberhard, Charity Murphy, and Rachel Tran entered appearances as substitute counsel for Petitioners.
16. A case management order was established by agreement of the parties at the March 28, 2023 TSC. A Final TSC was scheduled for August 29, 2023 and the administrative hearing was set for September 6 and September 7, 2023.
17. A final TSC was held August 29, 2023.
18. The administrative hearing was held and concluded on September 6, 2022, at the Hearing Room of the Natural Resources Commission Hearings Division in Indianapolis.
19. The following individuals were duly sworn and testified at the hearing: Mark Morton; Pamela Morton; Paul Zylka; Stephanie Zylka; Kevin Shank; and Gary Kent
20. The following exhibits were accepted into evidence: Petitioners’ exhibits A, B, C, F, G H, I, J, K, M, and R; Respondents’ exhibits 1, 4, 5, 12, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 30, and 31.
21. The parties were given thirty days to file a post-hearing brief. Shanks filed a brief on October 6, 2023.
22. Petitioners filed a brief on November 13, 2023. Respondents did not object to the Commission accepting the untimely-filed brief for filing and taking the arguments in the brief under consideration.
Findings of Fact:
23. Mark and Pamela Morton reside at 520 Lane 280 Hamilton Lake, Hamilton Indiana Testimony of Mark Morton (M. Morton) and Pamela Morton (P. Morton). M. Morton’s father purchased the property in 1971. M. Morton has lived at the property since 1975 and the property was transferred to M. Morton in 1984. See, M. Morton Testimony, Exhibit T.
24. Mortons’ property is not a lake-front property. A road, Lane 280 Hamilton Lake (“Lane 280”) and real property contained within a platted subdivision, Forest Part Beach to Hamilton Lake (“Forest Park”), separates Mortons’ property from the shoreline of Hamilton Lake. Id.
25. Lots 6 and 7 of Forest Park are most directly across Lane 280 from Mortons’ property. Id.’ Exhibit M.
26. By order of the Steuben Circuit Court issued in 1975, M. Morton’s parents were granted a six and one-half-foot easement burdening Lot 6 in Forest Park for “ingress and egress” to Hamilton Lake. See, M. Morton testimony; Exhibit V.[2] This order had the effect of decreasing the unburdened shoreline of Lot 6 to approximately 46 feet. The shoreline of Lot 7 was not impacted by the Steuben Circuit Court order. See, M. Morton Testimony.
27. The excerpt of Exhibit M inserted below shows the easement outlined in blue. The property to the south of the Easement is Lot 7, now owned by the Shanks. M. Morton testimony.
28. M. Morton’s parents consistently extended and maintained a pier from roughly the center of the shoreline of the easement and moored a boat to the south side of the pier. See, M. Morton Testimony, P. Morton Testimony.
29. Mortons continued the practice of maintaining a pier from the center of the easement and mooring a boat on the south side of the pier after the property was transferred to M. Morton. Id.
30. Mortons have never moored their boat on the north side of the pier in recognition of the fact that the court-ordered easement decreased the unburdened shoreline of Lot 6. See, M. Morton Testimony.
31. Paul and Stephanie Zylka purchased Lots 6 and 7 in Forest Park sometime in 1994. See, P. Zylka Testimony.
32. Zylkas maintained a pier near the center of Lot 7 from which they moored boats. Id.
33. In 2003, the Zylkas transferred the easement property burdening lot 6 to the Mortons by warranty deed. See. M. Morton Testimony; P. Zylka Testimony; Exhibit R. The easement will be referred to as the “Tract” in the remainder of this order.
34. The Zylkas transferred the Tract so that the Mortons could continue to maintain a pier and moor their boat. P. Zylka believe it was “the right thing to do” as the Mortons had moored their boat there for a long time. See, P. Zylka Testimony.
35. The Tract is six and one-half feet wide continuously from 280 Lane Hamilton Lake to the shoreline of Lake Hamilton. See, M. Morton testimony.
36. Mortons’ pier is three feet wide as it extends from the shoreline. M. Morton added a pier section at the lakeward end of the pier that extends to the north, making the lakeward end of the pier seven feet wide. See, M. Morton Testimony; K. Shank Testimony.
37. When moored to the pier, Mortons’ boat extends approximately seven feet across the property boundary of Lot 7. See, P. Morton Testimony.
38. There is approximately one and three-quarters feet between the south side of the Mortons’ pier and the Shanks’ north property boundary. See P. Morton Testimony.
39. The Mortons’ pier extends approximately 40 feet into Hamilton Lake. Exhibit 20.[3]
40. When the Zylkas owned Lot 7, they were aware that the Mortons’ boat moored to the Mortons’ pier extended across the onshore boundary of Lot 7 but did not object. See, M. Morton Testimony, P. Zylka Testimony.
41. Zylkas sold Lot 7 to the Musts, with whom the Mortons maintained a friendly relationship. See, P. Morton testimony. Zylkas sold Lot 6 to the Coopers. See, K. Shank Testimony.
42. The Musts did not “take issue” with Mortons’ pier or boat. See, M. Morton Testimony.
43. The Musts’ children eventually took possession of Lot 7 and in 2020 sold it to the Shanks. Shanks took possession of the property in late May 2020. See, K. Shank Testimony.
44. One of the Musts’ children asked M. Morton to move the boat to the north side of the pier in May 2020. M. Morton refused to do so. Mortons did, however, remove the boat at the request of a Department Conservation Officer in 2020. Mortons moved their boat to a rented pier elsewhere on the lake. See, M. Morton Testimony.
45. Shanks purchased Lot 7 because they wanted property on Hamilton Lake that had over 50 feet of shoreline. See K. Shank Testimony.
46. Shanks drove by Lot 7 several times and visited the property twice with a realtor before they purchased it. Even though K. Shank knew a pier extended from the shoreline of the Tract, he did not see the Mortons’ boat moored to the pier before purchasing Lot 7. See, K. Shank Testimony.
47. When Shank noticed the boat extended over his onshore property line, K. Shanks asked M. Morton to move the boat. See, K. Shank Testimony.
48. The first boating season that they owned Lot 7, Shanks left what was once the Zylka’s pier near the center of the property. They later moved the pier to north side of their property. See, P. Shank Testimony.
49. In 2022, Shanks replaced the original pier with a “football goal shaped” pier that was centered on their shoreline. The pier structure is modeled after a pier the Mortons saw at a lot a couple of lots south of their property. See, K. Shank Testimony, Exhibit 20, and Exhibit H. The Shanks’ pier extends 50 feet into Hamilton Lake and is 28 feet wide. Id.
50. The landscape of Shanks’ onshore property adjacent to the lake was designed with the current pier structure in mind. See K. Shank Testimony.
51. A boat lift is attached to each side of the pier extension on the north side of the structure. Id.
52. Shanks installed the boat lifts on the north side of the pier rather than in the center of the pier so that their view would not be obstructed. Id.
53. At the time of the hearing, Shanks kept one boat on the boat lift on the south side of the structure closest to the Shanks’ southern property boundary. Shanks hope to purchase another boat for the other boat lift located on the inside of the north pier extension. See, K. Shank Testimony.
54. The southern pier extension is a “guest dock” with no boat lift attached. K. Shank testimony.
55. Exhibit 20 is a picture taken from the balcony of Shanks’ home. The Shanks’ pier is in the center and the Mortons’ pier is to the left. A yellow kayak is attached to Mortons’ pier. The boat to the left of the kayak is moored to the pier north of the Mortons’ pier. See, K. Shank Testimony.
56. The boat lift on the north (left) side of Shanks’ pier is approximately two feet south of the common onshore boundary between Shanks’ property and the Tract. See, K. Shank Testimony.
57. The standard width for a boat lift is ten feet. Id. It is reasonable to infer Shanks’ boat lift is ten feet wide.
58. K. Shank testified it is common on Hamilton Lake for lake-front owners to place a boat lift very close to their property line and to use the shoreline in the center of their lots for swimming. See, K. Shank Testimony.
59. The Mortons have not been able to enjoy Hamilton Lake and the use of their pier as they did before Shanks installed their pier and boat lift close to Mortons’ pier. See, P. Morton testimony.
60. No evidence was presented on the distance between Shanks’ pier and the pier south of the Shanks’ pier.
61. Gary Kent is a professional surveyor licensed in the State of Indiana. See Kent Testimony and Exhibit 4.
62. Kent worked with a field crew to conduct a survey of the Shanks’ property. Id.
63. Kent determined the shoreline was approximately a straight line because the relevant intersecting onshore boundaries are nearly perpendicular to the shoreline. Kent therefore determined the second principle of Information Bulletin #56, published at DIN: 20220209-IR031220025NRA (IB #56) was applicable to determine the parties’ riparian zones. Id.
64. According to the second principle, the boundaries of the riparian zones are determined by extending the onshore boundaries into the lake to the line of navigability. Id.
65. Kent created a riparian zone survey to show Mortons’ and Shanks’ riparian zones. Id. and Exhibit 31. He overlayed the riparian zones on the survey as indicated by the second principle of IB # 56 as follows:
66. Kent also explained that Information Bulletin 56 recommends buffer zone of ten feet between piers; however, this is not strictly applied. Id.
67. Kent determined that Shanks’ pier did not extend into the navigable portion of Hamilton Lake. Id.
68. Mortons did not present evidence to counter Kent’s testimony.
Conclusions of law:
70. The Act places full power and control of public freshwater lakes in the state of Indiana, through the Department of Natural Resources (Department) to hold in trust for Indiana’s citizens to preserve the lakes’ natural scenic beauty and for recreation. I.C. § 14-26-2-5.[4]
71. The Commission has adopted administrative rules to assist in the administration of the Act, found at 312 IAC 11-2.
72. The term “riparian owner” is defined in those rules as an “owner of land . . . bound by a lake.” 312 IAC 11-2-19.
73. It is not disputed that Mortons are riparian owners by virtue of their ownership of the Tract and Shanks are riparian owners by virtue of their ownership of Lot 7.
74. Indiana law recognizes that a riparian owner typically enjoys rights that include: 1) access to navigable water; 2) the right to build a pier out to the line of navigability; 3) the right to accretions; and 4) the right to a reasonable use of the water for general purposes such as boating and domestic use. England v. Ball & Arend, 15 CADDNAR 77, 79 (2019), citing Parkinson v. McCue, 831 N.E.2d 118, 128 (Ind. Ct. App., 2005).
75. A riparian owner’s right to exercise exclusive enjoyment of riparian rights is limited to the owner’s riparian zone, which is the “portion of public waters where a riparian owner has particular rights that are correlative to those of citizens, under the public trust, and exclusive of those neighboring riparian owners.” IB #56.
76. The exercise of riparian rights may not interfere with the rights of the public or of other riparian owners. Id.
77. When determining riparian zones, the Commission is required to consider IB #56 as guidance. 312 IAC 11-1-4. IB #56 does not have the effect of law; however, it is widely followed to provide guidance for determining riparian boundaries. England, 15 CADDNAR 77 at 79.
78. Although Mortons argued on summary judgment that the shoreline was irregular and did not approximate a straight line,[5] Mortons did not present any evidence as to the characteristics of the shoreline at the hearing.
79. Kent testified the onshore property boundaries are approximately perpendicular to the onshore property boundaries. Therefore, the shore approximates a straight line and the second principle of IB #56 applies:
Where the shore approximates a straight line, and where the onshore property boundaries are approximately perpendicular to this line, the boundaries of riparian zones are determined by extending the onshore boundaries into the public waters.
80. Kent’s determination that principle two of IB #56 is credible and not disputed by any other evidence. The Commission therefore adopts Kent’s determination of the parties’ riparian zones as illustrated in Exhibit 31.
81. The Mortons assert they have the right to maintain a pier within their riparian zone and to moor a boat to the dock. See generally, Morton’s Trial Brief.
82. The extent of the Mortons’ rights is limited by the extent of their riparian zone. The first question to address is whether the Mortons may extend a pier from their Tract.
83. Neither 312 IAC 11-3-1(b) nor IB #56 impose a per se rule of the minimum width of the riparian area within which a pier may be extended. Rather, the Commission has historically determined whether the pier meets the requirements of 312 IAC 11-3-1(b) on a case-by-case basis.
84. The pier is a temporary structure that must meet with the requirements of 312 IAC 11-3-1. Among the requirements of this rule is that the pier not infringe on the access of an adjacent landowner to the public freshwater lake, not unduly restrict navigation, and be placed by a riparian owner or with the approval of a riparian owner. 312 IAC 11-3-1(b).
85. The Mortons may not, therefore, extend a structure that extends into the Shanks’ riparian zone without the Shanks’ permission, which has not been granted.
86. Mortons’ pier, without the boat moored to it, is 3 feet wide and placed nearly 2 feet from the riparian line shared with Shanks. There is no evidence the pier itself extends into the Shanks’ riparian zone.
87. Mortons may place and maintain a pier from the shoreline of their Tract; however, they may not use that pier in a manner that unreasonably interferes with Shanks’ access to the lake.
88. The next question, though, is whether Mortons may moor a boat to the pier. Mortons admit their pontoon boat, when moored to the pier, extends approximately seven feet into the Shanks’ riparian zone. Thus, while Mortons may maintain a pier, the boat moored to the pier improperly infringes on Shanks’ riparian zone.
89. The Mortons’ argument that the Shanks’ pier extends into the Mortons’ riparian zone is not supported by the evidence and Mortons cite no legal authority to establish a right to continue to moor a boat to the pier that infringes on the Shanks’ riparian area.
90. Mortons may, however, use the pier for loading and unloading passengers and items such as fishing equipment, etc. This may require temporary usage of the area adjacent to their pier. This temporary use does not unreasonably infringe on the Shanks’ riparian rights and is permissible. N.G. Hatton Trust, 14 CADDNAR at 179; Piering v. Ryan and Caso, 9 CADDNAR 123 (2003); IB #56.
91. The Shanks’ boat lift attached to their pier is considered an extension of the pier. See, e.g., Walther , et. al. v. Pier 343 Condominium Owners Assoc., 12 CADDNAR 12, 16 (2009).
92. Neither party may not maintain their piers with attached equipment in a manner causes unsafe navigation or prevents the other party from enjoying their riparian rights to access the lake from their piers. See, 312 IAC 11-3-1(b).
93. IB #56 provides:
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 typically required that is clear of piers and moored boats, although the area may be used for loading and unloading boats and for active recreation.
94. Although IB #56 calls for a clear space of 10 feet on both sides of the shared riparian boundary, the Commission has not strictly imposed this requirement. N.G. Hatton Trust, 14 CADDNAR at 179; Piering v. Ryan and Caso, 9 CADDNAR 123 (2003).
95. Rather, “the Commission recognizes that in some instances, the imposition of a buffer zone would effectively terminate a riparian owner’s ability exercise his or her riparian rights.” N.G. Hatton Trust, 14 CADDNAR at 179. Further, the Commission has “required a greater degree of contribution to clear space from one riparian owner based on the length of a riparian owner’s shoreline or other authority to use a specific length of shoreline.” England v. Bell & Arend, 15 CADDNAR 77, 80 (2019).
96. Even if a minimal buffer of ten feet is imposed with both parties contributing five feet, the Mortons would be left with one and one-half feet of riparian area, effectively terminating their ability to excise riparian rights.
97. Although Shanks requested an appropriate buffer zone be established, they presented no evidence on this issue.
98. The distance between the Mortons’ pier and the northern side of the Shanks’ boat lift is approximately four feet.
99. The average pontoon boat is eight feet wide. Approximately two feet of clear space on each side is necessary for navigational safety, for a total buffer zone of 12 feet between the piers.
100. Requiring Mortons to contribute six feet of the clear space would terminate Mortons’ ability to exercise their riparian rights.
101. There exists approximately two feet of space between the Mortons’ pier and the common riparian boundary. Requiring the Mortons’ to move their pier north could impact the Coopers, owners of Lot 6, who are not a party to this dispute.
102. The Commission is mindful of the fact that the Shanks’ pier structure and onshore landscaping were carefully designed to be complementary. Requiring the Shanks to move their pier structure could require great expenditure and difficulty to the Shanks.
103. The Shanks’ pier is 28 feet wide and extends 14 feet north and 14 feet south of the center of their 51 feet of shoreline, leaving approximately 12 feet of space between the north side of the pier structure, without the boat lift attached, and the common riparian boundary. The Shanks could contribute 10 feet of clear space without having to reconfigure their pier structure.
Final Order:
104. The parties’ respective riparian zones are determined by application of IB #56, second principle, and are to be determined by extending the parties’ onshore boundaries into Hamilton Lake.
105. Mortons may continue to maintain and extend a pier at its current location should they desire to do so.
106. Clear space of 1.75 feet north and 10 feet south of the Mortons’ and Shanks’ common riparian boundary is required.
107. No portion of a temporary structure, including watercraft and boat lifts moored or attached to the temporary structure may be maintained within the clear space. The clear space must be clear of piers, pier extensions and moored watercraft and may be used only for loading and unloading boats and for active recreation.