CADDNAR
Gray & Shock v. Beaudoin & Matthews (22-048W), 16 CADDNAR 17
Administrative Cause Number: 22-048W
Administrative Law Judge: Elizabeth Gamboa
Petitioner Counsel: pro se
Respondent Counsel: pro se
Date: June 12, 2023
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WITH FINAL ORDER
Procedural Background and Jurisdiction:
1. On August 3, 2022 Dennis Gray submitted an Appeal Request Form to the Natural Resources Commission (Commission) in which he alleged that a public access to Little Barbee Lake was “blocked by privately owned pier/boat/pontoon.” The request was given Administrative Cause No. 22-048W and Administrative Law Judge (ALJ) Bonar was appointed by the Commission to preside over the case pursuant to Ind. Code § 14-10-2-2.
2. By letter dated August 9, 2022, ALJ Bonar requested that Gray provide the Commission the name and contact information for the individual(s) he alleged were blocking the public access.
3. Gray amended his appeal request to include Peter Beaudoin and S. Demaris Matthews as respondents on August 15, 2022.
4. A copy of the amended complaint was provided to Beaudoin and Matthews by ALJ Bonar with a Notice scheduling a Telephonic Prehearing Conference (PHC) for September 19, 2022. The case was designated Dennis A. Gray v. Peter Beaudoin and S. Demaris Matthews, Cause No. 22-048.
5. At the PHC on September 19, 2022 the parties requested the case be referred to the Shared Neutrals Program for appointment of a mediator. A Telephonic Status Conference (TSC) was scheduled for November 17, 2022. ALJ Bonar continued the TSC to November 18, 2022 by order dated October 12, 2022.
6. On August 7, 2022, Jeff Shrock filed an Appeal Request Form naming Demaris Matthews as the respondent and alleging Matthews “placed a pier on a public easement of Little Barbee Lake, which blocked other residents from using the public easement.” The Request was given Administrative Cause No. 22-049W and assigned to ALJ Gamboa pursuant to I.C. 14-10-2-2.
7. ALJ Gamboa requested Shrock provide Demaris Matthews’s address by letter date August 10, 2022. Shrock provided that information in an amended petition filed August 15, 2022.
8. A copy of Shrock’s Appeal Request and the amended petition were provided to Matthews by ALJ Gamboa with a notice scheduling a PHC for September 6, 2022.
9. At the September 6, 2022 PHC, Shrock was given to October 6, 2022 to add additional necessary respondents and a TSC was scheduled for October 27, 2022.
10. At the October 27, 2022 TSC, the parties discussed consolidation of the case with Cause No. 22-048 which was pending with ALJ Bonar.
11. On October 28, 2022 ALJ Gamboa entered an order consolidating both cases into Cause No. 22-048W and scheduled a PHC for the consolidated matter for November 28, 2022.
12. At the PHC on November 28, 2022 the parties were advised of their rights and the administrative hearing process was explained. The parties again expressed interest in mediation through the Shared Neutrals program. A Final TSC was scheduled for March 7, 2023 and the administrative hearing was scheduled for March 22, 2023.
13. At the final TSC held March 7, 2023, the parties were informed that no mediator was available through the shared neutrals program. The parties requested to proceed with the hearing on March 22, 2023.
14. The administrative hearing was held as scheduled on March 22, 2023 in the Division of Hearings’ hearing room. Dennis Gray, Jeff Shrock, Peter Beaudoin and S. Demaris Matthews appeared in person, self-represented.
15. The following witnesses were duly sworn and testified at the hearing: Mike Montgomery, Tina Shrock, and Dennis Gray.
16. The following exhibits were accepted into evidence: Schrock’s Exhibits D, E, F, H, I, J, K, L, M, and N.
17. Official notice was taken of the following: Ind. Code 14-26-2-23 (Exhibit A); 312 Ind. Admin. Code 11-3 (Exhibit C); Kiefer v. Diller, 15 CADDNAR 67 (2019) (Exhibit O); Frendeway & Bartusky v. Brase, 15 CADDNAR 121 (2020), (Exhibit P) Appeal Request Form (Exhibit Q).
18. The parties were given the opportunity to make a brief closing statement and/or to file a written closing statement. Shrock and Gray each made a closing statement at the hearing. Shrock and Matthews timely filed written closing statements on April 20, 2023.
19. Little Barbee Lake is a public freshwater lake in Kosciusko County and subject to the Lakes Preservation Act. See Information Bulletin 61 (Eighth Amendment) Listing of Public Freshwater Lakes, DIN 20211020-IR-312210447NRA.
20. The Commission is the ultimate authority with regard to the Lakes Preservation Act.
FINDINGS OF FACT:[1]
21. The parties are residents of Kuhn’s Northshore Park (“Kuhn’s Park”) in Kosciusko County, Indiana. The plat for Kuhn’s Park was established in 1946 and entered into the records of the Kosciusko County recorder’s office on July 5, 1946. See Exhibit D.
22. Lots 1-15 of Kuhn’s Park are situated adjacent to Little Barbee Lake. Lots 16-30, also referred to as “back lots” are not adjacent to the Lake. Id.
23. The following is an excerpt from the plat to Kuhn’s Park shows lakefront Lots 6 through 15 and back lots 16 through 24:
Exhibit D.
24. Included in the plat are “Access to Lake” areas, each platted as 25’ wide, between lots 2 and 3, 4 and 5, 6 and 7, 8 and 9, 10 and 11, and 12 and 13. Exhibit D
25. The “Access to Lake” property relevant to this dispute is between Lots 10 and 11 and will be referred to as “Lake Access Property” or “Lake Access Properties” when additional strips are discussed.
26. The plat also shows 25’ wide strips of property extending north of Hillside Drive between back lots 20 and 21, 22 and 23, and 24 and 25. These strips are labeled “Alley.” Exhibit D.
27. Hillside Drive is now known as “EMS B61 Lane.” See Testimony of Gray.
28. The plat is subject to a “Declaration of Restrictions.” None of the listed restrictions are relevant to the Lake Access properties. See Exhibit D.
29. The Lake Access properties run from the common road to the shoreline of Little Barbee Lake. See Exhibits D and E.
30. Shrocks own Lot 10, commonly known as 177 EMS B61 Lane, on which they maintain a residence. See Testimony of T. Shrock and Exhibits G and H.
31. Grays own Lot 21, commonly known as 18 EMS B61C Lane. See Testimony of Gray.
32. Beaudoin owns Lot 20, a back lot, commonly known as 25 EMS B61C. See Exhibits D and J.
33. Matthews owns property commonly known as 135 EMS B61B Lane, Warsaw, IN. See Exhibit I. There is no evidence which Kuhn’s Park lot Matthews owns. It is reasonably inferred from the totality of the evidence that Matthews’ property is a back lot within Kuhns’ Park.
34. The warranty deed to Beaudoin’s property grants him the following easement:
Together with the right to use for ingress to and egress from said tract in common with the former grantors and their prior and subsequent grantees of other real estate in the vicinity, a tract described as follows, to wit:
Commencing at the northeast, or most easterly corner of the tract above described and running south 29 degrees 08 minutes west, to the public road in Kuhn’s Northshore Park, denominated Hillside Drive; thence southeast, along the north line of said Hillside Drive, 25 feet; thence northeast (North 29 degrees 08 minutes east) 295.75 feet to a point south 60 degrees 52 minutes east, of the place of beginning; thence north 60 degrees 52 minutes west, 25 feet to the place of beginning.
Exhibit J.
35. No additional evidence was presented about an easement that may have been granted to Beaudoin. The above easement language refers to ingress and egress from the tract, not the water of Little Barbee Lake. Further, the metes and bounds description more likely describes the Alley between Lots 20 and 21 and not the Lake Access property. It is reasonable to infer that Beaudoin does not have a “deeded easement” to the Lake Access property.
36. The parties agree that the Lake Access properties are “public.” There is no evidence in the record to indicate whether the lake access properties may be used by the public in general or only by back lot owners in Kuhn’s Park. See Totality of the evidence.
37. Matthews maintains a pier lakeward of the Lake Access Property. Matthews moors a pontoon on one side of the pier and Beaudoin moors a boat on the other side. See Testimony of Gray.
38. Matthews told Tina Shrock (T. Shrock) that she (Matthews) has deeded access to extend a pier into Little Barbee Lake from the Lake Access property. See Testimony of T. Shrock.
39. Montgomery recently purchased Lot 11, a lake front property in Kuhn’s Park. He “generally understood” when he purchased his lot that the Lake Access property between his lot and Shrocks’ lot was not owned by anyone. Montgomery could not remember if the Lake Access property could be used only by back lot owners in Kuhns’ Park or if it could be used by the public. See Testimony of Montgomery.
40. Montgomery does not need to use the Lake Access property but wants to preserve his right to use if he chooses to do so. He does not object to a pier being extended from the shoreline of the Lake Access property but does object to boats being moored to the pier. Id.
41. Based on his observation of the location of the surveyor’s stake marking the corner of his property adjacent to the Lake Access property, Montgomery believes Matthews’s pontoon, when moored to the pier, intrudes into his riparian zone.[2] Id. and Exhibit I.
42. Tina Shrock testified, without objection, that Mike Kissinger, Kosciusko County Surveyor, told her that there is no indication in the county records that property taxes are being paid on the Lake Access property. See Testimony of T. Shrock.
43. T. Shrock testified that Matthews’s pier and moored boats obstructs her use of the Lake Access property to fish, swim, and wade in the lake. T. Shrock admitted, however, that she can access the water of Little Barbee Lake from the riparian area associated with Lot 10. Id.
44. According to county records, no one person owns the Lake Access property. See Exhibit F.
45. The placement of the pier and the mooring of boats blocks Gray’s ability to use the Lake Access property. See Testimony of Gray.
46. County Surveyor Kissinger told Gray no one has deeded access to the property. Id. No one objected to Gray’s testimony about statements from Kissinger.
47. Beaudoin told Gray that he and Matthews have deeded access to the place and maintain a pier at the Public Access property. Id. Beaudoin also told Gray not to go on Matthews’ pier. Id.
48. Gray has never spoken to Matthews. Id.
49. Neither Matthews’ Quit Claim Deed (Exhibit I) nor Beaudoin’s Warranty Deed (Exhibit J) contain language conveying an interest in the Lake Access property to Matthews or Beaudoin.
Conclusions of Law:
50. Gray and Shrock allege the pier Matthews maintains lakeward of the Lake Access property improperly blocks others from using this property for access Little Barbee Lake. See Appeal Request Form of Gray; Appeal Request Form of Shrock; Amended Petition of Shrock.
51. Pursuant to Ind. Code 14-26-2-23(e), the Commission established a process under Ind. Code 4-21.5 for the mediation of disputes among persons with competing interests relating to the exercise of riparian rights on Indiana public freshwater lakes. 312 IAC 11-3-1.
52. A riparian owner is an “owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake.” 312 IAC 11-2-19.
53. In general, a person may place and maintain a temporary structure lakeward of the shoreline of a public freshwater lake under a general license if the temporary structure meets the requirements of 312 IAC 11-3-1(b). Among the requirements is that the temporary structure “be placed by a riparian owner or with the written approval of a riparian owner.” 312 IAC 11-3-1(b)(9).
54. The rights associated with riparian ownership include “(1) the right to 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, domestic use, etc.” Center Townhouse Corp v. City of Mishawaka, 882 N.E2d 762, 771 (Ind. Ct. App. 2008).
55. Matthews is not the owner of land bound by a waterway. The only authority by which she could place and maintain a pier lakeward from the Lake Access property is if she has “the same legal standing as the owner of land, bound by a lake.” 312 IAC 11-2-19.
56. The evidence is sufficient to establish that Matthews does not own, or have a private deeded easement interest in, the Lake Access property.
57. On the face of the plat, access to Little Barber Lake is a contemplated use of the of the Lake Access property.
58. The Commission has previously stated that a right of way “which leads from a common road to the water’s edge, and provides no other apparent purpose, intends some access to the waters of the lake.” Frendewey & Bartuska v. Brase, 15 CADDNAR 121, 124 (2020), citing Playmate v. Paton and DNR, 13 CADDNAR 28 (2001); Engenhauf & Heckman v Peuquet, 12 CADDNAR 295 (2011).
59. The Lake Access property leads from the common road to the edge of Barbee Lake. Therefore, the right to access the lake is attached to the Lake Access Property. Id.
60. The Lake Access property is not owned by anyone and may be used to access Little Barber Lake by either the public in general or by the owners of lots within Kuhn’s Park.[3]
61. There is no evidence that the Lake Access property has been dedicated to public use.
62. Petitioners have, however, presented sufficient evidence to establish that Matthews’s and Beaudoin’s interests in the Lake Access Property is non-exclusive and must be shared with others, whether that be with the public or with owners of property within Kuhn’s Park. See Frendewey, 15 CADDNAR at 125.
63. As non-exclusive owners of the Lake Access property, Matthews and Beaudoin may not alter or use the Lake Access property in such a manner as to render it appreciably less convenient and useful for other co-owners. See, Kiefer v. Diller, 15 CADDNAR 67, 68 (2019), citing Hodges v. Lampkin & Miller, 15 CADDNAR 1 (2018).
64. Both Matthews and Beaudoin told Gray and T. Shrock they were not allowed to use the pier, thus establishing Matthews’s and Beaudoin’s intent to maintain the pier for their exclusive use, which is not permitted.
65. Further, given the width of the Lake Access Property, it is reasonable to conclude that maintaining a pier to which a pontoon and another boat are moored render the Lake Access Property considerably less convenient for others to use.
66. This conclusion is supported by the Commission’s order in Dennis v. Sutton, 14 CADDNAR 148 (2017). In Dennis, the Commission determined that “[t]the lateral limitations” of 25’ of a property that had been dedicated to public use dictated that not every member of the general public can extend a pier from or moor boats within the waters lakeward of the disputed parcel.” Id. at 152.
67. The Lake Access property has not been dedicated to public use. However, like the property at issue in Dennis, any individual’s right to use the Lake Access property is non-exclusive. Further, the lateral limit of 25’ of the Lake Access property at issue here would prohibit others from extending a pier from the property.
68. There may be circumstances under which a pier could be maintained at the Lake Access property if that pier remains available for boats to stop temporarily to perhaps load or unload passengers. That is not, however, the situation here. Matthews and Beaudoin exercised exclusive authority over the Lake Access property, which is not permitted. [4]
Final Order
69. Matthews and Beaudoin may not place and maintain a pier and moor boats thereto lakeward of the Lake Access property for their exclusive use.