The grant of the Certificate of Approval for PL-16,383 by the Department in favor of the Applicants to place a rock seawall on the subject property is affirmed but with the following special conditions in addition to the six special conditions previously set forth in the Certificate of Approval:
(7) Provide a ramp or pathway through the seawall to accord reasonable access to Pine Lake for small watercraft. As used in this special condition, a "small watercraft" is a canoe, kayak, row boat, or similar vessel not outfitted with an engine or motor. The ramp or pathway shall be at least eight feet wide at the seawall and may be developed by either:
(A) designing or redesigning a temporary pier over the seawall with a modest lakeward gradient to lake level for watercraft access; or,
(B) reconfiguring a portion of the seawall to provide a modest gradient to the shoreline and covering that portion of the seawall with stones not greater than three inches nor less than one inch in diameter. The outer edge of the ramp or pathway must be at least ten feet from any property line adjoining the subject property.
(8) Provide a shallow swale, suitably vegetated as specified by the Department to control erosion and minimize the discharge of sediments, to discharge surface water into Pine Lake which has any of the following sources:
(A) The seawall.
(B) Fill placed on the subject property behind the seawall.
(C) Nilewood Drive where the flow of surface water is interrupted by the placement of fill on the subject property behind the seawall.
The swale may be required to include a sediment trap, if determined appropriate by the Department, which trap shall be regularly maintained by the Applicants.
FINDINGS OF FACT
1. This proceeding is governed by IC 4-21.5, sometimes referred to as the "administrative orders and procedures act" or "AOPA," and by 312 IAC 3-1, a multisection rule adopted by the natural resources commission (the "Commission") to assistant in implementation of AOPA.
2. Administrative review is accorded to Jerry Gardner, also known as Granville Gardner,("Gardner") from a determination by the department of natural resources (the "Department") to issue permit PL-16,386 for the placement of a seawall along the shoreline of Pine Lake (the "subject permit"). The permit applicants were Michael J. Taggert, Paul Noveroske, Reathel R. Noveroske, Harry L. Buettner, Marian C. Buettner, John W. Pavy, and Cynthia L. Pavy (the "Applicants").
3. More particularly, the seawall is located on a parcel within the Nilewood Second Addition, a subdivision located in the East 1/2 of Section 28 and the West 1/2 of Section 27, Township 37 North, Range 3 West, Second Prime Meridian, LaPorte, County, Indiana. The parcel is adjacent to the north shore of Pine Lake, contains 50 feet of frontage on the south side of Nilewood Drive, is immediately east of Lot 143, and is immediately west of Lot 144. The parcel is referred to as the "subject property."
4. The plat for Nilewood Second Addition was recorded in 1943 and describes the subject property as a "pier site." The parties have identified no other recorded document, agreement, or covenant among the residents of the Nilewood Second Addition, the Nilewood Addition generally, or from the developer of the Nilewood Second Addition, which provides insight into the intended purpose of the subject property other than its designation as a "pier site."[FOOTNOTE 1]
5. Pine Lake is a "public
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freshwater lake" as defined by IC 14-26-2-3. Construction activities along or within the shoreline of Pine Lake are subject to IC 14-26-2[FOOTNOTE 2] and 310 IAC 6-2, a multisection rule adopted by the Commission to assist in the administration of IC 14-26-2.
6. Gardner is the owner of Lot 143, and as an adjacent property owner, is an affected person entitled to administrative review of the determination by the Department to issue the subject permit under IC 14-26-2-3. Gardner timely raises several issues, and these are summarized and addressed below:
STANDING BY THE APPLICANTS TO SECURE A PERMIT FROM THE DEPARTMENT
7. "Upon written application by the owner of land abutting a public freshwater lake," the Department may issue a permit to change the shoreline or alter the bed of the lake. IC 14-26-2-9(a). In order to qualify under this section, the applicant "must be the owner of land abutting a public freshwater lake." In other words, the applicant must be a riparian owner. DNR v. Town of Syracuse, et al., 7 Caddnar 101 (September 8, 1995). "Riparian owner" is defined by 310 IAC 6-2-12 as the owner of land, or the owner of an interest in land, sufficient to establish the same legal standing as the owner of land. Pearson v. Department of Natural Resources and Gator, 7 Caddnar 137 (September 19, 1996).[FOOTNOTE 3]
8. In their briefs, the parties provide thorough and enlightening analyses of the reported appellate decisions, as well as the administrative decisions from the Commission, which address in various factual contexts who are riparian owners with sufficient legal standing to secure a permit under IC 14-26-2.
9. An initial note is appropriate to these analyses. As openly acknowledged by the parties, the cited decisions address pier placement. For consideration in the instant action is the placement of a seawall. This distinction is of some general consequence since a pier provides a riparian owner with an opportunity for "wharfing out" and enjoying more complete lake access.
10. A "pier" is typically a long-narrow structure extending from the shoreline into a body of water and used as a landing place for watercraft or for other recreational purposes. Beck, 6 Waters and Water Rights, 929 (1991). If the right of access to the benefits of water is at the core of riparian rights, the closest corollary to that right is the right to construct and maintain a wharf (including a pier, dock, or a related structure) to allow effective access to and from the water. Ex parte Easton, 95 U.S. 68 (1877).
11. On the other hand, the purpose of a seawall is to provide an embankment or wall to prevent erosion of a shoreline. Dickerhoff and Bolinger v. DNR, 6 Caddnar 65 (May 22, 1992). By its purpose, a seawall may have the secondary consequence of impeding lake access. Although a factual scenario could also be envisioned where the placement of a pier by one competing riparian blocks lake access by another riparian, none of the cited cases posed this scenario.
12. The distinction between a pier and a seawall is doubly important to the instant action. The subject property is recorded in the plat as a "pier site," but the plat makes no reference to its potential for "seawall" placement.
13. The Department contends Maxwell v. Hahn, 508 N.E.2d 555 (Ind. App. 1987) is instructive. Although not concerned with the placement of a seawall, Maxwell does offer some commonality with the instant proceeding. In both instances, a plat demonstrates an intention to create an easement for lot owners to achieve lake access. In both instances, the plat does not provide sufficient information from which to directly define the rights of competing owners or riparians. The Maxwell court identifies how an easement of this nature is to be construed:
An instrument creating an easement must be construed according to the intention of the parties, as ascertained from all the surrounding facts and circumstances. [Citations omitted.] Co-owners of easements possess the rights to construct, alter or improve the easement or exercise their rights in any way to perpetuate their enjoyment of the easement, as long as their actions do not interfere with their co-owners' rights to enjoy the easement.
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As reflected similarly in Brown v. Heidersbach, 360 N.E.2d 614 (Ind. App. 1977), an instrument creating an easement must be construed according to the intention of the parties.
14. These general principles are also applicable to the instant proceeding. The subject property is a "pier site." Gardner claims in his brief that, at most, the owners of lots in Nilewood Second Addition[FOOTNOTE 4] have an easement for ingress and egress to the lake, and such an easement does not in itself establish the right to place a structure--pier or seawall. Pearson v. Department of Natural Resources and Gator cited previously. While a bare easement does not establish the right to place a structure, the plat language in evidence in this proceeding reflects more than a bare easement.
15. The subject property is, indeed, intended to provide lake access to the owners of lots in the Nilewood Second Addition, particularly but not exclusively those owners whose lots are physically separated from Pine Lake. This conclusion is implicit from the geographic location of the subject property, its treatment by the developer, and its designation on the plat as a "pier site." The subject property enjoys both lake access and road access and was never alienated by the developer. Also, there can be no serious doubt the intended usage of the "pier site" is for the placement of a pier or piers. In other words, the owners of Nilewood Second Addition enjoy an easement through the subject property for access to Pine Lake, and their access may be enhanced through the otherwise lawful placement of a pier or piers.
16. The plat assures, however, more than mere access. In addition, the owners of lots in the Nilewood Second Addition (and perhaps all of Nilewood Addition) have standing to construct, alter, or improve the easement accorded by the "pier site," or to exercise their rights to perpetuate their enjoyment of the easement, as long as their actions do not interfere with their co-owners' rights to enjoy the easement. The placement of a seawall is among the improvements which these co-owners might exercise, subject to the licensing authority of the Department, if the seawall logically supports use of the subject property as a "pier site." The seawall cannot be constructed or maintained so as to interfere with other co-owners' rights to enjoy the "pier site" for its intended purpose of facilitating lake access.
17. As co-owners of the easement accorded to them by the plat to the "pier site," the Applicants have standing to seek a license from the Department to place a seawall on the subject property.
USE OF THE SUBJECT PROPERTY MUST NOT BE OF A NATURE WHICH INTERFERES WITH ITS USE FOR THE BENEFIT OF ALL CO-OWNERS IN THE NILEWOOD SECOND ADDITION
18. The elevation of Pine Lake fluctuates markedly during extended wet and dry periods. Although a legal elevation for the lake has been established, the elevation has only nominal practical significance. The lake is part of a chain of lakes perched between the Kankakee River watershed and the Lake Michigan watershed with no effective outlet. Efforts to discharge excess waters from Pine Lake through the City of LaPorte, then into a tributary of the Kankakee River, have not proven completely satisfactory.
19. When Harry Buettner visited the subject property in 1967, there had been an extended dry period. Pine Lake was at a low elevation. The lot was grassy, and access was provided by a pier extending from the subject property into Pine Lake.
20. In the 1980s, Pine Lake rose significantly. Buettner testified "almost the whole lot" was covered with water. As the water receded, the central portion of the subject property demonstrated the effects of erosion. The subject property was only a few inches above the legal elevation of Pine Lake. During a more recent high-water event, much of the subject property was saturated.
21. Before placement of the seawall, the "pier site" provided small boat access to Pine Lake. H. J. Foytek testified that "at least several times a year" in the early 1990s, his grandsons visited from Chicago and launched a small aluminum boat along the subject property's natural shoreline.[FOOTNOTE 5]
22. The seawall is constructed of stones of various sizes, including some larger stones. The larger stones
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were selected for usage as toe stones with small stones used to cap the seawall. The seawall does not use glacial stone but rather a more homogenous riprap.
23. Subsequent to construction of the seawall, small boat access is made impracticable. Foytek testified that his use of the site for small boat launching has been "deterred," as demonstrated when he "fell" in attempting to move a small boat through the rugged seawall.
24. Currently, the subject permit places no restriction on the height of the seawall. According to the testimony of Scott McClarney of the Department's division of water, the Department has not customarily placed restrictions on the height of seawalls. Although the Department prefers the use of glacial stone for a seawall such as the one on the subject property, the use of "any rock material" conforms to permit specifications. The seawall, as built, does not violate the terms of the subject permit as anticipated by the Department's division of water.
25. The current seawall does, however, tend to impede usage by the owners in the Nilewood Second Addition. The construction materials and elevation of the seawall combine to deter usage of the subject property to launch small watercraft. The subject permit should be modified to require the seawall be reconfigured to accommodate reasonable access by small watercraft.
JURISDICTION OF THE DEPARTMENT TO EXACT AND ENFORCE PERMIT CONDITIONS, WHICH PROVIDE FOR THE DISPOSITION OF MATERIAL EXCAVATED IN THE CONSTRUCTION OF A SEAWALL, LANDWARD OF THE SHORELINE OF A PUBLIC FRESHWATER LAKE
26. As provided in 310 IAC 6-2-16(b)(3) with respect to the placement of seawalls along public freshwater lakes, "all disturbed areas landward" of the shoreline "must be suitably revegetated or otherwise provided permanent protection."
27. In accordance with this subdivision, the subject permit provides the Applicants must cause "all excavated material" to be "properly spread or completely removed from the project site such that erosion and off-site sedimentation of the material is prevented." In addition, "vegetation must be established on any disturbed areas as soon as possible using straw mulch or erosion control blankets to enhance stand establishment and prevent erosion."
28. The Department urges that its jurisdiction under IC 14-26-2 is limited to the area beginning at the shoreline and extending lakeward into the lake itself. McClue v. DNR, 3 Caddnar 5, 6 (1986). While an accurate depiction of the Department's geographic jurisdiction with respect to public freshwater lakes, the Department may also properly exercise control over construction activities in immediate proximity to the lake which have the potential for negatively impacting the lake, such as through sedimentation. This principle is the basis for the adoption of 310 IAC 6-2-16(b)(3).
29. Determining which construction activities are in immediate proximity to the lake, and have the potential for negatively impacting the lake, is subject to interpretation based upon facts peculiar to a particular activity. While the Department can "go too far" in its interpretation, a process exists by which an aggrieved permit applicant can seek review. The process is the same administrative orders and procedures act applied in the instant proceeding. An applicant which chooses to act upon the franchise of a permit, without contesting its terms, is bound by those terms. In addition to the jurisdiction inherent to IC 14-26-2 with respect to public freshwater lakes, the Department has jurisdiction under the administrative orders and procedures act to enforce compliance with permit terms.
30. In the instant proceeding, the Department has conditioned the subject permit upon compliance by Applicants with the terms outlined in Finding 27. The Applicants are legally bound by those terms, despite their reference to geography outside the shoreline of a public freshwater lake.
31. The subject property was filled behind the seawall with a mixture of earthen materials. These included sand and sediments excavated from the lakebed during the construction of the seawall, as well as upland clay materials. The area was planted with grass seed and pine trees, but the pine trees died or were removed.
32. The subject property included a small drain intended to channel storm water across the subject property and through the seawall back into Pine
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Lake. Despite maintenance efforts by the Applicants, the drain has tended to clog with sedimentation and has sometimes become dysfunctional.
33. Fill placed on the subject property in association with the seawall raises it above the elevation of the Lot 143, with a result that storm water drainage has been funneled onto the edge of Gardner's property adjacent to the subject property.
34. Photographs introduced at hearing demonstrate some erosion of the subject property and Lot 143. Turbidity of the runoff following a recent storm event indicates sediments were discharged into Pine Lake. The seriousness of the discharge is difficult to assess, but it may reflect an isolated occurrence. Testimony by John Pavy suggests the turbidity resulted from a four or five inch rain which occurred when a house was being constructed on a nearby hill.
35. In any event, whether to take enforcement action for the discharge of sediments into Pine Lake is a decision which rests with the sound discretion of the Department. It is not directly a permit issue for determination in this proceeding.
36. The design of the seawall and related landward fill must properly provide for drainage in a manner which controls erosion and minimizes the discharge of sediments into Pine Lake. To accomplish these purposes, any drain or swale which services the seawall and related landfill must be located on property over which the Department has control through its permitting authority. Upon the facts of this proceeding, that authority is limited to the subject property and Pine Lake and does not extend to neighboring Lot 143.
FOOTNOTES
1. There was testimony by some of the parties as to the intended purpose of the subject property, including testimony that the realtor through whom they made their purchases offered certain representations as to its intended usage. No representative of the developer testified, nor did any witness even claim to have discussed with the developer what was the original intent. Years and decades elapsed between recordation of the Nilewood Second Addition plat and any communication upon which a witness relied. The testimony was almost universally self-serving. As a result, this testimony is found to be without probative value.
2. Formerly codified as IC 13-2-11.1. Citations in these findings are to IC 14-26-2, but the results would be the same if citations were to IC 13-2-11.1.
3. The Department reflects in the "Claimant's Reply Brief " that the Town of Syracuse decision was reversed on judicial review, and the reversal is now pending before the Indiana Court of Appeals. A stated basis for the reversal was the failure by the Commission to distinguish two prior cases, Kozon v. DNR and Miller v. DNR and Kozon. Those cases are now distinguished for purposes of the instant action.
In Town of Syracuse, a judicial decision had preceded administrative review in which the court had determined the Town was the riparian owner at the site in question--portions in the lake which were extensions of public streets. Indeed, the Town even argued that its jurisdiction over the streets superseded that of the Department to regulate public freshwater lakes. As a consequence of giving effect to the prior civil determination, there was no evidence that the private citizen contestants, Grove and Causey, had any claim of ownership which might give them riparian rights.
The relationships between the parties in Kozon and Miller were dictated by a public use easement, and questions were presented as to whom might lawfully place piers based upon the intent of the easement. Unlike Town of Syracuse, in Kozon and Miller evidence was in dispute as to whether the private citizen contestants had riparian rights. The latter cases were further complicated by accretion which occurred subsequent to delineation of the easement. Kozon and Miller acknowledge a general principle: a person may have a sufficient ownership interest to place a pier without being the owner of land immediately contiguous to a public freshwater lake. This principle was not relevant to the Town of Syracuse decision. These cases are in harmony with one another and in harmony with the definition of "riparian" contained in 310 IAC 6-2-12.
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4. The evidence is inconclusive as to whether the subject property was intended to provide access only to residents of the Nilewood Second Addition or whether it was intended to provide access to residents of the Nilewood (First) Addition as well. Resolution of this issue is unnecessary to the instant proceeding.
5. The Department urges in its brief that witnesses other than Foytek testified they have been able to launch small boats into the lake despite the presence of the seawall. The testimony of Foytek on this factual issue is found more persuasive. Although Foytek is a neighbor, he is not a party. Foytek's lack of interest in the proceeding and his general demeanor support this conclusion. In addition, photographs of the seawall admitted into evidence demonstrate, that while small boat access for some is yet undoubtedly possible, it has been made more difficult and even impossible for others.