The subject license, as set forth in Finding 15, is executed and given full force
and effect with the following additional conditions: Before commencing
reconstruction of the boathouse, Stephen Jansing must provide the Department of
Natural Resources with external dimensions of the boathouse that was razed in
2000. Jansing is provided 30 days from
issuance of the Final Order to provide these dimensions. Unless Jansing provides the dimensions within
30 days, he is deemed to have abandoned the authorization to reconstruct the
boathouse as a lawful nonconforming use.
Hawkins and Others are also provided 30 days from issuance of this Final
Order to provide the DNR with information pertaining to the dimensions of the
former boathouse. The DNR shall not approve
licensure other than for a reconstructed boathouse which does not exceed the
height and other external dimensions of the previous boathouse and which does
not exceed or substantially deviate from the footprint of the previous
boathouse. A party that is aggrieved by
the dimensions or configuration for boathouse reconstruction, which the
Department of Natural Resources approves under this paragraph, may seek
administrative review for the limited purpose of defining the dimensions or
configuration.
Placement of a glacial stone
reface as performed by Jansing is found to have been authorized, by rule,
through a general license and not to require an individual license. Activities performed by Jansing with respect
to the permanent pier are found to have been authorized as maintenance of a
lawful nonconforming use.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Statement of the Case
1. Stephen L. Jansing
(“Jansing”) filed a timely written request for administrative review with the
Natural Resources Commission (the “Commission”) on January 2, 2004.
2. The written request sought
relief from the denial by the Department of Natural Resources (the “DNR”) of
license application PL-19,011 under IC 4-26-2 (sometimes referred to as the
“Lakes Preservation Act”) and rules adopted by the Commission at 312 IAC 11-1
through 312 IAC 11-5 to assist with the administration of the Lakes
Preservation Act.
[VOLUME 11, PAGE 9]
3. The written request
initiated a proceeding 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 administration of AOPA.
4. PL-19,011 sought
authorization to place a boathouse and to otherwise modify Jansing’s riparian
area within the “shoreline or water line” (as defined at IC 14-26-2-4) of
5.
6. Terry Hawkins, Jennifer
Hawkins, Orv Miller, Jan Miller, Doris Speicher, Martha Wentworth, James P.
Carruthers, Margaret Stewart, Margaret J. Davis and David J. Schmidt (“Hawkins
and Others”) petitioned to intervene in support of the denial through a series
of pleadings, the first of which was filed on January 12, 2004.
7. The DNR filed pleadings in
opposition to the intervention petitions.
8. Following briefing and
oral argument, the Administrative Law Judge entered a nonfinal order to grant
the intervention petitions (the “nonfinal order granting intervention”). The nonfinal order granting intervention
provided it was ripe for filing objections and for disposition by a Commission
committee established under 312 IAC 3-1-12 (the “AOPA Committee”).
9. The AOPA Committee is the
“ultimate authority” for this proceeding under IC 4-21.5-1-15 and is authorized
to take a “final agency action” under IC 4-21.5-1-6.
10. The DNR filed objections
to the nonfinal order granting intervention, and the AOPA Committee heard those
objections during oral argument held on July 20, 2004.
11. On October 15, 2004, the
AOPA Committee entered an interlocutory order with respect to the nonfinal
order granting intervention:
The AOPA
Committee declines to issue a final order on the matter of intervention. The proceeding is instead remanded to the
Administrative Law Judge with instructions to complete the adjudication. [Hawkins and Others] shall participate on the
basis of the nonfinal order granting intervention that was entered on April 26,
2004. The Administrative Law Judge shall
again consider standing among those issues addressed in findings of fact and
conclusions of law, and a nonfinal order, when rendered upon the merits. The parties retain the right and opportunity
to file any objections, including those pertaining to standing, following the
issuance of a nonfinal order upon the merits.
12. Following the remand to
the administrative law judge, Jansing and the DNR engaged in additional
negotiations. As between them, a
settlement was achieved for the approval of a modified license application, but
Hawkins and Others did not agree to the terms of the settlement.
[VOLUME 11, PAGE 10]
13. The administrative law judge
declined to approve the proposed settlement between Jansing and the DNR in the
absence of a concurrence in the agreement by Hawkins and Others.
14. As more particularly
described in a “Report of Telephone Status Conference and Notice of Telephone
Status Conference” entered on July 22, 2005, the administrative law judge
ordered a process for administrative review of the modified license
application. The Report provided in
pertinent part:
As
previously referenced in documents filed in this proceeding, [Jansing] modified
his license application, and the [DNR] determined that the modified application
would be granted. [Hawkins and Others]
continue, however, to oppose granting of the license as modified. A discussion ensued as to an effective method
for advancing toward a final resolution.
Jansing
and the [DNR] proposed tendering an agreed order for approval by the
Administrative Law Judge and the Commission.
[Hawkins and Others] objected to this approach because they did not join
in the agreement and maintain their approval is required for resolution because
they are parties. The [DNR] responded
that the [DNR] was entitled and responsible for granting licenses where legal
requirements are met. The [DNR] added
[Hawkins and Others] cannot properly preclude the agency from performing its
licensure function, and [Hawkins and Others] could seek judicial review if
dissatisfied with the terms of the agreed order. The Administrative Law Judge said he would
not approve an agreed order unless signed by or on behalf of all parties, and
limiting [Hawkins and Others] to judicial review would prejudice their
interests since the scope of judicial review is typically narrower than that of
administrative review.
The
Administrative Law Judge said he would entertain either of two approaches: (1)
Jansing could dismiss, without prejudice, the current proceeding and file a new
license application consistent with the anticipated agreed order. When the [DNR] granted the new license,
notice would be provided to [Hawkins and Others]. If they wished, [Hawkins and Others] could
seek administrative review of the new license.
(2) Jansing could identify with particularity what modified license he
sought within the context of the current proceeding. The [DNR] and [Hawkins and Others] would be
provided a reasonable to respond and to file any objections they might have to
the modified license. Presumably, since
the license would be a function of an agreement with the [DNR], the agency
would have no objections.
Jansing
said he believed the Administrative Law Judge should properly approve the
agreed order, but as between the two approaches provided by the Administrative
Law Judge, he chose approach (2).
Barrett said [Hawkins and Others] objected to approach (2) since it did
not afford the parties all the
[VOLUME 11, PAGE 11]
opportunities
for input with the [DNR] prior to licensure.
He said that only approach (1) was legally appropriate. Jansing responded he did not believe he
should be required to start over with a new license application because of the
resulting delay to the date of approval and because of the added expense. He said the current proceeding was a result
of his petition, and he expected that it might lead to the approval of a
license acceptable to him and the [DNR].
Jansing said his new license was within the scope of the original
[request for administrative review]. The
Administrative Law Judge said he and the Commission would provide hearing de
novo within approach (2) to incorporate any matters that might properly be
considered in pre-licensure review.
Barrett asked to have the record show [Hawkins and Others] objected to
the application of approach (2), and the Administrative Law Judge replied that
the record would so indicate.
The
Administrative Law Judge said within a procedure applying approach (2),
assuming the [DNR] approve particular licensure language, [Hawkins and Others] would
have the burden of going forward and the burden of persuasion (sometimes
collectively referred to as the “burden of proof”) to establish granting the
license was somehow erroneous. This
approach would be consistent with how the Commission has applied IC 4-21.5 and
if approach (1) were applied. Jansing
asked for clarification that this meant he would not be required to prove the
appropriateness of his license, but that [Hawkins and Others] would be required
to show it was inappropriate. The
Administrative Law Judge indicated that was essentially accurate. [The attorney for Hawkins and Others] for
clarification that Jansing did not have a final license, but rather he would be
subject to the full review process, including discovery, and a hearing would be
conducted. The Administrative Law Judge
responded that the totality of [AOPA] would apply, as well as…312 IAC 3-1. This application would include discovery, and
such procedures as motions for summary judgment, and it could also result in a
hearing.
15. As anticipated by Finding
14, Jansing filed his “Terms and Conditions of License for Permit PL-19,011
Dated August 29, 2005”. He stated, “The
attached three-page document represents the resulting terms and conditions for
a license sought by [Jansing] under permit application PL-19,011. The attached document was submitted to
[Jansing] from the [DNR] and for this reason is expected to be consistent with
the form and substance of an agreed order to which the [DNR] would agree and
describes a license that the [DNR] would approve for permit application
PL-19,011 under IC 14-26-2 and 312 IAC 11.”
Joint Exhibit 3.
16. The attached document
described in Finding 15 provides in substantive part as follows:
APPLICATION
#: PL-19011
LAKE:
[VOLUME 11, PAGE 12]
APPLICANT: Stephen
L. Jansing
80 West 625
South
DESCRIPTION: An
approximate 19’ x 25’ area in the existing boatwell will be dredged to an
approximate depth of 3’ to 4’ below the lake’s level and the existing center
concrete barrier will be removed. An approximate
19’ x 10’ area south of the boatwell will be dredged to an approximate depth of
3’ to 4’ below the lake’s legal level for navigation of boats into the
boatwell. All dredging shall be
performed by a backhoe and all dredged material shall be placed on the
applicant’s property. The existing
seawall along the sides of the boatwell will be refaced with a layer of
concrete keyed to the wall’s lakeward face.
A boathouse will be constructed over the boatwell.
Note:
The existing rock seawalls on either side of the boatwell may be refaced with
glacial stone.
LOCATION: 0080
W 6255 South, lot 7 and 8, Oak Ridge Addition near Wolcottville,
SE ¼, NE
¼, NE ¼, Section 25, T36N, R 9E,
SPECIAL PERMIT CONDITIONS
1.
Re-vegetate all bare and disturbed areas landward of the shoreline with a
mixture of grasses (excluding all varieties of tall fescue) and legumes as soon
as possible upon completion.
2. The
entire dredging area must be isolated from the lake with turbidity curtains.
3. All
excavated material must be properly spread or completely removed from the
project site such that erosion and off-site sedimentation of the material is
prevented.
4.
Minimize the movement of resuspended bottom sediment from the immediate project
area.
5.
Appropriately designed measures for controlling erosion and sediment must be
implemented to prevent sediment from entering the lake or leaving the
construction site; maintain these measures until construction is complete and
all disturbed areas are stabilized.
6.
Dredging shall only occur between July 1st through March 31st.
7. Limit
the maximum thickness of the reface concrete layer to 12 inches.
GENERAL PERMIT CONDITIONS
[VOLUME 11, PAGE 13]
1. If
any archaeological artifact or human remains are uncovered during construction,
federal law and regulations (16 USC 470 et seq., 36 CFR 800.11, et seq.) and
state law (IC 14-21-1) require that work must stop and that the discovery must
be reported to the Department of Natural Resources, Division of Historic
Preservation and Archaeology, within two (2) business days.
Division of Historic Preservation and Archaeology
Telephone: 317-232-1646; Fax: 317-232-8036
2. This
permit must be posted and maintained at the project site until the project is
completed.
3. This
permit does not relieve [Jansing] of the responsibility for obtaining
additional permits, approvals, easements, etc. as required by other federal,
state, or local regulatory agencies.
These agencies include, but are not limited to
Agency Telephone
Number
Indiana
Department of Environmental Management (317)
233-2471
Local
planning or zoning commission Check
directory
4. This
permit must not be construed as a waiver of any local ordinance or other state
or federal law.
5. This
permit does not relieve [Jansing] of any liability for the effects the project
may have upon the safety of the life or property of others.
6. This
permit may be revoked by the Department of Natural Resources for violation of
any condition, limitation, or applicable statute or rule.
7. This
permit shall not be assignable or transferable without the prior written
approval of the Department of Natural Resources. To initiate a transfer, contact:
Michael W. Neyer, P.E., Director
Division of Water
Telephone: 317-232-4160; 1-877-928-3755
Fax: 317-233-4579
8. The
Department of Natural Resources shall have the right to enter upon the site of
the permitted activity for the purpose of inspecting the authorized work.
9. If
the project has not been completed within twenty-four (24) months from the date
this permit is approved by the Commission, this permit will become void and a
new permit will be required in order to continue work on the project.
[VOLUME 11, PAGE 14]
Each page of the document
described in this Finding also included the following restriction: “THIS
DOCUMENT DOES NOT CONSTITUTE A PERMIT AND SHALL HAVE NO FORCE OR EFFECT UNTIL
PROPERLY EXECUTED”. Joint Exhibit
3. The document described in this
Finding is sometimes here referred to as the “subject license”.
17. The proceeding was
scheduled for a hearing in Indianapolis on April 4, 2006 pursuant to a “Report
of Telephone Status Conference, Notice of Telephone Status Conference, and
Notice Concerning Hearing” entered on October 7, 2005; a “Notice of Hearing”
entered on October 14, 2005; and a “Clarification Regarding Notice of Hearing”
entered on March 27, 2006.
18. The “Notice of Hearing”
stated Hawkins and Others would generally have the burden of burden of proof,
but Jansing and the DNR would have the burden of proof with respect to any
affirmative defenses.
19. Jansing filed the
“Claimant’s Affirmative Defenses” on November 1, 2005. The DNR did not identify any affirmative
defenses.
20. The hearing was convened
as scheduled in
21. Before evidence was
submitted, Hawkins and Others restated their continuing objection to the
process that was established by the administrative law judge and previously
described in Finding 14.
22. Following completion of
the evidence, the hearing adjourned at approximately 5:30 p.m. on April 4,
2006. The parties were provided an
opportunity to tender post-hearing briefs and proposed findings. As described subsequently in these Findings
in more detail, each of the parties has availed the opportunity.
23. The Commission has
jurisdiction over the subject matter and over the parties.
24. The proceeding is ripe
for a disposition on the merits.
Intervention
25. AOPA addresses
intervention at IC 4-21.5-3-21. This
statutory section provides as follows:
[VOLUME 11, PAGE 15]
Sec. 21. (a) Before the beginning of the hearing on
the subject of the proceeding, the administrative law judge shall grant a
petition for intervention in a proceeding and identify the petitioner in the
record of the proceeding as a party if:
(1) the petition:
(A) is
submitted in writing to the administrative law judge, with copies mailed to all
parties named in the record of the proceeding; and
(B)
states facts demonstrating that a statute gives the petitioner an unconditional
right to intervene in the proceeding; or
(2) the petition:
(A) is
submitted in writing to the administrative law judge, with copies mailed to all
parties named in the record of the proceeding, at least three (3) days before
the hearing; and
(B)
states facts demonstrating that the petitioner is aggrieved or adversely
affected by the order or a statute gives the petitioner a conditional right to
intervene in the proceeding.
(b) The administrative law judge, at least twenty-four
(24) hours before the beginning of the hearing, shall issue an order granting
or denying each pending petition for intervention.
(c) After the beginning of the hearing on the subject
of the proceeding, but before the close of evidence in the hearing, anyone may
be permitted to intervene in the proceeding if:
(1) a statute confers a
conditional right to intervene or an applicant's claim or defense and the main
action have a question of law or fact in common; and
(2) the administrative law
judge determines that the interests of justice and the orderly and prompt
conduct of the proceedings will not be impaired by allowing the intervention.
In exercising its discretion, the administrative law judge shall consider
whether the intervention will unduly delay or prejudice the adjudication of the
legal interests of any of the parties.
(d) An order granting or denying a petition for
intervention must specify any condition and briefly state the reasons for the
order. The administrative law judge may modify the order at any time, stating
the reasons for the modification. The administrative law judge shall promptly
give notice of an order granting, denying, or modifying intervention to the
petitioner for intervention and to all parties.
26. When Hawkins and Others
sought intervention, a hearing had neither been convened nor scheduled. The provision of the AOPA intervention
statute applicable to this proceeding is IC 4-21.5-3-21(a)(2). Also, since a hearing had not yet been scheduled,
IC 4-21.5-3-21(a)(2)(A) is not in issue.
27. The governing provision
is IC 4-21.5-3-21(a)(2), including clause (B):
(a)
Before the beginning of the hearing on the subject of the proceeding, the
administrative law judge shall grant a petition for intervention in a
proceeding and identify the petitioner in the record of the proceeding as a
party if:…(2) the
[VOLUME 11, PAGE 16]
petition:…(B)
states facts demonstrating that the petitioner is aggrieved or adversely
affected by the order or a statute gives the petitioner a conditional right to
intervene in the proceeding.
28. In enacting IC
4-21.5-3-21, the Indiana General Assembly implemented a tiered approach to
evaluating intervention, with the most liberal standard applicable at the early
stages of a proceeding and the most restrictive standard at the later stages of
a proceeding. At the early stages, only
a conditional right to intervene need be shown.
Where intervention is sought within three days of a scheduled hearing,
an administrative law judge is directed to grant intervention only where an
“unconditional” right to intervene exists.
After the commencement of a hearing, an administrative law judge may
grant intervention only where the interests of justice would be served and a
prompt disposition would result.
Following the completion of a hearing, there is no opportunity for
intervention.
29. For consideration here is
intervention sought by Hawkins and Others at the earliest stages of the
proceeding.
30. IC 4-21.5-3-21(a)(2)(B)
applies the mandatory “shall” rather than the permissive “may”. An administrative law judge is required to
grant intervention where the petition states facts “demonstrating the
petitioner is aggrieved or adversely affected by the order or a statute gives
the petitioner a conditional right to intervene.”
31. When the legislature
chooses to employ the disjunctive “or” between portions of a statute, the
statute should not be interpreted as if it employs the conjunctive “and” unless
to do otherwise would render portions of the statute meaningless or contravene
plain legislative intent. Dague v. Piper Aircraft Corp., 418
N.E.2d 207, 211 (
32. As a consequence, the
administrative law judge must grant intervention to Hawkins and Others where
they have shown facts demonstrating they are any of the following:
(1) Aggrieved by the order.
(2) Adversely affected by the order.
(3) Beneficiaries of a statute that confers a conditional
right to intervene.
33. Under AOPA, “order” is a
defined term. An “order” is an “agency
action of particular applicability that determines the legal rights, duties,
privileges, immunities, or other legal interests of one (1) or more specific
persons” and specifically includes a license.
IC 4-21.5-1-9.
[VOLUME 11, PAGE 17]
34. Under AOPA, “license” is
also a defined term. A “license” is a
“franchise, permit, certification, approval, registration, charter, or similar
form of authorization required by law.”
IC 4-21.5-1-8.
35. For consideration in this
proceeding is a DNR license.
36. The original DNR action
on the license was a denial, and Hawkins and Others supported the denial, so they
did not seek intervention on the basis they were aggrieved or adversely
affected by the original DNR action.
37. Rather, Hawkins and
Others asserted they were the beneficiaries of a conditional (or perhaps an
unconditional) right to intervene. If a
statute affords a conditional or an unconditional right to Hawkins and Others
to intervene, the Commission would be obliged to grant the petition.
38. In the nonfinal order
described in Finding 8, the administrative law judge determined two separate
legal foundations conferred at least a conditional right to intervene, either
of which would be individually sufficient.
39. First, the administrative
law judge determined Hawkins and Others were entitled to intervene based upon
the Lakes Preservation Act. Second, the
administrative law judge determined they were entitled to intervene based on IC
13-30-1 (the “Environmental Actions Act”).
With subsequent developments in this proceeding, and with new direction
and clarification from the Indiana Supreme Court since the nonfinal order
described in Finding 8, the entitlement to intervention is determined
exclusively upon the Lakes Preservation Act.
Further consideration of the Environmental Actions Act is not essential
to a determination of intervention.
40. The Lakes Preservation
Act provides at IC 14-26-2-5(c)(2) that the “public of
41. With the Lakes
Preservation Act, the Indiana General Assembly establishes public trust
legislation that modifies common law riparian rights by recognizing the
public’s right to preserve natural scenic beauty and recreational values. Riparian owners continue to possess rights
along a public freshwater lake, but these private rights are now statutory and
must be balanced with the public’s rights.
Lake of the Woods v. Ralston,
748 N.E.2d 396, 401 (
42. As provided in the Lakes
Preservation Act, the public has a vested right in the preservation,
protection, and enjoyment of
[VOLUME 11, PAGE 18]
43. Interpreting another
statute employing the phrase “vested right”,
44. Hawkins and Others argue
that every member of the
45. At the filing of their
petition to intervene, three among Hawkins and Others were riparian owners who
lived next door to Jansing’s riparian property.
These were Orv Miller and Jan Miller with property immediately to the
west of Jansing’s riparian property, and Doris Speicher with property
immediately to the east of Jansing’s riparian property. “Martha B. Wentworth Affirmation” filed April
5, 2004.
46. All of the remaining
persons among Hawkins and Others owned real estate in the
47. Hawkins and Others all
owned real estate that is contiguous to
48. As members of the public
of
49. In opposing the petition
by Hawkins and Others to intervene, the DNR posed two arguments. First, the DNR urged Hawkins and Others
“state no facts whatsoever that their public rights will be limited or hindered
anymore than they have been for their entire lives or at least for the last for
the last 70 or 80 years or the time when the boathouse reconstruction project
had began in August of 2000.” “Objections
to Request to Intervene” filed on March 13, 2004.
[VOLUME 11, PAGE 19]
50. Even if this
characterization of the statement by Hawkins and Others is assumed to be accurate,
the statement would be enough to establish a basis for their intervention. For consideration is the Lakes Preservation
Act. The Commission has subject matter
jurisdiction over the Lakes Preservation Act.
There may be facts under which Hawkins and Others must continue to suffer
a limitation or hindrance to their enjoyment of the public trust. As discussed later, a lawful nonconforming
use may support the maintenance of a structure not otherwise authorized under
the Lakes Preservation Act, but entitlement to a lawful nonconforming use is a matter
that is subject to evidentiary considerations.
That Hawkins and Others may have suffered a violation of the Lakes
Preservation Act for the past 70 or 80 years does not, as a matter of law, establish
that they must continue to suffer the violation forever.
51. For most licenses, AOPA
addresses standing to seek administrative review at IC 4-21.5-3-7. As provided in IC 4-21.5-3-7(a)(1), the
person seeking review must show either “(B) the petitioner is aggrieved or
adversely affected by the order; or (C) the petitioner is entitled to review
under any law.” This language is similar
to what must be shown for intervention.
52. Where a person
establishes that the administrative forum has subject matter jurisdiction, a view
generally supporting inclusion must properly be taken toward construing a
petition for administrative review. A
dismissal that does not provide a reasonable opportunity to demonstrate a
violation of the statutorily protected interest must properly result in a
reversal and a remand to consider the evidence.
Huffman v. Office of Environmental
Adjudication, 811 N.E.2d 806 (
53. Second, the DNR urged it
was Jansing’s “belief that the desire for request to intervene is to delay any
progress on the proposed project and prevent any acceptable agreement to be
reached on the project between” the DNR and Jansing. “It is [Jansing’s] belief that the purposes
of the proceedings are to come to an agreeable resolution on the permit
decision with the [DNR] on portions of the project as it pertains to” the Lakes
Preservation Act and 312 IAC 11 and is not subject to “opinions, desires, or
debates” of Hawkins and Others “during the proceedings.”
54. Assuming DNR’s representations
of Jansing’s beliefs to be accurate, nonetheless, they are fundamentally
flawed. Achieving a settlement is a
worthy initiative, but a settlement that does not comply with the law is not a
worthy disposition. The “opinions,
desires, or debates” of Hawkins and Others are not instructive if they do not
comport with the evidence, but neither are the “opinions, desires, or debates”
of the DNR and Jansing if they do not comport with the evidence. The result of a settlement under the Lakes
Preservation Act must not be to avoid compliance with the Act. As beneficiaries of the public trust created
under the Lakes Preservation Act, and as fellow riparian owners with Jansing on
[VOLUME 11, PAGE 20]
55. Following the AOPA
Committee interlocutory order that was described in Finding 11, the DNR and
Jansing entered negotiations without the participation of Hawkins and
Others. A proposed agreed order was
achieved as between DNR and Jansing, but the proposed agreed order was not
approved by Hawkins and Others.
56. During a telephone status
conference held on July 21, 2005, Jansing and the DNR tendered the proposed
agreed order for approval by the Administrative Law Judge and the
Commission. Hawkins and Others objected
to the tender because they did not join in the proposed agreement, and they
maintained that as parties their approval was required for a settlement. The DNR’s former attorney responded that the
DNR was entitled to and responsible for granting licenses where legal
requirements are met. The DNR added
Hawkins and Others could not properly preclude the DNR from performing its
licensing function, and Hawkins and Others could seek judicial review if
dissatisfied with the terms of the agreed order. “Report of Telephone Status Conference and
Notice of Telephone Status Conference” (July 22, 2005).
57. The DNR assertion was correct
that it is the licensing authority under the Lakes Preservation Act. Also, Hawkins and Others cannot properly preclude
the DNR from performing the DNR’s licensing function.
58. This proceeding is not at
the licensing stage before the DNR, however, but instead on administrative
review before the Commission. For this
proceeding, the Commission is the “ultimate authority” for the licensing
decision. The DNR had already made its
licensing decision, from which Jansing originally took administrative review
and in which Hawkins and Others sought to intervene.
59. On administrative review,
the Commission’s administrative law judge is required to consider a license
application de novo, based upon the evidence presented at hearing, by weighing
the evidence and reaching an appropriate conclusion, rather than by deferring
to the determination of the DNR.
60. De novo review does not
prevent the DNR from refining or reversing its position with respect to a
license, and the entry of an appropriate agreed order under the governing law
is a welcomed disposition under AOPA.
Illustrative are IC 4-21.5-3-19(c)(2) and IC 4-21.5-3.5. Yet the ability to seek an agreed order under
an AOPA proceeding is not a licensure action, and the completion of a
proceeding through adjudication does not preclude the DNR from performing its
licensing function. Indeed, Jansing was
given the option to dismiss this administrative review, without prejudice, and
to file a new license application with the DNR.
He declined the option. “Report
of Telephone Status Conference and Notice of Telephone Status Conference” (July
22, 2005).
[VOLUME 11, PAGE 21]
61. The assertion by the DNR that
Hawkins and Others were limited to judicial review, if they were dissatisfied
with the terms of the agreed order, would degrade the opportunities for a
person other than a license applicant to obtain redress from a licensure
action. The assertion is inconsistent
with IC 4-21.5-3-5 (delineating classes of persons entitled to seek
administrative review) and with IC 4-21.5-3-21 (delineating classes of persons
entitled to intervention). A qualified
person seeking redress from a licensure action is entitled to hearing de novo
on administrative review, not merely the more limited scope of judicial review
that is set forth at IC 4-21.5-5-14(d).
62. But, fatally, a person
other than the license applicant, who does not intervene as a party under IC
4-21.5-3-7, lacks standing even to seek judicial review.
63. If the DNR’s assertion is
adopted, a license applicant could evade administrative review by affected third
persons. An applicant could tender license
terms assured of denial and then modify those terms during an administrative
review from which third persons would be excluded. Because third persons without party status on
administrative review lack standing for judicial review, they would be denied any
opportunity for relief. The DNR’s
assertion would effectively render AOPA a nullity as applied to affected
persons other than unsuccessful license applicants.
64. Where a person other than
the license applicant has standing to intervene in a proceeding with the DNR,
the approval of the intervening party is required for the entry of an agreed
order. To hold otherwise would
emasculate the proper role of the Commission on administrative review.
65. As members of the Indiana
public with vested rights in the preservation, protection and enjoyment of
Dallas Lake, who are also riparian owners along Dallas Lake in proximity and within
view of the Jansing property, Hawkins and Others are entitled to intervene in
this proceeding under IC 4-21.5-3-21(a)(2).
Key Words and Phrases
66. Consideration of this
proceeding reasonably requires the definition of key words and phrases.
67. Generally, a word or
phrase shall be taken in its plain or ordinary and usual sense. IC 1-1-4-1(1) and
68. A technical word or
phrase having a peculiar and appropriate meaning in law shall be understood
according to the technical import. Where
a statute or rule declares a word or phrase has a certain construction, the
word or phrase must properly be given that construction, though otherwise the
language might be held to mean a different thing. IC 1-1-4-1(1). State
ex rel. Baker v. Grange, 200 Ind. 506, 165 N.E. 239 (1929
[VOLUME 11, PAGE 22]
69. As provided in IC
4-21.5-3-32, an agency is required to index final orders and may rely upon
indexed orders as precedent. Caddnar was adopted by the Commission in November
1988 as the index of agency decisions anticipated in AOPA. Barbee
Villa Condominium Owners Assoc. v. Shrock, 10 Caddnar 23 (2005). Definitions adopted by the Commission in a
decision indexed pursuant to Caddnar may be applied in similar
proceedings. Hayman v. DNR and Thorne v. Wetstone, 9 Caddnar 144 (2004).
70. Applying these
principles, the following key words and phrases are defined as follows:
“Area
of special concern” refers to “an area that contains at least one of the
following characteristics:
(1) An
altered shoreline where bulkhead seawalls are at least two hundred fifty (250)
feet apart.
(2)
Bogs, fens, muck flats, sand flats, or marl beaches identified by the division
of nature preserves in the Natural Community Classification System.
(3)
More than 625 square feet of contiguous emergent vegetation or rooted
vegetation with floating leaves.” 312
IAC 11-2-2.
“Boatwell”
refers to a manmade excavation along shoreline or water line of a public
freshwater lake that:
(1) is
used for the mooring of a boat; and
(2)
has been stabilized to prevent erosion.”
312 IAC 11-2-4.
“Boathouse”
means a building or shed, usually built partly over water, for sheltering
boats. Random House Webster’s College
Dictionary, p. 148 (2000 Random House, Inc.).
“Bulkhead
seawall” means a vertical, or near vertical, solid concrete, steel sheet
piling, or vinyl piling structure, which has the purpose of shoreline
protection. 312 IAC 11-2-5(a).
“Cumulative
effect” means the impact on the environment which results from the incremental
impact of the action when added to other past, present, and reasonably
foreseeable future actions regardless of what person undertakes the other
actions. Cumulative effects can result from individually minor but collectively
significant actions taking place over a period of time. 312 IAC 11-2-6.
“Developed
area” means the upland side or sides of a manmade channel or an area that does
not contain any of the following characteristics:
(1) An area of special concern.
(2) A significant wetland.
(3) A natural shoreline. 312 IAC 11-2-7.
“Natural
resources” means the water, fish, plant life, and minerals in a public freshwater
lake. IC 14-26-2-2 and 312 IAC 11-2-13.
[VOLUME 11, PAGE 23]
“Natural
scenic beauty” means the natural condition as left by nature without manmade
additions or alterations. IC
14-26-2-5(a) and 312 IAC 11-2-14.
“Natural
shoreline” means a continuous section of unaltered shoreline or waterline where
the distance between lawful permanent structures is at least two hundred fifty
(250) feet. 312 IAC 11-2-14.5.
“Permanent
structure” means a structure that does not qualify as a temporary structure. 312 IAC 11-2-16.
“Pier”
means a long narrow structure extending from the shore into a body of water and
used as a landing place for boats or used for recreational purposes. Terms sometimes used synonymously include
dock, slip and wharf. Hayman v. DNR at 9 Caddnar 148.
“Public
freshwater lake” has the definitions referenced in Finding 5.
“Seawall”
means a manmade structure placed along the legally established or average
normal waterline or shoreline of a public freshwater lake for the purpose of
shoreline stabilization. 312 IAC
11-2-21.
“Seawall
refacing” means the refacing of an existing seawall along the lakeward
face. 312 IAC 11-2-22.
“Shoreline
or water line” has the definition referenced in Finding 4. The phrase also includes “waterline or
shoreline” as defined under 312 IAC 11-2-8 and other similar terms such as shore,
shoreline, water line, waterline, and legally established or average normal
waterline or shoreline.
“Temporary
structure” means a structure that can be installed and removed from the waters
of a public freshwater lake without using a crane, bulldozer, backhoe, or similar
heavy or large machinery. Examples of a
temporary structure include the following:
(1) A pier that:
(A)
is supported by auger poles or other poles that do not exceed 3½ inches in
diameter and rest on the lake bed; and
(B)
is not mounted in or comprised of concrete or cement.
(2) A
boat shelter, boat lift, or boat hoist that:
[VOLUME 11, PAGE 24]
(A)
has a canvas top and sides;
(B)
is supported by auger poles or other poles that do not exceed 3½ inches in
diameter;
(C)
is not mounted in or comprised of concrete or cement;
(D)
is designed to float or to rest upon the bed of the lake under its own weight
if any structure to which it is attached complies with this section; and
(E)
is not wider than ten feet nor longer than 20 feet. 312 IAC 11-2-25.
“Unaltered
shoreline” means a shoreline that does not include lawful permanent structures. 312 IAC 11-2-26.
These defined terms are
applied throughout these Findings.
Historical Perspective on the Application of the Lakes
Preservation Act
71. The
(c) The:
(1) natural resources and the
natural scenic beauty of
(2) public of
(A) The
preservation, protection, and enjoyment of all the public freshwater lakes of
(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
(2) holds and controls all
public freshwater lakes in trust for the use of all of the citizens of
(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.
72. Today’s Lakes Preservation Act originated with legislation enacted in 1947. Acts 1947, c. 181; and, Acts 1947, c. 301. There have since been numerous statutory amendments, and in many instances, the statutes are now also implemented through rules. Yet reference to the founding precepts of the legislation offers modern insight into proper application of the Lakes Preservation Act. Sedberry v. Department of Natural Resources, 10 Caddnar 14 (2005).
73. Antecedent to the modern Lakes Preservation Act and of importance to the instant proceeding are Acts 1947, c. 181, that were approved on March 12, 1947, and that provided in pertinent part:
[VOLUME 11, PAGE 25]
…That
the State of Indiana be and it is hereby vested with full power and control of
all of the public fresh water lakes in the State of Indiana both meandered and
unmeandered and that the State of Indiana shall hold and control all of said
lakes in trust for the use of all of its citizens for fishing, boating,
swimming, the storage of water to maintain water levels, and for any purposes
for which said lakes are ordinarily used and adapted, and no person owning
lands bordering any such lakes shall have the exclusive right to the use of
waters of any such lake or any part thereof.
….
…For the purpose of this act, the water or
shoreline of a public fresh water lake shall mean the normal water line which
has existed during the past ten years from the time of the passage of this act
where the presence and action of the water are so common and usual as marked
upon the soil of the bed a character distinct from that of the banks in respect
to vegetation as well as the nature of the soil. Public fresh water lakes shall mean all lakes
which have been used by the public with the acquiescence of any riparian owner:
Provided however, That this act shall not apply to any improvement or filling
in, with soil or waste materials or other substances, of any marsh lands or
lands which were covered by the waters of a lake which have receded.
74. Also antecedent to the modern Lakes Preservation Act and of importance to the instant proceeding are Acts 1947, c. 301, that were approved on March 13, 1947, and that provided in pertinent part:
...The natural resources and the natural
scenic beauty of Indiana are declared to be a public right, and the public of
Indiana are declared to have a vested right in the preservation, protection and
enjoyment of all of the public fresh water lakes, of Indiana in their present
state, and the use of such waters for recreational purposes.
...For the purpose of this act, the natural resources of public fresh water
lakes shall mean the water, fish, plant life and minerals and the natural
scenic beauty shall mean the natural condition as left by nature without
man-made additions or alterations.....
....
...It shall be unlawful for any
person...to encroach upon the...shore line of any such lakes as now exist...by
excavating...below the water or shore line which had existed during the past
ten years from the time of the passage of this act, without first securing written
approval of the Indiana Department of Conservation [now DNR].
[VOLUME 11, PAGE 26]
75. The Lakes Preservation Act
implements the public trust doctrine on any public freshwater lake as the lake
existed in 1947, relating back a decade to 1937, for “fishing, boating,
swimming, the storage of water to maintain water levels, and for any purposes”
for which such a lake is “ordinarily used and adapted.” Also, “no person owning lands bordering” a
public freshwater lake would have “the exclusive right to the use” any part of
the waters of the lake. Excepted from
the legislation were improvements to or fill of “marsh lands or lands which
were covered by the waters of a lake which have receded”. Measured by the same 1947 effective date,
relating back to 1937, was a vested public right in the “natural resources and
the natural scenic beauty” of a public freshwater lake. This legislation provided for the “preservation,
protection and enjoyment” of a public freshwater lake and for the use of its
waters for “recreational purposes”. 76. The effective date of the
Lakes Preservation Act was in March 1947 but with consideration for a public
freshwater lake’s condition retroactively to March 1937. Excepted from the Lakes Preservation Act were
improvements to or fill of marsh lands or other lands, formerly covered by a
lake, if the lake receded from those lands before March 1947. By inference, the legislation grandfathered,
or approved as lawful nonconforming uses, those improvement or modifications to
public freshwater lakes that were made before March 1937. Administrative Review of the Subject License 77. The substantive legal considerations
in this administrative review are based primarily upon the Lakes Preservation
Act and rules adopted by the Commission at 312 IAC 11-1 thought 312 IAC 11-5 to
assist in the administration of the Lakes Preservation Act. 78. The subject license set
forth at Finding 16 must properly be reviewed in terms of the Lakes
Preservation Act and 312 IAC 11-1 through 312 IAC 11-5 and the facts adduced at
hearing or otherwise in this proceeding.
79. The elements of the
subject license and of other construction activities that are in controversy
are considered separately. Boatwell Reconstruction and Adjacent Dredging 80. The subject license would
authorize Jansing to dredge materials within the existing boatwell of
approximately 19 feet by 25 feet to an approximate depth of three feet to four
feet below the legal elevation of [VOLUME 11, PAGE 27] 81. George Terry Hawkins
testified he did not object to the continued existence of the boatwell in its current
configuration. Hawkins Testimony, p. 90. 82. Hawkins testified that
during the last 36 years, the bay has had so much silt that access to the
boathouse could be obtained only by lifting the motor and walking the boat to
the boatwell. The last use of any kind
was 15 years ago when a resident worked on a boat within the boathouse. Hawkins Testimony, p. 34. 83. Hawkins testified he
objected to approval in the subject license for dredging with a backhoe. At a nearby site, he observed a floating dredge
was required to be effective. In his
opinion, the use of a backhoe was not feasible considering the amount of silt
present in the bay. Based upon his
experience, he believes within a year or a year-and-a-half, Jansing would need
another license to repeat dredging.
Hawkins Testimony, pp. 39-43. 84. Neil Ledet, an
experienced DNR Fisheries Biologist, testified he recommended denial of the
original proposal for dredging that would have gone “well over 100 feet out
into the lake from the shoreline. As a
Fisheries Biologist in reviewing these, we object to those types of
disturbances on the lakebed…. We are
opposed to those types of dredging operations that extend far off shore” as was
originally proposed by Jansing. Ledet
Testimony, p. 118. Ledet testified he
was still concerned with disturbances to sediment that would arise from the
reduced area to be impacted by the subject license, but the adverse impacts to
the lake would be “minimized by the reduction in size or scope of the
project.” Ledet Testimony, p. 122. 85. Ledet testified the area
within and adjacent to the boatwell qualified as an “area of concern” as
opposed to a “developed” area. He
indicated that an area where there is more than 250 feet between existing
seawalls qualified as an “area of concern”, and the concrete structure within
the boatwell was not a seawall. “By
definition a seawall is built to control erosion along the shoreline.” He determined the boatwell structure was a
“footer” and was not a “bulkhead seawall”.
Ledet Testimony, p. 127. 86. James Hebenstreit,
Assistant Director of the DNR’s Division of Water, is the supervisor of its
Technical Services Branch. Hebenstreit
is a Registered Professional Engineer in the State of 87. Hebenstreit testified
licenses for boatwells were “common permits that are issued routinely. [They are] most typically issued with a
condition that a concrete seawall or retaining wall be constructed around
them.” In approving the terms of the
subject license, the DNR sought to minimize the amount of approved dredging to
remove materials from the boatwell and a “slight distance out” to providing
boat access. Hebenstreit Testimony, p.
201. [VOLUME 11, PAGE 28] 88. In an October 2004
memorandum from Ledet to Hebenstreit, he agreed that his opposition to removal
of the concrete boatwell center pier and deepening of the existing boatwell was
“weak”. Hebenstreit Testimony, p. 222. 89. The definition suggested
by Ledet for a “bulkhead seawall” is narrower than the definition provided in
312 IAC 11-2-5(a). Whether characterized
as a concrete seawall or a retaining wall, a concrete structure constructed
around a boatwell has the effect of providing shoreline protection. The concept of “shoreline protection” includes
shoreline erosion but is a broader concept that also anticipates stabilization
from other intrusions, including boating and human traffic. Only a tortured interpretation of the
Commission rules would conclude that a concrete-lined boatwell was other than an
illustration of a “developed area” Reconstruction of the boatwell must properly
be considered as a modification to a “developed area” and not as a modification
to an “area of concern”. 90. The concrete barrier in
the boatwell is permanent structure that has a minimal impact on the public
trust sought to be protected by the Lakes Preservation Act. Its removal eliminates a potential hazard to
navigation and is readily supportable under the Lakes Preservation Act. Approval of this aspect of the subject
license is affirmed. 91. Dredging materials from within
the existing boatwell of approximately 19 feet by 25 feet, to an approximate
depth of three feet to four feet below the legal elevation of 92. The area approved for
dredging to facilitate boat navigation to and from the boatwell, south of the
boatwell, has been significantly reduced from what Jansing originally
sought. The approved area is
approximately 19 feet by ten feet, and it would be dredged to an approximate
depth of three feet to four feet below the lake’s legal elevation. All dredging must be performed by a backhoe,
and all dredged material must be placed on the applicant’s property. With these license conditions in effect, any
adverse impacts to [VOLUME 11, PAGE 29] 93. The subject license would
authorize Jansing to reface an existing seawall along the sides of the boatwell
with a layer of concrete keyed to the wall’s lakeward face. 94. License of concrete
refacing of an existing seawall is governed by 312 IAC 11-4-3. 95. Hawkins testified he did
not object to maintenance of the seawalls within the boatwell in their existing
footprint. Hawkins Testimony, p. 90. 96. The preponderance of the
evidence is that the subject license properly authorizes and provides for the
licensure of concrete refacing to Jansing’s seawall. 97. The subject license also
notes that Jansing may reface, with glacial stone, the existing rock seawalls that
are located on either side of the boatwell. 98. James Hebenstreit
testified there is a rule that allows authorizes seawall refacing under a
general license. Hebenstreit Testimony,
p. 201. 99. As provided in 312 IAC
11-3-1(d), a seawall may be refaced with glacial stone under a general license if: (1) The seawall reface is comprised exclusively of glacial
stone. (2) The reface does not extend more than four feet lakeward of
the waterline or shoreline at the base of a lawful seawall. (3) A walk or structural tie is not constructed on the existing
seawall in combination with the glacial stone reface. (4) An impermeable material is not placed behind or beneath the
glacial stone reface. (5) Filter cloth placed behind or beneath the glacial stone
reface is properly anchored to prevent displacement or flotation. (6) Erosion from disturbed areas landward of the waterline or
shoreline is controlled to prevent its transport into the lake. 100. In an October 2004
memorandum from Ledet to Hebenstreit, he agreed that his opposition to refacing
the existing seawall was “weak”.
Hebenstreit Testimony, p. 222. 101. Hawkins testified he did
not object to refacing of the seawall with glacial stone. Hawkins Testimony, p. 91. 102. Martha Wentworth
similarly testified she had no objection to the refacing. Martha Wentworth Testimony, p. 108. [VOLUME 11, PAGE 30] 103. This aspect of the
subject license and of Jansing’s activities does not appear to be in
controversy. 104. Even if an objection
were raised to Jansing’s refacing of the seawall with glacial stone, there is
no evidence upon which to determine his activities are other than as authorized
for a general license under 312 IAC 11-3-1(d). 105. Both as to authorization
in the subject license for the use of a layer of concrete keyed to the surface
of the existing seawall, and as to the general license for the placement of a
glacial stone reface, approval of the seawall refacing is affirmed. Boathouse Construction 106.
The subject license would authorize Jansing to construct a boathouse over the
boatwell. 107.
A boathouse was formerly located over the boatwell. 108.
Hawkins testified the boathouse was constructed “around” the 1940s. Hawkins Testimony, p. 91. 109.
Jansing testified that aerial photographs illustrate the existence of the
boathouse from at least September 26, 1938.
Subsequent to that date, the boathouse is illustrated in different years
and in multiple documents. Jansing
Testimony, pp. 159-164. 110.
Barbara J. Nemeth provided an affirmation for this proceeding in which she
stated her “father’s grandfather owned lots 7 and 8 and built the boathouse and
I have first hand knowledge that the boathouse was built and existed prior to
1937.” Claimant’s Exhibit 2. Hawkins and Others objected to this exhibit
on the basis it failed to comply with Trial Rule 11. The exhibit was admitted subject to IC
4-21.5-3-26(a). Transcript, pp. 172 and
174. 111. The Jansing testimony
and photographs demonstrate, more likely than not, that the boathouse was
present at the site on September 26, 1938.
The Nemeth affirmation was admitted under IC 4-21.5-3-26(a), following a
timely objection. The affirmation is
hearsay, and no recognized exception to the exclusion of hearsay has been
presented for its admission into evidence.
The Nemeth affirmation is the sole basis upon which a determination
could be made that the boathouse was present in 1937. The Nemeth affirmation cannot properly form
the basis for a finding. Also, the
Nemeth affirmation inherently precluded the opportunity for cross-examination,
and lacked contextual integrity, and it is determined to be unpersuasive. The preponderance of the evidence is that the
boathouse was present at the site from September 26, 1938. [VOLUME 11, PAGE 31] 112. The boathouse existed
when the antecedents to the modern Lakes Preservation Act became effective in
March 1947. Because the preponderance of
the evidence does not establish the boathouse existed in March 1938, the
structure is within the period during which the Indiana General Assembly
determined statutory effectiveness of the Lakes Preservation Act might properly
relate back. 113. Retroactive application
may be given where a statute seeks to implement a public policy, but statutory
retroactive effect is not favored. Aldana v. Raphael Contractors, Inc., 785
F.Supp. 1328 (N.D. 114. The preponderance of the
evidence is that the placement of boathouses along the shorelines of public
freshwater lakes, generally, and along the shoreline of 115. The boathouse was
removed by Dewaine King who owned the real estate before Jansing. The boathouse was removed before October 18,
2000 as memorialized in a letter by Terry Hawkins to Tom Duncan, an employee of
the DNR. Hawkins Testimony, pp. 19 and
21 and Exhibit C1. 116. Dewaine King and Julie
King provided a letter for this proceeding in which they stated the boathouse
existed before they purchased the property.
3. Permission
in the form of an approved variance was granted, in our interest, to replace
the existing boathouse by the LaGrange County Board of Zoning Appeals on August
28, 2000 (reference CASE #00-LUV-21). 4.
The boathouse was removed from its foundation between August 28, 2000 and
August 31, 2000, after issue of variance approval from the LaGrange County
Planning Commission to replace it. 5.
The existing boathouse was removed from the foundation only for the purposes of
reconstruction. 6. The letter was not made under
oath or affirmation. Claimant’s Exhibit
1, admitted without objection. [VOLUME 11, PAGE 32] 117. A structure or facility
that is lawfully placed before the effective date of a law, which would be
unlawful if placed after that date, is a “lawful nonconforming use”. As applied to the Lakes Preservation Act, see
312 IAC 11-5-2. 118. Claimant’s Exhibit 1
presents some evidence of the Kings’ intention to replace and maintain the
boathouse. The evidence of their
intention is unrefuted and is sufficient to support retention of the structure
as a “lawful nonconforming use”. 119. Dewaine King and Julie
King were billed on October 31, 2000 by Terwilliger & LaCluyse, Architects
and Builders, to provide schematic design to coordinate demolition and for
seawall permit information. The amount
of the billing was $9,845, all but $55 of which was for demolition by Don’s
Excavating. Claimant’s Exhibit 4,
admitted without objection. 120. Jansing purchased the
property in June 2001. Terry Hawkins
Testimony. 121. Since Jansing purchased
the property, he has aggressively pursued authorization to reconstruct the
boathouse. 122. Mere discontinuance of a use is insufficient
to constitute abandonment of a lawful nonconforming use. Rather, abandonment requires concurrence of
intent to abandon and the voluntary act signifying abandonment. Stuckman
v. 123. Once a person seeking
its benefit demonstrates a lawful nonconforming use, an adverse party carries
the burden of proving the use was terminated by abandonment. Metropolitan
Development Com’n of 124. There is no probative
evidence to support a finding the Kings or Jansing abandoned the lawful
nonconforming use enjoyed by the Kings and previous owners until the Kings
razed the boathouse in 2000. There is
probative evidence to support a finding they intended to reconstruct the
boathouse as soon as practicable after receiving approval from local and state
regulatory authorities. 125. Jansing contends in the
“Claimant’s Post Hearing Briefs and Proposed Findings of Fact and Conclusions
of Law” filed on September 25, 2006 that Sims,
et al. v. Outlook Cove LLC, et al., 10 Caddnar 258 (2006) supports the
proposition that, as a riparian owner, he has a right to place a boathouse
along his shoreline. Reliance upon Sims is misdirected. Sims reflects
only that, as a riparian owner, Jansing has privileges exceeding those of the
general public. He may seek, under the
Lakes Preservation Act, a license to place a boathouse within his riparian
area. A person who is not a riparian
owner, or who does not have rights granted by a riparian owner, does not enjoy
this privilege. [VOLUME 11, PAGE 33] 126. Jansing also looks to 312
IAC 11-3-3(f)(7) as supporting entitlement to reconstruct the boathouse. This rule subdivision states only that a
boathouse is an example of a structure where an individual license would be
required. As a result, a boathouse is
not exempted from licensing, and it does not qualify for a general license. 127. Whether a site qualifies
for the placement of a boathouse must be determined on a case by case
basis. Upon the facts applicable here, Jansing
has demonstrated the former boathouse was a lawful nonconforming use until it
was razed in 2000 and that the Kings and he have not abandoned this status as a
consequence of the boathouse being razed or through subsequent actions. 128. Hawkins testified he
objected to reconstruction of the boathouse because it interfered with his view
of 129. Neil Ledet testified he
was opposed to the reconstruction of the boathouse. “When I went to the site a boatwell was
basically present there. And, in my
opinion, construction [of] a boathouse at that particular site was not
consistent with what I interpret as the intent of natural scenic beauty.” Neil Ledet Testimony, p. 119. 130. Formerly, there were
several boathouses on 131. With the removal of the
boathouse by Dwayne King, there are no boathouses on 132. On September 22, 2006,
the DNR filed its “Respondent Department of Natural Resources’ Post-Hearing
Proposed Findings of Fact, Conclusions of Law and Order” and refers to Gerbers & Buhr, et al. v. Nix, et al.,
9 Caddnar 132 (2004) in which an administrative law judge for the Commission
found a pier tent is not a boathouse. According
to the DNR, “The decision included a lengthy discussion of view, and, invoking
the reasonableness test of Zapfee v.
Srbeny, et al., 587 N.E.2d 177, 181 (1992 [VOLUME 11, PAGE 34] 133. The DNR’s proposed
findings are approved as a correct statement of the law, but they do not
dispose of the instant proceeding. While
a neighboring riparian owner is not entitled to a clear view of a public
freshwater lake, manmade structures are factors which must properly be
considered in determining an adverse impact to “natural scenic beauty”. As stated concisely at IC 14-26-2-5(a),
“’natural scenic beauty’ means the natural condition as left by nature without
manmade additions or alternations.” 134. Judge Wilcox observed, “The
Indiana Court of Appeals provided a ‘reasonableness test’ when the exercise of
riparian rights is at issue. See Zapfee
v. Srbeny, et al., 587 N.E. 2d 177, 181 (1992 135. Upon the facts in Gerbers & Buhr, the administrative
law judge concluded a pier tent did not significantly diminish natural scenic
beauty. First of all, a pier tent was a
temporary structure and properly distinguished from a permanent boathouse. Secondly, the pier tent was found to result
in no greater diminution to scenic beauty than did other existing structures in
the same vicinity. The pier tent was
found to be temporary, as well as ordinary relative to neighboring
properties. 136. The 137. In the “Respondent
Intervenors’ Proposed Findings of Fact, Conclusions of Law, and Nonfinal Order”
filed on September 25, 2006, they urge the Commission to find there are no
ascertainable standards to interpret the concept of “natural scenic beauty”,
and based upon this finding, to deny the subject license. As noted repeatedly in these Findings, the
Indiana General Assembly has afforded a definition. “‘[N]atural scenic beauty’ means the natural
conditions as left by nature without manmade additions or alterations.” IC 14-26-2-5.
The statute provides an ascertainable standard. Hawkins and Others have not illustrated how
the Commission could lawfully augment this definition through rule adoption. 138. In addition, the Commission has memorialized
how it interprets “natural scenic beauty” as anticipated IC 4-21.5-3-32. The Commission has indexed its final orders
in a searchable data base, available online, within Caddnar. Illustrative is Gerbers & Buhr that was cited by the Respondent Intervenors and by
the DNR and that was discussed previously in these Findings. Gerbers
& Buhr and other relevant decisions published in Caddnar provide
guidance, and they support predictability in the consideration of license
applications for structures, including a consideration of natural scenic beauty. [VOLUME 11, PAGE 35] 139. The boathouse sought by
Jansing is a permanent structure. His
boathouse would not be ordinary to the neighborhood. His boathouse would be unique to 140. On direct examination, Hebenstreit
testified he did not have a “concern about the boathouse, because typically
boathouses are built around boatwells, which are an extension of the lake’s
legal shoreline. So, in effect the
boathouse is constructed above the legal lake level and perhaps out of our
jurisdiction.” Hebenstreit Testimony, p.
200. 141. On cross-examination, however,
Hebenstreit recalled that the Lakes Preservation Act was amended in recent
years to clarify that the DNR has jurisdiction for structures extending over a
lake, and a boathouse would be “over waters connected to the lake.” He added that boatwells were not considered
public property. Hebenstreit Testimony,
p. 236. 142. In the “Claimant’s Post
Hearing Briefs and Proposed Findings of Fact and Conclusions of Law”, Jansing
cites Snyder v. Department of Natural
Resources, 8 Caddnar 41 (1998) where the administrative law judge
determined the Commission had no jurisdiction under IC 14-26-2-6 to require
licensing of a boathouse because it was cantilevered over the shoreline or
water line of a public freshwater lake.
For consideration was a 1996 licensure action. 143. From its antecedents in
1947, the geographic jurisdiction of the Lakes Preservation Act was the
shoreline or water line and lakeward.A. Before 2000, the Lakes Preservation Act was
silent as to whether jurisdiction was conferred above the legal elevation. The horizontal dimensions of jurisdiction
were well-defined, but the vertical dimensions were problematic. 144. Effective July 1, 2000,
the Lakes Preservation Act was clarified to specify jurisdiction for licensure
was conferred “Over, along, or
lakeward of the shoreline or waterline of a public freshwater lake.” Emphasis added. This jurisdiction was made applicable to the
placement, modification or repair of a temporary structure or a permanent
structure in IC 14-26-2-23, a new licensure section that was supplemental to IC
14-26-2-6. P.L. 64-2000, SEC. 1. See now, particularly, IC
14-26-2-23(a)(1). [VOLUME 11, PAGE 36] 145. With the 2000
amendments, the Indiana General Assembly clarified that the DNR has
jurisdiction over the portions of boathouses that are at or within the
shoreline or water line of a public freshwater lake, including those that are
higher than the shoreline or water line.
A consequence of these amendments is that Snyder v. Department of Natural Resources
cited by Jansing is disapproved. 146. The DNR has jurisdiction
over the boathouse reconstruction here at issue, including portions of the
boathouse that are cantilevered over the shoreline or water line. 147. In determining whether a
manmade channel to a public freshwater lake was subject to the jurisdiction of
the Lakes Preservation Act, the Commission observed: The
Lakes Preservation Act currently requires a license under IC 14-26-2-9 and IC
14-26-2-12 for the construction of a channel into a public freshwater
lake. As a condition precedent to
granting a permit, the applicant must, in writing, acknowledge that all
additional water area created is part of the lake. See particularly IC 14-26-2-9(b)(1). If the Lakes Preservation Act or antecedent
statutes were in effect when the channel was constructed, the person applying
to construct the channel was required to dedicate its waters to Herr v. Department of
Natural Resources, 9 Caddnar 11 at 12 and 13 (2001) as cited in Sims, et al. v. Outlook Cove, LLC and Outlook Cove Homeowners Ass’n,
10 Caddnar at 264 and 265 (2006). 148.
The same principles apply to the waters of a boatwell as to the waters of a
channel. If a boatwell existed when the
antecedents to the modern Lakes Preservation Act became effective in 1947, then
IC 14-26-2-5(c)(2) brought the waters of the boatwell under DNR
jurisdiction. If a boatwell is
constructed after the effective date of the Lakes Preservation Act, the waters
must properly be dedicated under IC 14-25-2-9(b)(1). Improvements such as seawalls that are
associated with a boatwell are private property, but the waters of the boatwell
are public. In the summer, the utility
of the waters of a boatwell for public usage may be limited because the surface
area is modest and because the boatwell is likely to be used to moor
boats. In other seasons, a boatwell can
contribute to public opportunities for recreation, such as fishing. [VOLUME 11, PAGE 37] 149.
Placement of a boathouse over a boatwell effectively removes its public waters
from any public use. The public waters
of a boatwell are placed behind a private door. 150. Hebenstreit testified
the DNR has “always encouraged the removal of permanent structures from public
freshwater lakes.” Hebenstreit Testimony,
p. 220. 151. The construction of a
new boathouse would have a detrimental effect upon the values protected by the
Lakes Preservation Act. The construction
of a boathouse is a manmade structure that would have negative consequences for
the lake’s natural scenic beauty. These
consequences have more serious implications where other boatwells do not exist
in the neighborhood. The DNR has
jurisdiction over the construction of boathouses at and within the shoreline or
water line of a public freshwater lake, regardless of the height of the
boathouse. Construction of a boathouse
over a boatwell removes the public waters of the boatwell from any public usage
they might otherwise offer. The DNR
typically discourages permanent structures within a public freshwater lake, and
boathouses are permanent structures.
With a possible exception of where boathouses are common to a
neighborhood, construction of a new boathouse is an anathema to the values of
the Lakes Preservation Act. 152. If the boathouse were
proposed here as a new structure, the evidence would not support its
approval. The boathouse can be approved
only as the continuation of a lawful nonconforming use. 153. Because a lawful
nonconforming use is in derogation of the regulatory design, an authorization
based upon a lawful nonconforming use must be narrowly construed. “In order to justify the maintenance of a
lawful nonconforming use [under the Lakes Preservation Act], an applicant must
identify the footprint of the usage.” Sedberry v. Department of Natural Resources,
10 Caddnar 14, 18 (2005). Particularly
where a manmade structure would have negative consequences for the natural
scenic beauty of a public freshwater lake, size matters. 154. The subject license
places no restrictions on the dimensions of the boathouse. Stephen Jansing testified the size of the
footprint for the boathouse was not determined, the height would be more than
15 feet, and he was unwilling to commit upon a maximum size to the Commission’s
administrative law judge. Jansing
Testimony, p. 190. 155. The boathouse can
properly be authorized as a continuation of a lawful nonconforming use, only as
limited by the footprint of the previous structure. The boathouse can be no taller and no larger
than previous structure. 156. Jansing is responsible
for providing to DNR the dimensions of the previous structure, and the external
dimensions of his boathouse must not be greater than the previous dimensions. [VOLUME 11, PAGE 38] 157. With the additional
condition that the boathouse must not include external dimensions that are
greater than those of the previous boathouse, approval of the boathouse is
affirmed in the subject license as the timely reconstruction of a lawful
nonconforming use. Permanent Pier Maintenance 158. Martha Wentworth
testified that she had “no objection to the result” of work Jansing did on the
permanent pier. “Actually, I think it’s
very beautiful what they’ve done.” She
did object “to the fact that it was done at a time when this proceeding was
pending and there was no permission to do it.”
Wentworth Testimony, p. 108. 159. Ledet indicated he opposed
approving work on the permanent pier. “I
don’t think we should be rebuilding permanent structures out in our public
freshwater lakes.” Ledet Testimony, p.
118. 160. Stephen Jansing
testified he repaired the pier by hand with the aid of an air hammer. He added neither stone nor concrete to the
existing permanent pier. The stone came
from the sides of the pier out of the water.
Jansing Testimony, p. 194. 161. On at least one
occasion, the DNR has cited adverse impacts to “scenic beauty” as a reason for
denying approval for the repair of an existing pier along a developed area of a
public freshwater lake. Hebenstreit
Testimony, p. 212. 162. Facts may be presented
where the repair of an existing pier, along a developed area of a public
freshwater lake, should be denied based upon adverse impacts to natural scenic
beauty. An example is provided where the
pier would not qualify as a lawful nonconforming use. 163. Permanent piers of the
type extending from Jansing’s property are common to this neighborhood of
A. Effective
July 1, 2006, the Indiana General Assembly made several amendments to the Lakes
Preservation Act, including expanding the DNR’s jurisdiction ten feet landward
of the shoreline with regard to the construction of walls. See IC 14-26-2-23(a)(2)(B) as amended by P.L.
152-2006, SEC 3. Additionally, the
Commission has found the DNR has jurisdiction to “exercise control over
construction activities in immediate proximity to the lake which have the
potential for negatively impacting the lake, such as through
sedimentation.”