[CITE: Rufenbarger
& Rufenbarger v. Blue, et al., 11 CADDNAR 185 (2007)]
[VOLUME 11, PAGE 185]
Cause # 06-246W
Caption: Rufenbarger & Rufenbarger v. Blue, et al.
Administrative Law Judge: Lucas
Attorneys: Snyder (Rufenbarger); Helm (Blue); Lloyd
and Romig (Faas Group); Knotek (DNR)
Date: September 21, 2007
FINAL ORDER
(1) A common line exists
between Lot 40 and Lot 41 in the 1st Addition to Yarnell Point, a
subdivision in Kosciusko County, Indiana.
The common line is the midpoint line of the platted public way between
these two lots. As the fee owners of Lot
40, Stephen B. Rufenbarger and Constance A. Rufenbarger (the “Rufenbargers”)
are the owners of the underlying fee to the public way south of the common line. As the fee owners of Lot 41, Terry W. Blue
and Nancy A. Blue (the “Blues) are the owners of the underlying fee to the
public way north of the common line.
(2) Following vacations by
the Common Council of the City of Warsaw of portions of a public easement
located between Lot 40 and the shoreline of Winona Lake in 1993, and between
Lot 41 and the shoreline of Winona Lake in 2005, the Rufenbargers adjacent to
Lot 40 and the Blues adjacent to Lot 41 are the riparian owners.
(3) The common line extended
generally easterly to the shoreline of Winona Lake identifies the common point
on the shoreline from which to commence the boundaries of the respective
riparian areas of the Rufenbargers and the Blues within Winona Lake. This common line extended additionally in a
straight line into Winona Lake, and subject to the test of reasonableness as to
length, separates the riparian areas of the Rufenbargers and the Blues. North of the line, the Blues may exercise the
rights of riparian owners. South of the
line, the Rufenbargers may exercise the rights of riparian owners.
(4) For an area described
within and pursuant to the terms of a Grant of Easement set forth in Finding 7,
the Blues are the servient estate and have granted rights to Don Faas; Loni
Faas; Dodge R. Elkins; Kimberly Elkins; Larry E. Downs; Londa A. Downs; Steven
Scott Pippinger; Angalina Kay Pippenger; Carl E. Ellis, Trustee; Patricia S.
Ellis, Trustee; Clayton R. Kreicker; Cathy L. Kreicker; Michael Shearer; Susan
Shearer; Mary Clemens; George Clemens; Naomi A. Hartle Revocable Trust; and the
Carl E. Ellis Revocable Trust (collectively the “Faas Group”).
(5) Exercise of the rights of
the Rufenbargers, the Blues, and the Faas Group are subject to IC 14-26-2 and
312 IAC 11 as administered by the Department of Natural Resources (the “DNR”).
(6) In Winona Lake and within
five feet of either side of the common line, the Rufenbargers, the Blues, and
the Faas Group must refrain from placing a pier or similar structure and must
also refrain from mooring a boat.
[VOL. 11, PAGE 186]
(7) The DNR’s Denial Notice
to the Faas Group for PL-20493 and dated January 26, 2007 is affirmed. However, authorization is granted to the Faas
Group, consistently with the foregoing Findings of Fact and Conclusions of Law,
for a temporary group pier to be placed in front of the Grant of Easement
frontage to provide access and mooring facilities on the north side of the
pier. The number and configuration of
boats to be moored to the group pier are subject to prior approval by the DNR’s
Division of Law Enforcement for navigation safety and effectiveness. The pier must not exceed three feet wide and
must not extend more than 100 feet from the shoreline into Winona Lake. The pier shall be supported by two inch auger
poles, which shall be placed in the lakebed using hand-held tools, or shall be
placed in sockets installed in the lakebed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Statement of the Case and Jurisdiction
1. Stephen B. Rufenbarger and
Constance A. Rufenbarger (the “Rufenbargers”) are the owners of the following
described real estate located adjacent to Winona Lake in Kosciusko County,
Indiana:
Lot 40,
together with the north 25 feet of Lot Number 39 in the 1st Addition to Yarnell
Point.
Also, that portion of the public easement described on the Plat of the 1st
Addition to Yarnell Point, as recorded in Plat Book 4, page 98, in the Office
of the Recorder of Kosciusko County, Indiana, lying south of the north line of
Lot Number 40 extended to the water’s edge and north of the south line of the
North 20 feet of Lot Number 39, extended to the water’s edge.
2. Terry W. Blue and Nancy A.
Blue (the “Blues”) are the owners of the following described real estate
located adjacent to Winona Lake in Kosciusko County, Indiana:
Lot
41 and Lot 42 in the 1st Addition to Yarnell Point.
3. Don Faas; Loni Faas; Dodge R. Elkins; Kimberly Elkins; Larry E. Downs; Londa
A. Downs; Steven Scott Pippinger; Angalina Kay Pippenger; Carl E. Ellis,
Trustee; Patricia S. Ellis, Trustee; Clayton R. Kreicker; Cathy L. Kreicker;
Michael Shearer; Susan Shearer; Mary Clemens; George Clemens; Naomi A. Hartle
Revocable Trust; and Carl E. Ellis Revocable Trust (collectively the “Faas
Group”) are the owners of various tracts in Kosciusko County.[1] These tracts are not within the 1st Addition
to Yarnell Point and are not adjacent to Winona Lake.
[VOL. 11, PAGE 187]
4. The plat of the 1st
Addition to Yarnell Point (the “Plat”) was recorded on February 10, 1926 and
shows an area described as a “public easement” between the easterly lot lines
of the lots in the Plat and the shoreline of Winona Lake. In addition, between
Lots 15 and 16, Lots 20 and 21, Lots 24 and 25, Lots 29 and 30, Lots 34 and 35,
Lots 40 and 41, and Lot 46 and an adjacent tract, there are strips of land
typically 15 feet wide. The strips appear to provide access from the public
street to the public easement. These strips begin at the edge of the
right-of-way of a public street and end at the westerly edge of the public
easement along the shoreline. As platted in 1926, the lots in the 1st Addition
to Yarnell Point did not extend to the shoreline of Winona Lake, but rather
they terminated at the westerly edge of the public easement.
5. In 1992, Norman L. Hoffer
and Betty L. Hoffer (the “Hoffers”) were the owners of Lot 41 in the 1st
Addition to Yarnell Point. On October 2, 1992, the Hoffers granted a
nonexclusive easement to the Faas Group or the Faas Groups’ predecessors in
interest (the “original easement”)[2].
The original easement was set forth in an instrument titled “Grant of Use” and
described a lineal, rectangular parcel more particularly defined as:
A tract commencing at the northwest corner of Lot No. 40, thence eastward
approximately 130 feet, more or less, to the shore of Winona Lake, thence
northward along the shore of Winona Lake eight (8) feet, thence westward by
parallels eight (8) feet parallel to the north lot line of Lot No. 40 to the
edge of the right-of-way of Country Club Drive (eight (8) feet of the place of
beginning) thence southward along the right-of-way of Country Club Drive eight
(8) feet to the place of beginning....
6. In the original easement, the Hoffers also provided “an additional ten (10)
feet of use” of the Hoffers’ “riparian rights within the waters of Winona Lake,
so as to allow flexibility in the docking of boats; this additional grant will
extend docking of boats northward into waters that are otherwise the riparian
waters of [Hoffers] and will grant a total of eighteen (18) feet of riparian
rights, including eight (8) feet of the easement granted herein and ten (10)
feet additional northward area parallel and adjacent thereto.”
[VOL. 11, PAGE 188]
7. On October 28, 2005, the
Blues caused to be recorded with the Office of the Recorder of Kosciusko County
a Grant of Easement (the “amended easement”) which provided in substantive part
as follows:
The
undersigned, Terry W. Blue and Nancy A. Blue, make this Grant of Easement under
the following terms, conditions and recitals:
1. The
undersigned, Terry W. Blue and Nancy A. Blue, are the owners of Lot #41 and Lot
#42 in Willams First Addition to Yarnelle Pointe, Warsaw, Kosciusko County,
Indiana, and adjacent vacated areas between the lots and Winona Lake.
2. Terry
W. Blue and Nancy A. Blue (hereinafter the “Blues”) are the successors in
interest to Norman L. Hoffer and Betty L. Hoffer (hereinafter the “Hoffers”).
3.
Hoffers executed and created a Grant of Use which was recorded in the Office of
the Recorder of Kosciusko County, Indiana, on October 2, 1992, as Document No.
92-10-0159.
4. Blues
desire to amend that “Grant of Use” described in the preceding paragraph,
however, nothing in this document is intended to limit or reduce the rights
created by the 1992 Grant of Use.
5.
Blues, by reason of their ownership of Lot #41 are, as a matter of Indiana law,
also the owners of the feet title to part of the adjacent tract lying between
Lot #40 and Lot #41. More specifically,
Blues are the owners of the fee title to the north one-half of the tract which
lies between the north line of Lot #40, extended and the south of Lot #41,
extended (hereinafter “The Tract”).
6. The
Tract was created as a part of the plat of the 1st Addition to
Yarnelle Pointe.
7. As
referred to in this document, “The Tract” constitutes a roughly triangular
parcel lying between Lot #40 and Lot #41, bounded by Country Club Drive on the
west and narrowing to a point to the east by the extension of the lot lines of
Lot #40 and Lot #41.
8. The
1992 Grant of Use created riparian uses for certain grantees; the scope of that
use was further construed by the Natural Resources Commission under
Administrative Cause No. 03-047L.
9. The
Final Order in Administrative Cause No. 03-046L limited the riparian uses of
grantees under the 1992 Grant of Use to areas north of the north line of Lot
#40, extended into the waters of Winona Lake.
10.
Blues desire to provide the Grantees the right to use any and all riparian
areas to which Blues are entitle[d] by reason of their ownership of Lots #41
and #42 in the 1st Addition to Yarnelle Point and adjacent vacated
areas, including the areas determined in the prior Grant of Use as well as any
additional riparian areas to which Blues [are] entitled, and lying south of the
area determined in Administrative Cause No. 03-046L Final Order, but north of
the midpoint line of The Tract, extended into the waters of Winona Lake.
[VOL. 11, PAGE 189]
11. To
the extent that the rights of Blues are determined by an extension of the south
line of Lot #41 eastward into the waters of Winona Lake, that area of riparian
use is also granted to the Grantees under the 1992 Grant of Use. Blues acknowledge that the north line of Lot
#40 currently owned by Stephen B. Rufenbarger and Constance A. Rufenbarger, and
the south line of Lot #41, do intersect.
To the extent the Rufenbargers claim that their rights are determined by
an extension of the north line of Lot #40, in like manner, Blues assert the
same rights by extending the south line of Lot #41 eastward.
12. The
Grantees under this Grant of Easement are the successors in interest to the
original Grantees under the 1992 Grant of Use, and are…:
a. Cynthia L. Elliott;
b. Lary E. Downs and Londa A. Downs;
c. Cameron D. Bayne and Kathy L.
Bayne;
d. Michael A. Shearer and Susan M.
Schearer;
e. Carl E. Ellis Revocable Living
Trust undivided ½ interest and Patricia S. Ellis Revocable Living Trust
undivided ½ interest, Carl E. Ellis and Patricia S. Ellis LE & Trustees;
f. Donald R. Faas and Linda Marie
Faas; and,
g. Naomi A. Hartle Revocable Trust,
James F. Hartle, Jr. Trustee.
13. The
Grantees are entitled to use, in addition to the easement described in the 1992
Grant of Use, an additional easement eight feet in width…and described as
follows:
An 8.00
foot wide ingress and egress easement over, under and across a tract of land,
more particularly described as follows:
Commencing
at a PK nail on the Southest corner of Lot 41; thence South 14º-37’-54” East,
15.45 feet to the point of beginning; thence North 87º-55’-59” East, 133.67
feet, more or less, to the shoreline of Winona Lake; thence south 03º-53’-54”
East, along said shoreline, 8.00 feet; thence South 87º-55’-59” West, 132.14
feet, more or less; thence North 14º-37’-54” West, 8.20 feet to the point of
beginning.
Subject
to all legal highways and easements of record.
This
Grant of Easement is intended to include all riparian rights within the waters
of Winona Lake as set forth in this Grant of Easement….
14. The
intent of this Grant of Easement is to provide additional riparian use
easements to the Grantees, thereby shifting the riparian area southward to the
limit of property rights vested in or controlled by Blues. The original 1992 Grant of Use provides an
additional ten (10) feet “of the use of the Grantors’ riparian rights within
the waters of Winona Lake…” to provide additional space for docking of
boats. To the extent Grantees are able
to relocate their pier and/or riparian use southward by virtue of this Grant of
Easement, it is the intent that the additional use of riparian rights shall shift
southward as well; in other words, that the Grantees shall have the use of
eighteen (18) feet of riparian rights, within the waters of Winona Lake, in
conjunction with pier and boat docking.
It is not the intent of this Grant of easement to enlarge the total of
eighteen (18) feet of use by the Grantees.
[VOL. 11, PAGE 190]
8. On March 15, 1993, the
Common Council of the City of Warsaw vacated the public easement between the
southerly line of Lot 37 (extended to the shoreline) and the northerly line of
Lot 40 (extended to the shoreline). Within
Winona Lake and adjacent to the site of this vacated public easement, the
Rufenbargers are the riparian owners.
9. On June 20, 2005, the
Common Council of the City of Warsaw vacated the public easement between the
southerly line of Lot 41 (extended to the shoreline) and the northerly line of
Lot 42 (extended to the shoreline). Within
Winona Lake and adjacent to the site of this vacated public easement, the Blues
are the riparian owners.
10. The members of the Faas
Group are not riparian owners. Yet a determination that persons are not “riparian
owners does not settle the question of whether they are entitled to install and
use a dock in the property enjoyment of their easement for right-of-way
purposes.” An easement holder does not have riparian ownership status but may
use the riparian rights of the servient tenant who has given the easement
holder access to the lake. Klotz v. Horn,
558 N.E.2d 1096, 1097 (Ind. 1990), citing Farnes
v. Lane, 281 Minn. 222, 161 N.W.2d 297, 301 (Minn. 1968). The intentions of the riparian owner are to
be implemented in construing an easement.
The clear language in a plat or other recorded conveyance controls.
11. The Natural Resources
Commission (the “Commission”) found in Rufenbarger
v. Lowe, et al., 9 Caddnar 150, 151 (2004) [Administrative Cause No.
03-046L][3] that
the original easement by the Hoffers was sufficient to provide the Faas Group,
including their predecessors in interest, a nonexclusive easement to the
shoreline. The original easement expressed unambiguously an intention that it
would confer riparian rights. In addition to an eight-foot corridor extending
lake-ward from the terrestrial easement, ten more feet of shoreline were
provided for enjoyment of the Faas Group.
The parties to the instant proceeding do not contest the validity of
this finding from Rufenbarger 1. The same legal status is accorded to the
amended easement as to the original easement.
12. Evidence presented at
hearing in Rufenbarger 1 indicated
that, before the Hoffers granted the original easement, the Faas Group or the
Faas Groups’ predecessors in interest used the shoreline of the public easement
for recreational purposes. Temporary
piers were placed. Although these piers
seem most often to have been located north of the northern boundary of Lot 40
extended into Lake Winona, both testimony and exhibits suggested they were
sometimes placed south of that line. Over
the passage of time, usage of the site was dynamic and expanding. The evidence demonstrated an evolution of use
[VOL. 11, PAGE 191]
patterns typical of desirable
public freshwater lakes. Upon proper facts,
a prescriptive easement could establish access to the shoreline of a public
freshwater lake, including the opportunity to place a pier in the lake. Bromelmeier v. Brookhart, 570 N.E.2d 90
(Ind. App. 1991). Yet prescriptive
easements are not favored by the law. On
land, physical evidence may help establish adverse use, and an unexplained use
of a path or road for over 20 years offers a presumption of adverse use. There
is not a similar presumption “in favor of a party trying to establish a
prescriptive easement for the recreational use of a body of water....
Recreational use (especially of water which leaves no telltale path or
road)...seems...likely to be permissive” rather than adverse. Carnahan
v. Moriah Property Owners Ass’n, 716 N.E.2d 487 (Ind. 1999). In Rufenbarger
1, the Commission found the evidence did not demonstrate use by the Faas
Group, south of the northern boundary of Lot 40 extended into Lake Winona,
sufficient to establish a prescriptive easement. Upon these facts, the
Commission concluded in Rufenbarger 1 that
any rights of the Faas Group to place piers were derived from the easement.
13. The parties stipulated
into evidence a transcript of Rufenbarger
1. The preponderance of the evidence
in the instant action continues to support the Commission’s findings of fact
and conclusions of law as set forth in Finding 12,
but with the noteworthy caveat that the riparian boundary between the Rufenbargers
and Blues was not articulated by Rufenbarger 1. The Blues
were not then parties, and the vacation referenced in Finding 9 had not
occurred.
14. The DNR is the state
agency primarily responsible for administering IC 14-26-2 (sometimes referred
to as the “Lakes Preservation Act”). As
provided in IC 14-26-2-23(e)(2), objective standards are to be provided by rule
with respect to the configuration of piers, boat stations, platforms and
similar structures. A process shall be
provided, which includes an opportunity for mediation, for the resolution of
disputes between persons with competing interests or between persons and the
DNR in the use of waters of a public freshwater lake.
15. Winona Lake in Kosciusko
County is a “public freshwater lake” and subject to the Lakes Preservation Act.
16. The Commission has
adopted rules at 312 IAC 11 to assist with administration of the Lakes
Preservation Act. Included among these
are standards pertaining to the configuration of piers and similar structures,
the use of mediation, and an opportunity for the resolution of disputes between
persons with competing interests or between persons and the DNR in the use of
waters of a public freshwater lake.
Temporary piers are among the structures requiring either a general license
or an individual license. A “group pier”
is disqualified from a general license by 312 IAC 11-3-1(b)(8).
[VOL. 11, PAGE 192]
17. Pursuant to IC 14-10-2-3,
the Commission is the “ultimate authority” for the Lakes Preservation Act and
312 IAC 11.
18. The Rufenbargers sought
relief from the Commission for the resolution of a dispute with the Blues and
the Faas Group regarding competing interests on Winona Lake. The DNR was added as an additional party. At the same site, the Faas Group sought an individual
license for a group pier under the Lakes Preservation Act, and the DNR denied
the application. The Faas Group sought
administrative review of the denial. By
agreement of the parties, the review initiated by the Rufenbargers and the review
initiated by the Faas Group were consolidated as Administrative Cause Number
06-246W in this proceeding. The
Commission has jurisdiction over the subject-matter and over the persons of the
parties.
19. This proceeding came for
hearing in Columbia City on June 19, 2007.
At the opening of the hearing, a “Stipulate of the Parties” was entered
by which the following issues were presented for review by the Commission:
A. The
determination of the appropriate rule and location for extending the common
property line between Lot 40 (Rufenbargers) and Lot 41 (Blues) into the waters
of Winona Lake, and [t]he derivative and respective riparian uses and rights of
the parties with respect to that line.
B.
Whether the determination of the Department of Natural Resources on January 26,
2007 denying the Application for a Group Pier Permit under Administrative
Number PL-20493 was improperly denied on the basis that it was unusually long
relative to similar structures in the vicinity and would infringe on the access
of an adjacent landowner and, whether the Group Permit Permit Application
satisfies the criteria specifically identified in 312 IAC 11-3-3 for Group Pier
Permits, in light of the May 3, 2004 Final Order of the Natural Resources
Commission that addresses substantially the same issues presented in the Permit
Application.
C.
Whether the denial of the Group Pier Permit Application will impose a severe
hardship on the [Faas Group].
20. Following the completion
of the hearing on June 19 and agreed supplementation of the transcript of Rufenbarger 1, the parties were provided
until July 23, 2007 to file simultaneous post-hearing briefs. With expiration of the time for filing briefs,
the proceeding is ripe for disposition.
[VOL. 11, PAGE 193]
B. Appropriate Rule and Location for Extending the
Common Property Line between Rufenbargers’ Lot 40 and Blues’ Lot 41 into the
Waters of Winona Lake, and the Derivative and Respective Riparian Uses and
Rights of the Parties with Respect to that Line
21. By its express terms, Rufenbarger 1 did not address the
relationship between the Rufenbargers, as owners of Lot 40, with respect to the
owners of Lot 41 (now the Blues). Even
if Rufenbarger 1 had done so, the
factual circumstances are changed by the subsequent vacation of the public easement
adjacent to Lot 41 as described in Finding 9.
22. Before the vacations described in Finding 8 and Finding 9, neither Lot 40 nor
Lot 41 extended to the shoreline of Winona Lake. With the vacations, both Lot 40 and Lot 41
extend to the shoreline of Winona Lake.
23. Before the
vacations described in Finding 8 and Finding 9, the northern boundary of Lot 40 and the southern boundary
of Lot 41 were separated by a platted public way, although the length of
separation decreased as the boundaries progressed easterly toward Lake
Winona. With the vacations, the extended
northern boundary of Lot 40 and the extended southern boundary of Lot 41
intersect before reaching the shoreline of Lake Winona.
24. A common line exists
between Lot 40 and Lot 41. The common
line is the midpoint line of the platted public way between these two
lots. As stated in AmRhein v. Eden, 779 N.E.2d 1197 (Ind. App. 2002), the owners of
lots own the underlying fee title of an adjacent way to the centerline of the
public way.
25. Riparian rights exist as
a part of fee simple ownership of the shoreline. Brown
v. Heidersbach, 172 Ind. App. 434, 440, 360 N.E.2d 614, 619 (Ind. App.
1977). Since the Rufenbargers and the
Blues own to the centerline of the platted public way, the common line division
of their fee simple ownership should properly be extended to the shoreline. The common line extended easterly to the
shoreline may also be described as a bifurcation of the angle formed by the
intersection of the extended northern boundary of Lot 40 and the extended
southern boundary of Lot 41. The common
line would identify the common point on the shoreline from which to commence
the boundaries of their respective riparian areas into Winona Lake.
26. Where the shoreline
approximates a straight line and where the onshore property boundaries are
perpendicular to the shore, the boundaries are determined by extending the
onshore boundaries into the lake. Bath v. Courts, 459 N.E.2d 72, 73 (Ind.
App. 1984).
27. Where the common line
described in Finding 25 intersects the
shoreline of Winona Lake, the shoreline approximates a straight line and the
intersection occurs at a perpendicular to the shore. The riparian areas of the Rufenbargers and
the Blues in Winona Lake are properly bounded by continuing the extension of
the centerline as a straight line into the lake.
[VOL. 11, PAGE 194]
28. North of the line into
Winona Lake that is described by Finding 27, the
Blues may exercise the rights as riparian owners for such activities as access,
swimming, fishing, bathing and boating.
These rights may include the placement of piers and similar
structures. For the area described
within the amended easement, the Blues are the servient estate and have
accorded riparian rights to the Faas Group.
South of the line described by Finding 27, the Rufenbargers may exercise
these same rights as riparian owners.
The rights of the Blues, the Faas Group and the Rufenbargers are
governed by a reasonableness test, and the control of the DNR to protect the
public rights described by the Lakes Preservation Act. Bath cited previously and Zapffe v. Srbeny, 587 N.E.2d 177 (Ind.
App. 1992).
29. Lieutenant John Sullivan
is an experienced Conservation Officer and is the Commander for District 1
which includes Winona Lake. He is
familiar with conditions on Winona Lake as they pertain to boating and the
placement of piers, including matters pertaining to navigation and the
potentials for hazards to navigation.
Sullivan personally inspected the site at issue to evaluate the
application contained in PL-20493 for a group pier, and he again personally
inspected the site in anticipation of the hearing in this proceeding.
30. Sullivan testified that
to accommodate navigation, there ideally should be ten feet of clearance on both
sides of the dividing line (for a total of 20 feet) between riparian owners in
a lake. At a minimum, a total of ten
feet of clearance would be required to provide for appropriate navigation and
to implement the Lakes Preservation Act.
Sullivan’s testimony in this regard was essentially unrefuted and is persuasive. In addition, Sullivan’s testimony is
consistent with previous decisions by the Commission. See recently Havel & Stickelmeyer v. Fisher, et al., 11 Caddnar 110 (2007).
31. Within five feet of
either side of the line described in Finding 27,
the Blues, the Faas Group, and the Rufenbargers should properly refrain from
placing a pier or similar structure licensed under the Lakes Preservation Act
and should properly refrain from mooring a boat.[4]
C. Propriety of DNR’s Denial of Application PL-20493
on the Basis the Proposed Group Pier was Unusually Long Relative to Similar
Structures in the Vicinity and would Infringe on the Access of an Adjacent
Landowner and Whether the Application Satisfies the Criteria Identified in 312
IAC 11-3-3 for Group Piers in Light of Rufenbarger
1
[VOL. 11, PAGE 195]
32. In application PL-20493,
the Faas Group sought a group pier in front of the amended easement to provide
access and mooring facilities on the north side of the pier for eight
boats. The proposed pier would be three
feet wide and would extend 175 feet into Winona Lake. The pier would be temporary and be supported
by two-foot auger poles, which would be placed in the lakebed using hand-held
tools or would be placed in sockets installed in the lakebed.
33. The evidence discloses
that the Blues share a pier with their neighbor on Lot 43 to the north, and
this pier is approximately 90 feet long.
The Rufenbargers’ pier is approximately 85 feet long. Testimony of Stephen Rufenbarger, Terry Blue,
and Claimants’ Exhibit F (Walker & Associates survey of June 15, 2007).
34. Lieutenant John Sullivan is
familiar with the size and length of piers in the vicinity of the application
for PL-20493.
35. Based upon his
experience, knowledge of navigation factors on Winona Lake, familiarity with
pier lengths in the vicinity, and inspection of the site, Sullivan determined
that (1) the proposed 175-foot long group pier described in PL-20493 would be
unusually long relative to similar structures in the vicinity; and, (2) the
proposed pier would infringe on the access of an adjacent landowner. These were also the exclusive grounds cited
by the DNR for denying the application for the group pier.
36. For those matters contained
in Finding 35, the Faas Group has the burden
of persuasion and the burden of going forward (sometimes collectively referred
to as the “burden of proof”) with establishing the DNR erred. Since the DNR did not identify other grounds
for denying the application, a party asserting other grounds would be
responsible for identifying and then proving them. Evidence received at hearing
did not establish grounds other than those described in Finding 35 upon which application PL-20493 should properly be
denied.
37. At hearing, Sullivan
testified the grounds described in Finding 35 were derived from concerns for
navigability. The core purposes of the
Lakes Preservation Act support safe and effective navigation. The public of Indiana has a vested right in
the use of public freshwater lakes for recreational purposes, including fishing
and boating. IC 14-26-2-5. Factors which the DNR may properly consider
in determining whether to issue a permit under the Lakes Preservation Act
include public rights to recreational purposes and the management of boating
activities. IC 14-26-2-23(e)(3) and IC
14-26-2-23(e)(4).
[VOL. 11, PAGE 196]
38. The DNR’s conclusion was
appropriate that the proposal in PL-20493 for a group pier, which would be 175
feet long, should be denied.
39. Sullivan also testified
if the length of the group pier were reduced to a range of 90 feet to 110 feet,
and the piers at the site were properly configured, his concerns for adverse
impacts to navigability would be alleviated.
Sullivan’s testimony is persuasive.
40. The Faas Group should be
authorized to place a group pier that does not exceed 100 feet in length from
the “shoreline or water line” (as described by IC 14-26-2-4) of Winona Lake. The authorization should be limited by the
terms described in Finding 32. In addition, the Faas Group should place no
pier and moor no boat to a pier outside the area described by the amended
easement.
41. The authorization described in Finding 40 should be made
consistently with the application in PL-20493, and as outlined in Finding 32,
except that no finding should be made as to the number of boats which
may be effectively and safely moored.
The authorization in favor of the Faas Group should be contingent upon a
determination by the DNR that the configuration for mooring boats does not pose
a hazard to navigation. If the members
of the Faas Group were unable to achieve such a configuration to their mutual
satisfaction, or unable to achieve a configuration to the satisfaction of the
DNR, they may seek an arrangement for common use as anticipated by IC
14-26-2-23(e)(2)(A).
42. This proceeding is
governed by IC 4-21.5. The purpose is to
provide hearing de novo with respect to the licensure action by the DNR in
denying application PL-20493. The administrative
law judge shall weigh evidence and reaching conclusions, rather than defer to
an initial determination by the DNR. The
standard of review is by the preponderance of the evidence. Indiana
Dept. of Natural Resources v. United Refuse, 615 N.E.2d 100 (1993 Ind.) and
Dowden v. Department of Natural Resources,
6 Caddnar 25 (2001). Consistently with
these principles, the Commission may appropriately grant approval of a license
with terms that are the same as or different from those sought in an application
if supported by the preponderance of the evidence.
43. Based upon the
preponderance of the evidence and within the terms described in these Findings,
the Commission may appropriately grant approval to the Faas Group for a group
pier that conforms to the Lakes Preservation Act and 312 IAC 3-1, including 312
IAC 11-3-3.
D. Whether the Denial of the Group Pier Permit
Application Would Impose a Severe Hardship on the Faas Group
44. In Bath cited previously, the court noted there was “no set rule in Indiana
for establishing the extension of boundaries into a lake”, as between riparian
owners. Additionally, the court noted that riparian rights do not extend to the
center of a public freshwater lake. Rather,
“the State of Indiana holds in trust for public use and enjoyment all
freshwater lakes. The opportunity to
place a pier is subject to lateral limitation for the enjoyment of other
riparian owners and to perpendicular limitation for the enjoyment of the
public. A riparian owner “may build a
pier within the extension of his shore boundaries only so far out as not to
interfere with the use of the lake by others.”
See, also, Rufenbarger 1.
[VOL. 11, PAGE 197]
45. The number of persons who
can obtain riparian rights for a segment of shoreline is infinite.
The shorelines and resources
of public freshwater lakes are finite, and riparian owners and the public must
enjoy them in balance. With the
enactment in 1947 of the antecedent statutes[5] to
the Lakes Preservation Act, the Indiana General Assembly made a clear policy
determination that the enjoyment of riparian rights must not overwhelm the
public trust. This policy determination
was underlined with more recent statutory amendments to the Lakes Preservation
Act that are now codified at IC 14-26-2-23.[6] Notable is IC 14-26-2-23(e)(2). An individual who has riparian rights to
access a public freshwater lake is not guaranteed the right to place a
pier.
46. The disposition in the Final
Order to these findings would provide the members of the Faas Group the
opportunity to enjoy access to Winona Lake.
The disposition is appropriate to their riparian rights and to the
purposes of the Lakes Preservation Act.
A severe hardship is not imposed to the Faas Group.
[1] Following the commencement of this proceeding, Dodge R. Elkins and Kimberly Elkins acquired the interests of Cynthia Elliott, and Steven Scott Pippenger and Angalina Kay Pippenger acquired the interests of Cameron D. Bayne and Kathy L. Bayne.
[2] In these Findings, the phrase “public
easement” is used to describe the common area, immediately along the shoreline
of
[3] Rufenbarger v. Lowe, et al., 9 Caddnar 150 (“Rufenbarger I”) is closely related to the instant proceeding, but there are factual differences. The Blues or their predecessors were not parties, and neither was the Department of Natural Resources (the “DNR”) a party, to Rufenbarger 1. The portion of the public easement adjacent to the Rufenbargers’ real estate was vacated, but the portion adjacent to the Blues’ real estate had not yet been. Also, the amended easement described in Finding 7 was not entered when Rufenbarger 1 was decided.
[4] At page 6 of the “Respondent Department of Natural Resources’ Post-Hearing Brief”, the DNR envisions the challenges often posed by easements to public freshwater lakes which provide riparian rights, particularly those which provide the rights to place structures. The DNR also suggests the Commission’s recent philosophy in addressing those challenges. “The number of cases involving easements or a very narrow strip of land owned outright give witness to the special problems posed by these types of ownership arrangements. Typically, the easements are of some duration and many of the current owners of the servient estates and surrounding neighbors might be several times removed from the owners originally involved. That being said, the lake access afforded to the easement holders greatly increases the value of their properties and often set up to serve an unfeasible number of uses. The cases to date suggest that, if a lakefront owner extends easement rights, for whatever reason, to remove owners, and pier rights are included, any encroachment must be in the direction of the easement granter’s riparian zone. This does not mean, however, that a neighboring property can ignore the requirement to maintain proper distances between his temporary structures and the easement holders’ temporary structures.” The disposition of the instant proceeding is thought to be harmonious with this vision.
[5]
[6] P.L. 64-2000 and P.L. 152-2006.