[CITE: Rekeweg v. Nix, 12 CADDNAR 75 (2009)]
[VOLUME 12, PAGE 75]
Cause #09-079W
Caption: Rekeweg v.
Nix
Administrative Law
Judge: Lucas
Attorneys: Rekeweg
(pro se); Nix (pro se)
Date: June 25, 2009
FINAL ORDER
Gerbers & Buhr, et al. v. Nix, et al., 9 Caddnar 132 (2004) is controlling. No basis is established in law or in fact by which Jackie Rekeweg may supersede or set aside the decision or by which she may obtain relief against Edward F. Nix and Marcia Nix in placing their pier, with pier tent, in its current configuration.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
A. Statement of the
Proceeding and Jurisdiction
1. On April 21, 2009, Jackie Rekeweg (“Rekeweg”) filed
correspondence with the Natural Resources Commission (the “Commission”) which requested
review of the seasonal placement of a temporary pier by Edward F. Nix and
Marcia Nix (the “Nixes”) within
2.
3. The correspondence referenced in Finding 1 initiated a proceeding before the Commission 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 implementation of AOPA.
4. Stephen L. Lucas was appointed as the Commission’s administrative law judge for this proceeding.
5. The Commission is the “ultimate authority” for agency
determinations under the Lakes Preservation Act and 312 IAC § 11-1 through 312
IAC § 11-5, including those derived from competing interests in the placement
of piers, boat stations, platforms, and similar structures in public freshwater
lakes. IC 14-10-2-4 and IC
14-26-2-23. Lukis v. Ray, 888 N.E.2d 325 (
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6. On April 28, 2009, the administrative law judge entered a
“Notice of Prehearing Conference” and attempted service of the notice, as well
as the correspondence and copies of the photographs described in Finding 1, to be made upon the Nixes. The initial attempt at service was
unsuccessful due to an insufficient address, but Rekeweg provided an alternate
address on May 13, 2009. A “Supplemental
Notice of Prehearing Conference”, including the attachments in the original
“Notice of Prehearing Conference”, was entered on May 14, 2009 and successfully
served upon the Nixes. The prehearing
conference (the “prehearing conference”) was scheduled for May 29, 2009 in
7. In an email dated May 26, 2009, the Nixes averred the subject of this proceeding was previously decided in two consolidated proceedings identified by Administrative Cause Number 03-031L and Administrative Cause Number 03-034L.
8. In preparation for the prehearing conference, the administrative law judge reviewed the Commission’s records. From this review, he determined a “Notice of Filing Report, Findings of Fact, and Final Order of the Natural Resources Commission” was entered and served on the parties on February 13, 2004 in the following consolidated proceedings: Kathy Gerbers, Donalyn Melcher, Jacquelin Rekeweg and Carolyn Hirsch v. Ed Nix and Marcia Nix (03-034L) and Elmer Buhr and Vera Buhr v. Ed Nix and Marcia Nix (03-031L). The Notice stated Sylvia Wilcox, former Commission administrative law judge, issued findings and a nonfinal order to which none of the parties filed “objections”. In addition, the Commission records for Administrative Cause Number 03-034L and Administrative Cause Number 03-031L did not reveal that any party sought judicial review of the Commission’s resulting final order. The decision for the two consolidated proceedings was published on the Commission’s website as Gerbers & Buhr, et al. v. Nix, et al., 9 Caddnar 132 (2004). During the prehearing conference, the administrative law judge took official notice of this Commission decision under IC 4-21.5-3-26(f)(2).
9. Gerbers & Buhr, et al. v. Nix,
et al. considered a temporary pier and a “pier tent” maintained by the
Nixes in association with the temporary pier.
The Final Order stated: “The pier tent of Ed Nix and Marcia Nix meets
the standards of 312 IAC § 11-3-1 for a temporary structure. This pier tent is not a boathouse, is easily
removable, and does not infringe on the access of adjacent landowners to
10. During the prehearing conference, the administrative law judge asked whether the Nixes’ temporary pier was in the same location as when Gerbers & Buhr, et al. v. Nix, et al. was rendered in 2004. Rekeweg and the Nixes agreed that it was.
11. During the prehearing conference, the administrative law judge stated his informal perspective Gerbers & Buhr, et al. v. Nix, et al. had res judicata effect and the Nixes’ use of their temporary pier a “lawful nonconforming use”, even if the use did not conform to rules since adopted. He added, however, other persons on administrative review, judicial review, or appeal could overrule him with a differing legal opinion.
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12. During the prehearing conference, Rekeweg stated she was seeking a disposition from the Commission as to whether recent rule amendments for public freshwater lakes would cause a different result than what was rendered in Gerbers & Buhr, et al. v. Nix, et al. In particular, she referenced recent Commission pronouncements concerning how the lines between riparian owners are delineated and extended into a lake, as well as set-back requirements from those lines for structures and boats. In this regard, she observed the Nixes’ temporary pier is removed and replaced seasonally.
13. During the prehearing conference, Rekeweg stated that she desired a written decision by the administrative law judge which she could share with others who had riparian interests bordering the Nixes. After consulting with the others, she would determine whether to file objections, and, depending upon the disposition of the objections, potentially whether to later seek judicial review.
14. During the prehearing conference, the administrative law judge responded he would enter a written nonfinal order, with findings of fact and conclusions of law, and serve the nonfinal order upon Rekeweg and the Nixes. The nonfinal order would include a cover sheet explaining how either of them could file “objections” to it. The undisputed facts adduced at the prehearing conference, and the applicable law, would form the basis for issuance of the nonfinal order.
B. Delineating Boundaries of Riparian
Zones
15.
16. A “reasonableness test” is applied to how far a pier may
extend into a lake from the shoreline.
The installation of a pier by a riparian owner is unreasonable if the
pier interferes with use of a public freshwater lake by others. “One point is well settled…. [T]he boundaries of riparian property do not
extend to the middle of the lake.” Any
extension of a pier or similar structure beyond the point required for the
mooring and launching of boats may be considered unreasonable. Zapffe
v. Srbeny, 587 N.E.2d 177 (
17. Boundaries between neighboring riparian owners are
delineated according to principles that seek to accommodate the diverse
characteristics of
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18. Based primarily upon decisions rendered by the Court of
Appeals of
First principle:
Where persons purchased their properties pursuant to a homeowner association's
constitution and bylaws, or a similar document intended to govern their
respective riparian rights, the document determines the riparian rights of
those persons.
Second principle: Where the shore approximates a straight line, and where the onshore
property boundaries are approximately perpendicular to this line, the
boundaries of riparian zones are determined by extending the onshore boundaries
into the public waters.
Third
principle: Where the shore
approximates a straight line, and where the onshore boundaries approach the
shore at obtuse or acute angles, the boundaries of riparian zones are generally
determined by extending a straight line at a perpendicular to the shore. If the
boundaries of two owners intersect at the shore, or in proximity to but
landward of the shore, the boundaries of the riparian zones may be formed by a
perpendicular to the shore from the point of intersection of the onshore boundaries.
Application of the third principle is most compelling where land owners in the
vicinity have historically used a perpendicular line to divide their riparian
zones, but the principle should not be applied where a result is to deprive a
riparian owner of reasonable access to public waters.
Fourth
principle: Where the shore is
irregular, and it is impossible to draw lines at right angles to the shore for
a just apportionment, then the lines forming the boundaries between riparian
zones should be run to divide the total navigable waterfront in proportion to
the length of the shores of each owner taken according to the general trend of
the shore. If the navigable waterfront borders a lake that is substantially
round, or is a bay that is substantially round except for its connection to the
main body of the public waters, the riparian zones may be made by running lines
from each owner's shore boundaries to the center of the lake or bay. If the
navigable waterfront borders a long lake or other public waters that are not
substantially round, the riparian zones may be made by identifying a line
through the center of the public waters, with deflected lines run from each
owner's shore boundaries to intersect the centerline at perpendiculars.
See, particularly, Bath
v. Courts, 459 N.E.2d 72 (Ind. App. 1984), Daisy Farm Ltd. Partnership v. Morrolf, 888 N.E.2d 604 (
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19. “Riparian Zones
within
20. As early as 1994, the Commission applied Nosek to a shoreline configuration for
which the facts in
21. Subsequent to the 2004 decision in Gerbers & Buhr, et al. v. Nix, et al., the Commission has
neither adopted nor changed rules regarding the delineation of riparian
zones. The Court of Appeals of
C. Minimum Set-Backs
for Temporary Structures and Boats from Riparian Lines
22. The Commission recognized in 2005 that set-back
requirements might reasonably be required for a dispute among riparian owners
concerning the placement of temporary piers.
See Roberts v.
Beachview Properties, LLC, et al., 10 Caddnar 125 (2005), affirmed on judicial review by the
Marshall Superior Court, which required a setback of “10 feet for the base of
all temporary structures, and watercraft moored to such structures.” Similar setback requirements were
subsequently imposed in Havel
& Stickelmeyer v. Fisher, 11 Caddnar 110, 119; Rufenbarger, et al. v. Blue, et al., 11 Caddnar 185, 194 (2007);
and, McColloch v. Day & Schramm, 12 Caddnar 40, 54 (2009). No Commission decision has been located in
support of the proposition that set-back requirements cannot be required.
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23. Rekeweg could have sought set-back requirements in Gerbers & Buhr, et al. v. Nix, et al. She did not, or Judge Wilcox determined the circumstances did not warrant their imposition. In either event, objections were not filed, and judicial review was not taken, so Judge Wilcox’s nonfinal order became a final order.
24. Under the doctrine of res judicata, once a judgment is rendered, no further relief can be accorded to the same parties on the same claim or cause of action. Amoco Oil Co. v. Johnstone, 699 F. Supp. 178 (1987), Aff. 856 F.2d 967.
25. Res judicata
effect is properly accorded to decisions of
(1) The
issues sought to be estopped were within the statutory jurisdiction of the
agency.
(2) The
agency was acting in a judicial capacity.
(3) Both
parties had a fair opportunity to litigate the issues.
(4) The
decision of the administrative tribunal could be taken to a court on judicial
review.
Weiss v.
26. These four criteria are satisfied:
(1) The
issues sought by the Nixes to be estopped are within the statutory jurisdiction
of the Commission. They pertain to the
disposition of riparian rights and the placement of a temporary pier on a
public freshwater lake.
(2)
Through Judge Wilcox, the Commission was acting in a judicial capacity under
AOPA.
(3)
Rekeweg and the Nixes had a fair opportunity to litigate the issues in Gerbers & Buhr, et al. v. Nix, et al.
(4) The Commission’s final order in Gerbers & Buhr, et al. v. Nix, et al. could have been taken on judicial review to a court pursuant to IC 4-21.5-5.
27. The principles of administrative res judicata hold that absent a change in conditions or circumstances, the agency should not indiscriminately or repeatedly consider the same evidence and announce a contrary decision. To do so would be unacceptable. Lindemann v. Wood, 799 N.E. 2d 1230, 1234, (Ind. Tax 2003).
28. For the Commission to reconsider the same evidence as was considered in Gerbers & Buhr, et al. v. Nix, et al. would either result in a redundancy or in a contrary decision. To do so would be unacceptable under the principles of administrative res judicata.
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29. Gerbers & Buhr, et al. v. Nix, et al. must now properly be given res judicata effect to preclude consideration of set-back requirements in a new proceeding based upon the same evidence.
30.
Effective January 1, 2009, the Director of the Department of Natural Resources
adopted a temporary rule to govern “group piers” on a public freshwater
lake. See LSA Document #08-933(E) posted
in the
31.
As defined in LSA Document #08-933(E), a “group pier” refers to “a pier that provides docking space
for any of the following:
(1) At least five (5) separate property owners.
(2) At least five (5) rental units.
(3) An association.
(4) A condominium, cooperative, or other form of horizontal property.
(5) A subdivision or an addition.
(6) A conservancy district.
(7) A campground.
(8) A mobile home park.
(9) A club that has, as a purpose, the use of public waters for boating,
fishing, hunting, trapping, or similar activities.”
32. In SECTION
5(d)(1)(B), LSA Document #08-933(E) requires the Department of Natural
Resources to condition a new group pier to provide a reasonable buffer between
the pier and “the riparian zone of adjacent property owners to provide for
reasonable navigation by the adjacent property owner and by the public. Except as otherwise provided in this clause,
the [D]epartment shall require at least five (5) feet of clearance on both
sides of a riparian line (for a total of ten (10) feet). The [D]epartment may require as much as ten
(10) feet of clearance on both sides of a riparian line (for a total of twenty
(20) feet), if based upon the opinion of a qualified professional that
additional clearance is required for reasonable navigation. The [D]epartment may approve an exception to
this clause where adjacent riparian owners use a common pier along their mutual
property line, and the purposes of this clause are satisfied by waters
elsewhere within their riparian zones.”
33. The Nixes’
temporary pier does not meet the definition of a “group pier”. LSA Document #08-933(E) does not apply. Rekeweg cannot assert the provisions of LSA
Document #08-933(E) against the Nixes.
34. Even if the
Nixes’ pier were a “group pier”, LSA Document #08-933(E) and other temporary
rules and permanent rules typically have only prospective application. A structure lawfully placed within a public
freshwater lake before the effective date of a new statute or rule can be
maintained as a lawful nonconforming use under 312 IAC 11-5-2.
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35. Although a
person not exercising a lawful nonconforming use may “abandon” the use by
inactivity, the period of inactivity must exceed one year. “Generally, a use is abandoned if not
exercised for a period in excess of one (1) year.” 312 IAC § 11-5-2(d)(4).[2] This subdivision allows for the seasonal
removal and replacement of a temporary pier or similar structure, and the
replacement of the structure in the same footprint, without causing loss of its
status as a lawful nonconforming use.
36.
Rekeweg’s claim is barred by application of administrative res judicata. Even if it
were not barred, the law pertaining to the Nixes’ pier has not changed. Additionally, the Nixes would be entitled to
assert a lawful nonconforming use. For
each of these reasons, individually or taken together, Rekeweg’s claim for
relief must properly be denied.
[1] 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 1988 as the index of agency decisions anticipated in AOPA.
[2] Exceptions allow nonuse for periods of longer than one year, for extenuating circumstances, without the loss of status as a lawful nonconforming use.