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Long Beach court case could set precedent in lakefront property rights

A case scheduled go trial starting Thursday Porter County could decide property rights strip lright next Lake Michigan.

A case scheduled to go to trial starting Thursday in Porter County could decide the property rights to the strip of land right next to Lake Michigan.

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Updated: November 18, 2013 7:41AM



A court case that could set a precedent for all owners of Lake Michigan beach property will begin Thursday in LaPorte County Circuit Court.

Judge Thomas Alevizos will hear arguments on a request for summary judgment on beach property rights in a suit filed against the town of Long Beach by Long Beach lakefront residents.

Margaret West and Don Gunderson, along with the Long Beach Lakefront Homeowners Association, have sued Long Beach to overturn a town resolution that restricts police enforcement of private property ordinances, such as trespassing. They also want the court to clarify their property rights.

“What happens here may affect every other piece of property along the shoreline,” said Robert Schaefer, Long Beach Town Council president.

Long Beach is a small community with million dollar homes hugging the Lake Michigan shoreline. The town council recently passed a resolution restricting police from enforcing private property ordinances along the lakefront between the water’s edge and what is called the “ordinary high water mark.”

Gunderson and the homeowners’ association contend their property rights extend to the water’s edge and they have the deeds to prove it. The town’s policy of not enforcing property laws in that zone “is like saying ‘I’m taking control of your backyard,’” said Gunderson.

The town resolution was drafted following an Indiana Department of Natural Resource directive that indicates that the land below the high-water mark, legally defined as 581.5 feet above sea level, is public property, according to Schaefer.

Patrick Cannon, board member of the recently formed Long Beach Community Alliance, cites a 1978 Indiana attorney general’s office opinion claiming state ownership of the land between the water’s edge and the high-water mark.

But Gunderson said the town has plenty of other places to gain access to the beach for people who don’t live along the lake. Former bus stops, now just called “stops,” are about a third of a mile apart; each has a strip of land about 40 feet wide, extending from Lake Shore Drive to the water.

“On busy days, sometimes people spill over onto adjacent private beaches,” Gunderson said.

Both Schaefer and Cannon are careful to distance themselves from the notion that they seek public ownership of the land in question.

“The town is not going to defend ownership, it is going to defend the resolution. The town does not establish ownership. That’s somebody else’s responsibility,” said Schaefer.

While the action of the Long Beach council precipitated the lawsuit, “the town council cannot take a position. Taxpayers are on both sides of this dispute. We’re waiting for a decision to tell us who owns the property,” said Schaefer.

Schaefer points out that the State of Indiana should be involved in the suit to help provide direction and leadership in establishing ownership, especially if the land in question is, in fact, owned by the state.

The Department of Natural Resources website was recently changed to reflect what may be a shift in position of the state; previously described as “landowner” of the property in question, the website now describes the state only as “ a holder of regulatory interest.” That change could create an even murkier situation than may have previously existed.

“The state has disavowed ownership. Nobody claims ownership except the lakefront owners,” Gunderson said.

“Both sides want a resolution to the issue of who owns what,” said Cannon.

The land ownership question is indeed shadowy. Documents filed in the case stretch back to antiquity. References are made in court motions to the Northwest Ordinance of 1787 and Indiana’s original constitution of 1816. Copies of handwritten notes compiled by surveyors of the early 1800’s also are among the documents filed with the court.

Gunderson has lived in Long Beach since 1964 and has seen plenty of change over the years. He thinks that large numbers of newcomers and seasonal owners mean neighbors may not know their neighbors, so a traditional means of resolving disputes is gone.

A growing rental market may create problems, too. “Renters don’t know or understand the rules,” said Gunderson.

Cannon agreed residential change has exacerbated the problem.

“Historically, Long Beach was year-round residential. Now it’s starting to tip to more second homes. People know their neighbors less,” he said. In the past, “people knew each other better so could better work out problems.”

According to Schaefer, non-residents now own more than half of the 1,100 homes in Long Beach.

“We’re trying to protect the tradition and the hometown feeling you had from living here,” Cannon said. “You can now walk from Michigan City to Michigan state along the beaches. If the beach front owners are correct, you would be trespassing.”

One area all sides seem to agree on is that the dispute may be lengthy. And if it winds its way high enough in legal system, it is even possible that Long Beach native son John Roberts Jr. — also known as chief justice of the U.S. Supreme Court — could eventually hear the case.

At age 84, Gunderson doesn’t expect to see the issue resolved in his lifetime but is pursuing the suit anyway.

“It’s a matter of principle,” he said. “ Nobody wants their land taken at a stroke of a pen.”



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