Judge rules for town in Long Beach property rights case
By John Robbins Post-Tribune correspondent December 27, 2013 11:19PM
A LaPorte County judge on Thursday denied a claim by a group of Long Beach property owners that the town violated their property rights by passing a resolution that restricted town police from enforcing private property ordinances, such as trespassing, on lakefront beach property.
LaPorte County Circuit court Judge Thomas J. Alevizos rendered the verdict Dec. 26. The case was heard in October.
The Long Beach Lakefront Homeowners Association, Margaret West and Don Gunderson sued the town of Long Beach seeking to overturn the resolution. Their claim was that the action by the town resulted in an unconstitutional taking of their property. Plaintiffs sought from the court a declaratory judgment finding, as stated in the complaint, “the Town is unlawfully and unconstitutionally claiming and asserting rights on the Lakefront which are not part of the public trust.”
Alevizos found otherwise in denying the motion for summary judgment. Alevizos concluded that, “there was no taking by the Town of Long Beach,” and denied the plaintiff’s motion for summary judgment.
“We’re thrilled with the court’s decision. It confirms our position, with what has been our position, since the start of the controversy,” said Patrick Cannon, secretary of the Long Beach Community Alliance, intervener in the case.
“This is a victory for all the citizens of the State of Indiana,” Cannon said.
Long Beach councilman Pete Byvoets said he is satisfied with the court’s decision. “The town’s resolution did not in any way take anybody’s property. The town wasn’t diminishing the value of the property.”
While Byvoets is happy to see the case put to rest, it’s a bittersweet outcome, he said. The case was expensive in time, money and acrimony among neighbors.
Hinting at the loss of small town innocence, Byvoets noted that “the town didn’t win, we all lost something. Now we have to work together.”
Moving forward, Byvoets sees as inevitable some form of better beach management.
“If we can all sit down and put the issue behind us then we can solve the problem without antagonizing anyone,” he said.
“Obviously I’m happy with the court’s finding. It’s what I argued,” said Chuck Lukmann, attorney for the town of Long Beach. “This is a very important issue. People need to know when they’re walking on the beach whether they have a right to.”
Lukmann expects that beach property rights may ultimately need to be decided by the Indiana Supreme Court.
The question of ownership, “is more properly dealt with by the Indiana Legislature and/or an appellate court in a matter where the State of Indiana is a party,” said Alevizos in his verdict.
Lukmann agreed with this assessment.
“Part of the problem was not making the state a party to the case,” he said. “The plaintiffs should have sued the State of Indiana.”
For now, while a verdict in the case has been reached, the question of who owns the beach remains unsettled, as Alevizos ruled on the very narrow matter that the actions of the town did not constitute an unjust taking of plaintiff’s property.
The homeowners association contends the private property of the lakefront homeowners extends from their lot lines along Lake Shore Drive all the way north to the water’s edge, regardless of where the water happens to be. Intervening defendants Alliance for the Great Lakes, Save the Dunes and the Long Beach Community Alliance argued that private property rights only extend to what is known as the “ordinary high water mark” of Lake Michigan.
The land beyond that point, to the water’s edge, is state-owned public property, they contend.
“It’s an issue that needs to be resolved,” said Lukmann, “it is really an important and complicated issue.”
Neither plaintiff attorney Michael V. Knight, of Barnes & Thornburg, nor plaintiff Don Gunderson returned phone calls Friday seeking comments on the verdict.