The Mail-Journal, Volume 27, Number 30, Milford, Kosciusko County, 7 September 1988 — Page 1

Milford 658-4111 &

a Syracuse <457-3666

VOLUME 27

Petition for review filed —

Judge Sands issues stay in Papakeechie Lake fight

(By DEB PATTERSON j Staff Writer The non-final order declaring Papakeechie Lake a “public freshwater lake” by the Indiana Department of Natural Resources last week, has begun a court battle with the Papakeechie Protective Association. A stay, a statutory remedy in which a judge makes the determination that it is probably that an order issued by an agency is improper and has no effect, was issued by Kosciusko Circuit Court Judge Richard W. Sand at 1:30 p.m. Friday, Sept. 2, following a petition for review filed earlier in the day by the Papakeechie Protective Association. “So now the order is stayed, we’re back to the point where motors are still prohibited and we will be in a position to spend the next six months, year, 18 months, whatever it takes to finally resolve the issue.” commented Steve Snyder, attorney for the association. Ron Corson, president of the association, stated, “I think what we’ve gained is the’right as the riparian owner to present our side to the case.” It is believed

MB I ■ ■ - • . ■ | ■ Seek crossing arms, lights at 2 area railroad crossings

By K ATE WOLFORD Staff Writer Highway Department Superintendent Ken Traylor is concerned about the safety of two area railroad crossings. One is on the Baltimore and Ohio Railroads (B&O) at Milford Junction, near Old 15 and 1350 N. The other is also

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IT’S A FOUR-WAY STOP AT PICKWICK! — The stop signs are now up on Pickwick Road at Harkless Drive, east of SR 13 in Syracuse, making the intersection a four-way stop. Drivers traveling west and east on Pickwick Road will now have to stop at that intersection and travelers on Harkless Prive will have to use some patience and caution before proceeding through the intersection. The Syracuse Town Board adopted an ordinance last month requiring all vehicles to stop at the intersection. Syracuse Police Officers will be patrolling the area frequently and issuing warnings at first to drivers who disregard the signs. Tickets will be Issued to violators, in about a week. Shown in the photo installing one of the stop signs are Bob DeVoss, back to camera; Butch Robinson, standing in the track; Paul Hoffman and Jerald Wolfe. (Photo by Deb Patterson)

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that it will be some time before the matter goes to court as there will be “volumes of evidence entered,” according to Snyder. The matter came to court after the DNR issued a lettered opinion stating the lake was a “public freshwater lake” and that there has been passive assent, or agreement without protest, for individuals to cross property of riparian owners. It was also noted that the former fish hatchery property, owned by the state, extends into Papakeechie Lake. “Sometime within the last few weeks, months, we’re not sure, there has been a lot of correspondence, we have to assume from the people who reside in Papakeechie Lake Subdivision, who want motors on the lake, correspondence to the DNR without a public hearing or notice to the Papakeechie Protective Association,” noted Snyder speculating the reasoning for the August 29 letter. Snyder noted that he contacted Steve Lucas, general counsel for the DNR in Indianapolis, following the lettered opinion. Lucas informed Snyder that he was not aware the association owned all the riparian rights and that only the association could allow the public access to the lake. Petitions Papakeechie Protective Association states in the petition

on the B&O Line at 900E and 1250 N on the northeast side of Lake Wawasee. At a Sept. 1 meeting, the Kosciusko County Commissioners approved a cost sharing program to improve the crossings. The improvements at both sites will include crossing arms and flashing lights. Traylor says the Milford Junction crossing is

Consolidation of THE MILFORD MAIL (Est. 1888) and THE SYRACUSE-WAWASEE JOURNAL (Est. 1907)

for review, they are the owner of various parcels of real estate in Kosciusko County including, but not limited to, one foot immediately adjacent to the water’s edge of Papakeechie Lake, the entire circumference of the lake. Snyder noted the one foot surrounding the lake gives to the association riparian rights, rights to the use of the area of the water and the lake itself. “Unless you own lake front property you can’t have riparian rights. Since the association has all the rights to the lake, nobody else can do anything with it,” Snyder said.. The petition also states the DNR’s determination is contrary to the constitutional rights of the association in that it is taking of the petitioner’s property without due process; it is in excess of the DNR’s statutory-jurisdiction and authority as it attempts to extend the jurisdiction of the DNR to property of the association without dueproces_ " law; was without observance of procedure required by law by failing to provide a notice of a hearing on the determination, failed to allow the association the opportunity to present evidence and failed to allow cross examination of evidence; failed to consider ownership of the riparian rights and relied upon unsworn letters from the general public; and would cause immediate and irreparable harm by conveying to

dangerous because it is the site of multiple tracks. In addition, it is quite dark at night and often, railroad cars are left sitting on the tracks where they can hide oncoming trains from afa automobile driver’s vision. Traylor says he knows of two accidents happening there in the last year. The 900E and 1250 N crossing is potentially hazardous because five school buses cross there daily. Traylor says, “That’s quite a hazardous situation. The potential (for accidents) is there.” The Wawasee Lakes Association has expressed concern over this crossing to Traylor. “They have been requesting consideration for several years,” he states. Traylor adds that this crossing “came very high on the list.” The “list” is 20 county railroad crossings county-wide that dangerous. “I have 20 railroad crossings county-wide that that do qualify for federal dollars for railroad crossing improvements,” Traylor states. The two crossings listed above will cost $125,000 each, according to • Traylor’s preliminary estimate . and the county will bear 10 percent of the cost. the county qualifies for $500,000 per year for railroad improvements and Traylor says “I’m going to attempt to submit at least three (crossings) a year to try and get our fair share.” Thus far, there have been three submitted including the ones at Milford Junction and 900E and 1250 N. The first was at 200N, Warsaw, with Conrail Railroad. However, because of a great deal of red tape, the improvements may take several years. Car fire caused by wiring short Syracuse Fire Department received a call of a car fire at 4:53 p.m. Monday, Sept. 5, at the intersection of Syra-Web Road and • CR 500E. The cause of the fire has been listed as a short in the wiring. The owner of the car, Carl Van Over, told firemen he was in the process of installing a stereo system in the car and went into the house. When he cam out the car was on fire. When firemen arrived the inside of the car was on fire. No damage estimate to the vehicle was available.

WEDNESDAY, SEPTEMBER 7,1988

the public that it has a right to access to the lake and the use of motorized boats, and nullifying the restrictive convenants contained in the plats of Papakeechie concerning the use. At the same time the association was filing a petition for review and petition for a of the effectiveness of the letter, Paul Refior, Warsaw attorney, filed a motion to intervene, on behalf of approximately 40 people, asking to be made a party to the action. This motion is scheduled for hearing late in September. Refior, according to Snyder, also objected to the court issuing a stay. Dick Conroy, spokesman for the group in favor of changing the articles and by-laws, stated “We (the group) feel that the DNR did not make this decision based on , inadequate information. It was a well-researched and welldiscussed situation before any decision was made. We don’t feel that the DNR is prone to rash decisions. We feel that it has a wealth of information to dispute any claims made by the Papakeechie Protective Association and we feel this situation will be resolved in court and should not be resolved through the press.” AppeaLProcess “Normally the appeal process would be back to the DNR itself,” mentioned Snyder, who explained an administrative law j« ■•ge would be set up and the n < would have to go to Indianapolis tQ the jaw judgelo gQifirpughiry-?-ing to reverse the effects of this letter. “There’s a provision in the Administrative of Judication Act, that permits going directly to the court and appealing a non-final order when there is the apparent possibility of irreparable harm coming to the person affected by the order and there’s no adequate remedy at law,” stated Snyder. The adequate remedy would mean no damages could be obtained to compensate. “These questions that are being asked are not new questions,” commented Corson, “only the names change, not the issue.” He noted that there are no public easements to the lake. Snyder said the way you determine whether a lake is such, is to answer the question; have the owners of riparian rights permitted the public to regularly have access to the lake? In this case, the association would have to permit the public access to the lake as have the riparian rights and according to Snyder this has not been done. Corson stated the association obtained their privacy through legislative real estate action and that changes in jurisdiction on the lake is going to be their position. “If it’s going to be changed it has to be changed within the ar(Continued on page 2)

New hours tor area post offices Wn/toa service hours will be restored on Saturday, Sept. 10, to area post offices to help customers with changes that worn a fat/taabi Atit. were a result or ouaget cui- | DaCKS* According *0 *vlCjK SlgeV/Postmaster decision to return window service was made to find out what would be best W postal customers. . • “The intent was not to just actually determine what will ha fasts* Mv* n/wtol cnmrtna in ue vest lor postal service in our area,” Spathelf said. ? thh fnllnwincy towns ai*a as Leesburg * Monday-rTiuay 8 *saturaay o Milford: Monday-Friday 8:30 am. 4 p.m./3-5 p.m. and oaturoay o u.m.-nouii F x h ßx e Tm r -l psu/5 p.m. and Saturday 8

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Letter sparks Papakeechie debate

I By DEB PATTERSON Staff Writer

' The recent ruling by the In- . diana Department of Natural uYm~dirTarfn g Papakeechie Lake a “public freshwater lake,” was addressed in a letter from John N. Simpson, P.E., director of the division of water, to Lt. Col. Phil Ohmit of the DNR. This letter has sparked a debate and is now in the courts for ruling over who has jurisdiction of the lake. The letter, dated August 29,

Friday last day to file —

School board contests develop

There is only one full day left (Thursday) for any interested person to file for a seat on the Wawasee School Board. Filing will close at noon on Friday, Sept. 9. To date, Bill Little and Dennis W. Mikel, both from District 3, have filed. Jeffrey S. Wells, Syracuse, who had not filed as of today (Wednesday), has announced his intentions and will be filing his candidacy before the deadline. Wells will be vying for a seat on the board against Carol Swartzendruber, Syracuse, who filed on August 23.There are two seats open on the school board with the terms of Mrs. Swartzendruber and Billy G. Little expiring. Curtis Jordan currently represents District I (Tippecanoe Township), Mrs. Swartzendruber and Dave Carey, represent District II (Turkey Creek), and Little and Bill Troup, represent District 111 (Van Buren and the east half of Jefferson townships). With Jordan, Carey and Troup remaining on the board, and the ruling that the east district must have one, but no more th%n two board members, the race is wide open and anyone may toss his or her hat in the ring. Veteran Little is a veteran of the school board, serving 19 years and is presently president of the board. He is an accountant. Little was appointed to the board on March 9, 1970, to fill put the 3¥ 4 year unexpired term of Kenneth Haney following his resignation. Little was elected to the board in 1972,1976,1980, and 1984. » Little, 61, is a graduate of Milford High School and Indiana University. He served one term as Milford’s clerk-treasurer. He is a member of the Syracuse Grace Lutheran Church, Masonic Lodge, Scottish Rite, Order of the Eastern Star, Milford Kiwanis Club, and the Indiana Association of Public Accountants. He has three children. His main concern is the welfare of area School children and to

PAPAKEECHIE: PUBLIC OR PRIVATE LAKE?

reads as follows: “There have been several inquiries as to the statues of Lake Papakeechie located in Kosciusko County. The question asked is whether or not it is a 'public fresh wafer laic; IC 13-2-11.1-1 deffties a “publie freshwater lake” as follows: “Public freshwater lake” means a lake that has been used by the public with the acquiescence of a riparian owner. “It has recently become known that there has been passive assent or agreement without protest for individuals to cross the property of riparian owners. It should also be noted that a recent survey of the Lake Wawasee Fish

motivate youngsters to “take advantage of the best educational opportunities possible.” He feels he is making a positive contribution to the welfare of the community by serving on the school board. BILLG. LITTLE District 3 Contender Dennis Wayne Mikel, 38, r 1, Milford, entered his hat into the election ring Tuesday, Sept. 6. He stated his primary reason for entering the race is “Mj. Little has lost touch with his constituency.” He said he felt someone had io run against him (Little). Mikel also stated his reason for seeking the school board seat is wh£t appears to be a.Very unbalanced board, “the board is very administration heavy, and patron light. The votes come out 4-1 to the administration evfery time.” The Nappanee High School graduate stated he believes he can add some input and constructive criticism to the construction of the new middle school with his construction background. “An added concern I have is the site selected for the school. The radon level is 10 times the suggested

Hatchery property owned by the State ofe Indiana extends into ‘ Papakefechie Lake. The survey was completed on December 22, 1987 t by Robert C. Vollmer, Division of Engineering. Being public property controlled by the Division of Fish and Wildlife the public also has access to Papakeechie Lake by this means. “Further research indicates that “Public freshwater lake,” within the meaning of IC 13-2-11.1-1, constitutes a lake of natural, not. artificial origin. However, if a lake of natural origin is altered by artificial means, the lake is still a “public freshwater lake, ” within the context of IC 13-2-11.1-1.

federal standard, it was a poor selection of a site.” Mikel, who is a construction cost estimator for Shreiner and Sons, Inc., Elkhart, has been involved in the various aspects of construction for the past 16 yeafs. He attended Goshen College and has served in a five-year apprenticeship of the United Associations of Plumbers and Pipe Fitters. Mikel is active in the American Society of Heating and Refrigeration Architects and Engineers. He is a former Nappanee Jaycee member and a member of the Nappanee Aviation Club. MBs ? ’ Ira. -U. -1F IB wL. J ■L y Ww DENNIS W. MIKEL He and his wife, Jan, have two children Todd, 18, a senior at Wawasee; and Trisha, 14, a freshman at Wawasee. District 2 Contender Jeffrey S. Wells, 34, Syracuse, has announced his intention to seek one of the two seats up for election on the school board. Wells, president and owner of Syracuse Products, Inc., stated he feels he can offer some experience, based on his business background, in considering expenditures coming up on the new middle school.

NUMBER 30

“Papakeechie Lake was originally a series of small lakes of natural origin. A dam was constructed in the early 1900 s creating the lake now known as Papakeechie Lake. r— “Heafißga" Condmis&ioijer Steve Lucas was asked for an &- terpretation of the law determining “public freshwater lakes” in regards to Papakeechie Lake. Lucas responded by Saying Papakeechie Lake by definition is a “public freshwater lake.” “Papakeechie Lake will be treated as all other “public freshwater lakes” by the Division of Water from this time on irregardless of past policy. ” • (Continued on page 2)

J B 1 B JEFFREYS. WELLS Wells also noted he has children in school now, “I had a good education when I was there and I would like to see my kids afforded the same opportunities I had.” He is a 1972 graduate of >. Wawasee. Prior to starting his own business in 1983, Wells was an assistant vice president in the lending department at The State Bank of Syracuse from 1976-1980 and assistant vice president in charge of commercial loans at Salem Bank from 1980 to 1963. He received a bachelor of science degree in business management from Tri-State University in 1976. Wells is a charter member, past president and past board member of the Goshen Noon Exchange Club; past board member and past president-elect of the Syracuse-Wawasee Chamber of Commerce; and past president and current member of the Wawasee Flotilla Committee. Wells and his wife of 10 years, Cynthia, who works part-time at SPI and is secretary for the Syracuse Evening ParentTeacher Organization, have two children, Leighton A., seven, a second grade student; and Cassandra E., five, a kindergarten student.

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