Judge’s 1963 Decision Has Bearing On Vacation
October 8, 2020 at 4:03 a.m.
Judge’s 1963 Decision Has Bearing On Vacation
By David Slone-dslone@timesuniononline.com
The petition by Wayne and Virginia Shaffer was to vacate what was originally laid out in the Kalorama Park subdivision as Park Avenue between lots 11 and 12 – 6712 and 6725 N. Kalorama Road – which extends to Tippecanoe Lake, while leaving a 5-foot-wide public way intact. The Shaffers own lot 12. By the end of the 72-minute hearing on the vacation, the Commission approved to recommend to the county commissioners to vacate the property with the re-establishment of the public way as 5 feet wide at Kalorama Road and 10 feet wide at the water’s edge.
“Originally laid out as 40 feet ... what’s happened over the years ... back in 1963, it was actually taken to court and (Circuit Court) Judge (Seth N.) Rowdabaugh, at the time, vacated down a portion of that 40 feet and vacated it down to what he understood at the time was, from the original 40 feet to 20-some feet,” Area Plan Director Dan Richard said.
Over the years, he said surveys have been done by different surveyors. “Supposedly, that 20 feet toward Park Avenue doesn’t really exist because the corner that was here is now up to here,” Richard said, pointing out the differences on a survey map. “Basically, (it) gobles up what was left of Park Avenue and the 20-some feet that Judge Rowdabaugh did back in 1963.”
What the Shaffers sought Wednesday, he said, was a vacation of what was left of Park Avenue and to establish a 5-foot access from Kalorama Road to the lake.
Attorney Steve Snyder, representing the Shaffers, said, “This is an old plat. The ’20s. We all know that surveying techniques today are a lot more precise than survey techniques 100 years ago, and that’s what we deal with around the lakes routinely with 100-year-old plats. They aren’t accurate.”
On the property before the Commission Wednesday to be vacated, Snyder said, “What has been determined is, as platted, it certainly doesn’t exist. And it doesn’t exist because the survey shows that the southeast corner of lot 11 and the northeast corner of lot 12 are actually in the same corner” and that doesn’t leave any room for Park Avenue. When surveyors go out and try to figure it out, they don’t short lots that have houses on them. “Park Avenue may have existed to some extent toward the lake, but there was no way to get to it because it didn’t have any frontage on Kalorama Road.”
Snyder said there had been a pier at the end of Park Avenue for about 60 years, as well as a grocery store across the street. People would pull up to the pier, go to the grocery store and get groceries.
On behalf of the neighbors previously, Snyder said he petitioned the Natural Resources Commission to determine whether the placement of a pier at the end of a supposedly existing public way was proper. “And, you’ll see in Judge Lucas’s decision of 18 pages, that it’s not. The public has no right to put a pier out there,” he said. Lucas ordered the people who put a pier there to remove it and prohibited them from every putting a pier there again.
When the latest surveys were made by Kimpel & Associates, Snyder said they found the true issue with Park Avenue was that it doesn’t abut Kalorama Road, but comes to a point at that location, so “there’s no access anyway.”
However, he said he and his clients know there’s one person, Gary Weir, who lives across the street and he and his wife like to walk down to the lake. To preserve that “right” for them, Snyder said the Shaffers agreed they would leave unvacated a 5-foot strip that actually fronts on Kalorama Road and moves out to the water’s edge.
Richard said on the original plat, the public way was there. “What happened, when the judge in ‘62 made his decision, ... who made the decision to make this up within the public way? Why is the public way the one area that is shorted? Why wasn’t that taken up in other lots, and why does it have to manifest itself right there and the public gets shorted?”
Tom Hardy, co-owner of John Kimpel & Associates Inc., said lot 11 had a home on it in 1963, but didn’t know why the problem wasn’t shown during that case.
Snyder said there wasn’t a shortage, “it doesn’t exist. If you lay out all the lots, which they did from the north and the south, those lots are in the right place. Somebody didn’t do Park Avenue right.”
Richard disagreed. “Why, if you’re starting at one end or the other end, why do you end up short? Why don’t you start at one end and make sure that’s included and go continuity all the way up?”
Snyder said you’d end up with houses not located on their platted lots. “They’re going to then have to file adverse possession claims for every damn lot from the north down to Park Avenue, from the south up to Park Avenue, and the judge is going to give them that adverse possession claim.”
Hardy said they should have started at the top and laid out all the lots and Park Avenue, but that didn’t happen. It happened so long ago, it’s not known whose fault it was.
At some point, Snyder said he was losing what the issue was. “Right now, everybody, I think, can agree that lot 11 and lot 12 have corners in the same place and there’s no access to whatever of Park Avenue exists. What we’re trying to do is establish an access the people thought was there, but never has been there, with a 5-foot strip down the lake. We don’t need any more than that because the Natural Resource Commission says you can’t do anything with it anyway. It seems like a really logical thing to do here.”
Richard responded, “Our lakes, our accesses to the lakes, make Kosciusko County. That’s what makes us unique and a valuable and rich county for people to come to, is our access to the lakes. Every time we peel away at that, I think we’re losing something important, something of value, to Kosciusko County. I think that’s the foundation for our county, is our lakes and our access and we need to preserve every inch possible.”
County Surveyor Mike Kissinger said there were conflicting surveys on the property and at one point suggested the final decision may rest with the courts.
County Commissioner Bob Conley eventually made the suggestion that the property be vacated but a public way be retained, which was 5 feet wide at Kalorama Road and tapered up to 10 feet wide at the lake’s edge. Snyder noted the Shaffers weren’t at the meeting to hear the recommendation, but Jim Beaman, owner Kalorama Properties LLC, which owns lot 11, was.
Beaman said lot 11 was his family for 66 years and lot 12 was in the Shaffers’ family for over 100 years. Beaman said the confusion over where Park Avenue was has been in their families for a long time.
Remonstrator Robert Paton said the public way was platted as an access way to Tippecanoe Lake over 100 years ago so people could enjoy the water. He said it’s been used by him and his family and others since 1958. In 1961, he said the adjoining property owners attempted to take away the public access and it ended up in court. It was reduced from 40 to about 29 feet on the lake. He said lake access is a very important resource in Kosciusko County that shouldn’t be abandoned.
“Once the access is removed, it will not be able to be restored. Lake Tippecanoe is a state of Indiana lake that needs access, and not to have the access restricted just to an elite few,” Paton said.
Beaman later said Judge Rowdabaugh relied on erroneous information in 1963.
There was some discussion from the Plan Commission about getting a legal survey on the property, but the Commission ended up voting 6-1 on Conley’s motion, with Kissinger opposed. It goes before the county commissioners Oct. 27.
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The petition by Wayne and Virginia Shaffer was to vacate what was originally laid out in the Kalorama Park subdivision as Park Avenue between lots 11 and 12 – 6712 and 6725 N. Kalorama Road – which extends to Tippecanoe Lake, while leaving a 5-foot-wide public way intact. The Shaffers own lot 12. By the end of the 72-minute hearing on the vacation, the Commission approved to recommend to the county commissioners to vacate the property with the re-establishment of the public way as 5 feet wide at Kalorama Road and 10 feet wide at the water’s edge.
“Originally laid out as 40 feet ... what’s happened over the years ... back in 1963, it was actually taken to court and (Circuit Court) Judge (Seth N.) Rowdabaugh, at the time, vacated down a portion of that 40 feet and vacated it down to what he understood at the time was, from the original 40 feet to 20-some feet,” Area Plan Director Dan Richard said.
Over the years, he said surveys have been done by different surveyors. “Supposedly, that 20 feet toward Park Avenue doesn’t really exist because the corner that was here is now up to here,” Richard said, pointing out the differences on a survey map. “Basically, (it) gobles up what was left of Park Avenue and the 20-some feet that Judge Rowdabaugh did back in 1963.”
What the Shaffers sought Wednesday, he said, was a vacation of what was left of Park Avenue and to establish a 5-foot access from Kalorama Road to the lake.
Attorney Steve Snyder, representing the Shaffers, said, “This is an old plat. The ’20s. We all know that surveying techniques today are a lot more precise than survey techniques 100 years ago, and that’s what we deal with around the lakes routinely with 100-year-old plats. They aren’t accurate.”
On the property before the Commission Wednesday to be vacated, Snyder said, “What has been determined is, as platted, it certainly doesn’t exist. And it doesn’t exist because the survey shows that the southeast corner of lot 11 and the northeast corner of lot 12 are actually in the same corner” and that doesn’t leave any room for Park Avenue. When surveyors go out and try to figure it out, they don’t short lots that have houses on them. “Park Avenue may have existed to some extent toward the lake, but there was no way to get to it because it didn’t have any frontage on Kalorama Road.”
Snyder said there had been a pier at the end of Park Avenue for about 60 years, as well as a grocery store across the street. People would pull up to the pier, go to the grocery store and get groceries.
On behalf of the neighbors previously, Snyder said he petitioned the Natural Resources Commission to determine whether the placement of a pier at the end of a supposedly existing public way was proper. “And, you’ll see in Judge Lucas’s decision of 18 pages, that it’s not. The public has no right to put a pier out there,” he said. Lucas ordered the people who put a pier there to remove it and prohibited them from every putting a pier there again.
When the latest surveys were made by Kimpel & Associates, Snyder said they found the true issue with Park Avenue was that it doesn’t abut Kalorama Road, but comes to a point at that location, so “there’s no access anyway.”
However, he said he and his clients know there’s one person, Gary Weir, who lives across the street and he and his wife like to walk down to the lake. To preserve that “right” for them, Snyder said the Shaffers agreed they would leave unvacated a 5-foot strip that actually fronts on Kalorama Road and moves out to the water’s edge.
Richard said on the original plat, the public way was there. “What happened, when the judge in ‘62 made his decision, ... who made the decision to make this up within the public way? Why is the public way the one area that is shorted? Why wasn’t that taken up in other lots, and why does it have to manifest itself right there and the public gets shorted?”
Tom Hardy, co-owner of John Kimpel & Associates Inc., said lot 11 had a home on it in 1963, but didn’t know why the problem wasn’t shown during that case.
Snyder said there wasn’t a shortage, “it doesn’t exist. If you lay out all the lots, which they did from the north and the south, those lots are in the right place. Somebody didn’t do Park Avenue right.”
Richard disagreed. “Why, if you’re starting at one end or the other end, why do you end up short? Why don’t you start at one end and make sure that’s included and go continuity all the way up?”
Snyder said you’d end up with houses not located on their platted lots. “They’re going to then have to file adverse possession claims for every damn lot from the north down to Park Avenue, from the south up to Park Avenue, and the judge is going to give them that adverse possession claim.”
Hardy said they should have started at the top and laid out all the lots and Park Avenue, but that didn’t happen. It happened so long ago, it’s not known whose fault it was.
At some point, Snyder said he was losing what the issue was. “Right now, everybody, I think, can agree that lot 11 and lot 12 have corners in the same place and there’s no access to whatever of Park Avenue exists. What we’re trying to do is establish an access the people thought was there, but never has been there, with a 5-foot strip down the lake. We don’t need any more than that because the Natural Resource Commission says you can’t do anything with it anyway. It seems like a really logical thing to do here.”
Richard responded, “Our lakes, our accesses to the lakes, make Kosciusko County. That’s what makes us unique and a valuable and rich county for people to come to, is our access to the lakes. Every time we peel away at that, I think we’re losing something important, something of value, to Kosciusko County. I think that’s the foundation for our county, is our lakes and our access and we need to preserve every inch possible.”
County Surveyor Mike Kissinger said there were conflicting surveys on the property and at one point suggested the final decision may rest with the courts.
County Commissioner Bob Conley eventually made the suggestion that the property be vacated but a public way be retained, which was 5 feet wide at Kalorama Road and tapered up to 10 feet wide at the lake’s edge. Snyder noted the Shaffers weren’t at the meeting to hear the recommendation, but Jim Beaman, owner Kalorama Properties LLC, which owns lot 11, was.
Beaman said lot 11 was his family for 66 years and lot 12 was in the Shaffers’ family for over 100 years. Beaman said the confusion over where Park Avenue was has been in their families for a long time.
Remonstrator Robert Paton said the public way was platted as an access way to Tippecanoe Lake over 100 years ago so people could enjoy the water. He said it’s been used by him and his family and others since 1958. In 1961, he said the adjoining property owners attempted to take away the public access and it ended up in court. It was reduced from 40 to about 29 feet on the lake. He said lake access is a very important resource in Kosciusko County that shouldn’t be abandoned.
“Once the access is removed, it will not be able to be restored. Lake Tippecanoe is a state of Indiana lake that needs access, and not to have the access restricted just to an elite few,” Paton said.
Beaman later said Judge Rowdabaugh relied on erroneous information in 1963.
There was some discussion from the Plan Commission about getting a legal survey on the property, but the Commission ended up voting 6-1 on Conley’s motion, with Kissinger opposed. It goes before the county commissioners Oct. 27.
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