Winona Lake Vacates Land On IslandWINONA LAKE – After a long discussion Tuesday, the Winona Lake Town Council approved a vacation of land 3-0 with two members abstaining.
Attorney Stephen Snyder presented the vacation of an area of land along Auditorium Boulevard and Esplanade Street on behalf of his client, Rob Delp.
After handing council members a map of the proposed area to be vacated, Snyder said, “The vacation is not technically all of that area. It is an area that would preserve the right of way, essentially of Esplanade as it turns into Auditorium.”
He said there was a case in 1993 which considered Esplanade and the area from those lots that front on the lake with Esplanade in front of them as to who owned it and what right of way rights existed in Esplanade. He handed copies of the court’s judgment in that case to the council members “which determined those lake front owners owned all that property … determined the owners of the lots that faced Esplanade and the lake at that point actually owned all the land out to the water’s edge. It solved some problems that existed before for a long time. But, it also preserved a 30-foot right of way for Esplanade as it went from the edge of Auditorium around the point.”
Snyder said what he was proposing to do on behalf of his client was something similar to that 1993 court decision.
“What we’re proposing to do is vacate that excess right of way and have it declared to be owned by the people who truly own it now, subject to the right of way, again preserving a 30-foot right of way for Esplanade over that portion of Auditorium that’s vacated, so it simply continues around as it does,” Snyder said.
By vacating that area, he said all of that lakefront property ends up back on the tax rolls and the ownership is determined because “it already exists. When you have a platted lot next to a public right of way, the adjacent lot owners own the land under that right of way to the centerline, but they own it subject to the public’s right of way to use it for driving purposes. What we would do is preserve that portion of the right of way – 30 feet in width where the pavement is – and the rest of it then would become owned by the people who own the underlying title now, but it would be free of the right of way.”
Council President Bruce Shaffner asked Snyder if he had an ordinance prepared for the vacation. Snyder replied he did not prepare one because he was not sure what width of that right of way the council wanted to preserve. He said if the council approved the vacation last night, he could have that exact legal description prepared and get the ordinance to the council so it could be executed by the council’s July meeting. Snyder said the 1993 court case established a 30-foot right of way.
After Councilman Dennis Duncan made a motion to approve the vacation, Shaffner opened it up to the public for discussion.
Janet Volkers, owner of properties at 401 Auditorium Blvd., 1010 Court Circle and 1008 Court Circle, said the vacation would impact two to three families that have had their piers and boats out there for 35 to 40 years. She said it would be a “terrible injustice” for them to lose that.
Jerry Nelson said he believed “that is the only access on the whole island that is public land currently.” He said if the council vacated it now, it would regret it later if it needed to run sewer lines.
Town Coordinator Craig Allebach asked Snyder to explain riparian rights.
Snyder said, “The courts and the Natural Resources Commission have considered riparian rights in detail for the last 25 to 30 years. Riparian rights are the rights associated with the ownership of land that abuts a public lake. The ownership carries with it the right to do what is permitted by riparian rights, which is swim, fish, place a pier, moor a boat, things like that.
“Ownership of land under streets is owned, as I indicated, by the adjacent property owners. And if there is public right of way over that land, the public has the right to utilize the right of way for the typical right of way purposes – driving on it, riding a bicycle, walking on it,” he said.
“But riparian rights and the courts have considered this particular issue numerous times: the owner of riparian rights is the only person who has the right to put a pier out. So the owner of the land under the street is the only person who has a right to put a pier out at that end of that street.”
After many more comments and discussion, with the remonstrators giving their opinions on why the vacation should not be approved, Councilman Rick Swaim provided the second to Duncan’s original motion for Snyder to prepare a document for an ordinance for the vacation of the property, allowing a 30-foot right of way to put down through there.
Since Shaffner used to own the two pieces of property that would benefit from the vacation – the Delp property and the Smith family property – he recused himself from the vote. Councilwoman Tecy Banta abstained, saying she did not see how it would benefit Delp as he could tell the people to take their piers off his property without vacating the property. The motion was approved, with Duncan, Swaim and Heather James voting for it.
While the vacation is approved, the council will have to vote on the form of the ordinance at its July meeting.
In other business, the council:
• Approved a memorandum of understanding between Warsaw and Winona Lake regarding the White’s Hill banner. Allebach said that will now be limited to city of Warsaw and town of Winona Lake events.
• Discussed a funneling ordinance being considered now by the town’s plan commission.
• Heard from Fire Chief Mitch Titus that the fire department spent five hours Saturday at the town dump battling a fire set off by fireworks. He said 46,000 gallons of water were used.
• Heard a complaint from Barb Konieczny saying the town needs to enforce its housing and parking codes.
• Heard from Jack Volkers that when the council decided to reverse the direction of the south end of Court Street, “it created problems it should have foreseen but chose to ignore. I believe those problems continue to worsen.”
He said the biggest source of frustration is for those who want to use the alley from West Canal to Court streets as a way to shorten the three-block “inconvenience” of the direction reversal. He said raised gardens have been built which encroach the alley and flat paving stones encroach beyond that.
Shaffner said the council will take Volkers’ complaint under advisement by meeting with Town Marshal Joe Hawn and looking at the issue, with a conclusion or recommendation at the July meeting.
• Heard from resident Jim LeMasters, who said he had a “whole list” of issues. He asked about the Redevelopment Commission using Tax Increment Finance funds to pay for the irrigation system for the flower beds and trees along Winona Avenue, which Allebach said the commission could do.
Before going into his list of stuff, he said, “This is all first-world country crap that we’re dealing with, but I’m going to go through a couple of them.” Swaim agreed it was. LeMasters’ concerns were about the garbage cans sitting in the streets and alleys all the time without people taking them in; neighborhoods leaving trash right outside of their back doors, especially renters; public parking has gotten bad; the town app needs dates corrected; and people need to get involved to fight the drug problem in town.
