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Court rules in favor of lakefront landowners

By Larry Limpf
News Editor
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The legal argument over where Lake Erie shoreline property becomes private land shifted in favor of land owners with the 11th Ohio District Court of Appeals ruling property lines change with the water level.

The court ruled last week the land beneath the water is open to the public and lakefront property residents own the land above the waterline.

The ruling essentially upholds a ruling by the Lake County Commons Pleas Court in December, 2007.

“By setting the boundary at the water’s edge, we recognize and respect the private property rights of littoral owners, while at the same time, provide for the public’s use of the waters of Lake Erie and the land submerged under those waters, when submerged. The water’s edge provides a readily discernible boundary for both the public and littoral landowners,” the appeals court wrote.

Members of the Ohio Lakefront Group sued the state in 2004 after the Ohio Department of Natural Resources, under then Gov. Bob Taft, charged lakefront property owners a lease to place docks out into the lake waters. Under that policy, the state contended the boundary between public and private land was the shoreline’s historic “ordinary high water mark” – a surveying point established by the U.S. Army Corps of Engineers.

Gov. Taft and the ODNR argued their position was based on the public trust doctrine.

Gov. Ted Strickland weighed in on the issue two years ago and reversed the policy of requiring property owners to lease land from the state beyond the high-water mark if it was included in their property deed.

Then Attorney General Marc Dann continued fighting the lawsuit, however, arguing the lands around Lake Erie are held in public trust and should remain open for public access.

Lake County Common Pleas Court Judge Eugene Lucci’s 77-page ruling did rebuff the contention of attorneys for the property owners that their land extended to the historical low-water mark in the lake. Instead, he ruled the water’s edge is a “movable boundary.” In some areas, the low-water mark is now underwater.

For the state to use the high water mark, Judge Lucci wrote, was comparable to taking private land without compensation.

But the public could still have access to the shore and walk along the water’s edge, he ruled.

The appeals court noted there is precedent with Ohio Supreme Court, which has identified that the waters of Lake Erie, “when submerged under such waters, are subject to the public trust, while the littoral owner holds title to the natural shoreline. As we have identified, the shoreline is the line of contact with a body of water with the land between the high and low water mark.”

The Ohio Environmental Council and National Wildlife Federation had joined the lawsuit as intervening defendants and argued the public access extended up to the high-water mark.

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