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Home Lakefront landowners brace for appeal
Lakefront landowners brace for appeal
Written by Larry Limpf   
Thursday, 03 September 2009 14:57

A group representing lakefront property owners that won a court victory last month is bracing for opponents to appeal to the Ohio Supreme Court.

Members of the Ohio Lakefront Group have scheduled a meeting for Sept. 9 at the Catawba Island Club, 4235 E. Beach Rd., Port Clinton, to discuss the case.

The meeting will be held from 7-9 p.m.

The 11th Ohio District Court of Appeals ruled largely in favor of landowners in a lawsuit to decide where Lake Erie shoreline property becomes privately-owned and where the public access starts.

“We fully expect, and have been advised, that the case will be appealed to the Ohio Supreme Court,” says an invitation to the meeting sent to landowners and public officials. “At this meeting we will inform our members of the ramifications of the current win as well as what might be expected in the appeal to the Ohio Supreme Court.”

The meeting is aimed at property owners in counties west of Lorain to Lucas County.

The appeals court ruled that land beneath the water is open to the public and lakefront property owners own the land above the waterline.

That ruling, in effect, upheld a ruling by the Lake County Common Pleas Court in December, 2007 and establishes a moving boundary.

“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.

The court noted that the Ohio Supreme Court in previous decisions has already “identified that the waters, and the lands under 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 lower water mark. Therefore, the shoreline, that is the actual water’s edge, is the line of demarcation between the waters of Lake Erie and the land when submerged thereunder held in trust by the State of Ohio and those natural or filled in lands privately held by littoral owners.”


Lawsuit in ‘04
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.

Two years ago, Gov. Ted Strickland 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.

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

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

Lake County Common Pleas Court Judge Eugene Lucci’s ruling did reject the contention of attorneys for the landowners that their property extended to the historical low-water mark in the lake, which is now underwater in some areas.

Instead, he ruled the water’s edge is a “movable boundary.” For the state to use the high-water mark, he wrote, was comparable to taking private land without compensation.

Messages left with the ODNR and Ohio Environmental Council for comment on a possible appeal were not returned prior to deadline.

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By: Larry Limpf

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