Saying the state’s position in a lawsuit over where lakefront property is public or private wasn’t substantially justified, the Ohio Lakefront Group is asking to be compensated for attorney fees and related expenses incurred in the seven-year legal battle that reached the Ohio Supreme Court.
The group, which represents about 7,000 residents owning property along Lake Erie, filed a motion in Lake County Common Pleas Court recently seeking $509,453 in attorney fees and $68,791 in expenses.
In a 7-0 decision last month, the Ohio Supreme Court ruled the state holds a public trust that “extends to the natural shoreline, which is the line at which the water usually stands when free from disturbing causes.” The decision reversed a ruling by the 11th District Court of Appeals that lakeside owners’ property rights extend to whatever point on shore is in contact with the waters on any given day.
But the Supreme Court also rejected state arguments that its public trust over the lake extends to the “ordinary high water mark” as defined by a survey by the U.S. Army Corps of Engineers in the 1980s.
The landowners’ complaint in 2004 named three defendants: Ohio Department of Natural Resources, its then director Sean Logan, and the state, and asked the Lake County Common Pleas Court to invalidate ODNR regulations that enforced the state’s public trust authority up to the high-water point, which the ODNR identified as 573.4 feet above sea level based on the survey by the Corps of Engineers.
Their complaint also objected to the department’s policy of enforcing a lease on owners to place docks and other structures out into the lake waters and filed claims against the state alleging unconstitutional “taking” without compensation of their property from the waterline up to the high-water mark.
When Gov. Ted Strickland took office, he reversed the policy of requiring leases and the ODNR began recognizing the presumptive deed rights of landowners to use their property below the ordinary high-water point without entering into a lease.
The department said its policy change was subject to future revision after a final decision by the courts on the trust authority issue.
The ODNR didn’t participate further in the case but former Attorney General Mark Dann argued on behalf of the state that its public trust authority extends to the ordinary high-water mark. The National Wildlife Foundation and Ohio Environmental Council were also given permission to intervene in the case as interested parties and filed briefs supporting the attorney general’s position.
Tony Yankel, president of the Lakefront group, said in a posting on the group’s website property owners felt compelled to file a court case because of the ODNR policy.
“We are only asking the State of Ohio to compensate us for the money we were forced to spend to defend our rights as property owners,” he said. “Our motion does not include compensation for the thousands of volunteer hours that homeowners were forced to spend fighting this policy that was so clearly wrong.”
A spokesperson for the attorney general's office said Friday the motion is being reviewed and the office will "respond in court at the appropriate time."