News and views, and history and humor, about the lake I love.

"I can hear my granddad's stories of the storms out on Lake Erie, where vessels and cargos and fortunes, and sailors' lives were lost." ~ James Taylor, Millworker

Wednesday, September 21, 2011

Property owners claim victory in Supreme Court case

Ohio property owners who live along the shore of Lake Erie are rejoicing over last week's ruling by the Ohio Supreme Court that the lake's "natural shoreline" is a boundary that separates private property from public recreation.

The court ruled for the plaintiff - the property rights advocacy group calling itself Ohio Lakefront Group - overturning a 2009 appellate court ruling that said property lines along the shoreline change with the water level and that the land beneath the water is open to the public and land above the waterline belongs to property owners.

The case originates with former Republican Gov. Bob Taft, who ordered the Ohio Department of Natural Resources to charge lakefront owners a leasing fee to place docks in Lake Erie. The owners sued in 2004, arguing they owned the land under their docks. The policy requiring leases was suspended when Gov. Ted Strickland took office.

Defendants in the case, the state and the Ohio Environmental Council, argued that land extending inward from the lake to a "high-water mark" established in 1985 by the Army Corps of Engineers falls under the state's public trust authority, keeping portions of the shoreline public.

Property owners countered that the high-water mark is an unreasonable benchmark that in some cases reaches into back yards. They argued that the natural boundary is either the water's edge or even a few feet inside the lake to a "low-water mark." Property owners argued that their deeds recognize their property line as the lake, and they pay property taxes accordingly. But ODNR officials insisted they have exercised authority over dry land close to the water for more than 100 years.
It was not necessarily a clean sweep for property owners. The Supreme Court's ruling made clear, for instance, that shoreline property owners could not extend their property with "artificial fill," such as sand or a lakefront development. Some parts of the ruling are open to interpretation.
And despite the property owner's claim of victory, the Ohio Environmental Law Center sees it differently, stating on its website that "the practical effect of the court’s rationale is to establish the line as the ordinary high water mark."
But State Senator Tim Grendell probably summed it up best in his statement following the ruling: "This decision makes it clear that property owners are not required to share their backyards."

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