September 2006
Lakefront property rights
...are they all wet?
by Lori Valyko Weber

Madison resident Bob Merrill bought a house on Lake Erie to ejnoy its recreational aspects. Now he is part of a class action lawsuit against the Ohio Department of Natural Resources contesting the rights of lakefront property owners. Photo by Toby Shingleton

When Bob Merrill steps into his backyard and sips his morning coffee, he gazes upon the lakefront yard he thought he bought in 1999. This Madison resident, a retired engineering general manager for GE Lighting who still consults for the company, purchased property on Lake Erie for the same reason many home and business owners choose a waterfront setting: They want to enjoy the lake’s fishing, boating and beach recreation opportunities.

People who live inland, yet still want to enjoy the lake, traditionally go to public beaches and parks.

Regardless of where beaches lie, the lake’s waters belong to everyone. But how much of the shore, despite who owns the abutting property, should be available for public use?

Defining how much of the shore belongs to private landowners vs. the state of Ohio for public use is what’s troubling Merrill these days. His deed states that his property runs 374 feet. Currently that point is under the water’s surface. Merrill is among a group of citizens who banded together and formed the Ohio Lakefront Group.

In opposition to the state, these approximately 4,500 lakefront property owners in Ashtabula, Lake and Cuyahoga counties filed a lawsuit in May of 2004 asking Lake County Common Please Court Judge Eugene A. Lucci to uphold their property rights. This June, Lucci issued a class-action lawsuit against the Ohio Department of Natural Resources.

Ownership of land that is above water is being contested by the state. Depending on where the water’s edge is, anywhere from between 10 and 15 percent of his property is in question. Merrill, like many other complainants in the lawsuit, bought his property under the assumption that his deed defined what he owned.

But deeds don’t necessarily define what landowners possess, according to the ODNR, which has the support of Governor Bob Taft. The ODNR asserts the state owns up to the ordinary high-water mark and has forced some property owners to lease their own lakefront land when they would request permits to build structures to protect the land from erosion. And these structures don’t come cheap.

Andy Cashen, president of Andy Cashen Inc., an erosion control consulting business in Madison with more than 70 years of experience building lake walls and jetties, says it costs $400,000 a foot to put up a structure. Many of his clients have paid millions of dollars to protect their shoreline investments. But now, many of them are reluctant to do anything to stop the lake’s encroachment.

 “This is a serious problem,” Cashen says. “If something goes wrong with a piece of property, like if the lake is taking away your land, then you’d want to do something about it. But it’s ridiculous to protect your investment if the state says it’s not yours. It’s not worth it. Why have a property deed in the first place?”

Decades ago, Cashen erected about one jetty a month, and was constantly busy building and repairing walls. Today, his company mainly does repair work.

“This is my yard,” Merrill says. “And this issue, although it’s currently focused on the lake’s edge, isn’t really just about lakefront property. It’s relevant to businesses and municipalities. Land ownership and appropriate use is at risk for everyone. Can the state ignore our property deeds? Why am I paying taxes on property the state says I don’t own? If my deed doesn’t mean anything, then what do I own? And where does it end?”

The ODNR states the area on the edge of the lake that lies lakeward of the ordinary high-water mark is a zone of shared use, and that everyone has access to it.

“This area is to be shared by the general public as well as the people whose properties back up to that watermark,” says Jane Beathard, an ODNR media relations spokesperson.

Beathard likens the situation to sitting in a movie theater where people who are seated in the first row have the ability to stretch their legs into the aisle. Yet, at the same time, other people in the theater have the right to come and go in that aisle.

“Think of the aisle as the area that lies next to the lake,” she says. “Everyone should be able to access that area to move about the theater, and everyone in the state of Ohio should be able to walk along the beach and enjoy the shoreline.”

Merrill doesn’t dispute the lake should be available for everyone to enjoy.

“If the levees go up, then people can boat, swim and fish there,” he says. “When the waters go down, who owns the land? People have always walked along the shores and this issue hasn’t been a problem. I’d like to know why the state is making it a problem now.”

Troubles arise when someone decides to pitch a tent on this questionable zone, or when people enjoy riding dirt bikes or four-wheelers along the beach, or when a group of partiers brings alcohol onto the premises.

“What happens when someone gets hurt?” Merrill asks. “In the past, if someone were to throw a party and be disruptive or abuse the land, property owners could call the authorities and have them removed. But if the state owns the land, who am I to call? Why should I insure the land or pay taxes on it when my rights are null and void? And wouldn’t businesses have security issues?”

In a similar instance, Adam Dolsen, HTP Rack & Marina manager, says this Fairport Harbor public marina can legally remove nonmembers who fish from the marina’s docks. When, however, nonmembers fish from boats in the marina channel, HTP is powerless to do anything.

“Members complain to us when outsiders take up space and resources,” Dolsen says. “But because the waters belong to everyone, we can’t kick anyone out who’s on the water. The docks, though, are ours, and we can ask outsiders to leave. I don’t know how the whole ODNR lawsuit would affect us, but we already deal with situations like this.”

It’s easy to designate waters as areas of shared use. Everyone can see where the waters are and easily determine what’s shared. HTP has rights to their docks but not the waters. The case is clear. But gaining access to those waters and defining the immediate boundaries hasn’t been as obvious. And protecting zones of shared use could get messy should offensive behavior occur or the property become damaged.

In an e-mailed statement from Beathard, the ODNR states the legislature has the power to regulate or restrict what can be used or done to the zone of shared use. In other words, four-wheelers and other such vehicles could be banned. Use could be restricted to walking, fishing or swimming. “… a city sidewalk is a zone of shared use, but you can’t take a four-wheeler there,” she says.

Harry Allen Jr., president of Great Lakes Power and a lakeshore resident in North Perry, sympathizes with both landowners and the state. As part of the Lake County Coastal Plan Committee, Allen would like to see the lakefront developed in a way that attracts more people to dynamic venues that support shopping, dining, recreation and employment opportunities.

“If the lakefront were to be developed in such a way that people would want to be there,” he says, “then much of the property issue would go away. Outsiders wouldn’t need to trespass on private property because they would be drawn to the other amenities. To make this kind of project actually happen, though, we need strong leadership and a commitment to work together.”

Allen believes the onus is on the state to assure property owners they won’t see their land investments deteriorate. And to this end, the deed issue looms large. Tim Grendell, state senator, holds that property rights shouldn’t be violated by the state.

“It’s a principle important to businesses and individuals,” he says. “The government doesn’t have the right to take anything from you without compensation. It’s a constitutional right. Plus, what about security issues? Yacht clubs and marinas typically have signs that say ‘members only.’ So, should the public now be able to walk through private marinas where people pay dues? People’s boats and private property will be compromised.”

The Lake Erie shores aren’t the only areas the state says it owns. On June 3, 2005, the state filed in federal court an amended cross claim against the Ohio Lakefront Group’s lawsuit that said the state owned any land bordering any navigable waters in Ohio.

“Where does it end?” asks Merrill, the lead complainant in the case. “Does the state now own the private banks of the Chagrin River, Cuyahoga River, Grand River and other waters where people live and work and operate businesses?”

Eminent domain stipulates that the government may take land from private landowners, but that these owners must be compensated.

“I haven’t received a check from the state,” Merrill says. “I would expect the state to defend the constitution. If the state is violating my rights, then I would hope the governor would step in and defend me, a citizen. But that’s not the way Taft has positioned himself. This is wrong. All landowners deserve better from our state.”

Legislation to define the public trust as being the waters of Lake Erie is now in both the House and Senate and has been through several hearings.

“It’s ripe for a decision,” says Tony Yankel, president of the Ohio Lakefront Group, and a Bay Village resident. “I’m confident that at some point in time the legislature will see to make fit that the ODNR honors our deeds. I can’t believe the state could ignore the language in thousands of deeds.”

Since the state never sent a notice to all the property owners stating their deeds were null and void and that the state owned the property to the high-water mark, few people knew of the issue.
Merrill got involved four years ago after he’d heard the state was making owners lease their own property when they’d request a permit to protect their property. These property deeds predate Ohio’s statehood, while the ordinary high-water mark was established by the Army Corps of Engineers in the 1970s for navigation purposes.

If the high-water mark didn’t exist when the deeds were drawn, then the issue’s entire relevance is questionable, he argues. Additionally, high- and low-water marks apply to tide lands on the east and west coast twice a day. Lake Erie doesn’t have tides.

The Ohio Lakefront Group also is battling a bad reputation.

“The ODNR, along with other environmental groups, makes it seem as though we’re trying to steal land from the public,” Merrill says. “The state has aligned itself with environmental groups that accuse us of taking the lake away from people. Why does anyone buy land on the lake? Most people who choose to live in a natural setting want a healthy environment. There’s not a day I walk to the lake from my yard and don’t clean up the garbage, the pop cans, beer bottles, and other debris the lake brings in. I live here and I want it to be nice for everyone who sees it and uses it.”

Allowing a majority of people access to the lake and all its benefits doesn’t have to be a polarized issue, Allen says, although that’s exactly how it has turned out. He’d like to see the issue resolved without a lawsuit.

“It’s a shame it’s come to this,” he says of the conflict between property owners and the ODNR. “The state should understand the sanctity of private property. They must realize that everyone will have to work together to change the way all people are able to use the lake.”

He compared parts of the lakefront to Normandy Beach.

“No one wants that,” he says. “Smart business development will alleviate many of these problems. I believe the public is desperate to have good places to walk, camp and boat. I’d like to develop great facilities that would take the issue out of the spotlight as being property owners against the state. When people are given places to go, trespassing won’t be a concern.”

Lori Valyko Weber is a Hambden Twp. freelance writer.