Ohio Supreme Court overturns ruling, defines lake shoreline

Nick Wetzel, who was on vacation with his family from Cincinnati, watches the activities on Lake Erie on August 3, 2009. THE BLADE/AMY E. VOIGT Enlarge | Photo Reprints

COLUMBUS — In settling a legal dispute between shoreline property owners and the state, the Ohio Supreme Court ruled Wednesday that public access to Lake Erie begins at the point “where water usually stands when free from disturbing causes.”

The high court, in a 7-0 ruling, said that public access to the shoreline extends to the “natural shoreline” — not at the high-water mark of privately owned land. The ruling draws a line that is favorable to owners of beachfront property.

Tony Yankel, president of the 7,000-member Ohio Lakefront Group, the plaintiff in the class-action lawsuit, said the decision ends a 12-year legal battle and is a win for homeowners to protect their property along the shoreline.

“This decision clearly reaffirms the rights of property owners relied upon for more than 200 years, prior to statehood, so that Ohioans can invest their money and energy into homes and real estate with confidence that those investments won’t be undercut by bureaucrats and special interest groups,” said Mr. Yankel, of Bay Village.

The Supreme Court ruling overturns a 2009 appellate court ruling that said property lines along the shoreline change with the water level and that land beneath the water is open to the public and land above the waterlines belongs to lakefront property owners.

The basis for the ruling was drawn from case law in an 1878 property rights case decided by the state Supreme Court and subsequent legislation that made the boundary between public and private land the “natural shoreline.”

“The Fleming Act clarified the public policy of the state of Ohio with respect to the waters of Lake Erie, and its pronouncement conformed to decisions of this court dating back to 1878,” said Justice Terrence O’Donnell, who authored the decision.

Ohio Attorney General Mike DeWine, who argued the case on behalf of the state, said in a statement that the high court opinion was “reasonable” and settled “complex questions.”

“Today’s unanimous ruling by the court reaffirms the constitutional independence of the attorney general and the office’s standing to appeal lower court rulings on behalf of the state,” he said. “The court also set forward the basis where there can be a reasonable approach for proper boundaries that balance the rights of both landowners and the public trust.”

The legal battle began in 2004 when two groups who have property that abuts the shoreline in Lake County sued the Ohio Department of Natural Resources and the state. The litigation was triggered by the state’s attempts to enforce a lease program requiring landowners to pay fees for improvements such as docks or breakwalls on the disputed stretch of property.

The policy requiring leases was suspended when Gov. Ted Strickland took office and the ODNR, which dropped out of the lawsuit, recognized the presumptive deed rights of landowners to use their property below the ordinary high-water point without entering into a lease agreement.

The cases initiated by the property owner groups were subsequently consolidated as a class action on behalf of all owners of property in Ohio with land adjoining Lake Erie. The National Wildlife Foundation and Ohio Environmental Council eventually joined the court fight.

State Sen. Tim Grendell, (R., Chesterland), who is an advocate for private property owners in the dispute, said the decision guarantees that everyone will continue to enjoy recreation access to parks and public beaches while at the same time protecting ownership rights of Ohioans who have land along the lakeshore.

“This decision makes it clear that property owners are not required to share their back yards. The Ohio Supreme Court has a history of protecting property rights and their decision today continues that longstanding precedent,” Mr. Grendell said.