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Published: Tuesday, 6/13/2006

Shoreline case OK'd as a class action suit

BY JIM SIELICKI
BLADE STAFF WRITER

The state of Ohio dropped its opposition to certifying a lawsuit as a class action last week, paving the way for a speedier end to a dispute over boundaries for properties along Lake Erie.

An estimated 14,000 property owners will be considered part of the two-year-old case, instead of the 13 plaintiffs who filed the suit, following a ruling Friday by Lake County Common Pleas Judge Eugene Lucci.

Both sides in the dispute say the ruling should speed up resolution of the case, which had been sent from a federal to a state court.

The Ohio Department of Natural Resources claims control over public access to the shoreline by using the lake's "ordinary high-water mark" as a property line.

The Ohio Lakefront Group, a property owners' advocacy group, says that practice violates their property deeds and state law. Tony Yankel, president of the group, called the ruling a victory.

"This is almost like winning the case itself," Mr. Yankel said from his home in Bay Village. "This was the last major hurdle."

The group claims that Ohio's public trust ends at the water's edge, and not at an artificial line based on historic high-water marks, a surveying point set by the U.S. Army Corps of Engineers every 15 years as a property line.

The case must still go to trial, although no court date has been set, he said.

Jane Beathard, spokesman for the Ohio Department of Natural Resources, said the state also is pleased with the ruling "because it moves the case forward."

The agency has not changed its position in the case, Merrill et al. vs. the state of Ohio, saying the high-water mark should be used to delineate the private property line.

"We continue to hold that the shore belongs to the people of Ohio for walking, fishing, and for enjoying oneself," Ms. Beathard said. "We are no longer opposed to the class action because the lawsuit involves a statement of principle and does not involve appropriation of property."

The Ohio Lakefront Group's Mr. Yankel said the case could potentially affect the owners of 14,000 parcels along the 262 miles of the southern shore of Lake Erie, including Sandusky Bay and other estuaries that have been determined to be a part of Lake Erie.

Although the lake is not affected by tides, the water levels nonetheless have receded somewhat to their historic averages, retreating from lines that had distinguished the 30-year era of high water levels through the late 1990s.

Jack Shaner, spokesman for the Ohio Environmental Council, said if the state loses the case, it may also lose its right to approve construction of docks and other structures in the lake.

"I think this will be an interesting case that will be appealed regardless of who wins," Mr. Shaner said. "Unless state has the right to control development, it's going to be a wild, wild West there for development."

Still unsettled is a proposed rule change sought by the Ohio Department of Natural Resources that would replace a lease program for residential property owners with erosion-control structures or docks.

The state has proposed replacing its lease program, which generates about $100,000 a year, with a one-time fee of $50.

The state, Ms. Beathard said, "is responsible for permitting shore structures and to make sure they meet safety and environmental issues."

Contact: Jim Sielicki at:

jsielicki@theblade.com

or 419-724-6078.



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