Public trust vs private land

Huntington park in Bay Village is one of 164 public beaches along the lake’s 312 mile Ohio shore.  People are free to romp here, but on either side of this sandy stretch, it’s keep out -  private property.

The question the Ohio Supreme Court is deciding, is does the public have the right to walk along the lakeshore past these private parcels? 

Tony Yankel, head of the Lakefront Property Owners group, the plaintiff in the Supreme Court case, says he and his neighbors don’t want people on their property –  “They want the right to tell people whosoever they choose that they can’t be there, or to kick them off.  They don’t want someone coming down and building a bon fire in the middle the night and the breeze drift up in their house and smoke ‘em out.” 

Yankel says the law has been clear since the shore was first surveyed that the lots along the lake extend to the water line. 

“Our deeds have been around since statehood and everything that we understand legally up until now has been to honor deed, not only our deeds but inland deeds.” 

University of Toledo Law professor Ken Kilbert, disagrees.  He says Ohio law is clear that the shore is a shared resource regardless of what the deed says due to the common law doctrine of the Public Trust – 

“Normally people think of these things in the sense that I own this piece of land therefore I can prevent the public from going on my land, that would be trespassing and for most property that’s true. What’s unusual about the Public Trust Doctrine is that it basically acts as an on-going easement perhaps is a way to think of it, the state has an obligation to keep that land open and available for use by the public.” 

Kilbert says the lower courts’ ruling in favor of landowners right to exclude the public got it wrong – 

“The Public Trust Doctrine exists up to the ordinary high water mark in Ohio at this point and as a result, the members of the public in Ohio should be allowed to walk along the shoreline as a protected activity up to that point.” 


Submerged land leases

But the man whose name appears on Merrill vs. the State of Ohio, Bob Merrill, says  beachwalking is not the issue  – 

“That’s a red-herring, a total red-herring.  People walk across my beach everyday, I’ve never stopped anybody…It has nothing to do with walking on the beach.  It has to do with whether the state has the right to take your private property without compensating you with or changing the definition of what they own.” 

What Merrill and the around 5 thousand members of the class action suit object to, is the state policy of requiring private property owners to lease land they claim is already theirs. 

“I call it extortion.  It really spiraled out of control and that’s when the group got together and said we need to do something about this.  This is just wrong.” 

The federally mandating coastal management plan in Ohio went into effect in the late 1990’s and the office was organized in 2002.  The program has approximately 850 submerged land leases in Lake Erie. 

But some leases stretch back into the early 1900’s when fill was dumped in the lake to under what is now Brown’s stadium, the Rock Hall, and Burke Lakefront Airport.  The City of Cleveland pays a dollar a year to lease this land.

Private leases are figured differently… These are what Merrill and his group are fighting.

John Watkins, head of Ohio’s coastal management program demonstrates how the state calculates a private lease at a beach in Mentor.  He measures out 20 feet of tape along a slippery breakwall…  

“20 feet long, 10 feet wide -  200 square feet.  We rent this at 1 cent a sq. ft., $2.00 a year.” 

Businesses pay more for a lease.  On average each year the department brings in $600,000 dollars from lakeshore leases, half  is returned to local communities.

Meeting in the middle 

The Lake Erie shore is constantly changing.  Storms tear out chucks of land.  Constant wave action builds and erodes.  The challenge for the state high court is where to draw the line when the landowner fights erosion with fill. 

Watkins says the state’s position is clear –  “In those cases, we would lease the fill that was placed back into the lake to reclaim that land lost to erosion.” 

Litigant Bob Merrill says his deed is clear, he owns the land –  “You can’t take my property unless you use eminent domain, and in that case you have to pay or compensate people for it.” 

Coastal chief John Watkins says he will follow the law where ever the court draws the line. 

“If a structure or a fill is located landward of where that line is, it doesn’t need a lease, if it’s lakeward of the line, that’s what’s required a lease.” 

Watkins office has been courting goodwill by spending 35 million dollars on lakeshore improvements since this dispute began.  

This year, Watkins issued a detailed design manual showing landowners how to build erosion control structures to help smooth out the permitting and leasing process.

“We not out here actively pursuing property owners and trying to fine them; we’ve never fined anybody.  We’re working with people to get things squared away along the lakeshore.” 

The hope among both sides is that the Supreme Court will clarify where the line is between private and public land on Lake Erie’s shore, and once that’s decided, how that ownership is managed.