Ohio High Court Dips Into Lakefront Property Case

COLUMBUS, Ohio (AP) - The Ohio Supreme Court heard arguments Tuesday in a case that pits thousands of lakefront property owners fed up with trespassers against a state agency's rules that establish public access along Lake Erie.

The Ohio Department of Natural Resources wants to allow limited public access to the portion of the beach that's "sometimes wet, sometimes dry" - where someone could enjoy a walk in the surf or step out of a fishing boat for a picnic without being charged with trespassing.

"Our view is it's not affecting the property owners' rights - to the extent that if it's happening below your property line it's not affecting you at all," assistant Attorney General Stephen Carney told justices.

Gregory Baeppler of Bay Village, chairman of the Ohio Lakefront Group behind the suit, says he's miffed at having to clean up broken beer bottles, chase off campers, and fend off pit bull owners on his private beach - land he says he owns fair and square.

"What's important is that I own property there, I have a deed that says that it goes to the low water mark, and I have exclusive use of my property, or I should," Baeppler said after watching Tuesday's hearing. "But under the ODNR ruling, I wouldn't have that."

The case involves a maelstrom of weighty topics: a person's right to control activity on their private property, the ability of Ohioans to enjoy recreation along one the Great Lakes, and questions of where land ends and water starts that have been debated for more than 200 years.

Some 15,500 property owners filed the underlying lawsuit in 2004, disputing ODNR rules written on public access under then-Gov. Bob Taft and arguing that they shouldn't have to buy leases from the state to put docks and other structures along the shore. A lower court in the summer of 2009 sided with the residents, ruling that their rights extend to the water line. Former Ohio Attorney General Richard Cordray filed an appeal.

Speaking after the hearing, state Sen. Tim Grendell, a Republican lawyer from Chesterland long involved in the case, called the Natural Resources interpretation "absurd." He said the beaches in question simply aren't public. He suggested if the state can allow public access to private waterfront property in this case, those living along the Ohio River or other lakes and rivers could be the next targets.

"The state of Ohio is simply defending traditional law and is not interested in taking away anyone's private property," Carney said after the hearing.

Carney said no one was advocating having strangers run through someone's front yard to get to their beach - only that a few feet of those properties accessible from public areas be open to some limited purposes.

"So when can they exclude people from walking along their shore when they're not actually in the water seems to me to become the essential question that a lot of the parties are raising," said Justice Paul Pfeifer.

Baeppler said his granddaughter often can't safely use his beach, adjacent to a 40-plus mile stretch of public beach, for weeks in the summer because of the broken glass and bonfire debris. Three busloads of property owners with similar concerns had been expected at the hearing, but were waylaid by Tuesday's ice storm.

Property owner, Homer Taft, argued that lakeshore residents deserve to control activities not only to the "usual shoreline," but to the low water mark of the lake. He cited long precedent.

"The public has the right to use the waters," he said. "What is at issue here today is the ownership and control of the soil."

Grendell said the administration of former Gov. Ted Strickland eventually sided with property owners on the matter, but Cordray continued to defend the policy, unsolicited, on behalf of the state. That strategy is now a legal question in the case.

Carney could not say precisely who he was representing Tuesday - only that he was there for the state to advocate a balanced solution for all Ohioans that respected both property rights and the public trust.

Grendell accused Cordray's successor, Republican Mike DeWine, of reversing on the Strickland administration's legal position by pursuing the appeal.

"The only thing that's changing here faster than the shoreline of Lake Erie is the state of Ohio's legal position as to the facts in this case," Grendell said. "I think he's changing faster than the shoreline of Lake Erie in a storm."