H.B. 218 moves to the Full House

On December 9, 2003 the busses left Port Clinton and Sheffield Lake for the final hearing of Substitute H. B. 218 in Columbus. OLG again had over 100 members attend the hearing. We watched the Energy and Environment Committee vote to move the bill to the full House. The hearing began in a small hearing room, which was crowded with OLG members standing and sitting on the floor. Environmental groups and ODNR again gave opponent testimony.

Brian Preston of the National Wildlife Federation gave testimony based on the myths spread by ODNR that this bill would transfer land to a relative few individual private property owners. Further myths included endangerment to Lake Erie restoration efforts, loss of natural beach habitat and increased coastal erosion, as well as loss of fishing, boating, hunting, and swimming along Lake Erie's shores. He concluded that ODNR should be fixed but that we should "change the bath water, keep the public trust baby."

David Scott of the Sierra Club, again relied on ODNR myths stating that H.B. 218 will jeopardize the state's ability to protect Lake Erie's shore and would encourage lawsuits. He reiterated the myth that "the public right of navigation, water commerce, and fishery" is at risk if this bill is passed. He called the problem a departmental policy and management issue. He asked for more regulation for environmental purposes including notice to the "public at large" for every permit application to ODNR.

Jerome C. Tinianow, Executive Director of Audubon Ohio testified next. He stated that the State's management of lakefront properties and its relationship with lakefront landowners can no doubt be improved and that certain reforms may well be warranted. He however felt that deeds and taxes have no bearing on ownership. He tried an anecdote about selling the Brooklyn Bridge, and continued to spiel the ODNR myths. His primary request was to delete the language in the substitute bill that clarifies the lakeward property line of upland property owners.

Mark Squillace, a professor at the University of Toledo College of Law discussed legal history back to English Common Law. (We thought that we escaped from that in 1776.) He even went back to the Roman Empire citing proclamations of the emperor. (I think we left that type of rule nearly 1500 years ago.) He cited irrelevant cases from 1892 up to 1992 in support of his case for the Public Trust. During questioning by Representative Tim Grendell, most of this professor's logic appeared to disintegrate.

Dr. Sam Speck, Director of Ohio Department of Natural Resources, testified for the second time, saying that the bill as written was vague, confusing and inconsistent, not allowing for efficient and effective program management. (As it was in the past?)

The committee caucused for 20 minutes after all opponent testimony was given. They reconvened, addressed several amendments, and then voted to pass the Bill to the full house.

Grendell Leads H. B. 218 to Victory in the Ohio House of Representatives

Substitute H.B. 218 (a compromise with ODNR supported H.B. 276) came before the Ohio House of Representatives at 11:00PM on December 10th.  Representative Tim Grendell introduced the bill saying: "The issue in this bill is where private rights end and public use rights begin. The U.S. Constitution Fifth Amendment protects individual property rights.  This is further amplified in the Ohio Constitution stating that "private property shall be forever held inviolate."

He went on to say that Public Trust doctrine states that the waters of Lake Erie and the soil beneath it shall be held in the public trust. In Ohio, the State Courts recognize that the shore is assigned to the riparian owner down to the low water mark, regardless of reliction or accretion. The soil left behind becomes the property of the owner of the upland property. The Public Trust moves with the water line. It is fiction that when the water recedes that the property left behind becomes the property of the State. This law recognizes where the property line should be. The ODNR states that regardless of the deeds, the state owns the property and you must pay the state of Ohio a fee for a submerged land lease. The lessee leases back his own property, but is still subject to all taxes.

This Bill states that the Public's right to use the water starts with the water. The State of Ohio still protects the coastal environment by requiring a one-time permit to construct any structure between the high and low water marks. Expedited procedures require that ODNR must act on a permit application within 120 days. Also, if there are legal issues related to the permitting process, suit is brought in the county where the property is located.

Grendell dispelled the ODNR myths about H. B.  218:

It doesn't take away anybody's property. All municipal boundaries extend to the low water mark.

It is not a land grab of public property. Private property extends to the water line.

It doesn't affect the boaters, fishers and swimmers in Lake Erie. You can be anywhere in Lake Erie as long as you are in the water. This bill takes nobody's water use rights away.

It doesn't jeopardize federal funding for erosion control. Grendell has spoken to NOAA and they don't care who owns the property, as long as there is effective coastal management, which there will be.

It doesn't deprive the rights of people to walk on public beaches.

Oil and gas wells will not pop up like poppies, and salt will not be mined from the beach, unless ODNR issues such a permit. ODNR must issue a permit for any structure below the high water mark.

You cannot put a fence in Lake Erie unless the ODNR gives permission, which they will not do, because the Ohio Revised Code (1506.10) states that they must protect navigation, fishery, and commerce.

It is not in violation of the 1953 Federal Submerged Lands Act. The Act itself states "...nor does this act affect state law regarding state ownership."

Representative Grendell summarized saying "This Bill rights the wrongs done to lakefront property owners while protecting the public interests along the lakefront."

Discussion in the House followed:

Representative Distill spoke in support of the bill. He stated that ODNR did not respond properly in enforcing coastal erosion control measures.

Representative Skindell agreed that there were a lot of good provisions, but the bill goes too far. He moved to amend to remove that public trust language that allows a property owner to gain property if the water recedes. Grendell disputed, saying that by law the owner may gain land by reliction or accretion. He said Skindell's amendment guts the bill. The amendment was tabled by 62 votes.

Representative Stewart proposed an amendment to permit fees to be apportioned to purchase public access to lakefront property

Representative Redfern agreed with the bill as well as the Stewart amendment.

Representative Grendell agreed to the amendment as permissive, rather than eminent domain purchase.

Representative Young rose in support of the Bill

Representative Trakas opposed the amendment, as he felt that the private sector should fund lakefront access acquisition, rather than the State.

Representative Rhinehart moved to table the amendment. The motion was defeated 34 to 63. The amendment was then passed with 74 yeas.

Representative DeBose moved to amend to add "environmental" to the responsibilities of ODNR to include air water and wildlife.

Representative Hollister rose to support the amendment, which passed 97 to 0.

Representative DeBose again moved to amend, authorizing the use of the term recreation to be added to the uses (beyond navigation, commerce, and fishery). The amendment passed 96 to 0.

Representative McGregor rose to state the problem is the Office of Coastal Zone Management and that the issue is citizen harassment, not an issue of geography or law. He urged the House to create a new bill to abolish the Coastal Management Office and to defeat H. B. 218.

Representative Conroy Kilbane stated she fully supports the Bill and abhors the wretched treatment of citizens. "ODNR ignored the behavior of the Office of Coastal Management employees."  She cited the Declaration of Independence "This government is constituted among men to secure these rights."

Representative Domenick rose in opposition to the bill stating that he believed we would be in court.

The vote was finally called and the bill passed 77 to 20.

Grendell Announces Candidacy for Ohio Senate

Ohio Representative Tim Grendell, who has been the primary sponsor and House proponent for H.B. 218, announced his candidacy for the Ohio State Senate. The announcement took place in Geauga County at the Chardon square gazebo on Friday December 19, 2003. Tim is in his second term in the Ohio House representing District 98 where he has sponsored or co-sponsored 79 bills. He will be running for Senate District 18, which includes Geauga, Lake, and parts of Cuyahoga County.

Tim is the recipient of a number of awards for his service including the Leadership in Government Award. This is the highest honor bestowed by the Roundtable and Freedom Forum and is awarded in recognition of those whose public service exemplifies the sacrificial spirit of the Founders who placed the common good above personal gain.

OLG Needs Funding from You, Our Members

It feels like we have gotten halfway to our goal, but have we? HB 218 has passed the House and we are hoping for rapid passage in the Senate. But, will the Governor sign it?  If he does not, our only relief may be in the court system.  We have been preparing for this possibility and looking into our legal options.

Even if the bill is signed into law, we will probably be in court anyway.  The ultra-environmentalists do not like HB 218 because it makes it clear that the dry beach is not public property.  They have stated privately and in testimony that if this Bill goes into Law, there will likely be lawsuits to keep the Bill from being put into effect. As ODNR will not aggressively defend the Bill, we'll certainly need to be involved in any such lawsuit.

We still need your help to get HB 218 passed.  However, now more than ever, we need money to develop a legal fund to continue the fight to have our deeds and our property rights honored.  This legal fund initially should be established at $300,000 to $500,000.  Our case may seem simple to us, but legal fees add up quickly as our opponents have deep pockets.

We have previously suggested that people consider donating a minimum of $50 for every $100,000 of property valuation, i.e. if your property is worth $300,000, you should contribute a minimum of $150. Whatever your property is worth, how much would it be worth if your beach becomes public property?  How much would it cost you to defend such a case on your own?

Together, we can accomplish anything--divided and under-funded, we lose everything.  Please contribute generously for all of our sakes.

  OLG Displays at the Cleveland Boat Show

Carolyn Pope is leading the display efforts at the Cleveland Boat Show at the IX Center from January 16 through January 25. We will be getting the message out about our mission and recruiting new members. Please tell your boating friends to stop by to see us. Stop by yourself as well to get the latest information on progress of our legislation in the Senate. Volunteers to work at the display and help carry our message would be greatly appreciated.  Please contact Carolyn at carolynpoperealtor@hotmail.com to volunteer.  We will be located at Booth #475.

Write Your Senator Now

As we now move into the Senate Committee hearings, and hopefully on to a vote in the full Senate, it is time to phone, write or e-mail your Senator asking for their support of H.B. 218. (It will continue to be called H.B. 218 since the bill was initiated in the House.) To find who your Senator is, click http://www.legislature.state.oh.us/ ; go to Locating Legislators and type in your zip code. You can email your Senator by clicking on the email (your senator) link on that page.

Representatives Voting NO on the Bill

• Joyce Beatty, Democrat--District 27, Franklin 
• Edna Brown, Democrat--District 48, Lucas 
• Kenneth Carano, Democrat--District 59, Mahoning 
• Kathleen Chandler, Democrat--District 68, Portage 
• Dean DePiero, Democrat--District 15, Cuyahoga 
• John Domenick, Democrat--District 95, Jefferson 
• Steve Driehaus, Democrat--District 31, Hamilton 
• John Hagan, Republican--District 50, Stark 
• Jim McGregor, Republican--District 20, Franklin 
• Larry Miller, Democrat--District 14, Cuyahoga 
• Robert Otterman, Democrat--District 45, Summit 
• Jon Peterson, Republican--District 2, Delaware 
• Larry Price, Democrat--District 26, Franklin 
• Derrick Seaver, Democrat--District 78, Shelby 
• Michael Skindell, Democrat--District 13, Cuyahoga 
• Dan Stewart, Democrat--District 25, Franklin 
• Jimmy Stewart, Democrat--District 92, Athens 
• Frederick Strahorn, Democrat--District 40, Summit 
• Peter Ujvagi, Democrat--District 47, Lucas 
• Tyrone Yates, Democrat--District 33, Hamilton

Bus Trips to Columbus for Senate Hearings

We have been "packing the house" during the House Committee hearings and that has meant a lot in getting our Bill this far.  We need to continue to turn out in large numbers for the Senate. We anticipate only 3 Senate hearings in Columbus.

These are tentatively scheduled for Wednesdays, January 14^th, 21^st, and 28^th. The last two dates are most important and we need to fill the busses especially for the last two sessions.

These bus trips are not easy, but everyone that has gone has found them to be fun, informative, and very worthwhile.  By going to Columbus, you become a significant part of what is taking place and you get an appreciation and concern about our opposition. Anyone that has not made the trip is strongly encouraged to do so.

 If you are interested in making at least one bus trip, please call, email, or write OLG today so that we can put you on the list of people to contact.  Buses have been leaving from Port Clinton and Sheffield Lake.  If people from the east side of Cleveland desire, we can either arrange for a bus out there or, have a bus meet you in Lodi to pick up passengers. You can e-mail OLG at info@ohiolakefrontgroup.com. You can also reach us by phone at 440-925-0148.

Wins and Future Efforts for HB218

There were a lot of wins with this version of HB 218. But there are changes we believe are still necessary to ensure our property rights.

Our group has always stated that we wanted "reasonable regulation." If we are going to have reasonable regulation, then ODNR must have some regulatory authority that starts at the same spot as the Army Corps', Ordinary High Water Mark. Any other position may be "reasonable," but so radical that we could lose everything we have gained to date.  Our OLG perspective must accept ODNR regulatory authority (not ownership) up to the OHWM. 

Although we want additional things from the Senate, we must recognize the Wins we have and it is important that we preserve these Wins.  Remember that ODNR and the ultra-environmentalists will be trying to take away those Wins in the Senate.  With respect to Wins, I see the following can be found in HB 218 which is available at www.legislature.state.oh.us/bills.cfm?ID=125_HB_218:

We have made great strides with respect to defining the property boundary, leases, and littoral owners rights.

• Lines 689-690 were changed to remove ODNR's interpretation that the "southerly shore" meant the OHWM.  The lines change as follows: "extending from where the southerly shore waters of Lake Erie make contact with the land to the international boundary line". This language reinforces that the ownership of the dry beach was never public, contrary to the assertions of the ODNR and the ultra-environmentalists.  It is this language that may cause the ultra-environmentalists to sue the State if this Bill is passed.
• On lines 1187-1189 the following language has been inserted as a protection of our deeds:  "The use of the ordinary high water mark shall be for the administration of this section and shall not be construed to determine any type of property boundary."
• On lines 1278-1282 the following language has been inserted as a protection of our deeds: "Nothing in this section shall be construed as determining the boundary of the state's ownership of the waters of Lake Erie as provided in section 1506.10 of the Revised Code."
• Lines 711-713 were added to the Bill such that it now states:  "The general assembly hereby declares that property owners on Lake Erie have the right to exercise littoral rights.  However, the exercise of those rights is subject to all applicable provisions of the Revised Code."  The second sentence of this insert may be a problem, but then again, we have always been and will always be "subject to all applicable provisions of the Revised Code."
• Littoral rights have been added to the Law on lines 678-686 and read as follows:  "the rights of littoral owners to make reasonable use of the submerged lands and waters fronting their lands, including the constructions of such things as piers, fills, breakwalls, or wharves, for the purpose of accessing and using the waters of Lake Erie for navigation, fishing, recreation, or other purposes, including, but not limited to, protecting property from erosion, launching and storing watercraft, and wharfing out to navigable waters."
• According to lines 671-677 we will now be able appeal any applicable ODNR decision, and if need be, go to Court in the county where the property is located - as opposed to Columbus.
• The lease requirement has been removed and although a Permit would be required for all structures below the OHWM, the PE requirement has been somewhat restricted in specific cases on lines 1203-1210.
• Up until now, ODNR has been taking up to 3 years in order to issue a permit/lease.  Lines 1252-1258 now reduce this to a maximum of 90 days if the structure is residential. 
• The Permit fee has been capped at $500.  For some people, this may be more than their lease payment, but given the fact that it is a onetime payment, most of us are willing to accept such a price.  Some people have expressed concern regarding the term "fee schedule"--the term "schedule" here means something more akin to $/square foot than $/year.  This language can be found on lines 474-482.
• We definitely had a win with respect to adding to the definition of Coastal Management Program the words "the interests of private property owners in the coastal areas." There has been some concern raised with respect to the insertion of the word "environmental" (line 387) in the definition of "Coastal Management Program."  Although I would have preferred that this word not have been added, I do not feel that it is a major win for ODNR.  Unfortunately, it would be difficult to remove it and may serve to appease the ultra-environmentalists.
• Although not a major win, ODNR is now required to hold at least one public hearing on any changes it makes to the Coastal management program document--Line 466.

There is still work to be done in the Senate. A few of these items in summary are:

• Add more clarity to littoral owner rights with better words in that section (lines 686 to 699).
• Better define commercial uses vs. non-littoral uses per pages 679 and 724 to 859.
• Eliminate completely the need for a PE in designing plans for structures.
• Not allow the ODNR open and free access to our land without our permission.

We Are Not Alone

There are a number of other organizations that, like OLG, are fighting for their property rights. The following articles briefly describe just a few of these organizations. If you are interested in obtaining more information or joining them, the addresses and web sites are at the end of each article.

The International Great Lakes Coalition (ILGC)

The IGLC is a Michigan non-profit corporation consisting of individual coastal property owners throughout the Great Lakes Basin in both Canada and the United States. It is the only international organization that represents the interests of Great Lakes property owners. The purpose of the IGLC is to preserve the shorelines of the Great Lakes by managing fluctuating water levels and interruption of natural sand supply.

The IGLC also believes that coastal property owners should enjoy the right to own and protect their homes as is granted by the 5th amendment of the United States Constitution and therefore has strongly targeted coastal management by the States.

The Coastal Zone Management Act passed into law in the United States in the early 1970's established methods and agendum for States that border the Oceans or the Great Lakes to manage the land side rather than off shore conditions. This legislation actually urges the States to take aggressive action to protect the coastlines from the perceived poor judgement of the landowners.

The IGLC organization consists of elected officers and directors who are all volunteers. Each chapter is patterned after the international organization and operates within its region on a semi autonomous basis. Regular directors meetings are held at different venues around the Great Lakes Basin. Regular chapter meetings are held on the regional level and most chapters conduct an annual membership meeting so those individual members may have the opportunity to hear about current events from a knowledgeable speaker. Annual dues from individual members finance activities.

The IGLC is a respected advocate for all shoreline property owners on any of the Great Lakes. It maintains continuing communication with government agencies that are responsible for decisions that pertain to the Great Lakes.

The IGLC maintains a permanent office at 62 Center Street in Douglas, Michigan but the mailing address is P.O. Box 429, Saugatuck, Michigan 49453. It is staffed on a part time basis. The web site is: http://www.iglc.org/

Save Our Shoreline (SOS)

SOS is located in Michigan. The SOS organization's purpose is to organize waterfront property owners and those with similar interests to preserve and maintain riparian rights, including the right to maintain safe recreational beaches and waterfront areas, both public and private; and to preserve and maintain a proper balance for the coexistence of man and nature upon and near waterfront property.

The State of Michigan's Department of Environmental Quality (DEQ) has asserted through various means that it, and not the riparian owner, owns the portion of the beach below a point 579.8 feet above sea level (OHWM). Further, current legislation says that below that point, you may not "in any manner alter or modify" any part of the beach. Under this language, the DEQ could argue that if you pulled a single weed or buried a single dead fish, you broke the law. Further, the beaches are in a continuing state of transition, and you cannot always predict your situation from year to year.

SOS intends to take all necessary actions to stop state and federal government officials from interfering with landowners' efforts to maintain beach and waterfront areas, all for the benefit of current shoreline owners and the public as a whole. The association will do this in the following ways. Researching the law to determine the relevant rights of property owners and governmental entities; Seeking a dialogue with governmental authorities to seek out solutions, such as obtaining permits, modifying government interpretations of law, or changing regulations; And seeking changes in the law if necessary.

For more information or to join, contact: Save Our Shoreline, P.O. Box 2307, Bay City, MI 48707-2307

Web site: http://www.saveourshoreline.org/

Citizens for the Protection of Property Rights (CPPR)

CPPR is a neighborhood grassroots organization officially formed in January 1995. CPPR opposes the Erie Metroparks (EMP) Board of Commissioners improper taking of private property and the mishandling of county tax dollars for their Huron River Greenway bike trail project. They have initiated a petition to urge Judge Beverly McCookey to replace the EMP Board of Commissioners. You have probably read about his issue in the local papers. Their mailing address is CPPR, P.O. Box 335, Milan, Ohio 44846. E-mail: cpprmilan@aol.com.

The web site is: http://www.cppr.net/

Update your Membership

We want to be sure we have all our membership information correct. Please complete the form on this page of the newsletter. It is important to include your spouse's name. Also provide us your telephone, and e-mail information. PRINT PLEASE.

In the future we plan to inform you of important announcements by e-mail and of our newsletters by an e-mail link to the newsletter online. If you would rather receive a "hard copy" of the Newsletter by U.S. Mail, please contact OLG Secretary Lynn Head at: lynnm@core.com . For general information you can contact OLG at info@ohiolakefrontgroup.com . You can also reach us by phone at 440-925-0148.

Thanks for your cooperation!

 
Ohio Lakefront Group Member Information

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