February 11, 2004 Testimony

Testimony of David Carek

Good morning.

Chairman Spada and members of the committee, there are two main issues that bring us here today.   The first is a basic recognition of property rights and ensuring our state agencies do not violate those rights.   The second is alleviation of the regulatory burden the Coastal Management Office of the Ohio Department of Natural Resources (ODNR) has forced upon Lake Erie's shoreline communities and property owners.

My name is David Carek.   I am the Chairman of the Ohio Lakefront Group, which is a non-profit organization of over 4,000 members.   Our mission is to restore our property rights and ensure the protection of the environment and use of Lake Erie through reasonable and meaningful regulation.  

As way of background I am a Registered Professional Engineer in the State of Ohio.   I have lived on Lake Erie my entire life.   My family's stewardship of the shoreline began when my great grandparents' acquired property on Lake Erie in the 1930's.   Over the years, I have witnessed a rebirth of Lake Erie from a time when nobody wanted shoreline property, to now, when our state government is aggressively trying to manipulate and redefine law to take it from us.  

The rebirth of Lake Erie occurred well before Ohio coastal management law ever existed.   H.B. 218, as originally introduced, merely restored portions of the regulatory authority, as they existed and were administered prior to 1988 - so any assertions that this bill is a radical change to the law are without merit.

The problems you will hear today are not just shoreline issues, they affect some of the most basic rights we have as citizens of this state and bring into question the honesty and integrity of employees of the ODNR.   The ODNR does many great things for this state.   Unfortunately, coastal management is one area that needs serious reform.

In 1988, the legislature authorized ODNR to create the Ohio Coastal Management Program.   The adoption of this law was done with the understanding that no new state programs, regulations, or laws would be needed for its implementation and there would be benefits to all.   Unfortunately, many new regulations and changes in law have ensued, causing numerous problems, such as:

•  Taking of deeded private property without compensation

•  Violation of shoreline owners' littoral rights through leases

•  Making the permitting process much more costly and burdensome

•  Overriding local zoning authority with "Coastal Erosion" area designations

The ODNR's policies have forced individuals with piers, breakwalls, and docks, to endure a costly and burdensome process that simply did not exist prior to 1988.   Permits that used to take weeks for approval with the Army Corps of Engineers now take a year or more with the ODNR.   While coastal management law calls for simplification and consolidation of regulatory activities, the exact opposite has occurred.

ODNR policies have pushed regulations well beyond their historical intent.   For instance, submerged lands leases were never intended to be applied to shoreline owners reasonably exercising their littoral rights. Yet, the ODNR is going after property owners with an aggressive lease program - forcing residents to sign away part of the property they bought and still pay taxes on.   The effect has been a violation of shoreline owners' littoral rights and a taking of their legally deeded property.

Historically, Ohio shoreline private property ownership has extended to the low water mark.   The upland owner loses title to land lost by erosion and gains title to land created by accretion (the build up of sediment along the shore).   The State waters of Lake Erie are on the winning side of this battle.   Over the last 130 years the public trust waters of Lake Erie have expanded by 3,200 acres due to erosion of private land.  

In Ohio, public trust rights include the use of navigable waters for navigation, water commerce, fishing, and boating or sailing for pleasure.   Despite claims to the contrary, the public trust doctrine creates no public trust rights on dry land in Ohio.   There is no public trust right to walk on the beach.   The reality is that the public couldn't walk very far along the beach even if they wanted to.   There is only about 70 miles of beach along the 262 miles of Ohio shoreline.   Most of the high quality beaches are already publicly owned at State and local parks.   The public does have access to those public beaches, as noted in the ODNR's Coastal Management Program document:

The public has no right of access across private property to the beaches of the Lake Erie shoreline in Ohio.   The public does have access to those beaches owned specifically by the State of Ohio, subdivisions of the state and private shoreline recreational facilities open for public use.( 1997 ODNR Ohio Coastal Management Program)

Recently, ODNR testified that H.B. 218 would destroy public trust rights.   The error with this position is that public trust rights have no bearing on ownership of the underlying land.   They are applicable to all navigable waters of the State , not just Lake Erie - regardless of whether the bed is privately or publicly owned.    As a case in point, the courts have clearly articulated that the beds of navigable rivers within the State are privately owned; yet the public trust doctrine has full affect.

One key assertion by ODNR is that private ownership of land stops at the "high water mark."   For some property owners the difference between high and low water mark is small.   However for others, this difference can encompass entire beaches or even the land where homes are constructed.   The following figure shows the devastating impact ODNR's policy can have for low-lying areas, such as those found in the western Basin.

The misinformation coming from the ODNR regarding high water mark is troubling to say the least.   Last June, an ODNR spokesperson stated:

"The high water mark standard is also used by all of the Great Lakes states as well." (Andy Ware, ODNR -   quoted in Avon Lake Press,   June 11, 2003)

To the contrary, an analysis by the Legislative Services Commission has revealed that the majority of other Great Lakes States use low water mark (LSC R-124-1064, June 22, 2001).   The ODNR spokesperson went on to say:

"Over the years there have been a number of court challenges, and they have affirmed the high water mark," (Andy Ware, ODNR -   quoted in Avon Lake Press,   June 11, 2003)

This is a rather radical change in position of the ODNR.   In January of 2000, ODNR was requested to cite the case or law supporting use of ordinary high water mark (OHWM). The ODNR's Coastal Management Chief replied:

"Our policy and practice regarding OHW is based in part on the absence of definitive case law on the subject" (email from Mike Colvin, ODNR, January 2000)

In an interview in June 2003 with the Ohio News Network, the present Coastal Management Chief stated,

"The ordinary high water mark is not established by the State.   It's established by the US Army Corps of Engineers.   So this is not an arbitrary thing by the department.   This is the law of the State of Ohio.   It's been this way since the state entered statehood in 1803. " (emphasis added)

Obviously the ODNR misunderstands the law.   First, the Corps' authority didn't exist in 1803, when Ohio became a State.   The Corps' regulatory authority wasn't established until the Rivers and Harbors Appropriation Act of 1899.   Second, the current level for Corps' ordinary high water mark could not have been conceived as an actual water level in 1803.   In fact, it wasn't until 170 years after statehood that Lake Erie first reached this level during the flood waters of the early 1970's.

Furthermore, the elevation for current high water mark was only set by the Corps in 1974.   Most importantly, it is perfectly clear from Army Corps' memorandum that "high water mark" was set only for regulatory purposes, and has no bearing on property ownership.  

The Federal Coastal Zone Management's website includes a legal review that specifically addresses the use of high water mark.   It states:

"Regardless of what definition is used by the Corps, it should be clearly borne in mind that the definition is promulgated for regulatory purposes only and should not be considered an attempt to redefine property rights."   (Page 33 Land and Water Law Review - emphasis added)

The ODNR also argues that the high water mark has been consistently upheld in the courts.   On the contrary, in 1969 the Ohio Supreme Court ordered the Division of Public Works to hold a hearing on the definition of shoreline boundary (Case No. 69-349).   The Director of Public Works ruled that:

"the legal shoreline of Lake Erie is that line at which Low Water Datum intersects the emerging land mass."   (emphasis added)

This ruling was tested in Franklin County Common Pleas Court (Case No. 242923) where the ODNR provided evidence arguing for the low water mark.   The ruling held that the correct boundary between upland property and the property of the State of Ohio is Low Water Datum and that this determination is "supported by reliable, probative, and substantial evidence."

Furthermore, in 1974 the ODNR argued for the low water mark as the rightful boundary line.   An amicus curiae brief filed with the courts by the Assistant Attorney General of Ohio, on behalf of ODNR, argued that:

"... the corporate boundary of Avon Lake is set at the low water mark " (Amicus Curiae OAG for ODNR - emphasis added)

And the Ohio 9th District Court agreed.   In the decision and journal entry, the Court stated:

"The northern geographical boundary of Avon Lake is the low water mark of Lake Erie " (City of Avon Lake v. W.W. Paine - emphasis added)

Thus, the Courts upheld the deed of incorporation from 1911 for Avon Lake, which describes their boundary to the "low water mark" of Lake Erie.

Similarly, in 1987, the Ohio Supreme Court recognized the use of low water mark in determining the boundary between State public territory and municipal territory .   In its decision the Court stated:

"The waters of Lake Erie belong to the state of Ohio, and it is undisputed that Avon Lake's territorial limits extend only to the low water line of Lake Erie."(Mitchell v. Cleveland Elec. Illum. Co - emphasis added.)

And this isn't a recent phenomenon.   In 1878 the Ohio Supreme Court discounted the use of English public trust common law in assigning boundaries.   In its decision, the Court cited the following regarding the extent of ownership along the shoreline of Lake Erie:

"Our large fresh-water lakes ... are wholly unprovided for by the law of England.   As to these, there is neither flow of the tide nor thread of the stream; and our local law appears to have assigned the shores down to ordinary low-water mark " (Sloan v. Biemiller - emphasis added)

ODNR discounts this case since "high water mark" is mentioned in the case.   However, the Court's citation of "low-water mark" was specifically in regard to ownership of the Ohio shoreline, whereas "high water mark" was only used in the Court's summary of cases in regards to Michigan boundaries.

ODNR's use of high water mark would leave large strips of land along the shore with a cloud regarding ownership of the dry land.   In 1890, the Ohio Supreme Court weighed in on this subject and showed their dissent to such a policy:

"The existence of 'strips or gores' of land along the margin of non-navigable lakes, to which the title may be held in abeyance for indefinite periods of time, is as great an evil as are strips and gores of land along highways or running streams; the litigation that may arise ... is equally probable" (Lembeck v. Nye, 1890)

While the case was specifically in regard to non-navigable lakes, the Court also referenced navigable waters bordering the state (being the Ohio River).   The court stated:

"the clear tendency of judicial opinion in this state is to limit the title of the riparian proprietor to low-water mark " (Lembeck v. Nye, 1890)

It is clear that this rationale applies equally for not only the navigable southern shore of the state, but also the navigable northern shore of the state.

In recent public presentations, the ONDR has claimed that the word "shore" in defining a boundary means high water mark, based on federal precedent.   The ODNR is either unaware of, or ignoring, the United States Supreme Court ruling, which held:

"... that the words 'shore' and 'lake,' ... in defining the boundary ... were synonymous, and the boundary upon the shore was fixed at low-water mark on Lake Ontario." (Vermont v. NewHampshire, 1993, quoting from Martin v. Waddell -   emphasis added)

Without question, the ODNR's assertion of State ownership to the high water mark lacks credible foundation.   The majority of case law for Ohio refers to low water mark and a few cases refer to the waters edge.   Nevertheless, in either of these definitions, Ohio Courts have consistently ruled that the upland property owners own the dry land.   ODNR is attempting to convert substantial portions of private and city owned property into State property by redefining the boundary.

If ODNR is not forced to correct their policy regarding high water mark, the impacts to shoreline communities will be devastating.   Municipalities will have no regulatory authority or police powers over public and private beaches in their communities.   Hunters could discharge firearms from the dry beach, and the local government would be powerless to prevent it.   Vast portions of Ottawa County that were diked and drained early in the 20th century would have to be leased from the State.   Numerous associations, parks, and shoreline tourism facilities would lose control of their beaches.  

The misleading information from the ODNR goes well beyond the high water mark.   You will likely hear opposition to this bill - by groups that were encouraged and misinformed by the ODNR.

The Ohio Lakefront Group supports the passage of Amended Substitute House Bill 218 with appropriate amendments to address the concerns of our legislative request.   We desire meaningful regulation that protects the rights of private property owners; protects the environment and health of Lake Erie; and streamlines the regulatory process.   On behalf of the over 4,000 members of the Ohio Lakefront Group, I urge you to support Amended Substitute H.B. 218.

Thank you for this opportunity to speak and I would be happy to answer any questions.

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Testimony of Adrian Betleski

Good morning.

My name is Adrian Betleski.   I appear before you today in support of Amended Substitute House Bill 218.  

I am a lakefront property owner.   I have owned my property for 49 years.

I am also a retired judge.   I was a common pleas judge for Lorain County for 12 years.  

Prior to being a judge, I was in private practice where I was proficient in real estate law.   I also worked for Ohio Bar Title, doing their title searches.  

The purpose of my testimony is to demonstrate that the Office of Coastal Management's policy that the State of Ohio owns the land up to the "Ordinary High Water Mark" is not legally supportable.

What is the legal basis for the State claiming property to the High Water Mark?  

One would expect that such authority would be found in the Ohio Revised Code, and/or in the ODNR's Administrative Rules.

But, neither Section 1506 of the Ohio Revised Code (dealing with coastal management issues) nor the Administrative Code contain such a reference regarding the High Water Mark.  

ODNR employees that administer the Coastal Management Program assert in vague terms that the "Public Trust Doctrine" provides the requisite authority.

That is utter nonsense.   Let's review the current Law in Ohio and not just ODNR's interpretation of the Law .    Even a cursory review of the applicable Law will dispense of ODNR's assertion of State ownership to the high water mark.

Section 1506.10 of the Revised Code is commonly called the "public trust," and it defines the "State's right to waters of Lake Erie.   It states:

"It is hereby declared that the waters of Lake Erie...,   together with the soil beneath ... belong ... to the state ... subject to ... the property rights of littoral owners, including the right to make reasonable use of the waters in front of or flowing past their lands."   (ORC 1506.10, emphasis added)

First, note that there is absolutely no mention of "beach" or " high water mark" in the Code.   This Section refers to the "waters of Lake Erie" and the "soil beneath."   For the soil to be "beneath" it must be submerged under water.   If the soil isn't submerged, it isn't subject to Section 1506.  

Therefore, and contrary to what you may have heard, there is no such thing as Public Trust Land.   The Public Trust is the water of Lake Erie and the submerged soil beneath the water.   The dry beach area is not subject to the Public Trust.

Now that we've defined the Public Trust properly as being the water and soil beneath, realize that the ODNR even ignores the limitations of the Public Trust.   Recall that Section 1506 states that the waters of Lake Erie and the soil beneath, even though owned by the State, are:

"... subject to ... the property rights of littoral owners , including the right to make reasonable use of the waters in front of or flowing past their lands."   (ORC 1506.10, emphasis added)

That short phrase is key and it has two distinct points.  

First, it states that the Public Trust is subject to the property rights of the littoral owners.   Littoral owners are the upland property owners.   It means that a lakefront property owner's deed is not superceded by the Public Trust.

Most lakefront property deeds state that the property extends to the Low Water Mark, or the water's edge, or is a simple metes and bounds, but it does not state the High Water Mark as the ODNR asserts.   The description on my deed recites: "to the low water mark," thereby ensuring that no submerged lands be conveyed by the deed instrument.

Thus, as a lakefront property owner, I should be able to place a reasonable structure on the land down to the Low Water Mark without intervention by the State exercising its authority to manage the Public Trust, as it is the lakefront property owner's land, not the State's.   I recognize that such structures may need to meet certain regulations, but that is not the primary issue before us today.   Today, I want the ODNR to honor my deed and not violate the Law .

The second point is that the property owner is allowed to make reasonable use of the waters in front of their land.   This language, for example, allows me as a property owner to build a structure in making reasonable use of the water even if the structure extends past Low Water Mark.

Given Section 1506, there is no legal basis for the ODNR to require submerged lands leases and permits for lakefront property owners whose structures are within their property line of the Low Water Mark, as well as for structures that may extend past Low Water Mark where there is reasonable use of the water.

There is no doubt that Ohio needs to have effective regulation.   But it must be reasonable, and most importantly, it must have legal foundation.

The current Program is not reasonable.   Nor does it have legal foundation.  

I also want to rebut the rumors and allegations that the Ohio Lakefront Group and House Bill 218 are somehow placing the environment at risk.  

How utterly absurd.   Such allegations do not even merit a dignified response.   Those guilty of making such defamatory allegations ought to be ashamed, as they disgrace themselves and the government they represent.   Don't believe a word they say.  

Environmental review is performed by the Ohio EPA, and HB 218 does not change that authority.

Last, I want to address some of the discussion that occurred when Rep. Grendell testified before you recently.   I believe there were questions regarding the public's access to the beach.   Let me quote from an Ohio Supreme Court case that addresses this issue head on:

"It may be argued that the recognition of the littoral rights of the upland owners would impede or retard civic enterprises of the city, but that same argument may be made with reference to property ... rights in any city or community ... If a city desires to develop a public improvement which takes, destroys or impairs the property rights of private owners the city must pay for those property rights.   There is nothing new in this conception.   It is expressed and declared in the Constitution of the United States and the Constitution of Ohio, which great instruments recognize, preserve and protect private rights of individuals, whether those be human rights or property rights."   (150 Ohio St. 303; 82 N.E.2d 709; 1948 Ohio LEXIS 375; 38 Ohio Op. 161, emphasis added)

Therefore distinguished Senators, if you want the beach for the public, like any other piece of property, you need to buy it - you cannot take it.   And, an easement, no matter how small, is a taking.

In closing, Chairman Spada and members of the Energy and Natural Resources Committee, I urge you to support House Bill 218.  

Please vote it unanimously out of this Committee in an expedient manner.   Urge your peers to pass it in the full Senate.  

Thank you.

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Testimony of James O'Connor

Good morning Chairman Spada, and members of the Energy, Natural Resources and Environment Committee. Thank you so much for hearing my testimony today.

My name is Jim O'Connor, and I appear before you today seeking your support for, and in support of Amended Substitute H.B. 218.   I want this committee to realize without a doubt that Amended Substitute HB 218 is solely the result of the extreme hardships, and the recent illegal confiscation of deeded property by the Ohio Department Of Natural Resources (ODNR).

I am here today on my own time without pay, not as a paid lobbyist, not someone schooled by State attorneys on what to say, not part of an special interest group, I am here as a victim...and I need your help.

Growing up in communities along Lake Erie, I knew at an early stage that my dream was to own a home along the Lake. I set that goal at the age of 13.

I recently was able to realize my lifelong dream of living on the Lake. I bought a small older home in Sheffield Lake, it needed siding, a new garage, a new break wall (the old one had broken apart) it just needed a ton of work, and it was perfect.   I had my dream home, on the Lake.

The land along the Lake was unstable and had eroded as an old break wall and jetty that was once there had been destroyed by the force of the Lake.   I knew I had to protect my home and family from the ravages of the Lake, as do almost all lakefront property owners.   I expected this work when I bought the property---I didn't expect the intimidation and extreme radical regulations of the ODNR's Coastal Managers that was soon to follow.

To stop the erosion and put my family and kids out of harms way I needed to do something.   My neighbor suggested building a new small jetty and break wall.   I asked my neighbor how he knew it would work, and he said because he had lived next to that property for over 50 years and it use to have a beautiful beach when the jetty was still sound.   I did some research, and I found information from the U.S. Army Corps of Engineers confirming that a jetty and break wall was a natural and preferred option to stop erosion and protect the environment.

A contractor informed me that I would need to obtain a permit from the Ohio Department of Natural Resources for the project.   I called the ODNR and explained what I wanted to do.   I expected guidance and assistance.  

They said they'd come out to see me.

My dream was to soon become a nightmare.

Imagine anxiously waiting for a state employee to come to your home to help you, and instead they inform you that THEY now own your property because "we changed the boundary line."   Imagine the state employee telling you that your deed is wrong and it is "only a guideline."   Then imagine that after they take your property, they extort you into signing a lease that requires that you pay them money for the property they have just stolen from you.

The lease even requires me to continue to pay the real estate taxes on that same confiscated property that they claim is now theirs!

It can't happen, you might say, certainly not in this country.

Well you don't have to imagine it.   That is exactly what happened to me, and it is happening to others here in Ohio - and it needs to be stopped.

A representative from the ODNR came into my home.   I explained that I wanted to follow the Army Corps' guidelines, as well as my neighbor's recommendation, and restore the original jetty behind my property.   I explained that this would build a beach that would naturally break the waves and prevent erosion. The ODNR representative just looked at me for a moment then coldly replied "there is only so much sand in the Lake."   My heart sank, and I knew then that this man was not here to help me.

He proceeded to explain to me how the State now owns my land and that my deed was wrong.   His arrogance was overwhelming.   He wanted me to sign a submerged lands lease, explaining that it was no big deal.   Intimidation was a tool he used very well to get me to sign that lease.

My wife and I immediately felt violated, heartsick, and it seemed our dream had been shattered.   We knew we had to protect our home and our children, but if we wanted that protection we had to pay for it.   I was extorted into signing a lease and with that action I relinquished my property rights.   And, I was subject to extreme regulations.

Deceit, lies and intimidation will get you to sign almost anything-- and they got me to sign a lease that attorneys told me I was a fool to sign.   I stand before you as a victim, a victim of the renegade ODNR Coastal Managers.   A victim of an absurd policy that steals property from people that paid for, own and pay taxes on it.   Maybe the worst part is that I'm a victim of government intimidation - I can't fully put into words the feeling you get when a State Official claims ownership to your property and extorts you into signing away your property rights.   State employees, I might add, that are paid by my tax dollars that were supposed to HELP me.

But where do I, as a victim, go for help?   If my car is stolen I call the police.   If my business is robbed I call the police.   The FBI will help if my child is kidnapped.   But where do you go when a renegade from the ODNR seizes your deeded property?   I came here.

Please help.

The simple fact that I stand before you TODAY should speak volumes.  

Private deeded residential lots, with boundaries like mine to the low water mark along the Lake Erie have been bought and sold since before Ohio was a state and the legal deeded description of those lots has always been acknowledged and respected, by my city, by my county that taxes me, and by the State (until recently). But property deeds that prove you own your property to the Low Water Mark will not and do not stop the ODNR.  

They want it so they will take it by any means necessary!

(Please note the attached legal description of my deed contained within my title insurance that insures that deed as described to the low water mark)

What's going on here?   How can these people get away with this?   They fabricate policies that are not supported by any Ohio law. How can this possibly happen?  

As an elected official, you should be outraged.   What has happened to the Fifth Amendment?   Apparently the ODNR doesn't know there is a Fifth Amendment.

Today I ask for your support, bi-partisan support for a bill that upholds the Fifth Amendment.   A government cannot take my property without just compensation.   The ODNR stole my property and are charging me for it!

What occurred to me should never happen to anyone in this great country.

I also want to address the sea of deceit and deception that have been circulated by ODNR and opponents to House Bill 218.   The propaganda that is out there against this bill holds no truth. Senators, I am up against a machine.   I quickly learned that these people stop at nothing and will say anything no matter how false or twisted to promote a very radical, unreasonable agenda.   It even paints victims like me, fighting for my confiscated land, as the villain!  

Everything ODNR has claimed about this issue in reference to property boundaries is historically false.    History shows that there has been a house on my lot for over 100 years, it was a private lot in the 20's 30's 40's 50's 60' 70's 80's 90's ....... but not now?   History also shows that it wasn't until this small group of so-called "Coastal Managers" recently empowered themselves did the illegal "regulatory taking" of our deeded private property start.  

They even have schooled others in this lie, actually pitting one group of people against another; they have encouraged trespass on my property and have compromised the safety of my children.

I'd also like to clarify what Amended Substitute HB 218 does NOT do:

First, Amended Substitute H.B. 218 is not about taking land away from the Public Trust.   Ohio law states that the Public Trust is subject to property owners' rights.   We simply want back what we bought, OUR LAND, what our deeds state we own and pay taxes on.   Nothing more.   There was never a problem until these "Coastal Managers" came along.   Now the existing Law must be changed so that it is made crystal clear--Ohio must honor my deed and those of every other lakefront property owner.

Second, H.B. 218 is not about the rich lakefront property owners trying to restrict the public's access to the water. If you come to my neighborhood, you'll see that my gravel driveway isn't made of gold nuggets!

Third, H.B. 218 is not about eliminating the Coastal Management Program.   It is about restoring reasonable and common sense regulations.   Effective regulations that were fair and were followed for years - before the so-called "Coastal Managers" took over.  

Fourth, H.B. 218 is not about adversely affecting environmental policy.   Lakefront property owners love the Lake.   We live next to it, and obviously we wouldn't want to pollute it.   In fact, an EPA official told me that private lakefront residents are the #1 source for reporting illegal dumping of materials into Lake Erie that adversely affect the environment of the Lake.

Fifth, HB 218 will have no impact on those who choose to boat and fish in the waters along the shore.

Sixth, H.B. 218 is not about giving property owners the right to place unreasonable structures in the water that affects other property owners or the environment.   The Ohio EPA and Army Corps of Engineers' roles are not affected in away way by this Bill.   Please take a look at my property (pictures attached) Does it infringe on the "public trust"? Trust me- it doesn't.

Again, anything you've heard to the contrary or will hear is false, and has no merit or use, other than to misinform people in order to gain their support. Which this agency excels at, misinforming people to get their support...

ODNR has claimed that there were problems in the past with its administration of the Coastal Management Program, but that these problems were corrected with the establishment of an office in Sandusky about 18 months ago.   Don't believe it.   It has even got worse--within the last month I have seen an ODNR official on TV continue making the same twisted and convoluted claims that I heard in my home:

•  Since Ohio became a State, it has owned up to the Ordinary High Water Mark. False.

•  What is on a deed only captures a moment in time. False.

•  Ohio Law now says the boundary is the Ordinary High Water Mark. False.

These are the same type of fabrications and absurd interpretations I heard several years ago in my own living room.   ODNR has not changed, nor will they.   They need to be stopped as every waterway home owner across this State is now at risk--those along inland lakes, rivers, steams, where ever you find public trust waters, those deeds will too be invalidated soon--and those properties claimed by the State.

The former Coastal Manager Mike Colvin personally told me that I owned my beach.   And now I have a lease.   Do not trust the Coastal Managers - I had to learn this the hard way.

Senators, I bought a Private lot that has NEVER been public property through all the generations that have lived on my property over 100 years.   I bought a private lot.... And it is my constitutional right and civil right to keep my property without violations, infringements or easements unless I am compensated.   That is my right as an Ohioian and as an American.

I want to make it clear to this committee that nothing short of honoring my deed will stop these people.   The ODNR doesn't care about what is just.   They don't' care about what is fair.   They don't care if you legally own the property.   They don't care about reasonable regulation.

All they want to do is to take our land.  

Lastly, on a personal note, I ask again for your bi-partisan support. Being a life long Democrat, I have worked hard for our party and I do not want my party to abandon me (or those behind me) on an issue that should be above party politics. Support this bill because no American from the left or the right should go through what I and others have gone through - it is obscene what these radical bureaucrats have put us through. Support Amended Substitute H.B. 218.   It is the right and just thing to do.

Thank you, I'll be happy to answer any questions you may have.

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Testimony of Thomas Jordan

Good morning.

My name is Tom Jordan.   I am a licensed realtor in the State of Ohio, with over 45 years experience.   Therefore, I well understand property lines, deeds, surveys, etc.   I serve on ODNR's Coastal Resources Advisory Council as well as the Blue Ribbon Task Force on Balanced Growth for the Lake Erie Water Shed.  

I appear before you today in wholehearted support of Amended Substitute House Bill 218.  

Why?   I believe the manner in which the Ohio Department of Natural Resource's (ODNR's) administers the Coastal Management Program, specifically the submerged lands lease program and permitting process, is completely out of control.

I have resided at and owned my property, which is adjacent to the shores of Lake Erie, for over 30 years.   My father first bought the property in 1945.  

The deed to my property has always stated that the northern boundary of the property is the "Low Water Mark of Lake Erie."   (See Attachment A) Also attached are seven of my Title Insurance Policies spanning the last sixty years.   All of these insure my title to the low water mark.   One of these policies is with Chicago Title and the other six are with Lorain County Title and underwritten by Chicago Title.

The jetty on the northwest corner of my property was built in 1911-- over 90 years ago.   This structure is approximately 8 feet wide and 100 feet long.   Its length is partially in the water and partially on dry land.   The extent to which the structure is on dry land versus water is dependent upon the level of the Lake at any given time.   At Low Water Mark, it is mostly on dry land.  

One of the Attachments to my testimony, Attachment B, is a photo of the jetty taken last year.   The level of the Lake was higher than Low Water Mark last year.   The photograph shows that that it is almost all on dry land.  

There are other erosion control structures on my property that were constructed after 1911, yet before I owned the property.   In order to prevent erosion and protect my property, I have maintained and repaired these structures over the years.

The Office of Coastal Management first contacted me by letter on December 23, 1993 (Attachment C).   That letter claimed that I was occupying the submerged lands of Lake Erie and that I would have to obtain a submerged lands lease from the ODNR.   The letter indicated that aerial photographs were used to calculate that approximately 10,000 square feet of my property was within the waters of Lake Erie.

The letter did not indicate how this calculation was performed or justified.   My jetties are less than half of the area listed in their letter, and the far majority of these structures are out of the water.  

Most importantly, the ODNR ignored my deed that states my property extends to the Low Water Mark of Lake Erie.

The ODNR's December 23, 1993 letter instructed me to have a registered surveyor develop a "metes and bounds" description of the submerged lands.   Not only did I not know what they were considering submerged lands, but also the structures (like most erosion protection devices on the lake) were irregularly shaped and at odd angles-making a "metes and bounds" description impractical.

The letter also instructed me to provide a detailed construction drawing of the "existing fill".   Given the age of the structures, the fact the structures were erected before I took possession of the property, and the fact that there have been numerous repairs and/or patches to the structures, a detailed construction drawing was impossible to provide.

The requirement to have an engineer say what is under the structures is far more expensive than merely having the structure surveyed to determine its size.   Basically, they wanted me to survey eight irregular structures that totaled less than 5,000 square feet (much of which is out of the water) and determine how it was built, rebuilt, and repaired over the last 90 years.

The letter further instructed me to provide a resolution from the City of Sheffield Lake approving the existing use of the submerged lands.   I do not understand the ODNR's need for such a resolution.   If the City of Sheffield Lake had a problem with my use of the existing structures, it could have said so any time since 1911.   Further, why would the City have a problem with the structures when they are on my property?

Over the next 3 and 1/2 years I had many conversations with representatives of the ODNR .   During most of these conversations, I was told that if I did not comply with ODNR's requests, they may have my erosion protection structures removed at my expense.

I was extremely intimidated by these threats, as such an expense would likely bankrupt me.

Ultimately I was given an Application for a Lease for Lake Erie Submerged Lands, which I completed, signed, and submitted in 1997. (Attachment D)

I want to be very clear here - I signed the application only because I was intimidated by the ODNR.   I did not, and still do not, believe the ODNR's actions are proper.

The ODNR then sent a letter on July 10, 1997 in which it modified its position by stating "that not all of the material north of [my] property is fill resting on public land." (Attachment E)   I was instructed to re-submit my lease application and to provide a survey because they believed it was my "responsibility to delineate the amount of public land occupied by [my] structure."

I replied that I was unable to provide a survey per their modified instructions given their fluid definition of where my property line extends, coupled with the obvious conflict with my property deed.  

On September 24, 1997, in response to this dilemma, a representative of the ODNR provided an outline on an aerial photograph of the areas he wanted surveyed. (Attachment F)   Although he stated that "any structure lakeward of the Ordinary High Water Mark (573.4 ft.   International Great Lakes Datum 1985) would need to be contained within the legal description" of the lease, he did not state whether these structures were or were not within this definition.  

From a review of his "marking", it can be determined that he merely included certain structures, regardless of where they stood with respect to the level of the lake.   I do not believe that the ODNR (or anyone) is capable of determining where the Ordinary High Water Mark (or Low Water Mark) is from an aerial perspective or photograph.

I had many conversations with them regarding how to accommodate their requests.   However, on October 30, 1997, the ODNR reiterated its claim that it wanted a "metes and bonds" description prepared by a registered surveyor.   (Attachment G)

Again they threatened, in writing, that they could remove my erosion control structures at my expense.

On March 11, 1998, they ordered me to remove my "fill and groins from the submerged lands of Lake Erie" within 30 days.   (Attachment H)  

Immediately upon receipt of that order, I requested a hearing on this matter.   Many phone conversations followed.

I ultimately had an engineering company do a survey of these structures that were both in and out of the water.   This survey cost $4,600 and I do not believe it has provided any benefit or useful knowledge to the ODNR.   This survey was supplied to the ODNR on February 1, 1999.   Between that date and September 17, 2003 when I testified in support of HB 218 in the House, I did not receive:

•  Any written or verbal responses regarding the adequacy of the survey;

•  Any written or verbal responses to my request for a hearing that was made five and a half years ago;

•  Any written or verbal responses to my Application filed over five years ago.

I went 4 ½ years without anything being done on my case. Shortly after testifying in support of HB 218 in the House and supporting HB 218 at a Coastal Resources Advisory Council meeting, I was approached by the Chief of the Office of Coastal Management and was told that he was reviewing my case and asked if I still wanted a hearing.   He said that if I did not go through the hearing process that he would initiate enforcement action.   I feel that this was pure harassment and a clear attempt to silence my support of HB 218.   This was just 3 months ago.   What more proof do you need that ODNR has been out of control and remains out of control today?

The status of my case and the actions of the ODNR have placed a cloud over my property and its value.   It is virtually impossible to sell a piece of property that is tied up in pending litigation and bureaucratic red tape.

It is because of the ODNR's actions that I am here today to support House Bill 218.   Simply put, the ODNR is out of control.   Its employees are abusive.   At a minimum, their coastal policies serve no rational purpose.   Even if one assumes their policies are rational - which they are not - they are inefficient in their implementation of the policies.  

Chairman Spada and members of the Committee, I urge you to support Amended Substitute House Bill 218.   I'm not opposed to reasonable regulation for shoreline activity.   But this has simply gone too far.  

Put the ODNR's Office of Coastal Management back in its place.   Honor my deed.   Eliminate residential submerged lands leases for structures that do not extend lakeward past the Low Water Mark.   Eliminate the residential permit process, which is redundant with the Army Corps of Engineers' process.  

Thank you, and I'd be happy to answer any questions you might have.

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Testimony of Russell Claus

Good afternoon,

My name is Russell Claus.   I am an owner of lakefront property in Vermillion, as well as a member of the Ohio Lakefront Group.

I appear before you today in support of H.B. 218.   No one pays for my time to attend this hearing.

I have read the Ohio Attorney General's Opinion numbered 93-025. In this Opinion, lakefront property owners are clearly identified as property owners from the "natural shoreline" to the High Water Mark. I was amazed that a state agency could take my property without legal justification. Since that defining moment, I have examined numerous other legal decisions. I urge this committee to study the legal background in this case. I also urge you to examine what other Great Lake states use as a boundary.

I became an owner of lakefront property through hard work. The land was purchased through a lifetime of savings. I paid $55,000 to construct an erosion structure. No one else provided any funding or paid any of my property taxes. Yet, now there are people who would like to "take" this property. They didn't work for this property, but they certainly want it for free.

I have a deed that indicates ownership to the Low Water Mark along the shoreline of Lake Erie.   The Ohio Department of Natural Resources (ODNR) has ignored this deed and taken ownership of approximately 20 % of my property.

Around 1998, my wife and I purchased a parcel of property to build a home along Lake Erie.   After purchasing the property, I found out the property was in what the ODNR defined as a "Coastal Erosion Area."   ODNR said I could not build my home unless I first obtained a coastal erosion area construction permit from them.  

I was aware of ODNR's present policy of using the Army Corps of Engineer's Ordingary High Water Mark as the boundary between public and private property.   I decided I would avoid the lease issue by keeping my erosion control structure landward of the so called Ordinary High Water Mark.   When I made an application for an erosion control structure above this boundary, my application was rejected.   They performed a "historical land survey" and created a property line that is well south of the shoreline.   They lay claim to not just my beach, but to a great deal of upland property.   My property rights were taken away without documentation or any justification.   I am certain that this land survey is incorrect.   However, in order to build my home, I needed to have a Coastal Erosion Permit from ODNR and in order to have that Permit, I was forced to sign a land lease on property that I had just purchased.

After my erosion control structure was constructed, my local property taxes doubled.   The County was not aware of my land-lease.   I informed the County of my land-lease and they did not adjust my taxes.   ODNR states that I do not own the property and must pay a lease fee.   The County states that I do own the property and I must pay the taxes on this same property.   One of these government agencies is incorrect.

I have had the privilege to listen to opponent testimony to this bill. Jack Shaner from the Ohio Environmental Council stated that HB 218 would lead to illegal dumping along the shoreline of Lake Erie. As with most of his statements, Mr. Shaner has not done his homework. The vast majority of people that live along the Lake would never pollute the Lake.   HB 218 would not change this.   However, there is always an exception to every rule.   I witnessed illegal dumping along the shoreline and reported it to ODNR. Do you know what happened? They sent the violator a land lease application form. Contrary to what others may claim, the current management of ODNR has focused their workforce on gaining additional lease fees--they do not care about illegal dumping.

We need HB 218 to redirect ODNR's efforts. Stop harassing law-abiding citizens and have them focus on real issues, like illegal dumping or point-source contamination.

I encourage you to remove section 1506.49 of HB 218. It grants ODNR the right to trespass on my property. This agency has not demonstrated that it is worthy of property-owners' trust. Indeed, they have demonstrated to me that they will work through intimidation. This provision will give them more power to intimidate.
 

To conclude, I want to be a good steward of the Lake for future generations. I wish to leave a legacy of a beautiful Lake Erie to my grandchildren. I feel that we need HB 218 to stop the illegal taking of shoreline property.

I worked hard and spent a lifetime of savings to become a shoreline property owner. Please don't give my property to paid lobbyists.

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Testimony of Bud Edwards.

Good afternoon Chairman Spada and members of the Committee.

My name is Bud Edwards.   My background includes a Bachelor's Degree in Chemistry and a Master's Degree in Environmental Science.   In addition, I have been a diver for over 35 years, and a licensed tugboat captain for the past 25 years.

While employed as Supervisor of the Environmental Service Section of the City of Cleveland for four years in the 1970's, I had the opportunity to work with Dr. Andrew White, an ichthyologist at John Carroll University, in performing studies regarding fish populations in Lake Erie.   In 1974, the knowledge gained from this research led to our design and construction of the first artificial reefs in the Great Lakes. Today, I am a contractor that specializes in erosion control and marine construction for both residential and commercial purposes.   It has always been our philosophy to create structures which are durable, aesthetic, functional and environmentally sensible.

I appear before you today in support of Amended Substitute House Bill 218.

I am in daily contact with people that either want an erosion control structure, access to the water or a beach built.   I have interfaced with thousands of shoreline property owners over the last 25 years.

I would like to give my perspective on the impact that shoreline structures are having on the ecosystem, as well as the impact that ODNR's illogical policies are having on the environment.  

Prior to the Ohio Coastal Management Program, permit applications were prepared by a homeowner or contractor at no cost using guidelines provided by the Army Corps of Engineers.   Processing time ranged from 3 weeks (nationwide permit or Letter of Permission) to 3 months for Public Notice Permits associated with major commercial properties.

Since ODNR's involvement, a professional engineer and registered surveyor are required.   The cost is a minimum of $3,000 to $3,500 and nearly all permits require a year to process.

State agencies have bullied lakefront owners and have tried to kill permit applications by "Pocket Veto" because some personnel believe "that the shoreline should revert back to its original condition before man got here".

An elderly woman wanted me to simply put some armor stone around her existing sheetpile wall that was being undermined and was at risk of soon toppling into the Lake.   The armor stone would have actually created fish habitat resulting in an enhancement to the environment.   She had only about 60 feet of frontage on the Lake.   Before anything could be done, ODNR told her she would have to sign a Lease for what presently existed on what they considered to be State property.   However, before ODNR would let her sign a Lease, she was required to prove to them that the present (very small) structure was there when she moved into the house in the 1960's.   If she could not prove this to ODNR's satisfaction, ODNR would order this small structure removed--they would not even give her a Lease.   Can you imagine what this elderly woman was put through, not just because she was trying to add some protection to what existed, but to insure that her entire structure was not ripped out by government mandate?

The reason this elderly woman is not here testifying is that she is frightened.   She is afraid of the very government that is supposed to be helping her.   All she wanted to do was protect her property, but instead she was treated like she had committed a heinous crime, and feared retribution.

And what does all of this do for the environment?   Homeowners fear and object to the submerged land lease.   Many of the homeowners I work with do not want to have anything to do with the ODNR and these hassles.   The property owners have two ways of avoiding this:  

1)     do nothing and let their property continue to erode, causing further degradation of the Lake due to sedimentation; or

2)    build seawalls at the Ordinary High Water Mark so that the ODNR will not require a lease.  

Quite often, such structures confined to this area near the bluff are not conducive to building a beach - a beach that could provide a natural form of erosion protection.   But the homeowners are unwilling to build any structures below the High Water Mark if they have to lease the area from the State.

Placing large rock on a slope along the shoreline is utilized extensively by ODNR and the Army Corps of Engineers.   Taking shoreline enhancements a step further, these agencies construct offshore breakwaters and groins (rock jetties) to provide protected swimming areas and beaches.   In addition, these structures provide a calm water environment for fish spawning, foraging and ecosystem development from the tiny zooplankton to large sport fish (sometimes referred to as "predator fish" by certain agencies in an attempt to diminish their value).

However, construction of the same type of structures by lakefront property owners requires obtaining the dreaded submerged land lease.   Homeowners that are willing to spend their own money on a project such as an armor stone breakwater or groin that will ultimately enhance the environment, are deciding to let their land erode - rather than enter into a submerged land lease.   In addition to the cost of the submerged land lease, the Ohio EPA has demanded a mitigation "donation" of $30,000 per acre for the affected area within 30 days of issuing its Section 404 permit.   This "donation" is nothing short of extortion.

In my opinion, the State should encourage homeowners to prevent erosion.   And, if the erosion control structure is able to enhance the environment, it's an absolute "win-win" situation:   the homeowner is better off, the environment is better off, and therefore the State is better off.

Instead, we have the ODNR's policies that adversely affect the homeowner, the environment, and the State.

For these reasons, I ask you to pass Amended Substitute House Bill 218 out of this Committee as soon as possible.   Please urge your colleagues in the full Senate to pass it as well.

If you really want to protect and enhance the environment, it is imperative that regulations be sensible, not punitive.   Amended Substitute House Bill 218 is a necessary step.

Protect the environment, not the bad policies of ODNR.

Vote for Amended Substitute House Bill 218.

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Testimony of Ned Schabel

Good morning.

My name is Ned Schabel.   I appear before you today in support of House Bill 218. I am a member of the Beach Cliff Board of Trustees.   The Board was established in the 1920s as part of a not-for-profit Trust by the original developer of a large subdivision in Rocky River, Ohio. This Deed of Trust was recorded in 1927.   The Trust provides, among other things, beach and lake access for 1,100 households presently in the subdivision, regardless of those households' proximity to the water.   In some ways, the Trust operates as a propertyowners' association, and is governed by that original Deed of Trust.   

Since its establishment in the 1920s, the Trust has held title to a strip of property running east to west for about a mile at the foot of the bluff overlooking Lake Erie.   Lake Erie lies to the north of the lakefront strip; private residential lots lay to the south.   Thus, the Beach Cliff lakefront parcel lies between the private lots along the bluff and Lake Erie.  

In about 1998, one of the private homeowners south of the Trust lakefront parcel began planning a construction project at the north end of their property that spilled onto the Beach Cliff lakefront strip.   The project was designed to consist of "grout bags" that act as erosion protection for the homeowner's property, a cement pad or bulkhead, and a recreational dock extending northward, all of which were designed for the homeowner's personal use and not for the use of others living within the Beach Cliff Trust.   As part of the project, the homeowner applied for an Ohio Department of Natural Resources submerged land lease for property that included part of the historic Beach Cliff lakefront strip lying to the north of the homeowners' property.   The Trust has continuously owned, maintained and paid taxes on the effected parcel for more than 70 years.  

ODNR made no effort to investigate whether the homeowner actually owned the property described in the homeowners' lease application or whether it lay within another's record property.   The ODNR gave the homeowner a lease for an area including Trust property as defined by Beach Cliff's deed .  

In March 2000, the Trustees were stunned to find construction equipment excavating the portion of the Beach Cliff lakefront strip north of the homeowner's   property.   The Trustees were forced to file a court complaint to try to stop the surprising excavation on the Trust's lakefront strip.   The ODNR was not a party to the litigation as originally filed, but later became a party at the urging of the private homeowner who received the submerged land lease.   As a result of the ODNR'S grant of the submerged land lease to this private homeowner, the Trust was forced to expend large sums of money trying to protect its record title.  

Most disappointing is that not once during the course of the litigation did the ODNR take an objective view of its grant of the submerged land lease at issue and tried to determine how this could have been avoided in the first place.   Throughout the course of the litigation, the ODNR took at least three different positions about how the present submerged land law applies .   At the outset , the ODNR claimed that the Beach Cliff Trust had lost title to the piece of property at issue because it lay below 573.4 feet in elevation, the elevation which ODNR claimed was the defining boundary of the "original high water mark" and thus the boundary of public trust property.   Discovery in the lawsuit showed, however, that the ODNR had granted to the propertyowner a submerged land lease which included Trust property that lays both below and above the high water mark of 573.4 feet in elevation.   So the ODNR and the other defendants, after the onset of litigation, switched positions and claimed that, at some point in the 1960s, the Trust forever lost title to its property at issue because it had been overtopped by water.  

The ODNR backed off from this position when confronted with the well established rule that if a property owner temporarily loses unrestricted title to land by a rise in water level, that homeowner also benefits when the water level falls and property reappears.    Thus, even if the Trust property at issue had been submerged at some point in the 1960s, it was dry in 1998.  

After the ODNR realized that their argument lacked any legal merit, it undertook an apparently elaborate study of aerial photographs and determined that, when the water level was high in the 1960s, the previous homeowner to the south of the Trust property at issue placed fill on his own property in order to protect the bluff.   After concluding that the previous homeowner had placed fill on his own property , the ODNR then argued that the natural shoreline of Lake Erie became "locked" at the southward point where he purportedly had placed the fill on his own property.   Thus, even though the lake has naturally receded, and even though the Beach Cliff Trust had nothing to do with the fill placed by the neighbor, the ODNR argued that the Beach Cliff Trust lost title to its historic property.   This is an unfair and unjust result, and it has the effect of depriving 1,100 homeowners access to a portion of beach so that one homeowner can build a dock for personal and private use.  

The current ODNR rules and customs as applied have cost the Beach Cliff Trust greatly:

First, the ODNR does not cross-check submerged land applications against title records to see whether a submerged land lease will affect a property owner other than the applicant.   There is no procedural safeguard to keep a "land grab" from happening.

Second, it appears that the ODNR has a definition of "submerged land" that contradicts the express terms of the present submerged lands statute.   After the litigation began, the ODNR undertook an elaborate study of aerial photographs and concluded that the placement of fill on land that exhibits signs of erosion - but no sign that it ever was submerged by the waters of Lake Erie-- is "submerged" land for purposes of the statute.    Despite the ODNR's conclusion, land abutting Lake Erie that has not

been submerged but has eroded into the lake due to the effects of weather does not fit the definition of "submerged land" as described in the statute.   Thus, not only does the ODNR's interpretation contradict the express terms of the statute, it defies logic.   It is unfair and unworkable for the ODNR to base its interpretation of what constitutes "submerged land" on its own esoteric understanding of the statute and historical information--of debatable accuracy -- that property owners may not be able to discern, understand, or acquire on their own.

Third, it is unfathomable that the ODNR does not feel required to give a record property owner "first dibs" on a submerged land lease for an area within a duly recorded deed.   Once the ODNR learned that the allegedly submerged property had been deeded to the Trust in the 1920s, it should have asked the Trust first if it wanted a submerged land lease for the property that was lake ward of its own property boundary.   The ODNR did not do this.  

The Trust believes that the ODNR's administration of the submerged lands program has been inconsistent with the existing letter of the law and, moreover, contrary to principles of fairness and common sense.   The Trust supports any legislation that works to protect the right of record titleholders to their deeded property, and especially urges the Legislature to ensure that the law is changed to prevent one's property from being leased away to another private party without the consent of the record owner.   Such a rule would protect the old and wise principle that a littoral property owner, like the Beach Cliff Trust, holds title to both the accretion of land and the reappearance of its land that was once submerged.   It also ensures that the state does not take privately held land without compensation.

In consideration of the foregoing information, therefore, we urge the Senate to pass Amended Substitute HB 218 without further delay.

Finally, although the litigation involving the ODNR has concluded, the homeowner to whom the ODNR granted the submerged land lease has now sued the Trust and the Trustees.   Because of this pending litigation, I am restricted in my ability to answer questions bearing upon either lawsuit.   Thank you very much for your time.

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Testimony of Sandra Wade

Good morning Chairman Spada and members of the Committee.

My name is Sandra Wade.   I am a member of the Ohio Lakefront Group, and I appear before you today in support of Amended Substitute House Bill 218.

Last September, I testified before the House Committee in support of this Bill.   I addressed two points in my testimony.

First, I addressed the opponents' accusations that the Ohio Lakefront Group and its members would support legislation that would degrade the environment and endanger Lake Erie.   Nothing could be further from the truth.   As the opponents seem to have finally abandoned such ludicrous and unsubstantiated accusations, I won't get into the details of the extent to which my husband and I are champions of the environment.   As I said in my testimony before the House, I'm very proud of our efforts regarding the environment.

The second point I addressed in my testimony was in response to questions that were asked of previous witnesses.   The House Committee members asked, " . . . what part of lakefront property and its value would be lost given the policies of the ODNR?"

Before I answer that question, let me ask you, what percentage of your own property do you believe the State could take away from you--without compensation--and you would feel it to be reasonable?   Five percent?   Ten percent?   Your answer would and should be zero, as the ODNR should not be permitted to steal anyone's legally deeded property.  

In 1997, my husband Tom and I bought land in Erie Township, which is in Ottawa County. Over a period of several years we purchased 5 parcels on Lake Erie, with approximately 500 feet of shoreline and several more parcels adjacent to the lake.

Given the ODNR's interpretation of Public Trust, I testified that all our property was owned by the State.

Why?   First, it appears that our entire property may be at, or below, the Ordinary High Water Mark and therefore owned by the State.   Further, as you have already heard testimony regarding the Beachcliff Association lawsuit, the ODNR has declared any "historic fill" as artificial, so that land is also owned by the State. Remember ODNR's position on "fill" was accepted in both the trial court as well as the appellate court of the Beachcliff Association lawsuit.

It could be claimed that all of my property has been filled sometime during the 80 years since the subdivision was platted.   Some of the fill might be considered natural because during floods, huge amounts of sand were washed across the road and into the wetlands.   Other 'fill," along with a cement and wood retaining wall, riprap or armor stone, and soil was placed to protect the property and prevent flooding.  

Therefore, I testified that according to ODNR's policy, one-hundred percent of our deeded property is owned by the State.   The totally absurd policies of the ODNR would require a lease for one-hundred percent of our deeded property.

Allow me to diverge for a moment to describe their submerged lands lease.   It requires that we obtain insurance to indemnify the state in case someone is injured on the property that we bought and thought we owned, but must now lease from the state.   Worse yet, when the lease expires after 50 years, it requires that all artificial structures be removed and the property be returned to a condition satisfactory to the Director of the ODNR.  

The lease does indicate that we may apply for a new lease after 50 years, but it's at ODNR's discretion to approve that request.   This is not very comforting, as we put little faith in this division of ODNR.   A week before testifying, I even asked a Coastal Manager Brenda Culler-Gautschi if she could guarantee that the ODNR would renew the lease when it expired.  

Her answer: "Well no I don't know what the department will decide to do 50 years from now."

That means, in fifty years, the house and the barn that we just finished building would need to be demolished and removed and ALL erosion control and artificial fill removed.   If we choose not to remove it, ODNR will be kind enough to do it for us.   Not free of charge, of course.   We must pay for it.

Now let me discuss what happened since I testified before the House and was interview by an Associated Press reporter.  

After being away from home, taking care of my mother, I returned to learn from my neighbors and others that the "State" had been on our property, for two days, surveying it.   The surveying crew told them that they had our permission.   That is not true.   Yes, David Mackey told my husband, early in October that ODNR might look into the issue and, if they did, we would be given all documents pertaining to the inquiry.   But, no subsequent conversations took place; no permission was given to enter our property.

The surveyors came back a third day. This time, we were both home. When they saw me, one did ask for permission to enter our property.   I responded that they might as well go ahead and finish their survey, as they didn't bother to get my permission to enter our property on the first two days.

A month passed and we did not hear from ODNR, so my husband called David Mackey to request all the paper work that had resulted from the three days the State spent surveying our land.   Tom was told "it's in the mail."   We received a brief letter and an aerial photograph.   My husband called Mr. Mackey again to request all the paper work and the surveys relating to those three days.   Mr. Mackey replied that the ODNR "didn't have to" give a copy of the survey to us, as they "were only surveying State property."

The two-paragraph letter and the aerial photograph are marked Attachment A and Attachment B.   The letter states:

"Enclosed is a copy of the Lake Erie Public Trust delineation in the vicinity of your property ... shown on an aerial photograph taken in 1998 ... The delineation was made by examining aerial photography that is available from various years since 1939.    I hope this allays many of your concerns related to the Lake Erie Public Trust boundary."

They spend three days surveying our property, and the "delineation" was "made by examining aerial photography taken in 1998" ??   How absurd.

It's obvious what they did.   They took an aerial photograph and overlaid my "parcel information" from Ottawa County.

If you review ODNR's photograph, you would probably estimate that only about 50% of our property, along the shores of Lake Erie, is within the ODNR delineated "Lake Erie Public Trust Boundary," and thus owned by the State.

Somehow I doubt that the ODNR will pay 50% of the property taxes on that land.   And, I doubt Ottawa County will lower our taxes by 50%.

But there's more.   You must look at each parcel individually to really see the problem properly.

If you refer to the enlarged drawing of the photograph (Attachment C), you will see that I labeled our parcels from "A" to "F," starting from the west and working east.

Please refer to the parcel labeled "B." Per the ODNR, 100% of   this parcel is in the Public Trust. I actually agree with them.   Why? Because it is submerged. Thus, anyone may swim or boat or fish on it.  

But, assume for a moment that the water level of Lake Erie drops to where parcel "B" and and parcel "F" are no longer submerged.   Should those parcels still be within the Public Trust?  

No, of course not.   As others testified before me, it must be submerged to be in the Public Trust.   When it is no longer covered with water, then it's no longer in the Public Trust. The Public Trust reads: The waters of Lake Erie and the lands beneath!

Please realize that even though parcels "B" and "F" are 100% submerged, we receive and pay a separate tax bill from Ottawa County.   Those parcels have been submerged since we bought them, and we've paid taxes on them every year since we bought them.  

But, the ODNR is saying that once private property is submerged, that land forever becomes part of the Public Trust.   How can that be a reasonable interpretation of Ohio law?

We built our house on parcel "E."   Obviously no part of this parcel is submerged.   Was this parcel ever submerged? Evidently it was. Because given ODNR's delineation, our deck and screened porch and a large portion of our living room are within the Public Trust.   May the public come up on our deck and rest after their stroll along the beach, and if the mosquitoes are biting, may they choose to relax in the screened porch, may they walk into our home? This scenario is ridiculous. But that's the point. ODNR's interpretation of the Public Trust is ridiculous.  

Let's look now at "filled" land even though this was not addressed in ODNR's attempt to allay our concerns. There are many homes, in the Western Basin, that are built in the flood plain. Much of the land in the flood plain has been "filled" over the years. The FEMA program, which I whole-heartedly support, requires you to elevate your home above flood plain if you have suffered multiple losses, or they will not issue flood insurance.   Most of us require a mortgage so you must comply--no insurance, no home loan and even if your home is not mortgaged, no one wants to leave their home unprotected from floods.   Many people who have elevated their home above the flood plain have chosen to fill around the foundation rather than leaving the foundation exposed.   Under one of ODNR's interpretations, this means the State owns a lot of homes in the Western Basin because the land they sit on has been "filled."   Why didn't Mr. Mackey address "fill" in his delineation of the Public Trust pertaining to our property? Using ODNR's interpretation of "fill" (remember the courts decision in the Beachcliff Association lawsuit) and their interpretation of "submerged lands," wouldn't this lead you to believe that all our property is within the Public Trust?

ODNR's interpretation of the Public Trust and their actions have put our property and deed in a state of limbo.   What do you think our property is worth right now?   Would anyone in his or her right mind buy our property?  

Recall that our deck, screened porch and a portion of our home on parcel "E", all of parcels "B" and "F" and portions of "A," "C" and "D" are in the Public Trust.   All our land at some time has been "filled." ODNR has declared "filled" land belongs to the State. Can we legally sell any of our property, would this be consider fraud? And, if the State owned it, how were we able to buy it? Did the realtor misrepresent the property? Did the title company transfer land illegally?

For these reasons, as well as many, many others not mentioned here, I ask you to pass Amended Substitute House Bill 218 out of this Committee as soon as possible.   Please urge your colleagues in the full Senate to pass it as well.

This absurdity must stop.   And you have the power to stop it.   Please use that power. Vote for Amended Substitute House Bill 218. Thank you.

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Testimony of Raymond Ginter

Good morning .

My name is Raymond Ginter.   My wife and I have residential lakefront property in Vermilion.  

I appear before you today in support of Amended Substitute H.B. 218.   As a lifelong Democrat, a member of CWA Local 4309, and a union steward, I want you to understand that I am losing a day's pay to appear before you to testify.

Chairman Spada and members of the Committee, I urge you to support this legislation.   This legislation is needed to eliminate the absurd and intolerable burden imposed by the Coastal Management Office of the Ohio Department of Natural Resources (ODNR).

I have so many complaints about the ODNR that it's hard to know where to start.   Frankly, I cannot believe what has happened to me could occur in the United States.  

It all started in late 1999 when my wife and I decided to place two jetties, one at each end of our property.   I called the ODNR to obtain a permit.   I was told that they would not issue a permit for jetties, but would approve an armor stone revetment and breakwater.   I preferred to have jetties built as they were less expensive, but I couldn't build them without a permit.   I was told that to obtain a permit for my "armor stone revetment" - which is essentially a big pile of big rocks- it was highly recommended that I work with a contactor, a Professional Engineer, and a licensed surveyor.

So, I hired a Professional Engineer.   I paid him $ 3,600 to design my pile of rocks.   I filled out the lengthy application form, and mailed the applicable paperwork to the ODNR.   I also applied for the appropriate permits with the Ohio EPA, U.S. Fish & Wildlife Service, and the Army Corps of Engineers.

In less than 3 weeks, all agencies replied to my request, except the ODNR.   In fact, I received "conditional" approval of the permit in a timely manner from all of the agencies, except the ODNR.   By conditional approval, I mean that the other agencies would issue a permit if the ODNR would issue their permit.

I was finally contacted by Bridget Stefan of the ODNR.   I was hopeful that she would help move the process along.   Instead just the opposite occurred.   I was told that there were problems with the permit application and I had to go back to the Professional Engineer to re-design my pile of rocks.

For over a year, I called her regularly asking about the status of my permit.   Her response was essentially the same:   "it's a very complicated process...we're working on it..."  

Months later, I finally received a formal notice that there were problems with my permit application.   Apparently there were "nearly extinct" minnows just off my property.   I immediately called Bridget to discuss these nearly extinct minnows.   We spoke for over two hours, and she stated she would look into it.

My wife however, took a more proactive approach.   My wife started calling all the names on the "minnow report", and eventually found the person who had performed the marine survey .   He was kind enough to come out to my property to assess the situation.  

He laughed and stated the notice I received was completely wrong.   The minnows were to the east and over a mile away.   He stated that the structure I was proposing to build would not in any way affect these minnows.   He further stated that the revetment I was proposing to build would slow down the water flow and be a great place for fish to spawn!   He agreed to contact the appropriate people at the ODNR and believed this would solve the problem with my permit.

But, I did not hear from the ODNR for months.   I called the ODNR at least fifteen more times, including calls to John Watkins, who is a field representative of the ODNR.   Again, nothing.

Then, out of the blue, Mr. Watkins called and stated that they had "found" my permit application in a file with several other applications.   Were they lost?   I don't know, as it was never explained to me.

Mr. Watkins came out to my property and spent over 6 hours there.   He checked the property, and explained how ODNR's permitting process worked.    He said that the proposed design was great, and that there should not be a problem with obtaining the permit - with just one minor change.   This one minor change required that I again contact the Professional Engineer and the surveyor, at my expense of course.  

By then, I had paid the Professional Engineer and the surveyor $ 5,400 for my pile of rocks:   $ 3,600 for the original design, and another $ 1,800 for the two re-designs.

I again re-submitted the design to the ODNR, and again waited, and waited.  

Then I received a letter from the ODNR advising me that the time limit for my permit application had expired and the permit application had been cancelled.   So even though the ODNR had essentially lost my permit, and even required two re-designs, my permit application had expired.

I had to start the whole process over again.

I finally did receive a permit in August 2002.   However, with the permit came a submerged land lease.   Ironically, I had to sign and return the lease within 30 days or my permit would be cancelled.   So I had 30 days to comply, even though the ODNR had over three years to process my permit application.

Obviously I returned the signed lease within 30 days, and on October 3, 2002 I received an executed copy of the lease.   I found it ludicrous that the lease was signed not only by Samuel Speck, the ODNR's Director, but Governor Taft as well.

Even though I absolutely disagree with the entire premise of the lease, after all I had been through, I believed I had no choice other than to sign the lease in order to obtain the permit .   I cannot believe that the ODNR is requiring me to lease land that I paid for.   Land that I pay taxes on.  

Because the ODNR's process took so long, I don't know if I have to start over with the other state and federal agencies.

Note that the lease requires that I "carry and maintain a policy of Comprehensive General Liability insurance with the broad form of endorsement ..."   I have contacted over a dozen insurance carriers seeking quotes for the required coverage.   Not only could I not receive a quote, I can't even find a carrier willing to issue a policy consistent with the requirements of the lease.  

I contacted Accordia, a company that deals with several insurance carriers, hoping that they could find a carrier.   Attachment A is their response to me.   The letter states that they "submitted the paperwork to the insurance carriers that expressed interest.   After reading the wording in the [lease], they have decided that they were not interested in getting involved."  

I even contacted the ODNR asking them for a reference.   They could not suggest a carrier.   Thus, even though I have made extraordinary strides to obtain the required insurance, I cannot find a carrier willing to accept the risk.  

As I stated earlier, the Engineering and survey work is required by the ODNR.   I spent $ 5,400 to have the Professional Engineer and the Surveyor design, re-design, and lay out my revetment.   In other words, because of the ODNR, I paid thousands of dollars to an Engineer to design a pile of rocks, and to a surveyor to tell me where to put the rocks.   This doesn't include the cost of the numerous long distance calls to the ODNR, my personal time, nor my lost wages from work (for when the ODNR came to my property).

What a waste of time and money.

The irony is that I have spent so much money on the Engineer and the Surveyor that I have less money to spend on the revetment!   On top of that, since I haven't found an insurance company willing to issue a policy as required by the lease, I haven't been able to start work on the structure yet.   According to the Lease, if I don't get the insurance, the lease will be terminated under the "default" provision.

Given my experience with the ODNR for over three years, I urge you to do several things:

•  Immediately eliminate the ODNR's permitting program

•  it is a farce, and even if ODNR personnel were competent to manage such a program, the program is redundant with the Army Corps of Engineers' permitting process;

•  they force you to hire a Professional Engineer registered by the State of Ohio, and then they do not accept the professionally engineered design.

•  Immediately eliminate the ODNR's land lease program

•  it is ridiculous to require a residential property owner to lease land that they paid for without compensation and still require that they pay taxes on it.

•  Revoke all existing residential land leases

•  there is absolutely no reason for a land lease on structures above low water mark;

•  there is absolutely no reason for a land lease on structures approved by the Army Corps for reasonable access to the water.

Thus, I urge you to not only vote Amended Substitute HB 218 unanimously from this Committee, but also support its passage in the full Senate.  

Thank you, and I would be happy to try to answer any questions you might have.

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Page updated 2/18/04; Randy Pindor

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