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OLG Files for Summary Judgement with Court

August 5, 2015

This brief basically states that all the facts are now known and undisputed. Everything that ODNR has done to take private property is a matter of public record and no further proceedings by the Court should be necessary.
The brief asks that damages be awarded to all Lakeshore property owners without further litigation.

The conclusion of the brief states:
Since the creation of its coastal management program, ODNR has taken measures that directly interfere with Class Plaintiffs’ property rights. By giving the public an unfettered and unqualified right to enter onto portions of privately owned property located lakeward of the OHWM and thereby destroying Class Plaintiffs’ right to exclusive use of that property, which was established by Sloan more than 130 years ago, ODNR engaged in what the United States Supreme Court and courts around the country have recognized as a permanent physical occupation requiring compensation.
ODNR has deprived Class Plaintiffs of their right to exclude others from their private property, a right that the United States and Ohio Supreme Courts have recognized as one of the most important rights associated with property ownership, and one with which a governmental entity may not interfere without providing compensation.
This Court should accordingly continue the long tradition of Ohio courts in protecting private property rights, and find that ODNR’s conduct constitutes a taking that gives ODNR a clear legal duty to commence appropriations proceedings, and vests in the Class Plaintiffs a corresponding legal right to have such proceedings commenced. The Class Plaintiffs have no adequate remedy at law for ODNR’s taking of their property, and therefore a writ of mandamus compelling the State to determine the amount of compensation owed is warranted.
For all of these reasons, the Court should grant Class Plaintiffs’ Motion for Summary Judgment on Count II of the First Amended Complaint, and issue a writ of mandamus compelling the State to commence appropriations proceedings to determine the amount of compensation owed to each of the Class Plaintiffs for the State’s taking of their private property rights.
Read the entire brief by clicking this link: OLG Motion for Summary Judgment on Count II 7-29-15.
The State will likely file a brief in opposition. It has until September 14 to file.

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Ohio Supreme Court Refuses to Take Appeal by ODNR

September 3, 2014 – The Ohio Supreme Court ruled last Thursday: “Upon consideration of the jurisdictional memoranda filed in this case, the court declines to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R.  7.08(B)(4). ”

We learned that the Ohio Supreme Court decided to NOT accept the ODNR’s appeal.  The vote was 5-2.  The opinion was written by Chief Justice Maureen O’ Connor, with affirmation by Justice Paul Pfeifer, Justice Judith Lanzinger, Justice Terrance O’Donnell, and Justice William O’Neill.

The two judges who dissented with the majority were Justices Kennedy and French.

Our opponents have 10 days to seek reconsideration, and if they do, we have 20 days to respond.  On a Motion for Reconsideration we would not expect a decision for approximately 2 -3 more months.

In any case we will still end up back in Judge Lucci’s Court again later this year.

Read the actual (very short) decision, click here.

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ODNR Fights Property Owners’ Rights In Spite of Six Consecutive Court Decisions

PRESS RELEASE IMAGEMay 19, 2014 – Ohio Lakefront Group Calls ODNR Action “Arrogant and Illegal”

(Columbus, May 19, 2014)  Despite having lost six consecutive times in court, the Ohio Department of Natural Resources (ODNR) filed an appeal against lakefront property owners in the Ohio Supreme Court late last week, the latest round in a ten year fight in which ODNR has forced lakefront landowners to pay rent for their own property and challenged their legal titles.

ODNR is appealing Ohio’s Eleventh District Court of Appeals’ March 31, 2014 opinion supporting class certification so that Lake Erie property owners can obtain compensation for ODNR’s unconstitutional actions. The Ohio Lakefront Group, a group of 8,000 northern Ohio property owners, is leading this fight to protect their private property right extending to the “natural shoreline” of Lake Erie.

The March 31 Court of Appeals opinion was the sixth consecutive courtroom victory for the group against the ODNR, which includes two court of appeals victories and one unanimous Ohio Supreme Court victory.  The 2011 Supreme Court decision held 7-0 that “the public trust does not extend landward beyond the natural shoreline,” explicitly rejecting ODNR policies that had forced owners to pay rent on their own property up to the “high water mark” and triggered thousands of title challenges.

“This unbroken string of court decisions clearly shows that the rights of Ohioans who live on or own property adjacent to lakes, ponds, rivers, creeks or canal traces cannot be unilaterally repealed or changed by state bureaucrats,” said Ohio Lakefront Group President Tony Yankel of Bay Village.  “These rights had been secure for more than 200 years until ODNR ‘s arrogant and illegal taking of private property.

“ODNR’s appeal continues to drag out the implementation of the Supreme Court’s decision,” Yankel continued, “and, if successful, would hamstring private citizens’ ability to protect their rights in court.

“In fact, ODNR is now using stalling tactics similar to a property rights case near Grand Lake St Mary’s in which ODNR was found to be in contempt of a Supreme Court Order.

“Similar to the Grand Lake St Mary’s case, ODNR’s filing indicates that it retained special counsel to represent them.  It’s unknown what caused ODNR and Attorney General Mike DeWine to part ways, but it won’t affect the outcome, just waste more taxpayer money in legal fees.

“On behalf of thousands of Ohioans who own property adjacent to lakes, ponds, rivers, creeks or canal traces, we ask ODNR to respect the property rights of all Ohioans and immediately heed our courts’ repeated decisions affirming those rights,” Yankel concluded.

Ohio Lakefront Group has thirty days to respond to ODNR’s appeal, and then the Supreme Court will determine whether it wants to consider the merits of the appeal.  If the Supreme Court does not accept the appeal, the case will be sent to Lake County Common Pleas Court Judge Eugene Lucci to continue the next phase of the case.  If the Supreme Court accepts the appeal, briefing and oral arguments will likely take place this year and next.

Amicus briefs supporting the Ohio Lakefront Group filed in previous cases included filings from:
·         The Ohio Farm Bureau
·         NFIB (National Federation of Independent Business Small Business)
·         Cleveland Fraternal Order of Police (FOP) Lodge 8
·         Cleveland Police Patrolmen’s Assn.
·         The Ohio Association of REALTORS
·         Save Our Shoreline
·         Brookwood-Cresthaven Beach Club, Inc.
·         The Linwood Park Company
·         Willo-Beach Park Association, Inc.

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State of Ohio Files New Appeal to the Ohio Supreme Court

11th Court of AppealsWhile not unexpected, the AG has filed an Appeal to Ohio Supreme Court.

  • Appellants’ Proposition Of Law No. 1: A trial court must undertake a separate rigorous analysis with respect to each claim for which class certification is sought in determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.
    Appellants’ Proposition Of Law No 2: A claim seeking a writ of mandamus to compel appropriation proceedings for an involuntary taking of private property cannot be maintained as a class action under Civ.R. 23(B)(2).

In essence, they continue to waste our taxpayer dollars fighting after 6 consecutive losses in the Courts.


To read the Appeal filing click ODNR Appeal to Ohio Supreme Court

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