Legal

I have posted this submission under legal because Judge Moon (retired) has proffered his summation on the true title of Water Works Park.

Thank you Judge Moon.

 
     ORAL STATEMENT TO CITY COUNCIL

PAUL C. MOON  –  November 12, 2013

Mr. Mayor, Madam President and Honorable Members of City Council:

Good Evening!  My name is Paul Moon – some of you may remember me.  In the past I served on City Council and also as President of Council, and I was a Judge in Ottawa County for 30 years.   I am sure you all know that a Judge may not speak out on political issues or issues of the day which are of great public interest.  Accordingly I want you to know that I have resigned as a judge in the several counties in Ohio where I have been a visiting judge since my retirement here in 2009.  Also I have directed the Supreme Court of Ohio to place my license to practise law on inactive status so you won’t have to speculate about who I represent here tonight.  I represent myself only and I speak only on my own behalf.   My opinions are mine alone.  Some of you won’t agree, but so be it!

I ask for 10 minutes to make my statement.

I’ve written down what I want to say – I hope you will forgive me for reading to you, but I am afraid if I get “off script” I’ll lose it.

I have a very deep interest in what happens to Port Clinton generally and what happens to the waterfront specifically.  As well I might – my family has lived in what is now Ottawa County since 1809 and I have lived all my 76 years here in Port Clinton except the time I spent in military service.  I care a lot about this place and I am afraid that if you proceed to sell or lease public lands for private purposes you will be making a very big mistake.   First of all, it’s a bad idea, secondly I don’t think you can do it legally and thirdly, if you could do it, you shouldn’t do it.

Let me explain.

The founder of Port Clinton, Ezekiel Smith Haines, filed his town plat in 1828 and provided that (I am quoting now) “the space embraced between Perry Street and the lake and extending from Jefferson Street to Washington Street, is to remain open forever …”  At the time Haines made this declaration he was not only the Father of Port Clinton but had also been Surveyor General of the entire Northwest Territory (Ohio, Michigan, Wisconsin, Indiana and Illinois), so we have to assume that he knew what he was talking about!  The fact that the land between Jefferson and Washington north of Perry was added to over time does not change matters.  The plat restrictions apply to all that land.  Title to the land was reserved by Haines to himself.

There are two court cases which deal with this land.

In the Hitchcock case of 1910 the Court of Appeals ruled the parties could not stop the building of an addition to the water works because they did not object the original water works 16 years earlier. The Court also ruled that the Plaintiffs are not prohibited from filing to restrain the erection of further permanent buildings which interfere with said open space not connected to the operation of the water works.  Clearly the court permitted the building of the waterworks and its extension because it was for a valid municipal purpose.  Selling or leasing the land to a private party is not a valid municipal purpose, and in any event the open forever language still applies and would apply to any eventual buyer or lessee.

The second is the Danny Schnitzler case from 1985.  Much is made of the Schnitzler case but its ruling was very limited. Schnitzler stands for the very limited proposition that those owners abutting and south of Perry Street between Jefferson and Washington have no rights in the land north of Perry Street greater than those of all the residents of the City.  The issue of whether buildings could be erected in that area was simply not before the court, therefore the language about buildings and public hearings and ownership means nothing.  The Court spoke beyond the authority it had to decide the very limited issue of wharfage and the added language has no force and effect.  And since it was a settlement, not a decision based on facts or findings, it binds only the parties to the case.

No zoning or re-zoning can override the town-plat provisions. And you might wish to know that the present owner of the land is not the City of Port Clinton but rather the heirs of Ezekiel Smith Haines. I am sure this is not a surprise to at least some of you, but if you don’t own it, you can’t sell it!   If you don’t own it, you can’t lease it!

Ladies and Gentlemen, the lake and the waterfront are our inheritance as residents of Port Clinton, a gift from God and Ezekiel Smith Haines if you will!  That land is what distinguishes us from a cornfield cross roads town in Butler or VanWert Counties, or from a little town hanging on the side of a mountain in Appalachia.  The lakefront should not be viewed as a seaside albatross just to be gotten rid of!

A long time ago President Lincoln said regarding a much more serious issue, “first we must disenthrall ourselves and then we will save our country.”  Today we would say “Think outside the box.” I urge you to disenthrall yourselves, get outside the eye of the hurricane and look back objectively on what you have here.  Does than mean we should do nothing to the area – certainly not, but be thoughtful and imaginative.  Port Clinton deserves better than a cookie cutter condo quick fix.

Imagine if you will a spectacular mile long sand beach anchored by Waterworks Park at one end and Lakeview Park on the other.  And imagine that it is all cleaned up!  With appropriate amenities, thoughtful landscaping, parking and factor in what the Corps of Engineers is doing to the wetlands, you will attract thousands of users.  Port Clinton will be the envy of every other city in the Mid-west.  Listen to what the Editorial Board of The Cleveland Plain Dealer said just October 25th about beaches:  Beaches are a public good and can be a benefit for everyone.  The Beaches are a source of enjoyment for out-of-town visitors and for those from the local area looking for relaxation.  For others who do not visit the beaches revitalized beaches can bring an increase in tourism, which brings jobs, revenue and business that can help a wavering city.

I urge you to take a look at what other communities have done.  I would suggest just four for your consideration.  Take a look at Vermillion, Ohio and Tecumseh, Michigan, for what a community can do for itself by itself in terms of beautification and cooperation.  For parks, visit New Philadelphia, Ohio, and take a look at what Bay Village has done with its Huntington Beach Park.

Take your time. Time is on your side, please use it wisely!

In closing, this whole conversation regarding Waterworks Park can be summed up in the words of a 1970 song by Canadian songstress Joni Mitchell called Big Yellow Taxi.  In it she laments: They paved over paradise and put up a parking lot, with a pink hotel, a boutique and a swinging hot night spot.  Don’t it always seem to go, that you don’t know what you’ve got Till it’s gone?

Mr. Mayor, with all due respect, if this is your vision for The City of Port Clinton we are all the poorer for it.  But I’m an optimist.  I feel confident that the members of this council or the next council with genuine courage and good sense will not let this happen to Port Clinton.

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June 24, 2014 – Citizens Organized for Responsible Development
(C.O.R.D.) has obtained more then the required number of
signatures for an Initiative Ordinance to be put on November’s ballot.

 INITIATIVE ORDINANCE

AN ORDINANCE REQUIRING AN AFFIRMATIVE VOTE OF THE CITY ELECTORATE AT A GENERAL ELECTION TO SELL, LEASE OR OTHERWISE TRANSFER OWNERSHIP OF CITY PARK LANDS.

 WHEREAS, City parks are valuable to all City residents regardless of their station in life, and;

 WHEREAS, City parks indicate to visitors that the community highly values the wellbeing of its residents, and;

 WHEREAS, Ownership and control of City parks are too important for the electors to be denied the opportunity to vote on such matters.

 NOW, THEREFORE, BE IT ORDAINED by the Electors of the City of Port Clinton, Ohio, acting herein by initiative petition:

SECTION 1    That the City shall not sell, lease, or otherwise transfer ownership of, or any interest therein, without the approval by a majority vote of the electors of the City voting on the question at a general election, any of the following: (1) a City park or any part thereof, (2) land in the City acquired for park purposes or any part thereof, (3) land in the City previously designated by the City as a park (whether or not currently designated or used as a park) or any part thereof.

SECTION 2    That this ordinance shall take effect and be in force from and after the earliest date allowed by law.

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What is TITLE? definition of TITLE (Black’s Law Dictionary)

In real property law. Title is the means whereby the owner of lands has the just possession of his property. Co. Litt 345; 2 Bl. Comm. 195. Title is the mean whereby a person’s right to property is established. Code Ga. 1S82.

 

Deed transferring title from Howard Horton to Ezekiel Smith Haines

Deed transferring title from Howard Horton to Ezekiel Smith Haines

 

.... and his heirs ...

…. and his heirs …