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September 2009 article regarding possible new lawsuit: Most of you remember the painful process we went though over the last six years when three property owners along East Bay View Drive sued us to take community property between their platted lots and the water by adverse possession. They ultimately won that lawsuit and were granted title to the community property down to the high water line. For those who weren't around then, the beach strip is a narrow piece of land that connects the community beach at the end of Hillsmere Drive with the sand spit where the marina is located. For more information and documents related the original lawsuit, click here. While the cost in terms of community strife was high, the total financial cost was only about $39 per tax paying property. The HSIA board felt strongly that we had a responsibility to do everything we could to protect our community property from being taken. A few months ago, we received a letter from the lawyer who represented the plaintiffs in that lawsuit. He now represents nine of the other property owners along the beach strip. The letter offered to buy the community property between their platted lots and the water, including riparian rights, for a total of $130,000, an amount that several board members felt was very inadequate considering the value they would receive. The letter made if clear that the offer and its terms were non‑negotiable and that if we didn't sell them the land there would be another lawsuit for adverse possession. After much deliberation and discussion with our attorneys, the HSIA board decided to accept their offer, but not all their terms. We felt that since we had already lost part of the beach strip, there was no point in fighting to retain land that we couldn't even easily get access to. However, there is a lot more to the story and, because of an amazing discovery, previously reported in the Sea Breeze, we may be able to get what we had been fighting for all along, the ability for all of our residents to walk along the water from the community beach to the marina. During the previous lawsuit, all parties were apparently operating under the normal assumption that the mean high water line is where private property begins. Everything on the water side belongs to the state. During the previous lawsuit, the plaintiffs specifically stated that the suit wasn't about water or riparian rights. It was about getting title to the dry land down to the mean high water line. About 18 months ago, while responding to a claim of ownership of community property from another beach strip property, we hired a riparian rights expert, Charles Shaller, to represent us. He told us something very interesting. Apparently, the law about the mean high water line doesn't always apply. That law was passed in 1864. In the 1700's, Lord Baltimore made land grants (also know as Land Patents) to certain wealthy families. If our community was part of such a Land Patent then we would own the land under the water to where the land existed at the time of the patent, not the present shoreline. We had a title search done to trace the property in question's title all the way back to that time period. We were excited to learn that Hillsmere was part of a Land Patent granted to Henry Hill on June 30th, 1736. This predates the Declaration of Independence by 40 years! The land patent was known as "Hill's Delight". It covered the area from the head of Smith's Creek to the head of Harness Creek. That includes all of Hillsmere south of Hillsmere Drive and Duvall Lane as well as most of Quiet Waters Park. According to preliminary calculations, we own approximately 50 to 60 feet of land under the water behind East Bay View Drive. Copies of the 1736 document and a map showing the Land Patent can be viewed on our web site. This really changes the situation on the beach strip. We believe that we did not give up the riparian rights for the original three plaintiff's properties because of the Land Patent and the legal documents they filed. Since we own the land under the water, we would still have the ability, at some future date, to restore the beach so that residents could walk along the sand from the current community beach to the marina/sand spit. When this whole beach strip issue surfaced, most people said that the state would never allow us to restore the beach. Since then, things have changed. When we were investigating building a "living shoreline" at the current community beach, DNR offered to completely finance the project at zero interest with a 20 year payback. They were very interested in seeing waterfront property get away from hard bulkheads and riprap. In October 2008, a new law went into effect that requires living shoreline be used for shoreline stabilization whenever possible. It is quite possible, in my opinion, that in the not too distant future the state, and other environmental entities, will either make large grants or outright pay for living shoreline restorations along important bay frontage like our beach strip. In other words, we shouldn't worry about the cost of such a project at this time because it may be financially very feasible in the future. The HSIA board has agreed to accept the offer of $130,000 to sell the nine lot owners the community land between the platted lots and the mean high water. HSIA would retain the riparian rights and ownership of any land currently under water. We think this is a very generous offer on our part. Since they could never adversely possess the land under the water, we would be giving them everything that they could hope to win in court. One condition of the sale would be that the existing pier that was illegally built on community property at 119 East Bay View (the pier that started this entire beach strip conflict) would have to be removed. Similar terms would be offered to the remaining five property owners that are not represented in this current offer. As our bylaws require, any agreement to sell community property would be contingent on approval by the general membership. The entire community would be informed of the details of any agreement well in advance of the general meeting where the vote would be taken. We will be considering a motion at the next HSIA Board meeting to formalize a goal of restoring the community beach along the beach strip at some time in the future and, through the use of our covenants and the Land Patent rights, restrict any construction or claims that would interfere with the eventual beach restoration. I believe that this formal plan has strong support from most of the HSIA board members. Restoring the beach along with selling the land above the mean high water line would be a win‑win resolution of this long standing problem. The East Bay View Drive property owners would gain the land between their platted lot and the water which is very valuable to them but not so useful to the community since the previous lawsuit resulted in parts of the land being taken away. The community would retain the right to restore the beach at some time in the future, if it so desired. This would stabilize the shoreline, protect the existing bulkheads, and reclaim something of real value and beauty for all of its residents. We hope that the final resolution of this issue will mean that the community, as a whole, can focus on community improvements and beautification instead of litigation and dispute. I am very hopeful that the property owners along the beach strip will see the wisdom of this approach and put an end to this difficult time for our community. Letter Received by HSIA |
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