[Cite as Hawkins v. Ohio Dept. Natural Resources, 2023-Ohio-3493.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Judson J. Hawkins et al., :

Appellants-Appellants, : No. 22AP-689

 (C.P.C. No. 20CV-3321)

v. :

(REGULAR CALENDAR) 

Ohio Department of Natural Resources, :

Appellee-Appellee. :

D E C I S I O N

Rendered on September 28, 2023 

On brief: Judson J. Hawkins, pro se. Argued: Judson J. 

Hawkins.

On brief: Dave Yost, Attorney General, Brian A. Ball, and 

Gene Park, for appellee. Argued: Brian A. Ball.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Appellants, Judson J. Hawkins and Mary M. Hawkins (“the Hawkinses”),

appeal from a judgment of the Franklin County Court of Common Pleas affirming an 

adjudication order issued by the director of appellee, the Ohio Department of Natural 

Resources (“ODNR”), concluding that a portion of the Hawkinses’ real property is located 

within a Lake Erie Coastal Erosion Area (“Lake Erie CEA”). For the reasons that follow, we 

affirm.

I. Facts and Procedural History

{¶ 2} In January 2018, ODNR notified the Hawkinses it had preliminarily 

identified their property in Eastlake, Ohio, as being within a Lake Erie CEA. The Hawkinses

filed a written objection with ODNR, asserting their property had not lost any ground to 

erosion despite a rise in the water level of Lake Erie since 1998. ODNR Geology Program 
No. 22AP-689 2

Supervisor Mark Oxner-Jones visited the Hawkinses’ property on June 7, 2018. Following 

that visit, ODNR sent the Hawkinses a letter confirming that a portion of their property was 

in a Lake Erie CEA.

{¶ 3} The Hawkinses filed an administrative appeal and requested a hearing, which 

was held on August 12, 2019.

1

 Mary testified that Judson had purchased the property in 

October 1990 and that the couple had made extensive alterations to the existing twobedroom cottage on the property that were completed in March 1993. During the 

construction, the Hawkinses installed vertical and horizontal drainage pipes to reduce 

erosion caused by the flow of surface water. As of March 1993, the portion of the property 

adjacent to Lake Erie consisted of “a horizontal surface of approximately 150 feet from the 

house and then there was a rather abrupt bluff leading to about a 40 or 50-foot beach before 

you entered the water.” (Aug. 12, 2019 Tr. at 17.) In autumn 1998, the Hawkinses had a 

portion of their yard and bluff excavated and graded to improve lake access, resulting in a 

“walkable slope” at a “1 to 8 ratio.”2 (Aug. 12, 2019 Tr. at 17-18.) As part of that 

modification, approximately 480 tons of “anchor stone” was placed at the bottom of the 

slope to maintain the correct ratio. (Aug. 12, 2019 Tr. at 24.) Additional anchor stone was 

installed on three occasions beginning around 2010. Eventually, the Hawkinses had 11 

large concrete blocks weighing approximately 38,000 pounds each installed to secure the 

anchor stone and prevent it from being pulled into Lake Erie. The area bounded by the 

large concrete blocks extended onto the neighboring property to the west, with permission 

from the Hawkinses’ neighbor. Mary testified she walked the property and observed the 

bluff line “[a]lmost daily” and had not seen any erosion, but she acknowledged that ODNR 

claimed there had been 1 foot of erosion between 2005 and 2014. (Aug. 12, 2019 Tr. at 43.) 

She further testified that the owners of the two neighboring properties to the west had done 

nothing to protect their property from erosion during the 24 years the Hawkinses lived at 

the property.

1 Prior to filing their administrative appeal, the Hawkinses filed a premature appeal in the Franklin County 

Court of Common Pleas that was ultimately dismissed for failure to exhaust administrative remedies. 

Hawkins v. Ohio Dept. of Natural Resources, Franklin C.P. No. 19CV-455 (May 6, 2019) (dismissal order). 

2 Although her testimony was not entirely clear, it appears Mary was referring to a ratio of 1 foot in elevation 

decline for every 8 feet of horizontal run.
No. 22AP-689 3

{¶ 4} Oxner-Jones testified that for the 2018 Lake Erie CEA designation, ODNR 

identified areas anticipated to have 14 or more feet of shoreline recession during the next 

30 years. In accordance with a procedure set forth in the Ohio Administrative Code, 

shoreline recession at the Hawkinses’ property was measured along a transect, identified 

as transect number 360-13, located at approximately the midpoint of the property. The 

landform chosen for measurement along transect 360-13 was the crest of the bluff on the 

Hawkinses’ property. During ODNR’s original calculations, the Hawkinses’ property was 

measured to have had 2.5 feet of shoreline recession between 2004 and 2015. After visiting 

the Hawkinses’ property, Oxner-Jones made a small adjustment to the mapping, resulting 

in a measurement of 1.1 feet of shoreline recession on the Hawkinses’ property. This 

constituted approximately 1/10 of a foot of shoreline recession per year from 2004 to 2015. 

Over the same period, the neighboring properties to the east had no shoreline recession, 

while the neighboring property immediately to the west had approximately 34.9 feet of 

shoreline recession and the next western property had 16.1 feet of shoreline recession. 

Applying a center-weighted moving average calculation to determine anticipated shoreline 

recession, ODNR estimated the transect on the Hawkinses’ property would have 26.5 feet 

of recession over the next 30 years.

3 Oxner-Jones explained that under this centerweighted moving average calculation, the Hawkinses’ property was “included in the coastal 

erosion area because a certain amount of recission * * * ha[d] been measured to the west”

of their property.4 (Aug. 12, 2019 Tr. at 194.) 

{¶ 5} John Matricardi, a civil engineer hired by the Hawkinses, testified that in his 

opinion the anchor stone and concrete blocks placed on the Hawkinses’ property were

adequate to last 30 years and would prevent the Hawkinses’ shoreline from receding more 

3 ODNR’s “Final 2018 CEA Map Data Sheet,” which was introduced as an exhibit at the hearing, included the 

following values for the transect located on the Hawkinses’ property (360-13) and the two neighboring 

transects on either side:

Transect number Measured recession distance Recession rate Anticipated recession distance

360-11 0.0 0.0 1.3

360-12 0.0 0.0 8.0

360-13 1.1 0.1 26.5

360-14 34.9 3.2 52.0

360-15 16.1 1.5 53.1

4 Oxner-Jones testified the Hawkinses’ property had been identified as being within a Lake Erie CEA during 

the prior round of mapping conducted in 2010. Mary testified she was unaware of any prior Lake Erie CEA 

designation.
No. 22AP-689 4

than 14 feet over the next 30 years. Matricardi conceded ODNR correctly applied the 

procedure set forth in the Ohio Administrative Code for making the Lake Erie CEA 

determinations, but argued an exception should have applied t0 the Hawkinses’ property 

because the measures they took extended beyond their property boundary. Matricardi also 

conceded the possibility of flanking erosion on the western side of the Hawkinses’ property, 

but asserted it would not cause more than 14 feet of shoreline recession.

{¶ 6} The hearing officer issued a report and recommendation finding, based on 

the evidence presented at the hearing, that the northern 20 to 25 percent of the Hawkinses’ 

property, which did not include their house, had been identified as being within a Lake Erie 

CEA. The report further found that although only 1.1 feet of shoreline recession had 

occurred on the Hawkinses’ property between 2004 and 2015, the property immediately to 

the west had experienced 34.9 feet of recession and the next westernmost property had 

experienced 16.1 feet of recession over the same time span. The hearing officer found there 

was evidence that the erosion at the western neighboring properties was likely to continue

and potentially flank the Hawkinses anchor stone and concrete blocks, causing shoreline 

recession on the Hawkinses’ property. Because of the recession on the western neighboring 

properties, under the center-weighted moving average calculation applied by ODNR, 26.5

feet of future recession was predicted for the transect on the Hawkinses’ property. The 

hearing officer concluded that the governing statutes and rules did not provide for 

individual exceptions from a Lake Erie CEA designation. The hearing officer further 

concluded that the Hawkinses failed to establish by the preponderance of the evidence that 

ODNR erred in applying the statutes or rules and finding a portion of their property to be 

within a Lake Erie CEA. The hearing officer recommended that the director affirm ODNR’s 

action to include the northern portion of the Hawkinses’ property in the final identification 

of the Lake Erie CEA.

{¶ 7} The Hawkinses filed a written objection to the hearing officer’s report and 

recommendation, incorporating by reference the arguments asserted in their trial brief and 

closing argument. On May 14, 2020, the director of ODNR issued an adjudication order 

approving and confirming the hearing officer’s report and recommendation, with minor 

spelling, typographical, and grammatical corrections.
No. 22AP-689 5

{¶ 8} The Hawkinses appealed the director’s order to the Franklin County Court of 

Common Pleas, asserting error in four of the hearing officer’s conclusions of law. The court 

conducted a hearing on the appeal on October 9, 2020. The common pleas court issued a 

decision and final judgment on October 18, 2022 affirming the director’s order. The court 

found there was reliable, probative, and substantial evidence to support ODNR’s 

determination that a portion of the Hawkinses’ property was within a Lake Erie CEA. The 

court further found ODNR correctly and accurately followed the statutory and regulatory 

procedure when making that determination and rejected the Hawkinses’ claim that the 

order violated their constitutional rights.

II. Assignments of Error

{¶ 9} The Hawkinses appeal and assign the following four assignments of error for 

our review:

[I.] The term “due deference” means deference when 

appropriate. A decision by an executive agency is not entitled 

to “due deference” when it is unsupported by the facts and the 

law, and a trial court in affirming such a decision errs 

prejudicially.

[II.] R.C. 1506.06(A) requires that successful efforts to prevent 

loss of property to erosion entitle an individual property owner 

to an exception from his property being included within a 

designated coastal erosion area.

[III.] An administrative agency’s rules must conform to the 

statutory mandates. It’s [sic] interpretation of its own rules is 

not entitled to deference by an appellate court when the rules 

violate statutory mandates, and the recognition by a litigant 

that the agency will follow its own rules is not a concession that 

those rules are applied in a lawful manner.

[IV.] An individual lake front property owner has a 

constitutionally guaranteed right to protect and maintain his 

shoreline including the right to recover land lost to avulsion in 

the absence of any hazard to the public trust.

III. Analysis

A. Standard of review

{¶ 10} A party adversely affected by the final identification of a Lake Erie CEA may 

appeal under R.C. Chapter 119. R.C. 1506.08. In an appeal under R.C. 119.12, the common 
No. 22AP-689 6

pleas court reviews the entire record to determine whether an agency’s order is supported 

by reliable, probative, and substantial evidence and is in accordance with law. Watkins v. 

Ohio Bd. of Edn., 10th Dist. No. 22AP-694, 2023-Ohio-2595, ¶ 16. Evidence is reliable 

when it can be confidently trusted and has a reasonable probability of being true, probative 

when it tends to prove the issue in question and is relevant to determining the issue, and 

substantial when it has importance and value. Our Place, Inc. v. Ohio Liquor Control 

Comm., 63 Ohio St.3d 570, 571 (1992). 

{¶ 11} On appeal to this court, we review for abuse of discretion a common pleas 

court’s determination that an agency’s order was supported by reliable, probative, and 

substantial evidence. Watkins at ¶ 17. An abuse of discretion occurs when a decision is 

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219 (1983). “However, ‘on the question of whether the agency’s order was in accordance 

with law, this court’s review is plenary.’ ” Watkins at ¶ 17, quoting Leslie v. Ohio Dept. of 

Dev., 171 Ohio App.3d 55, 2007-Ohio-1170, ¶ 44 (10th Dist.).

B. Whether ODNR complied with the statutory requirements in identifying 

Lake Erie CEAs

{¶ 12} The gravamen of the Hawkinses’ appeal is set forth in their second and third 

assignments of error, in which they claim ODNR failed to comply with R.C. 1506.06 in 

designating a portion of their property as a Lake Erie CEA. The Hawkinses argue there was 

no evidence their property would have more than 14 feet of actual shoreline recession over 

the next 30 years, and they were only included within a Lake Erie CEA because of the 

center-weighted moving average calculation used by ODNR to estimate anticipated 

shoreline recession. The Hawkinses argue ODNR failed to comply with R.C. 1506.06 

because its method of identifying Lake Erie CEAs did not account for the erosion-reducing 

effect of the anchor stone and concrete blocks placed on their property. 

1. Creation of the Lake Erie coastal management program and determination 

of Lake Erie CEAs

{¶ 13} The General Assembly created the Lake Erie coastal management program in 

1988, and subsequently amended the program in 1994 and 1996. Am.Sub.S.B. No. 70, 142 

Ohio Laws, Part I, 120; Am.Sub.S.B. No. 182, 145 Ohio Laws, Part I, 1868; Am.Sub.H.B. No. 

119, 146 Ohio Laws, Part I, 1971. Under the coastal management program, the director of 
No. 22AP-689 7

ODNR is required to identify Lake Erie CEAs, “which are the land areas anticipated to be 

lost by Lake Erie-related erosion within a thirty-year period if no additional approved 

erosion control measures are completed within that time.” R.C. 1506.06(A). 

{¶ 14} ODNR must first make a preliminary identification of Lake Erie CEAs, using

“the best available scientific records, data, and analyses of shoreline recession” and

“tak[ing] into account areas where substantial filling, protective measures, or naturally 

stable land has significantly reduced recession.” R.C. 1506.06(A). The preliminary 

identifications are then published, and each affected landowner is notified by certified mail. 

R.C. 1506.06(A). A landowner affected by a preliminary identification of a Lake Erie CEA 

may file a written objection with the director of ODNR that includes “verifiable evidence or 

documentation * * * that some portion of a Lake Erie coastal erosion area should not have 

been included in the areas defined by the preliminary identification.” R.C. 1506.06(A). The 

director of ODNR must review all written objections and may modify the preliminary 

identification; the director must then make a final identification of Lake Erie CEAs. R.C. 

1506.06(B) through (D). ODNR must review and may revise the identification of Lake Erie 

CEAs at least once every ten years, “taking into account any recent natural or artificially 

induced changes affecting anticipated recession.” R.C. 1506.06(E).

{¶ 15} The process ODNR uses for identifying Lake Erie CEAs is set forth in Ohio 

Adm.Code 1501-6-10 through 13. Using currently available imagery, ODNR creates base 

maps of the Lake Erie shoreline. Ohio Adm.Code 1501-6-11(A)(1).5 ODNR then compares 

the base maps to historical maps to determine the annual rate at which the shoreline has 

moved landward due to erosion, i.e., shoreline recession.

6 Shoreline recession is measured 

5 Ohio Adm.Code. 1501-6-11(A)(1) provides:

Base maps shall be constructed using the most currently available imagery. Types of basemap imagery may include, but are not limited to, aerial photographs, remote sensing 

imagery, digital data, or some combination thereof. Criteria used to select base-map imagery 

shall include, but are not limited to, complete synoptic coverage of the Ohio shore where the 

shore is centrally located on the images, adequate geographic reference points, and resolution 

that is adequate to map a base recession line and identify cultural and physiographic features 

on the imagery.

6 The historical imagery used to determine recession may be selected from 10 to 30 years prior to the year of 

the base map. Ohio Adm.Code 1501-6-11(A)(4). “For each transect, the annual recession rate in feet per year 

shall be calculated by dividing the measured recession distance by the time period in years between the 

recession lines.” Ohio Adm.Code 1501-6-11(C).
No. 22AP-689 8

at uniformly spaced points along transects that are perpendicular to the base recession line. 

Ohio Adm.Code 1501-6-11(B).7 The annual shoreline recession rate is then used to calculate 

an anticipated recession distance over the next 30 years along each transect. For the 2018 

Lake Erie CEA identification, ODNR measured annual shoreline recession along 14,175 

transects spaced 100 feet apart.8 

{¶ 16} ODNR applies a “center-weighted moving average” calculation to determine 

the anticipated recession distance along each transect. Ohio Adm.Code 1501-6-12. In this 

calculation, the recession distance at the subject transect is averaged together with the 

recession distances at each of the two neighboring transects on either side. The recession 

distance at the subject transect is weighted by a factor of 5, the recession distances for the 

transects on either side of the subject transect are weighted by a factor of 3, and the 

recession distances for the next outer transects are weighted by a factor of 1. Ohio 

Adm.Code 1501-6-12. During the 2018 calculations, ODNR designated as Lake Erie CEAs 

those areas found to have an anticipated recession distance of 14 feet or more over the next 

30 years.

{¶ 17} A person who has received written notice that all or part of a parcel of real 

property is within a Lake Erie CEA may not sell or transfer their interest in that property

without disclosing that fact to a buyer. R.C. 1506.06(F). No permanent structure that lies 

or will lie, in whole or in part, on land within a Lake Erie CEA can be erected, constructed, 

or redeveloped without a permit issued by ODNR. R.C. 1506.07(B);9 Ohio Adm.Code 1501-

6-22(A).

7 Ohio Adm.Code 1501-6-11(B) provides:

Recession distances shall be measured at points uniformly spaced along the base recession 

line. The recession distance at each point shall be measured from the base recession line 

along a transect oriented at a right angle to the general trend of the base recession line * * *. 

Each transect shall be uniquely identified and the measured recession distance shall be 

recorded and used to calculate the annual recession rate.”

8 Oxner-Jones testified that the transects used when determining the recession rate were established in the 

early 1990s. 

9 R.C. 1506.07(B) provides:
No. 22AP-689 9

2. Identification of a Lake Erie CEA on the Hawkinses’ property

{¶ 18} Based on the ODNR maps and Oxner-Jones’s visit, the Hawkinses’ property 

was determined to have experienced 1.1 feet of shoreline recession between 2004 and 2015, 

an annual recession rate of 0.1 feet per year. The two transects immediately to the east of 

the Hawkinses’ property each had no shoreline recession, while the two transects 

immediately to the west had 34.9 feet (3.2 feet per year) and 16.1 feet (1.5 feet per year) of 

recession, respectively. Applying the center-weighted moving average calculation set forth 

in Ohio Adm.Code 1501-6-12, this resulted in an anticipated shoreline recession distance at 

the transect located on the Hawkinses’ property of 26.5 feet over the next 30 years. Because 

this exceeded the 14-foot recession threshold, ODNR designated a Lake Erie CEA on the 

northern portion of the Hawkinses’ property.

3. Whether ODNR’s determination of Lake Erie CEAs complies with the 

statutory requirements

{¶ 19} The Hawkinses argue that ODNR’s method of identifying Lake Erie CEAs, as 

applied to their property, fails to comply with the requirement under R.C. 1506.06(A) that 

No person shall erect, construct, or redevelop a permanent structure on land within a Lake 

Erie coastal erosion area without a permit issued in accordance with rules adopted under 

[R.C. 1506.07(A)]. The director shall grant a permit under those rules if the proposed site is 

protected by an effective erosion control measure approved by the director that will protect 

the permanent structure or if both of the following criteria are met:

(1) The structure will be movable or will be situated as far landward as applicable zoning 

resolutions or ordinances permit;

(2) The person seeking the authorization will suffer exceptional hardship if the authorization 

is not given.

The approval of an effective erosion control measure by the director for the purposes of this 

division does not create liability on the part of the director, the department of natural 

resources, or the state, municipal corporation, county, or township regarding the future 

protection of the site for which the measure was approved.

The director shall not require a permit for the erection, construction, or redevelopment of a 

permanent structure on any parcel of property within a Lake Erie coastal erosion area if that 

property is not adjacent to Lake Erie.

For purposes of R.C. Chapter 1506, “[p]ermanent structure” is defined as “any residential, commercial, 

industrial, institutional, or agricultural building, any mobile home as defined in [R.C. 4501.01(C)], any 

manufactured home as defined in [R.C. 3781.06(C)(4)], and any septic system that receives sewage from a 

single-family, two-family, or three-family dwelling, but does not include any recreational vehicle as defined in 

[R.C. 4501.01].” R.C. 1506.01(F). “Erosion control structure” is defined as “a structure that is designed solely 

and specifically to reduce or control erosion of the shore along or near Lake Erie, including, without limitation, 

revetments, seawalls, bulkheads, certain breakwaters, and similar structures.” R.C. 1506.01(L).
No. 22AP-689 10

ODNR “shall take into account areas where substantial filling, protective measures, or 

naturally stable land has significantly reduced recession.” The Hawkinses assert ODNR 

“never made any attempts, scientific or otherwise, to take into account the effect the stone 

placed by [the Hawkinses] would have on erosion as mandated by R.C. 1506.06(A).” 

(Appellants’ Brief at 35.) The Hawkinses further argue there was no evidence to establish 

their property would have more than 14 feet of shoreline recession over the ensuing 30-

year period.

{¶ 20} At the administrative hearing, Matricardi testified that ODNR’s method for 

determining Lake Erie CEAs did not account for the effect of the Hawkinses’ anchor stone 

and concrete blocks, which extended onto the adjacent property. Contrary to Matricardi’s 

testimony, however, Oxner-Jones explained that ODNR’s process accounted for the effect 

of protective measures such as those taken by the Hawkinses through the selection of the 

point used to measure the recession distance:

Q: [I]n your interpretation of the rules, do those rules take into 

consideration that mandate that’s in the statute?

A: I think we do.

Q: How do they do that?

A: They do that by how we pick the recession feature. That’s the 

feature along the transect that we use to monitor bluff retreat. 

If the history of erosion at that property is such that we see that 

that property is stable, we will pick a recession feature that 

reflects that.

In the case of the Hawkins property, we chose the same 

recession feature for all three rounds of maps. It was always the 

crest of the bluff. So by choosing that same recession feature 

each time, that was taking into account the observed stability 

at that property.

Q: And indirectly, whatever measures that were taken by the 

property owners to achieve that particular measurement point, 

is that what you’re saying?

A: Exactly. To the extent they put something in front of their 

property that increased its stability and that stability is 

reflected in the stability of the bluff crest and we picked that 

bluff crest, then in the process of picking that bluff crest, our 
No. 22AP-689 11

mapping is reflecting the effect of whatever measures they put 

in.

(Aug. 12, 2019 Tr. at 208-09.) This testimony, which the hearing officer found to be 

credible and relied on in his decision, establishes that ODNR’s method was designed to 

comply with the statutory requirement of accounting for protective measures taken to 

reduce shoreline recession. 

{¶ 21} The Hawkinses further argue that the common pleas court’s decision Turtle 

Bay Ltd. Partnership v. Ohio Dept. of Natural Resources, Franklin C.P. No. 00CVF06-

5493 (Apr. 11, 2001), establishes that a landowner is entitled to an individual exception 

from a Lake Erie CEA designation based on the effectiveness of erosion control measures. 

However, Turtle Bay involved a different factual scenario presenting the question of when 

ODNR is required to consider the effectiveness of erosion control measures. The Turtle 

Bay case arose from a challenge to a Lake Erie CEA identification made in 1996, which was 

based on ODNR’s comparison of shoreline maps from 1973 to 1990 to determine annual 

and anticipated shoreline recession rates. A landowner appealed a Lake Erie CEA 

designation, arguing ODNR failed to comply with R.C. 1506.06 because it did not consider 

the effect of an erosion control structure erected in 1996. The common pleas court 

ultimately affirmed ODNR’s designation of the property as being within a Lake Erie CEA 

because it concluded that R.C. 1506.06 required ODNR to consider “what historic effect 

structures built during the period studied have had in order to anticipate what future 

recession will occur.” Turtle Bay at 4. Because the structure in question had been built 

after the mapping used to determine recession rates, ODNR had no historic basis to 

consider the effect of the structure. The court concluded the structure constructed in 1996 

would be considered in the next round of Lake Erie CEA determinations once ODNR had 

historical data reflecting its actual effect, at which point the designation could be removed 

if the structure was successful in reducing shoreline erosion. Thus, contrary to the 

Hawkinses’ claim, the Turtle Bay decision did not hold that ODNR must grant individual 

exceptions to a Lake Erie CEA designation. Rather, the court concluded that under R.C. 

1506.06, ODNR must consider the actual effect of erosion control measures based on 

historical data. 
No. 22AP-689 12

{¶ 22} The General Assembly has mandated that ODNR identify Lake Erie CEAs 

using “the best available scientific records, data, and analyses of shoreline recession.” R.C. 

1506.06(A). Oxner-Jones testified that the center-weighted moving average calculation set 

forth in Ohio Adm.Code 1506-6-12 was selected by a working group during the original 

process of coastal erosion area mapping in the 1990s because it “was found to most closely 

predict recessioning characteristics that matches what we see on the Lake Erie shoreline.” 

(Aug. 12, 2019 Tr. at 207-08.) The Hawkinses have not presented any evidence to establish 

that the center-weighted moving average used by ODNR is not the “best available” scientific 

method to analyze shoreline recession. Rather, the Hawkinses argue they are entitled to an 

individual exception from ODNR’s method of calculating Lake Erie CEAs due to the 

purported effectiveness of their erosion control measures. The Hawkinses object to 

ODNR’s use of the center-weighted averaging method, which has the effect of considering 

erosion occurring on neighboring properties when determining anticipated shoreline 

recession on the Hawkinses’ property. However, R.C. 1506.06 does not require ODNR to 

measure shoreline recession based on individual property boundaries nor does it prohibit 

the use of averaging across property boundaries in determining anticipated shoreline 

recession. Instead, R.C 1506.06 requires ODNR to “take into account areas where 

substantial filling, protective measures, or naturally stable land has significantly reduced 

recession.” Oxner-Jones’s testimony establishes that ODNR satisfied this statutory 

mandate through the selection of the recession feature used to measure shoreline recession. 

Nothing in R.C. 1506.06 requires ODNR to grant individual exceptions to properties that 

are found to be within Lake Erie CEAs. Accordingly, we reject the Hawkinses’ argument 

that ODNR failed to comply with R.C. 1506.06 and overrule their second and third 

assignments of error. 

C. Whether the Lake Erie CEA designation infringed the Hawkinses’ 

constitutional rights

{¶ 23} In their fourth assignment of error, the Hawkinses assert that ODNR’s refusal 

to grant an exception from the Lake Erie CEA designation violated their constitutional 

rights. As explained above, we conclude that R.C. 1506.06 does not provide for an 

individual exception for a property that is determined to be within a Lake Erie CEA. The 

Hawkinses argue that the lack of an individual exception violates their constitutional rights.
No. 22AP-689 13

{¶ 24} The Supreme Court of Ohio has held that a regularly enacted statute “ ‘is 

presumed to be constitutional and is therefore entitled to the benefit of every presumption 

in favor of its constitutionality.’ ” Roosevelt Properties Co. v. Kinney, 12 Ohio St.3d 7, 13 

(1984), quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 147 (1955). See 

State v. Grevious, __ Ohio St.3d __, 2022-Ohio-4361, ¶ 9 (“As always, we begin our review 

of a statute with the presumption that it is constitutional.”). This presumption “applies 

equally to administrative regulations.” Kinney at 13. See Burneson v. Ohio State Racing 

Comm., 10th Dist. No. 03AP-925, 2004-Ohio-3313, ¶ 36 (citing Kinney and stating that 

courts accord legislatively authorized regulations a strong presumption of 

constitutionality). Before a statute may be declared unconstitutional, it must appear 

beyond a reasonable doubt that the legislation and constitutional provisions are clearly 

incompatible. Buckeye Inst. v. Kilgore, 10th Dist. No. 21AP-193, 2021-Ohio-4196, ¶ 18.

{¶ 25} “Ohio has always considered the right of property to be a fundamental right.” 

Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 38. Article I, Section 1 of the 

Ohio Constitution declares that all people have certain inalienable rights, including 

“acquiring, possessing, and protecting property.” Article I, Section 19 further declares that 

“[p]rivate property shall ever be held inviolate, but subservient to the public welfare.” 

“There can be no doubt that the bundle of venerable rights associated with property is 

strongly protected in the Ohio Constitution and must be trod upon lightly, no matter how 

great the weight of other forces.” Norwood at ¶ 38.

{¶ 26} The Hawkinses do not claim that the Lake Erie CEA designation constitutes 

a taking of their property; accordingly, we do not address that question here. Rather, citing 

State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-Ohio4612, the Hawkinses argue they have a right to recover land lost to erosion and, by 

extension, a right to an exception from inclusion within a Lake Erie CEA. At issue in Merrill

was the determination of “the proper boundary between property abutting Lake Erie owned 

by private individuals and the territory of Lake Erie held in trust by the state for all 

Ohioans.” Merrill at ¶ 1. As to that issue, the court concluded “the territory of Lake Erie, 

held in trust by the state of Ohio for the people of the state, extends to the natural shoreline, 

which is the line at which the water usually stands when free from disturbing causes.” Id. 

at ¶ 63. 
No. 22AP-689 14

{¶ 27} Although the Merrill decision generally recognized that property rights are 

fundamental and strongly protected by the Ohio Constitution, the Hawkinses fail to 

establish how those general principles entitle them to an exception from a Lake Erie CEA 

designation. In an aside, the Merrill decision noted that the parties to the case agreed that 

artificial fill could not extend a littoral owner’s property except where a littoral owner 

reclaimed land stripped away due to sudden changes caused by avulsion. Id. at ¶ 58. That 

was not part of the holding of the case and the court expressly stated that it “need not 

further comment on or clarify the effect of [accretion or erosion] on the property line.” Id. 

Moreover, even if Merrill could be construed to recognize a constitutional right to reclaim 

land lost due to erosion or to protect property from erosion, the Hawkinses fail to establish 

why that would necessarily entitle them to an exception from inclusion within a Lake Erie 

CEA. Because the Hawkinses fail to demonstrate that the statute and regulations are clearly 

incompatible with their constitutional property rights, we reject the Hawkinses’ 

constitutional argument and overrule their fourth assignment of error.

D. Whether the common pleas court applied appropriate deference in its 

review

{¶ 28} Finally, we turn to the Hawkinses’ first assignment of error, in which they 

argue the common pleas court gave excessive deference to the director’s order. The 

Hawkinses claim the common pleas court erred by concluding it was unable to make factual

findings or determine the credibility of witnesses. They further argue the common pleas 

court erred by stating that courts typically defer to an administrative agency’s 

interpretation of its own rules.

{¶ 29} With respect to its standard of review for factual issues, the common pleas 

court correctly stated that its role was not to make factual findings or determine the 

credibility of witnesses. See Physician’s Ambulance Serv., Inc. v. Ohio Dept. of Medicaid, 

10th Dist. No. 20AP-32, 2020-Ohio-6842, ¶ 45 (“In an R.C. 119.12 appeal, the court of 

common pleas must give due deference to the administrative resolution of evidentiary 

conflicts, and where the agency’s decision is supported by sufficient evidence and the law, 

the common pleas court lacks authority to reverse the agency’s exercise of discretion even 

if its decision is admittedly harsh.”); Gardenhire v. Ohio Dept. of Rehab. & Corr., 10th Dist. 

No. 19AP-54, 2019-Ohio-4331, ¶ 9 (“Review by the common pleas court is neither a trial de 
No. 22AP-689 15

novo nor an appeal on questions of law only, but a hybrid review in which the court must 

assess the evidence regarding the credibility of witnesses and the probative value of the 

evidence. While the common pleas court will give due deference to the administrative 

agency’s resolution of evidentiary conflicts, the factual findings of the agency are not 

conclusive before the common pleas court.” (Citations omitted.)); Westlake v. Ohio Dept. 

of Agriculture, 10th Dist. No. 08AP-71, 2008-Ohio-4422, ¶ 13 (“Although the trial court 

must necessarily weigh the evidence presented to the administrative agency and, to a 

limited extent, may re-evaluate the credibility of the evidence, it must give due deference to 

the administrative determination of conflicting testimony, including the resolution of 

credibility conflicts.”).

{¶ 30} With respect to deference to ODNR’s interpretation of its own regulations, 

the common pleas court stated that courts typically defer to an agency’s interpretation of 

its own rules and regulations when that interpretation is consistent with statutory law and 

the plain language of the rule. After the common pleas court issued its decision in this case, 

the Supreme Court clarified the scope of judicial deference to administrative agencies under 

Ohio law. TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & 

Surveyors, __ Ohio St.3d __, 2022-Ohio-4677. In TWISM, the court rejected mandatory 

deference, holding “it is never mandatory for a court to defer to the judgment of an 

administrative agency.” Id. at ¶ 42. Instead, the court embraced permissive deference, 

holding that a court could consider an administrative interpretation when evaluating an 

ambiguous text and that the weight given to the administrative interpretation should 

depend on the persuasive power of that interpretation. Id. at ¶ 44-45. In this case, the 

common pleas court considered the relevant statutory and regulatory provisions and 

concluded ODNR correctly and accurately followed those provisions and that there was 

reliable, probative, and substantial evidence to support ODNR’s determination. Based on 

our review of the decision, we do not find the common pleas court gave mandatory 

deference to ODNR’s interpretation of the statutes or regulations in making that

determination. Thus, although the common pleas court’s decision cited pre-TWISM
No. 22AP-689 16

language, the court did not err in its application of the law.10 Accordingly, we overrule the 

Hawkinses’ first assignment of error.

IV. Conclusion

{¶ 31} For the foregoing reasons, we overrule the Hawkinses’ four assignments of 

error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed. 

BEATTY BLUNT, P.J., and JAMISON, J., concur.

10 The Hawkinses also argue ODNR’s decision was not in accordance with law because it incorrectly found 

they had not obtained permits to install the anchor stone and concrete blocks. The Hawkinses argue no 

permits were required for the placement of anchor stone or concrete blocks on their property. Although the 

Hawkinses argue this issue at length, we conclude it is not relevant. The hearing officer’s report and 

recommendation, as adopted by the director of ODNR, concluded that the “erosion control measures 

implemented by the Hawkins on their property were not approved in accordance with former R.C. 1507.04, 

former R.C. 1521.22 and/or current R.C. 1506.40.” (Report & Recommendation at 46.) Notwithstanding that 

conclusion, however, the report and recommendation further concluded that in applying the regulations, 

“ODNR nonetheless takes into account the effects of erosion control measures, even if not approved, on 

property along Lake Erie by basing its selection of the recession feature used to monitor bluff retreat on the 

erosion history of the property.” (Report & Recommendation at 46-47.) Thus, denying the Hawkinses an 

exception from the Lake Erie CEA designation did not turn on whether the Hawkinses had obtained permits 

to install the anchor stone and concrete blocks. Rather, as explained in the report and recommendation, a 

portion of the Hawkinses’ property was included within a Lake Erie CEA because, even accounting for the 

effect of the anchor stone and concrete blocks, their property was anticipated to exceed the shoreline recession 

threshold.