Aug 24, 2008
Fence draws line in sand over waterfront accessBalm Beach at centre of wider shorelines battleMurray Whyte
Staff ReporterBALM BEACH, ONT.–Idyllic and twee, this little lakeside hamlet, complete with a shabby arcade featuring a menu of greasy summertime delights, would seem the unlikeliest place to be pondering its own version of martial law. But here in the Township of Tiny on the shores of Georgian Bay, desperate times call for desperate measures.
It's been quite a summer. Vandalism, assaults, broken bones, torn earlobes, a chainsaw attack, arson, charges of public mischief, hundreds and hundreds of police calls – and all this in the space of just a few months. Increasingly, a day at the beach here is anything but.
Balm Beach has become the most visible flashpoint in the growing schism between public access and private ownership of the province's cherished – and increasingly crowded – waterfront places, and a sudden, stark notice to the public at large: Ontario waterfront is more likely than not to be private.
"Everyone's looking for their little piece of heaven," says Const. Peter Leon from the nearby Midland OPP detachment. "Some people don't want to share. Maybe that's their right. But that's when the problems start."
Some contend Balm Beach is an abject lesson in what happens when such grey areas as beach access are left to fester – unregulated, hazy and unclear.
Police patrols have increased; OPP cruisers are an almost constant presence. Plainclothes officers monitor the arcade, the street (there is only one) and the shoreline. Last week, floodlights went up along the beach for the first time.
Most trace the root of the trouble to 2006, when John Marion, whose lakeside home sits one lot south of the official public beach, started building a 2-metre-tall wooden fence along his property line toward the water's edge.
By the fall of 2007, the fence had reached the shore. Parallel to it, a chain-link fence hems in Marion's property, which was confirmed as extending to the water's edge when the owner made an application under the provincial Boundaries Act in 2005. Beyond it, 30 shoreline cottage owners who say their original deeds erroneously excluded beachfront from their property have acquired the same right as Marion. Much of the land quietly has been decreed private.
This summer, the crowds have returned to Balm Beach – and the fence. Most gripe or shrug, wading around it to the beach beyond. Others take a different approach.
On June 29, the fence was attacked with a chainsaw in the middle of a sunny day. Local cottager Mark Tasikas, 44, was charged with mischief to property. Hundreds of stunned beach-goers gawked in amazement; some burst into applause. Elisabeth Marion, 63, John's wife, had a video camera snatched from her hand and was knocked to the ground, according to witness accounts taken by OPP Insp. Rick Philbin. "It was just a mob mentality," Philbin told the Star. The OPP inspector, who says he experienced less vitriol during a nine-month policing stint with the UN in Kosovo, added: "I couldn't believe the hatred."
On July 22, the fence was set on fire during the night; no arrests have been made. Then, on July 24, 14-year old James Brennan, vacationing with his family from Mississauga, ended up in a physical confrontation in the water beyond the Marions' property. His earrings were torn out, and his hand was broken. John Marion, 63, and his son Greg, 42, were charged with assault causing bodily harm. They appear in court on Sept. 25.
Since then, the usually talkative Marions have fallen silent; several attempts by the Star to reach them have been rebuffed.
The conflict is the culmination, some say, of years of animosity between the Marions and the community. In the past, there have been verbal confrontations and attacks on people's yards and gardens – bleach thrown on a lawn, vegetable patches doused in weed killer. Elisabeth Marion was charged in July with mischief to property under $5,000; she is accused of destroying a neighbour's flowers. She is due in court on Sept. 4.
John Marion has described his family as victims in published reports – prisoners in their own home. Others call them the aggressors, forcibly pushing their neighbours' limits. Joe Randolph's wife, Judy Ryan, runs The Surf Restaurant, next door to the Marions. Randolph says black smoke often wafts from the Marions' property onto The Surf's deck at dinnertime, forcing patrons inside.
The property squabble can be traced to 2001, when Nicholas Leblovic, a Toronto lawyer with a summer home on Balm Beach, made the first application under the Boundaries Act to extend his property line to the water's edge. "(This was) nothing like public land being scooped up by property owners," he says. "It's just a correction of an error in the deeds."
But the Marions are the only ones to cordon off their property – even though, legally, any of the successful applicants could do the same, transforming the beach into barricaded corridors.
The notion has been enough for Kim Craitor, Liberal MPP for Niagara Falls, to introduce the Great Lakes Shoreline Right of Passage Act, a private member's bill to preserve the public's ability to walk all the shorelines of the Great Lakes. It's now awaiting committee review.
Craitor was spurred by similar conflicts along the Lake Erie shoreline near Fort Erie, but his bill speaks to an old, broad-ranging rift between private property owners and members of the public who believe shoreline access is an inalienable right. In Michigan, the state Supreme Court passed a bill in 2005 much like the one Craitor has proposed for Ontario.
Here, though, things have been officially hazy since 1951, when H.R. Scott, Minister of the Department of Lands and Forests, moved the province's jurisdiction from the high-water mark to the low-water mark – meaning that anything above the water itself was no longer government responsibility.
"With one stroke of the pen, thousands of kilometres of coastline disappeared from public lands," said Stephen Passero, the director of Shorewalk, an activist group in Fort Erie pushing for an act like Michigan's. "It'd be a different story if that land was never public. But it was. And we want it back."
GEORGE LAWRENCE, Tiny Township's deputy mayor, wrings his hands. "It's devastating to have a black mark like this be what we're known for," says Lawrence. It's a beautiful, clear day at Balm Beach, and Lawrence has had to run a gauntlet of beach-goers, each of them prodding him to do something, just to get to the picnic table where he now sits.
"That's what it's like down here right now," Lawrence shrugs. "That fence makes a loud statement."
For Lawrence, the current situation is depressingly familiar. He chaired the local ratepayers' association in 1994, when shoreline owners on Rowntree Beach, north of Balm Beach, won a court decision to declare itself entirely private.
"It was hard for some people to digest," Lawrence recalls. "There were protests and marches. It was at that point I could see a serious problem, where there could be physical harm, property damage, that sort of thing."
In 1999, he appealed to then-attorney general Jim Flaherty to appoint a mediator to solve the Rowntree Beach problem. Toronto firm Global Solutions was appointed but then cut mid-stream when the Liberals were elected – $400,000 later – and said the issue should be solved at the local level. ("The township is not in a position to do that," Lawrence protests.) Somewhere along the way, in the interest of détente between property owners and beach-goers, the OPP received a memorandum from the Crown Attorney's office, telling them not to issue trespass notices on the beach, further clouding the issue.
"It's still a private waterfront," Lawrence shrugs. "Some (owners) just tolerate (public use of it).
"It's upsetting, and it runs right up and down this whole shoreline. Is that what this bay is about?"
DOUG LORRIMAN clambers over the boulders just past his property – a man-made breakwater to form the small bay in which the public beach sits.
Lorriman and the Marions bookend the public beach on opposite sides. Their views are just as polarized.
Lorriman, 63, a full-time resident since 2005, is the field marshal for Preserve the Use of Balm Beach (PUBB), a group lobbying to have the Marions' fence removed. "I didn't run for the position, I'll tell you that," he says, his face grim. "I just thought somebody has to stand up to him ..."
Trained as an architect, Lorriman has become an unintentional expert on shoreline rights. He says Rowntree – the precedent the Boundaries' Act applications lean on – is wrong; an earlier Ontario Superior Court decision on Lake Huron, near Grand Bend, denied a shoreline resort owner an application to declare his beach private in 1989. "It should supersede it."
PUBB is struggling to raise $60,000 to mount a court challenge to have the fence removed.
Lorriman produces a letter from the Ministry of Government Services, which says the Marions' property "is still subject to interests in land that others may have by virtue of pre-existing length of possession or use." That means if PUBB can prove the public has had traditional use of the beach, the fence may well have to come down.
"This is ours all the time," Lorriman says. "Surely, a few days a year, we can share it."
"IT'S ALL MY FAULT," says Roger Neal, 62. He speaks with a slight lisp, the result, he says, of having some teeth knocked out. (Greg Marion was charged with assault; he agreed to a peace bond and the charge was withdrawn). Neal runs the beachfront Sunport Beach Resort Motel, a few doors down from the Marions' property.
Neal says the history between him and his neighbours is long and ugly. It started when he got zoning to rent motorboats in front of his property in 2004. All along the shore, cottagers – the Marions included – loathed the crowds, the noise, he says.
Neal, a gruff sort who's been on this beach full-time for more than 30 years, wonders aloud about an outright conspiracy: Marion was a pawn of wealthy shoreline owners, offered up to make a statement. (Marion said almost that much himself in an interview with The Barrie Examiner: "All those people helped me. They are as scared as I am," he told the paper. "My education is not good, but if you read all the letters I've sent the government you would think I'm a Philadelphia lawyer. That's because I had a Philadelphia lawyer write it for me.")
Neal's problems with the Marions go well beyond business matters. Twice they've applied to have a peace bond placed against him for harassment. The first, in 2006, was dismissed; the second will be ruled on Aug. 28. "I might be guilty of being rude," Neal chuckles.
He recalls an incident in May, when he was walking his dog. He stooped to pick up the droppings just as Marion rounded the corner in his car. Neal says he approached the car, opened the door, unpackaged the droppings, and "held them six inches from his nose. Then I turned around and walked away."
On a brilliant summer afternoon, a small crowd sits near the fence. Some touch its charred portions or have their picture taken with it. Some clamber around the end of it, between the final post and an iron boat ramp Marion has dragged into the water, making it more difficult to pass.
Domenic Novielli is up from Oakville, visiting friends with a cottage nearby. "Imagine this beach with fences all along it," Novielli says.
He waves south, past the Marions' fence, exasperated. "Everyone has owned this forever," he says. "Is this what God intended when He put this on Earth?"
http://www.thestar.com/article/484318
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