The Law and Structures Along the Waterline

    The Wilmette Beacon: January 2, 2014

    by John Jacoby

    One of the big advantages of living in Wilmette and Kenilworth is our nearness to Lake Michigan. We enjoy its cooling breezes on hot days, its recreational offerings and its beauty. Many folks will staunchly defend the lakefront against public or private actions that limit beach access, blemish the vista or pollute the waters.

    Recently, two Kenilworth riparian owners (40 Devonshire Lane and 311 Sheridan Road) submitted applications to the Department of Natural Resources to erect steel boat launches. According to the drawings, each launch would be 70-plus feet long and 12 feet wide. It would slope downward from the owner’s beach house (now under construction), across the beach on steel columns, to a point 15 feet into the lake where the water is 3 1/2 feet deep.

    My environmentalist side reacted negatively: “These structures would blemish the vista. They’d also impede beach-walking and maybe other recreational activities. If allowed, other riparian owners along the shore might also build launches, making the problem much worse. And who needs a private launch when public launches are available nearby?”

    But my property-rights side argued: “These applicants own the property to the water line. They paid a big premium for their riparian property. Aren’t they entitled to have boat launches and other recreational structures that would facilitate their enjoyment of the lake? And even if the launches are unattractive, when did attractiveness become a standard for deciding what’s allowed and what’s not allowed on private residential property?”

    I decided to investigate further. Here’s what I found:

    Lake Michigan is covered by a very old legal doctrine called the “Public Trust Doctrine.” Under this doctrine, the lake’s waters and lake bottom are resources owned by the Sate and held in trust for the people. In bygone days, the public uses protected by the doctrine were navigation, commerce and fishing, but in recent years, the courts have ruled that recreational uses are also protected.

    The Public Trust Doctrine may apply not just to the lake’s waters and lake bottom. It may also apply to the narrow strip of land between the water line and the “ordinary high water mark,” even though Illinois law says this strip is technically owned by the riparian owners. Illinois courts haven’t decided whether the doctrine covers this strip, but Michigan courts have said that it does.

    A consequence of the doctrine is that the public has the right to walk along the beach in the shallow water (and maybe in the strip) and to swim, boat and fish in the deeper water. The State’s ability to interfere with this right or allow anyone else to interfere is limited.

    While the doctrine can be enforced through private lawsuits, the Illinois Department of Natural Resources is charged with the duty of protecting the public’s rights related to the Illinois portion of Lake Michigan. In this case, the applicants must obtain a permit from IDNR because they’re proposing to construct structures that would encroach into the Lake and impair public rights.

    To obtain a permit, the applicants must carry a heavy burden. For example, they must show a “public benefit” that would warrant the encroachment and impairment. Is there a “public benefit” in a private boat launch? I don’t see one.

    Finally, local ordinances may come into play. Zoning ordinances are one example. In both Wilmette and Kenilworth, riparian owners are prohibited from erecting structures close to the rear (lakeside) lot line (within 2 feet in Kenilworth and within 3 feet in Wilmette) unless a variation is granted.

    The two applicants are now being reviewed by IDNR. Kenilworth has formally objected to granting the permits until the issues raised by local ordinances have been decided by the village. Folks who care about the lake should pay attention.


    Shabica & Associates