As the waves and currents of Lake Michigan reconfigure its shoreline, the 42 residents of Evanston whose homes are on the lakefront have taken varying measures to protect their property. All of these properties sit in an area the Federal Emergency Management Agency (FEMA) has designated as a floodplain.
Construction projects by private owners of floodplain property require joint application to the U.S. Army Corps of Engineers, the Illinois Department of Natural Resources/Office of Water Resources and the Illinois Environmental Protection Agency, as well as review and permitting by the City of Evanston.
Earlier this month, the City Council approved changes to its floodplain ordinance to allow concurrent review of proposed shoreline projects, provide notice to nearby property owners and prohibit conversion of public water to private use.
According to a City staff memo provided to Council members for the March 12 City Council meeting, the reason for concurrent review at the federal, state and local levels is that “Staff wants to be able to review comments and vet its concerns during the design stage, not after joint agency approval.”
Before construction, the property owner must give notice to adjacent lakefront property owners within 625 feet of the subject property. After the project is complete, the property owner must submit a plat of survey to the City to detail the as-built conditions and verify that the property lines are consistent with the approved plans.
The new ordinance does not prevent private measures to protect property, but it does somewhat tighten the regulation of the project by concurrent review and required notice to nearby property owners and submission of a post-construction plat of survey. The staff memo concludes that, in addition to those results, “The proposed requirement would be to prevent conversion of public waters into private land though unlawful lakeside fill.”
Aldermen approved the ordinance on the consent agenda on April 9.
Under the public trust doctrine, the State of Illinois holds title to the bottom of Lake Michigan’s shoreline, and arguably title to the beach up to the high water mark of the lake in trust for the residents of the State.
If the land is held in public trust for the benefit of citizens of the State, what rights do owners of lakefront property have to obstruct the public’s access to the lake bottom along the shore, or going up to the high-water mark of the lake?
In a 2013 article, “The Public Trust Doctrine: Does it provide the Public with Access to the Beaches of Lake Michigan in Illinois?” Henry Rose, a law professor at Loyola University Chicago, School of Law, argued “Since the Illinois Supreme Court has also endorsed an expansive and flexible view of the public trust doctrine that “extends as well to recreational uses, including bathing, swimming and other shore activities,” it is likely that Illinois courts would include walking by members of the public among the activities that the public trust doctrine would allow on privately-owned beachfront land bordering Lake Michigan.”
In February 2018, the Indiana Supreme Court held that at a minimum the public has a right to walk along the shore of Lake Michigan up to the high water mark of the lake, rejecting claims of owners of land bordering the lake that the boundary should be where the water was at any given moment.
The Indiana court’s decision was in line with an earlier decision by the Michigan Supreme Court.