The City of Evanston’s stated “confusion” over what’s currently being called Lincoln Street Beach is a teachable moment that spills over into other issues – and should. How we manage our natural and public resources is the most visible symbol of who we are as a community.
The acreage in question is a manmade problem. A century ago, no large sand beaches to speak of existed in north Evanston. Planners urged Evanston to build piers to catch sand moving south along the shoreline and form beach, as Chicago had done. Park Superintendent George Cone advocated for a municipal bathing beach just north of the water treatment facility at the end of Lincoln Street that protruded into the lake. Some Evanston old-timers do recall a beach just off Lincoln. That beach, however, like many small beaches formed between piers, disappeared with Evanston’s decline as a port, piers’ decay, and when larger structures, such as the Lighthouse Beach breakwater, were built, starving southward shoreline of sand.
The largest construction in the lake was the 74-acre fill built by Northwestern University in 1962-64. Northwestern sought and obtained State legislation in 1961 purporting to sell 152 acres of lake bottom to NU. The northern boundary of the “conveyance” was a line parallel with, and 325 feet south of, the south line of Lincoln Street (just north of where Colfax would extend).
Northwestern’s 1963 application showed a northern arc of the fill containing a beach, which NU said would be for students. That planned beach ended at the “conveyance” line, and through the early 1970s, it was near the size projected. However, the new, massive peninsula jutting more than 1,000 feet lakeward captured enormous amounts of sand at that north end. Eventually, additional beach formed, and then vegetated dunes. By this century, total beach and dunes were triple the area mapped in 1963.
The additional beach land was not Northwestern’s. While a riparian (waterfront) property owner gains adjacent land formed by natural processes, that “accretion” principle doesn’t apply to sand captured or land created by the owner’s own artificial construction. This is basic riparian law, long reflected in Illinois, including an Illinois Supreme Court decision involving Evanston.
So if it’s not NU’s, whose beach is it? The answer: the bed of Lake Michigan is held by the State in trust for the people of Illinois. Lakebed, including formerly submerged lands, remains the people’s and even the State can’t sell or give it to a private party for primarily private purposes. This “public trust doctrine” is fundamental law antedating Illinois statehood, enshrined in U.S. Supreme Court decisions, Illinois Supreme Court cases, and Illinois statutes such as the Rivers, Lakes, and Streams Act. Called “the DNA of law,” the public trust doctrine also protects public resources such as wildlife and parks, and not only has halted lakebed acquisition by private parties – it was the hurdle the Lucas Museum ran into – but limits the power of government itself, saying trustees may not betray their duty to the public.
True, for the half-century after lake fill construction, most users of the new beach areas were NU students or staff. But everything north of the 1961 bill’s boundary, and east of the ordinary high-water mark that existed then, was former public waters, undeniably public trust land. The law is clear. It was never possible for any of what is now being called Lincoln Street Beach to become, validly, NU’s private property. The big question is why ownership, other than minute measurements as to boundary, is still a question.
During discussion of the new Ryan football facility, Northwestern became woke to the fact that it had fenced off beach and dunes that the law considers public. So NU’s application to fill behind the new bulkhead – obliterating the original “student” beach – states repeatedly that the University had “offered access” to Lincoln Street Beach to Evanston. That was in 2015. Then, as now, Evanston has statutory jurisdiction three miles into the lake, State grant or no.
Little provokes more public distrust than when visible symbols of the commons are neglected, or when law is selectively applied. A laissez-faire approach to the lake fill, and a half-century neglect of a public property, does little to assure citizens already baffled by the City’s stiff-arming imaginative proposals for adaptive reuse of another unique, ignored asset, the Harley Clarke property.
Evanston needs to clarify, with the State, control over the valuable public place it has discovered on its shores. Then, negotiating from a position of strong facts and law, it can discuss bulk student access. In-kind contributions – staffing, landscaping, and maintenance – can be part of this. Transparency must be. With luck, this process will spur self-reflection on lakefront stewardship, and the value of constructive partnerships. That would help build some real public trust.
Mr. Smith is an Evanston resident and former General Counsel for Illinois Department of Natural Resources.