The Trusted Adviser April 2010 | Volume 3 - Number 4

Who Owns the Beach?

When Strolling the Shore, Water is Clear...Beach Rights are Murky
by Peter J. Birnbaum, President and CEO

EDITOR'S NOTE: An earlier version of this article originally appeared in Shore Magazine, Oct/Nov issue, 2009.

Some years ago, my wife and I started looking for a weekend home in Southwestern Michigan. We both grew up spending our summers on the Lake. The dunes in those days were 30 feet high! We were hoping to re-create some of those same beach-loving memories with our young children.

As we looked for homes in the great little towns along the Southwest Michigan coast, it was much as we both remembered it: with the exception of the beaches. The prices were through the roof; and with that prodigious investment came a corresponding (and understandable) desire of owners to protect that pricey turf.

We noticed that some owners protect their beaches with enthusiasm. Threatening signs loom. When beachcombers walk along these stretches, they receive icy glares. Fights almost break out.

My wife and I ultimately took the path of least resistance and bought in Michiana. We liked it for its log homes, ravines, and rolling hills. Because of erosion, very few true beachfront properties remain. Most of the beach is now owned by the Village.

As a real estate lawyer and property owner on both sides of the Lake, I thought it would be of interest to compare beach rights in Michigan and Illinois.

In researching this subject I found a great number of published legal opinions involving beach and water rights where the courts distinguish between "littoral" and "riparian" water rights. Littoral rights apply to navigable waters (mainly Great Lakes and the oceans) and riparian rights involve small lakes, rivers, and streams. In most of these cases, the shoreline along these major or littoral seaways are said to afford an easement for the public. This is often referred to as the "Public Trust Doctrine."

Today, we think of beach rights as a battle for recreational turf. But that was not always true. The first major decision involving the Great Lakes dates back to 1892 in the U.S. Supreme Court Decision,Illinois Central Railroad v Illinois. In that case, the Court found the Public Trust Doctrine requires the State to maintain the littoral waters to allow the free flow of commercial transportation along the Great Lakes.

In Michigan, major trial and appellate court battles were waged during a long period over the question of the public's right to traverse privately owned beaches for recreational purposes. Lakeside property owner groups like "Save our Shoreline" argued that they owned land to water's edge and could chase off anyone walking their beaches.

The Michigan Supreme Court finally resolved this issue viaGlass v Goeckelwhen it ruled in July 2005 that the Public Trust Doctrine extended to recreational use. The decision gave access to the public to walk across the Great Lakes shoreline in the strip closest to the lake below the "high-water mark." This high-water mark is often defined as the point where water erosion is clearly evident. The Court concluded that the State is the Trustee of the public's rights to use the Great Lakes for commerce or pleasure. The decision was hailed as a victory for the public. But you can bet that there are plenty of landowners ready to kick sand on the judge who wrote that opinion.

The Illinois courts take a view much more pleasing to the beachfront property owner. The controlling case in Illinois isBrundage v Knox, a 1917 Illinois Supreme Court Decision. InBrundage, the Court found that the still water mark or "water's edge" is the line of ownership demarcation defining the boundary of the Great Lakes. This is the line where the water usually stands unaffected by storms or other disturbing causes. The Illinois Court found that Lake Michigan does not have a current nor is it affected by tides. Therefore, the Court found no reason to extend the boundary line beyond the still level of the Lake. This rejects the high-water mark as the boundary for bodies of water not affected by tides or currents.

It has been surmised that the change of heart in Michigan is owing to the fact that the low-water levels now experienced on the Great Lakes is resulting in many homeowners staking claim to these suddenly larger beaches. Some argue that a line in the sand cannot really be drawn because erosion and accretion make it a moving target.

Recent events suggest that Illinois may be in for a new battle.

In January 2009, the Illinois Department of Natural Resources submitted a document to the Coastal Programs Division Office that would expand the State's and the Federal Government's roles.

The Coastal Zone Management Program was established by Congress in the 1970s. The avowed goal was to provide resources to protect coastal regions of the thirty or more states eligible for the program. It is reported that Illinois stands alone in rejecting this funding. That rejection is owing to a history of distrust between the private homeowners and the government as it relates to the maintenance of the lake shore. In the late 1970s a group of North Shore property owners called upon the legislature to reject the program. It was feared that submitting to the program would force North Shore property owners to open the beaches to the public. These North Shore stalwarts won that battle and since that time the State has eschewed this revenue source.

The avowed goal of participation in the coastal program is to use these monies to stem coastal, bluff, and beach erosion, improve beach health, and preserve natural habitat.

But given the history of intense debate on this topic we will likely see beachfront land owners battle over this subject in the coming months. Also, stay tuned for an interesting battle following "The Friends of the Parks" proposal to fulfill Daniel Burnham's plan to make the lakefront 100-percent owned by the public.

What have I learned from my study on this subject? Next time you go to the beach bring a lawyer. I am available all summer.






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[Last update: 4-20-10]