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Wisconsin Natural Resources magazine

Wisconsin Natural Resources magazine

June 2000

The Davis property in Door County with a temporary pier. The hearing examiner's decision to deny a 'solid' cement and steel pier is under appeal. © Katherine Esposito
The Davis property in Door County with a temporary pier. The hearing examiner's decision to deny a 'solid' cement and steel pier is under appeal.
© Katherine Esposito

The reach from land to water

Large piers and marinas test how far private land rights should extend from the shore.

Katherine Esposito

A history of public rights to public waters | Piers form barriers
A mess stops here | A tool to slow shoreline development?
How far do land rights reach?
Pushing for private rights on public waters

Warren Davis, a 73-year-old retired Chicago publisher, owns a summer home in the tiny village of Ephraim in Door County. The 1929 cabin, made of massive pine logs from a partly burned turn-of-the-last-century barn, nestles on a steep slope amid thick cedars. The trees drape over a narrow dirt road that leads to a dozen or so other well-kept homes on that part of Green Bay.

Davis and his wife, Polly, own a 22-foot Boston Whaler motorboat now moored in the Ephraim Yacht Harbor, which they would prefer to dock closer to their home. Many affluent Door residents do exactly that. But the docks of Door County are completely unlike those seen inland. Green Bay winters bring gale-strength storms, with winds, waves and ice floes capable of flinging commonplace wooden piers onto the shore and pummeling them into splinters. So residents desiring private piers spend anywhere from $20,000 to 10 times that much to build them out of solid concrete and steel pilings driven into bedrock, most as wide as a single-lane road and driveable as well, if a car could ever manage to get there.

The Davises want such a pier, and if they'd put one in 10 years ago, there wouldn't be much of a story to tell. Their dock would have been about the 310th built on the peninsula. Two existing permanent piers, one 400 feet northeast and a second 800 feet southeast, would have flanked it. Building the pier wasn't a priority for them until 1996, when they mailed in a permit application and became participants in a contentious issue.

About that time DNR water regulators, dizzy from analyzing scores of solid pier requests in preceding years, held up their hands like traffic cops and yelled, "Stop!" The agency noted that many of the piers approved in the past were unsightly behemoths and poorly maintained, often blanketed by algae and encrusted with seagull droppings. Further, the piers raised legal issues and ecological problems.

The agency stayed permit reviews for over a year while it searched scientific literature for studies of pier effects on lakes and bays. The research concluded in a 1998 report that there were good reasons to start objecting to such proposals. The Davis permit request was be denied. In March, that decision was upheld by a state hearing examiner who found that the combined effects of placing numerous solid piers along the Green Bay shoreline would be a "significant threat to overall species richness" that can change "the stability and integrity of biologic communities," among other reasons for denying the permit. The ruling is under appeal.

A history of public rights to public waters

Legal issues in the Davis case test part of a unique body of law, called the public trust doctrine, that gives the state the right – indeed, the obligation – to scrutinize requests like theirs. It's old law, derived from an 18th century body of principles in the Northwest Ordinance that governed the territory before statehood and drew on concepts from English common law and Roman law. Water rights in the public trust doctrine began as a simple sentence: that the Mississippi and its tributaries that linked eastern states to the frontier "shall be common highways and forever free." The doctrine later incorporated in the state constitution is a founding tenet for anyone who wished to safeguard waters from danger. Now a large body of constitutional laws, court decisions, and statutory laws flesh out public rights and private limitations on public waters in Wisconsin.

As time went by, the public trust concept, as tested and interpreted by the State Supreme Court, was extended to define clean water, outdoor recreation, scenic beauty, and native plants and animals as public rights worth protecting. Those who would use the waters of Wisconsin bore the legal burden of showing that their actions would not cause substantial harm. The doctrine hasn't always solved problems, but it is a foundation, a starting point, and a constitutional basis for adjudicating legal disputes. However, choosing between perceived public "harms" and "benefits" has proven immeasurably difficult.

Many cases were lost, as in 1901, when the renowned photographer H.H. Bennett lost a case that allowed damming and flooding of the beautiful Dells on the Wisconsin River. Other cases were won, as when Virgil Muench became the first person in Wisconsin to prevent the building of a hydroelectric dam on the Namekagon River, solely on the grounds that the river's natural beauty would be lost.

Piers form barriers

Those two cases inspired passionate stances on both sides. As with many public trust cases, the only thing that changes is the focus. Dams may not be going up anymore, but the same can't be said of piers and their near cousins, marinas. Lakefront living is more prized than ever, and those who can afford a home or a condominium aside water can usually afford a boat and a big dock.

A pier off one's property probably doesn't seem like a big deal. And certainly it's easier to step down into a boat from a sturdy platform. But beyond the usual entry point, known as the ordinary high water mark, the lakebed and the water above it is owned by the public, not the adjacent landowner. So building something offshore is akin to the land-based notion of trespass, with one major difference: the intruder has certain rights as well.

A bird's-eye view of the Green Bay shore near Ephraim, would reveal dense cedars nearly smothering the comfortable homes below. Offshore, the coastline resembles a gap-toothed comb, with docks jutting into the water at uneven intervals. If the Davises and everyone else who wanted a pier got one, the gaps would fill in, with disturbing results, opponents say.

Erosion is one such consequence, according to the 1998 report. When a pier is built perpendicular to the shore, it tends to slow the natural sideways motion of nearshore waves, a process known to scientists as littoral drift. Sand floating in the water settles out on one side of the pier, but the other side gets none, and eventually erodes. That disruption of flow is trouble both for species that naturally drift along the length of beaches as well as the beaches themselves, which can wear away without continuous sand replenishment.

After a team of scientists began looking more closely at Door County docks, they found even more reasons to object to them. All were found to be magnets that trapped exotic plants and animals, which then out-compete native ones. For instance, the invasive plant Eurasian milfoil was found growing around the inside corners of the L-shaped docks. Other nuisance species, including the zebra mussel and the round goby fish, accumulate where the drifting water slows down.

By granting permits for so many piers in the past, "we were allowing the creation of habitat that would support these invasive exotic species. We never paid attention to that before," said Ron Fassbender, the lakeshore team supervisor in the Door County area.

A mess stops here

Then there is the matter of the docks' appearance, a subject with which Mike Standish, a Door County mortgage lender, is all too intimate. Standish, the president of the Bay Shore Preservation Association, has frequently filed written objections to proposed docks. He owns one himself, yet he is quick to state his complaints that are vexing for pier owners and viewers alike.

His family bought their house and cottage along Bayshore Drive in Egg Harbor in 1982. The 220-foot long, wide concrete dock was crumbling even then, but removing it from its base of solid bedrock was pricier than fixing it, so they chose repairs. But Standish's labors didn't end there.

"It's a haven for dead fish," and a pit stop for algae, he said. "When [decaying material] gets to shore, it mounds up, and around the pier it will be two feet deep."

But, nothing tops what the seagulls do, Standish added.

"I know exactly what the seagull diet is," he said. "I know exactly when the seagulls start eating cherries. I know exactly when the crayfish are there. They regurgitate their food and eliminate their waste products. It's just a terrible mess. The only way to get it out is power washing."

Whether the concern is over habitat or scenic beauty, the public trust doctrine gives pier protesters a legal foundation. Beyond those considerations, there's a simple principle, according to Kurt Pagel, a retired DNR forester who's opposed to new docks. He calls it "takings in reverse."

If the value of private property declines due to a state action, the owner has a right to compensation, according to Wisconsin's "takings" law. However, if the value of public property reduces due to private actions, as Pagel believes it does, then the public should be paid.

"People are taking a chunk of public water and making it absolutely worthless," Pagel said. "They see it as property extensions, but they give nothing to the public." His idea has never been tested, he added. "But it would be wild to chase it around in court." And that's where much debate has gone: More than a dozen cases proposing to deny pier permits are pending contested-case hearings. A legislative proposal to ban solid docks is in draft form.

It may never be overt, but in every discussion of piers and marinas in Wisconsin, there is only one real item on the table: the spirit and value of the public trust.

"It would be appropriate to say that the everlasting 'War of the Waters' continues on a fluid battleground, with individual engagements and skirmishes being won or lost each day," penned Walter E. Scott in 1965, in a lengthy monograph on the public trust doctrine. Scott was then the assistant director of the DNR's forerunner, the Wisconsin Conservation Department.

The Davis case and several others illustrate beautifully just how fluid that battleground still is.

A tool to slow shoreline development?

Those who own land along rivers and lakes carry a special name: riparians. The Davises and Mike Standish are riparians, as is Stan Smith of Chicago, who would like to enlarge a pier in a sheltered cove in the Lauderdale Lakes of Walworth County; and so is ABKA Limited Partnership, the corporate owner of the Abbey Harbor and Marina on Lake Geneva. ABKA intends to convert the private marina into lakefront condominiums, called "dockominiums." The proposal spearheads a lively debate over the trust doctrine.

For DNR regulators, explaining how the doctrine can intercede in a summer's dive off a family dock seems hopeless. "[The public and riparians] don't want to understand it," said Ron Fassbender. "We tell people when they come in that part of the public trust doctrine gives them reasonable access to water. But it's not a well-defined term."

Historically, "reasonable" meant a pier that didn't interfere with others' boats, but it has come to mean much more. Dozens of court cases have expanded the public trust doctrine to convey an even vaguer idea, that of the "public interest." The concept embraces the notion that scenic beauty, plant and wildlife needs, water quality, and accessibility are included as public "rights" on public waters. Lately, as new homes, businesses and marinas sprout up all over the state, regulators believe the public trust doctrine should consider the deleterious, cumulative effects of continuous development. If opponents of shoreland sprawl could appropriate the doctrine as a weapon, the shores around our northern lakes might look very different indeed.

A 1966 Wisconsin Supreme Court case, Hixon v. the Public Service Commission, first promoted the concept of "cumulative impact" of shoreline development and Sterlingworth v. DNR, a 1996 Wisconsin Court of Appeals case, strengthened the notion. That second case arose over the slips rights of a resort owner to expand a marina from 25 slips to 34 in Mill Lake in Walworth County as part of its plan to convert seasonal lodging to condominiums. The owner, Sterlingworth Condominiums, was denied a permit to expand based on likely cumulative impacts to the area's ecology. The resulting public trust language contained in the appeals court decision is some of the strongest yet written. "Whether it is one, nine, or 90 boat slips, each slip allows one more boat which inevitably risks further damage to the environment and impairs the public's interest in the lakes," the court stated.

How far do land rights reach?

Stan Smith's frontage is only a mile's paddle from those condominiums on the Lauderdale Lakes. But the Sterlingworth decision casts a long shadow.

The waters around the old wooden pier that Smith wants to enlarge are shallow, mucky and private. Greenery drapes the shoreline and chara, a native grasslike algae that shelters spawning northern pike, pokes up above the water surface. It's ideal territory for canoes and rowboats; anything with a propeller would only turn over once before kicking up a storm of swirling mud. Southeastern Wisconsin lakes used to boast acres of chara and bulrushes and yellow flag iris, and one place to still see them is the water off Smith's property, now designated by DNR as a "sensitive area."

The view from Stan Smith's property on Lauderdale Lakes. © Katherine Esposito
The view from Stan Smith's property on Lauderdale Lakes.

© Katherine Esposito

Beyond the plants, almost a hundred feet out, the water deepens into a dredged channel and ventures close to homes on the other side of the bay. Each of those homes has a dock and a fine view of unspoiled nature that is Smith's land. Smith wants to build a new dock out 96 feet to the deeper reaches by adding seven slips that would be available to future homeowners. "Where we've placed it is in an area of open water, that doesn't disturb the marsh," he said.

Smith says he has remained conservation-minded. He has restored 20 or so acres of prairie adjoining the shoreline and promised to build fewer houses than local zoning would allow. After analyzing impacts from constructing and using a longer pier, the Department of Natural Resources recommended denying Smith's plan.

An irony of both the Smith and Davis cases is that each riparian owner believed he was following DNR's most recent advice about the best way to build their piers, and their projects were still rejected. "The thing that really bugs me is the inconsistency," said a bitter Warren Davis. "There is apparently no published procedure to handle pier applications."

The state does have guidelines that all field staff use, but every situation is unique, said Ron Fassbender. And in today's development climate, if everybody received approval, those various "public interests" safeguarded by the public trust would be completely eroded. So every regulator examines each proposal with an eye on the whole shoreline.

And indeed, as Fassbender scans the scene from a boat off the Davis property, he sees a forest of cedars, and not much more. It's a view worth protecting, for the public's sake, he said.

"If a half-mile of shoreline doesn't have a lot of structures," meaning docks, "and you can't see the houses down the water, then in our estimation development would intrude on the natural scenic beauty," Fassbender said. "Nothing in the law says there is a right to a solid pier. You only have a right to access to water."

The solution may be more public marinas, places where one can cluster development and preserve the spirit of the public trust, said Kurt Pagel. "Would they let us build individual garages next to a state park, and run driveways through the park? I don't think so."

Katherine Esposito writes for Wisconsin Natural Resources magazine from our Madison office.

Pushing for private rights on public waters
Behind-the-scenes battles over private rights to public waterways take place in every state courtroom, but nowhere are the discussions more technical and arcane than in a little-understood case involving the Abbey, a famous resort on Lake Geneva.

The Abbey has long operated a private marina that makes a number of boat slips available to the public for a fee. In 1994, the owners, ABKA Limited Partnership, proposed to sever the harbor portion from the resort, and convert the entire resort to lakefront condos. These condominiums, however, would not have bedrooms, a kitchen and a place to park a car. The "dockominium" would consist only of the docks, with their sole connection to land a mailbox with a key. Each of the 407 mooring slips would be considered a separate unit for tax purposes. DNR objected, arguing that converting all of the slips to private use would reduce the public's access to the lake. An administrative law judge agreed, and reduced the number of strictly private slips from 407 to 120. That was the number the judge considered "reasonable" under the public trust doctrine. DNR attorney Michael Cain called it a "fair balancing of public rights."

That seemed like a good thing for the public. But not everyone agreed with DNR's stance.

Bill O'Connor objected, for one. As the lead attorney for the Wisconsin Association of Lakes, O'Connor is convinced that the DNR's stance on the ABKA case could eventually eviscerate the public trust doctrine. "For all practical purposes, the ABKA condo proposal sells a rectangle of At issue is the convoluted way that rights to the private piers will be conveyed. Under the trust doctrine, riparian rights cannot be severed from the land and sold. And under state condominium law, property transfers cannot include water. The ABKA proposal skirts these problems by giving each "dockominium" owner exclusive and perpetual rights to use a slip by virtue of owning a mailbox called a "lockbox" on land with riparian rights attached to it. O'Connor lauds the creative thinking, but contends that the methodology is merely a sneaky way to sell rights to use water, and that is illegal under the State Constitution.

The argument is "they're selling common interests in riparian land and a lockbox, and the pier rights are incidental," said O'Connor. "If that lockbox didn't include the perpetual right to use a boat slip, it would be almost valueless. The overwhelming value is the boat slip."

If the proposal passes muster, O'Connor is concerned that trouble could brew later if lake problems surfaced and the DNR wanted to change the permit conditions. "If that time came, the DNR might have to contact more than 400 slip owners or renters, leading to an unrealistic workload. "Even though the ABKA proposal says their interests will always be subject to the state's interests, it's theory," O'Connor said. "As a practical matter, it would be out of the question."

The case may eventually be heard by the Wisconsin Supreme Court.