The battle over beach access in Florida heats up
Florida is known worldwide for its natural beauty and its glistening, pristine and free beaches. Florida beaches also anchor tourism that constitutes an essential part of the state’s economy with over 116 million visitors in 2017 alone.
But, a bill signed by Florida Governor Rick Scott in March is threatening to restrict access to Florida’s expansive beaches and that is creating a mounting controversy. House Bill 631 passed the Florida house 95 to 17 and Senate Bill 804 passed the Florida Senate 29 to 7. This law now goes into effect on July 1st 2018. This law blocks local governments from passing measures allowing continued public entry into the sunshine state’s privately owned beaches even when private property owners want to block off their land. Instead city or county government wanting to allow access now will have to go through multiple hearings and a judge to get approval first.
Over the last two decades, access to the states 1200 miles of coastline in 35 Florida coastal counties has come under stress. Beachgoers have encountered no trespassing signs, roped off areas and fences on beaches previously presumed to be open to public access. Others have been asked to leave by landowners, private security guards or the police. While these incidences remain fairly uncommon they have sensationalized a growing conflict between landowners desiring privacy and security and those who feel the beach should be and always has been free for public use.
Now, many beach visitors believe that public access begins seaward of the dune line or the line where vegetation ends and bare sand starts, regardless of whether the upland property owner is a private individual or a public entity. In Florida, the part of the beach falling landward of the mean high-water mark is typically owned by the owner of the adjacent lot. The only publicly owned part of the beach is that part falling between the mean high tide and low water lines.
However while beachfront property owners in Florida generally have title to the dry sand down to the average high tide line, ownership of this property does not necessarily mean that the exclusion of others is within the bundle of rights attached to that part of the property. Title to any private property may be subject to explicit or implied easements, limitations based on traditional right of use, or common-law prohibitions of activities considered nuisances. Beachfront land is no different. The right to this property is far from absolute.
At root of this access issue are two competing values deeply entrenched in American society. The notion that private property may be held to the exclusion of others, and the tradition of allowing the nation’s coastlines to be free for public use commonly known as customary use. Some property owners who paid high prices to live adjacent to the beach believe that their deeds entitle them to limit access to the sand within their property lines. Yet tourists and locals alike often feel that the Florida sand is a public resource belonging to none, and open to all (especially when public funds are used to restore beach erosion).
I think everyone understands private property rights, as that is an embedded notion in our democracy. Real estate brokers and agents alike honor and try to uphold the concept “Underneath It All Is The Land”.
“Customary use” is a common law term referring to public access to private beachfront property. Generally speaking, beachfront property owners in Florida own the “dry sand” area leading down to the mean high tide line. The land seaward of that is commonly known as “wet sand” and is held by the state in a trust for the public. The process known as customary use allows a local government to adopt an ordinance that allows public access to private dry sand area of beachfront property where the use has been ancient, reasonable, without interruptions and free from dispute.
Customary use ordinances are not new. The public trust doctrine of the state constitution of 1845 allows for situations like this. And “Customary Use” process has existed in Florida for many decades.
So if customary use is not new, then what does the new law that was recently passed actually do?
Prior to the law which goes into effect July 1st, a local government would evaluate its public beach needs and previous public use and draft a customary use ordinance to address the issues they found. They would then vote to adopt that ordinance. Property owners affected by the new ordinance could then pursue a legal challenge if they wished to.
Under the new law, the local government must now first hold a public hearing to make the public aware of the new customary use ordinance they want to adopt. They also need to notify every affected property owner of the proposed ordinance in writing as well as identify the use they are seeking and show evidence of the need of that use. They will then bring the proposed ordinance forward for a judicial determination and must notify affected property owners that they have 45 days from the receipt of this notice to intervene in legal proceedings.
This new law is now becoming a lightning rod across the state pitting private property owners against the public, tourists and local governments. A petition to keep Florida beaches public: care2petitions, has now gained over 57,000 signatures calling for the repeal of the new law which will give hotels, condos and private residences much more control over their beachfront property and potentially forbidding public access.
So now that this new law is to take effect soon how do you feel about it?
Will the new law make it easier for property owners to kick people off of the beach?
Do we want to take away one of the most basic private property rights of our residents?
Do we want a law that could hurt our tourism economy?
You can help decide. Stay informed. Let your voice be heard
This debate is going to heat up get a lot more attention as we approach the July 1st deadline. Stay tuned and watch this blog for further updates. Thanks.