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Beach Property Rights - public/private

hi n dry avatar
Beach Lover
37,708 views
Public's beach rights being attacked

Bulletin from South Walton Community Council
www.southwaltoncc.org

Dear SWCC Member,

I apologize for this late notice. I received the agenda for the county commission meeting via email on Friday. It is a packed agenda which I will send by separate email. The meeting is Tuesday, November 13 at the courthouse in south Walton starting at 4 PM.

There is an item that will potentially impact the publics use of the beach and I want to make you aware of it. The SWCC position is at the end of this email.

As you may recall from my past emails, the county attorney made a presentation to the commissioners in which he offered four options for the county to consider regarding the issue of gulf front property owners excluding the public from using the beach in front of their structure. The county commissioners directed the county attorney to research two of the options. They were (1) preparing an ordinance that recognized the ancient and historical right of the public to use all or a portion (e.g., the first 20 feet) of the beaches under the Tona-Rama Florida Supreme Court case known as the customary use doctrine and (2) consider an easement from private beach front property owners for public access and use of the beach. The county attorney was to make a subsequent presentation on these options. As of this date he has not made a follow-up report to the commissioners.

The issue has now been placed on the agenda by a private attorney representing certain gulf front property owners. The agenda item is identified as:

4:40 PM Matthew W. Burns, Attorney representing Gulf front property owners
1. Request the Commission adopt resolutions or ordinances reconfirming Walton Countys commitment to preserving private property rights and recognizing the private property rights which exist with regard to Gulf front properties in the county
2. Request the Commission reconsider instruction to the County Attorney to draft a proposed county-wide customary use ordinance

Anyone who is concerned about public use of the beach should try to attend this meeting. More information will undoubtedly be presented by the gulf front property owners at the meeting. If you cannot attend you can direct your comments or questions to the commissioners. Their email address are provided below.

SWCC Position

SWCC would like the county commissioners to make a determination of the historic and ancient use of the dry sand beach by the public. We were concerned about one suggested proposal to limit the publics use to a specified distance, e.g., 20 feet, from the high water mark. The following is a letter sent by SWCC to the commissioners some time ago on this issue:

Dear Commissioners,

We want to express our concern with the two proposals currently being reviewed by the county attorney as a resolution of the issue of establishing public access over private beach.

With regard to the proposal to define the publics right of access and use to a specified footage from the high water mark (e.g. 20) we feel the adoption of such a limited public area in fact diminishes the publics rights of access and use under both the Tona-Rama Florida Supreme court case and the Stevens U.S. Supreme Court case.

As indicated in the county attorneys memorandum, the Tona Rama case recognized a right of customary use. The court stated: The interest and rights of the public to the full use of the beaches should be protected. The court concluded (t)he general public may continue to use the dry sand area for their usual recreational activities... (emphasis added)

The U.S. Supreme Court affirmed the holding of the Oregon Court in the Stevens case which concluded when plaintiffs took title to their land they were on notice that exclusive use of the dry sand areas was not part of the bundle of rights that they acquired. (emphasis added)

Both cases, and others, recognize the ancient and historical right of the public to access and use the dry sand beach area. The courts did not limit the publics customary use to a small strip of land measured from the high water mark. Why would the county want to narrow the area of the beach which has always been customarily used by the public?

There are logistical problems with trying to squeeze the public onto a strip of beach that is measured from the high water mark. First of all, the high water mark changes daily and in response to any storm. Who will measure the distance and how often? How will the public know where their strip is located? Typically, particularly in the large condos, the rows of private beach chairs and umbrellas are set up as the first tier from the high water mark for view. How much room will be left for the public?

Is this the best solution in light of the projected future population boom and the focus of the TDC to attract more tourists to the area?

The second proposal being considered is to get the beach front property owners to grant an easement to the public to allow the public to use all or a specified part of the beach. If the courts have so strongly upheld a right of customary use, why would the public need an easement? The easement would be granting a right that the public already has. It may also be construed as a rejection by the county of the publics right of customary use. Would the easement be perpetual or would it be revocable by the property owner? Would the public have to pay for the easement right?

An approach that was not discussed is to get the state legislature involved. In 2005 State Senator Carey Baker proposed a bill that would recognize the right of customary use of Florida beaches. His office indicated it did not get out of committee as it was blocked by the committee chairman. While such a bill may run afoul of the Tona-Rama approach which requires a case-by-case determination, it would seem worthwhile to explore this avenue through the countys state representative in Tallahassee. The Texas Open Beach Act has been in effect for years.

In the absence of a state legislative action, we would like to see the county follow the directive in the Tona-Rama case and initiate the case-by-case analysis required to establish the publics right of customary use for each particular beach area within its jurisdiction. The beach area would be a recognition of the dry sand beach historically and currently used by the public.

The proliferation of private beach signs on the beach has increased substantially, even in the current beach nourishment area. The overwhelming users of the beaches are tourist and locals. (Undoubtedly, at one time, many, if not all of those who have objected to people on their private beach were also visitors to the area and enjoyed the rights that they are now wanting to prohibit to others.) This issue must be resolved not only for the economic health of tourism but also for the people who live here and have always used the beach for recreation and spiritual renewal. We do recognize and appreciate that the overwhelming majority of beach front property owners whose deeds go to the high water mark have not in any way attempted to exclude the public from using the beach in front of their structures. Unfortunately, though, the few who have asserted exclusive rights of use have necessitated that this issue must now be addressed.

We believe the U.S. Supreme Court got it right. A beachfront property owner did not acquire the exclusive right to use the beach as a property right. The right of use is a shared right.

We appreciate the commitment of the Board to address this issue and hope that your decision will maintain the current use by the public and not diminish it.

Respectfully submitted,

The Board of Directors of the South Walton Community Council
Alan Newsome-President

Commissioner Contacts

Commissioner Ken Pridgen Commissioner Larry Jones
prikenneth@co.walton.fl.us jonlarry@co.walton.fl.us

Commissioner Cindy Meadows Commissioner Scott Brannon
meacindy@co.walton.fl.us brascott@co.walton.fl.us

Commissioner Sara Comander
comsara@co.walton.fl.us

Replies

244
Uncle Timmy avatar
Beach Fanatic
#102
Re: Private Property Owner's Rights Being Attacked

To address your main point, you have missed it all together. What stops a developer from taking the old Nick's restaurant location and building a 25 story building?
1. Current building height restrictions
2. Private beach which limits "legal" use of the beach and thus marketing potential - the key to this thread!!!

If the county and state eliminates 2, then again 1 is just a relatively simple matter compared to 2.

.

? correct.

How will any condo?s marketing be effected by the Private/Public Beach debate? I haven?t seen any advertising that states ?Buy here and you can have a cookout in front of BMBV?s house.?

They are pretty much selling proximity to the beach access, they don?t really say or care much about what someone does when they get down onto the beach.

You also left out glaringly obvious point 3 ? There isn?t enough room on the Nick?s site to handle anything close to a 25 story condo. Therefore there really is no reasonable possibility that Nick?s will become a 25 story condo hence it represents another silly scare tactic.
Uncle Timmy avatar
Beach Fanatic
#103
Re: Private Property Owner's Rights Being Attacked

You're right. I worked long and hard, put myself through college, started a business, made mostly good decisions and then bought my apple pie (my dream of ownership at the beach - no different than that stock company commercial). Now you think you're entitled to my only apple pie just because you want it????

Geeeeze.

Was your college degree in gross exaggerations?

Yes BMBV, I?m trying to steal your house ?that is the point of this debate.
jodiFL avatar
Beach Fanatic
#104
I wonder how many of these would have bought that beachfront property if we had treated them the way they are acting towards "THE PUBLIC" now? Maybe all of us that were here back then should have made it a bit less desirable instead of welcoming EVERYONE with opens arms.
scooterbug44 avatar
SoWal Expert
#105
T - minus ONE HOUR until this item is scheduled for the agenda!!!


Go :boxing:so we can all :chill:
jodiFL avatar
Beach Fanatic
#106
T - minus ONE HOUR until this item is scheduled for the agenda!!!


Go :boxing:so we can all :chill:

Leaving the house now..ETA....8 minutes:trainwreck: HERE WE COME!
Jdarg avatar
SoWal Expert
#107
Leaving the house now..ETA....8 minutes:trainwreck: HERE WE COME!

See ya there- I'm not getting there early enough for a seat, so look for me in a corner, or under a chair, or sitting on somebody's shoulders.
Miss Kitty avatar
Meow
#108
I'll be waiting here for the reports.
jodiFL avatar
Beach Fanatic
#109
Well, hopefully the lawyer that was there representing the gulf front property owners will get his info from the WCC themselves next time. Short story ..they have not drawn up ANY ordinance concerning customary use and basically told him that he had made a bunch of assumptions and to go sit down. At which time, most of us left. But I do beleive that now is the time for everyone to start drafting those letters and emails to the entire WCC and let them know how we feel.
Bear avatar
Beach Comber
#110
Just got back from the meeting.Well the whole thing makes me sick.I will totally loose it if any ever tells me to get off the beach. On the other hand I don't think It going to be that bad there lawyer dose not seem know what hes doing,He asked them to revoke a ruling that the board hadn't even made yet:floor:
Besides he was in a cheap suit.
scooterbug44 avatar
SoWal Expert
#111
their lawyer dose not seem know what hes doing,He asked them to revoke a ruling that the board hadn't even made yet:floor:
Besides he was in a cheap suit.

:funn::clap::funn:That made my day!
jodiFL avatar
Beach Fanatic
#112
But I can honestly say that when a vast majority of the people in attendance left immediately after he spoke, that the WCC realized just how many people had feelings about this topic and I think they will look long and hard at any ruling they DO make.
scooterbug44 avatar
SoWal Expert
#113
But I can honestly say that when a vast majority of the people in attendance left immediately after he spoke, that the WCC realized just how many people had feelings about this topic and I think they will look long and hard at any ruling they DO make.

Great news! Thank you for going and representing! :clap:
BlueMtnBeachVagrant avatar
Beach Fanatic
#114
Re: Private Property Owner's Rights Being Attacked

Was your college degree in gross exaggerations?

Yes BMBV, I?m trying to steal your house ?that is the point of this debate.
Still making this personal?
jodiFL avatar
Beach Fanatic
#115
No a problem, Ill be at the next and the next and the next.....But i am off for the night to begin drafting that oh so long opinion piece that will be in the INBOX of every elected official I can find an address for.:twisted: hehehehehe
scooterbug44 avatar
SoWal Expert
#116
Just to get you started :boxing:

Commissioner Brannon
19367 U.S. Hwy 331 S
Freeport, FL 32439
Tel: (850) 835-4860
Fax: (850) 835-4836
E-mail:* brascott@co.walton.fl.us

*Commissioner Pridgen
Address:
17400 State Highway 83 North
DeFuniak Springs, FL 32433
Phone: (850) 834-6328
Fax: (850) 834-6385
Email: prikenneth@co.walton.fl.us

Commissioner Larry Jones **
Contact Information
Donna Walsinkham, District 3*Executive Assistant
1483 County Highway 1087
DeFuniak Springs, FL. 32435
Phone: (850) 892-8474
Fax: (850)892-8475
e-mail: jonlarry@co.walton.fl.us

Contact Information
Commissioner Cuchens can be reached at (850) 835-4834.
His office is located at 417 Highway 20 East in Freeport.
Email: cucro@co.walton.fl.us


Commissioner Cindy Meadows
90 Spires Lane, Unit 7-A
Santa Rosa Beach, FL. 32459
Phone: (850) 622-3059
Fax: (850) 622-3067
e-mail:* meacindy@co.walton.fl.us
jodiFL avatar
Beach Fanatic
#117
oh yea..got those but might have to include a senator,representative.. and possibly even a governor in on this one. Think the building dept might be included also, since they are the ones that approved those buildings and they do require a current survey etc in order to approve any house built on the beach. If the survey was not correct..:scratch: Wonder if the DEP would want a little stake in this? Since they are the ones that determine set-backs etc.:scratch: OOPS.. cant forget the media. thought the girl from channel 7 was going to chase me down in the parking lot but I ignored her because I looked like crap.

Edited

Smiling JOe avatar
SoWal Expert
#118
Great point! What use is property which cannot continually be "hostilly defended?" Sure, people may have a piece of paper stating that they own something, but that piece of paper is about as solid as the sand upon which their foundation was constructed. Property rights do have restrictions for the owner. ex- zoning, building restrictions, sign restrictions, taxes, easements, historical rights, etc.

For those of you thinking that you have exclusive rights to your property, try not paying your property taxes, then report back to us.
Bear avatar
Beach Comber
#119
Bmbv the only way for us to take it is personal.You want to take the beach and ocean from me, something that god gave to all of us.I go to the beach about twice a day I fish there I surf there I swim there. I moved my family to be close to the beach. This is also not what side of the tracks issue The fact is I would never build on the beach.I believe that it is wrong to build there.But I can understand why people want to live that close and so be it. But to say it is yours. Well the truth is That You are taking it from me,because you want it and you have the power to take it.Well you can own it,I just want to be able to watch the sunset from time to time from there.Or do you and your partners have plans of purchasing the sun as well.It is personal, and you should have been prepared for that.This is the type of thing that splits comunitys.:angry:

Edited

jodiFL avatar
Beach Fanatic
#120
They should also look into the laws regarding piers and the fact that people can tie up a boat to any pier that is in the water. They can even get out of the boat and sit on your pier as long as they dont step foot off the last board onto dry land.
BlueMtnBeachVagrant avatar
Beach Fanatic
#121
Bmbv the only way for us to take it is personal.You want to take the beach and ocean from me, something that god gave to all of us.I go to the beach about twice a day I fish there I surf there I swim there......
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Then what's the problem?
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BlueMtnBeachVagrant avatar
Beach Fanatic
#122
Great point! What use is property which cannot continually be "hostilly defended?" Sure, people may have a piece of paper stating that they own something, but that piece of paper is about as solid as the sand upon which their foundation was constructed. Property rights do have restrictions for the owner. ex- zoning, building restrictions, sign restrictions, taxes, easements, historical rights, etc.

For those of you thinking that you have exclusive rights to your property, try not paying your property taxes, then report back to us.

And your point?
jodiFL avatar
Beach Fanatic
#123
It going to be that bad there lawyer dose not seem know what hes doing,He asked them to revoke a ruling that the board hadn't even made yet. Besides he was in a cheap suit.
I would think that a group of gulf front property owners could afford an attorney that at least dressed that part. He did look kinda "ambulance-chaser-ish", didnt he?
BlueMtnBeachVagrant avatar
Beach Fanatic
#124
They should also look into the laws regarding piers and the fact that people can tie up a boat to any pier that is in the water. They can even get out of the boat and sit on your pier as long as they dont step foot off the last board onto dry land.
.

Are you saying they should be able to step off that last board on to private property? How about 20 extra feet? How about just coming in your home to make a cup of coffee? Give me something to hold on to.

As a matter of fact, I always wondered what would prevent our illustrious government from then going to bay front property owners and telling them that all the jodiFLs in Florida are entitled to camp, fish and roast marsh-mellows on their property if they can on beach property. How about creek front property owners? How about golf front property owners? How about lake front property owners?

This whole thing is getting rediculous.........
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unless you're a pure bonafied card carrying socialist.


added: or looking for a way to enhance your off beach condo-presale marketability of course.

Edited

JustaLocal avatar
Beach Fanatic
#125
I stayed until the Driftwood Estates discussion. I had to be home and didn't make it until the very end.

I find it interesting that they spent over 30 minutes discussing how much to spend for the Sheriff. $ up to 1/2 million. I guess if they keep arresting people for sitting on the beach it may be money well spent?

No discussion of the beach issue - just letting it go. Our County Attorney basically said he hasn't done anything about further researching the Council's options per the last meeting. I got the feeling he isn't really planning to any time soon.

The lawyer for the beachfront property owners said he is going to draft an ordinance for the councils consideration next time. I will be at that meeting too.
jodiFL avatar
Beach Fanatic
#126
Are you saying they should be able to step off that last board on to private property? How about 20 extra feet? How about just coming in your home to make a cup of coffee?

No I am NOT saying that they should. I too was astonished at this but it is what it is. But they (anyone in a vessel on the water) can tie up to any dock and i think it has to do with the whole "shelter in a storm" thing. (If they are having problems and the boat sinks and you dont let them tie up you can get in trouble) So if you think people walking or sitting on the beach in front of you house is such an invasion maybe you should talk to those that have lake, bay, or creek front property.

Edited

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