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Beach Property Rights - public/private

hi n dry avatar
Beach Lover
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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
Smiling JOe avatar
SoWal Expert
#202
...

As for the height limit, what is the difference between 50 feet and 200 feet if you are standing at the base trying to see what is on the other side?
Not much difference there, but that is not the reason for the height ordinance. The difference in your question is addressed in other County Codes regarding width of buildings as percentage of width of property. ;-)
wrobert avatar
Beach Fanatic
#203
Not much difference there, but that is not the reason for the height ordinance. The difference in your question is addressed in other County Codes regarding width of buildings as percentage of width of property. ;-)

Seems like they have a code for everything. Those buildings on Scenic Gulf Drive at Frangista Beach must of been grandfathered in. Like driving in a canyon.
Smiling JOe avatar
SoWal Expert
#204
Canyons are much more beautiful than that crap. However, some of our country's most beautiful canyons are dammed, filled them with water so that people can have power in the desserts and playgrounds for big boy water toys.
BlueMtnBeachVagrant avatar
Beach Fanatic
#205
Regarding height limitations...perhaps I'm missing something. Cindy Meadows represents "our" neck of the woods. Why would she be supportive of increased building heights anywhere and the others against it?

If some of you think that it won't ever change south of 30A, well I believe SJ is correct when he said, "....It can be changed overnight, if the BCC votes to remove the ordinance. Don't sit so contently."
BlueMtnBeachVagrant avatar
Beach Fanatic
#206
Amen to that. Now if we could just get "public" use of the beach from our variou "public" accesses we will be just fine. And by the way for those interested (BMBV) I am not for anyone using private accesses to reach the beach. Once there, though, as long as the public uses the beach responsibly, they should be allowed to do so ANYWHERE below the toe of the dune. I hope this year the Florida Supreme Court decides to do as Hawaii and Oregon have and that is to make the beaches "public".

Andy A, we've acknowledged each other's position in the past. I have no problem with your opinion regarding public vs. private beach. I just simply don't agree.

Again, the location of your property gives you the luxury of wanting to convert all private beach to public. The public would have to walk over 1000 feet to access your part of the beach. Pretty damn good deterrent for overcrowding. Just a hop, skip and a jump, and they are on our property.
scooterbug44 avatar
SoWal Expert
#207
Just so that people don't misunderstand the height ordinance for SoWal, it is not permanent, even though it doesn't have a time limit like the ordinance for the remainder of the County. It can be changed overnight, if the BCC votes to remove the ordinance. Don't sit so contently.

Yes, but IMO an all county ordinance, even a temporary one, is a step in the right direction. All laws/regulations can be repealed/changed, but it's easier to change a south of the bay ordinance than a south of the bay ordinance recently extended to cover an entire county.

Quote: "I have suggested to one of the commissioners that they have the GIS department that we fund, create a map of what beach accesses and lands near the gulf are currently public for use and such. So far, not a whole lot of luck, I guess some people really do not want to know."

The county commissioners know the EXACT location, legal description, and even have pics of EVERY public access in the county. It fills 2 binders that are 3" or so thick!
JustaLocal avatar
Beach Fanatic
#208
Regarding height limitations...perhaps I'm missing something. Cindy Meadows represents "our" neck of the woods. Why would she be supportive of increased building heights anywhere and the others against it?

Maybe she is against sprawl?
John R avatar
needs to get out more
#209
Regarding height limitations...perhaps I'm missing something. Cindy Meadows represents "our" neck of the woods. Why would she be supportive of increased building heights anywhere and the others against it?

I'm confused here also, though I do see the sprawl potential also. I think the 50' ordinance is a good one, and one that should stay. With our white sand, and other marketable attributes, 50' feet keeps us pretty unique. I would hate to see our beachfront(or off beachfront) look like our neighbors to the east and west. Besides the extreme eyesore, I can't image where the cars would go, or the people. And it's not just immediately east or west, it's pretty much the entire coastline of FLA. Perdido key is the most striking offender(to me)
Smiling JOe avatar
SoWal Expert
#210
Regarding height limitations...perhaps I'm missing something. Cindy Meadows represents "our" neck of the woods. Why would she be supportive of increased building heights anywhere and the others against it?

Maybe she is against sprawl?
That is the reason she stated at a recent BCC meeting.

It doesn't matter if an ordinance is County wide or limited area. The BCC can take a simple vote and end it all very quickly. There are plenty of BCC meetings with few people in attendance, and I urge all of you to attend the meetings, regularly, and not only for one or two items on the agenda, which is the typical interest of the public.

Edited

scooterbug44 avatar
SoWal Expert
#211
4 story buildings (general 50' size) are not "sprawl," they are a livable and sustainable density. Sprawl is giant 1 story box stores w/ 15 acre parking lots.

IMO, there is NO good reason to oppose a countywide 50' height ordinance. :angry:
JustaLocal avatar
Beach Fanatic
#213
I'm confused here also, though I do see the sprawl potential also. I think the 50' ordinance is a good one, and one that should stay. With our white sand, and other marketable attributes, 50' feet keeps us pretty unique. I would hate to see our beachfront(or off beachfront) look like our neighbors to the east and west. Besides the extreme eyesore, I can't image where the cars would go, or the people. And it's not just immediately east or west, it's pretty much the entire coastline of FLA. Perdido key is the most striking offender(to me)

What about in DeFuniak Springs or anywhere north of Hwy. 20? Would a 60' tall building in the middle of Wind Swept be an eyesore?

I'm just not sure we need a county-wide restriction. It seems like density limits are already in place in the zoning.
Andy A avatar
Beach Fanatic
#214
I'm just not sure we need a county-wide restriction. It seems like density limits are already in place in the zoning.[/quote]
There are no zoning codes and the land use codes are a friggin' mess. Many times, they seem to be totally ignored.
JustaLocal avatar
Beach Fanatic
#215
I'm just not sure we need a county-wide restriction. It seems like density limits are already in place in the zoning.
There are no zoning codes and the land use codes are a friggin' mess. Many times, they seem to be totally ignored.[/quote]

Okay, Walton County Land Development Code. Either way, density limits are in them. If you see them ignored, call or stop by code enforcement.
BlueMtnBeachVagrant avatar
Beach Fanatic
#217
"The appellate court's unanimous ruling says in strong terms that Florida governments must respect the rights of beachfront property owners," said Steven G. Gieseler, an attorney with Pacific Legal Foundation's Atlantic Center, who represents the landowners. "The court was right to dismiss the idea that property rights end where the sand begins."

see http://www.freedom.org/news/200709/20/plf.phtml
BlueMtnBeachVagrant avatar
Beach Fanatic
#218
.....Okay, Walton County Land Development Code. Either way, density limits are in them. If you see them ignored, call or stop by code enforcement.

You're kidding....right?
:confused:
John R avatar
needs to get out more
#219
"The appellate court's unanimous ruling says in strong terms that Florida governments must respect the rights of beachfront property owners," said Steven G. Gieseler, an attorney with Pacific Legal Foundation's Atlantic Center, who represents the landowners. "The court was right to dismiss the idea that property rights end where the sand begins."

see http://www.freedom.org/news/200709/20/plf.phtml

well now, you're pretty well protected when people want to start driving on the sand in front of your complex.
BlueMtnBeachVagrant avatar
Beach Fanatic
#220
well now, you're pretty well protected when people want to start driving on the sand in front of your complex.
Are you just denying a general trend here via "John R humor"?
John R avatar
needs to get out more
#221
no, humor with regards to your citing an article entirely devoted to driving on the beach in an attempt to bolster you argument. sad actually.

i do agree with: "The decision went on to express skepticism that beach driving ever can be part of the public's customary rights to beach areas."

Edited

Smiling JOe avatar
SoWal Expert
#222
"The appellate court's unanimous ruling says in strong terms that Florida governments must respect the rights of beachfront property owners," said Steven G. Gieseler, an attorney with Pacific Legal Foundation's Atlantic Center, who represents the landowners. "The court was right to dismiss the idea that property rights end where the sand begins."

see http://www.freedom.org/news/200709/20/plf.phtml

Perhaps you forgot to read the first paragraph very closely. I'll quote:

" In a victory for homeowners and other landowners all along Florida's coasts, a trial court has been ordered to reconsider a case brought by beachfront property owners against Volusia County's practice of letting the general public drive and park on private ocean-front property, even property that hasn't traditionally been open to the public."

You might ask how that differs from SoWal beach uses. SoWal beaches have traditionally been open to the public.
BlueMtnBeachVagrant avatar
Beach Fanatic
#223
Perhaps you forgot to read the first paragraph very closely. I'll quote:

" In a victory for homeowners and other landowners all along Florida's coasts, a trial court has been ordered to reconsider a case brought by beachfront property owners against Volusia County's practice of letting the general public drive and park on private ocean-front property, even property that hasn't traditionally been open to the public."

You might ask how that differs from SoWal beach uses. SoWal beaches have traditionally been open to the public.
You lost me. I was simply pointing out a possible trend that perhaps the pendelum regarding "customary use" could be reversing.

Also your statement "SoWal beaches have traditionally been open to the public" is suspect.
BlueMtnBeachVagrant avatar
Beach Fanatic
#224
Callies, David L., and J. David Breemer. “Selected Legal and Policy Trends in Takings Law: Background Principles, Custom and Public Trust ‘Exceptions’ and the (Mis)use of Investment-Backed Expectations"​
Callies and Breemer outline the directions in which takings law has moved after ​
Lucas v. South Carolina Coastal Council,90 including cases dealing with public
access. By invoking custom and public trust, they assert that the courts are treating public access cases involving these doctrines as exceptions to Lucas, thereby constructing a means for states to obtain property rights without paying compensation. They caution that courts must return to the former strict and traditional interpretation of custom and public trust to avoid crossing the fine line of invoking a taking. They conclude that these doctrines cannot be expanded simply to justify acquiring a resource only recently deemed valuable by the public at the expense of long-held property rights.


The above is exactly what I've been saying all along. My guess is that this is a major reason the the Florida Supreme Court is dragging their feet regarding the Walton vs Save Our Beaches decision.


But hey...what do I know?​

Edited

Smiling JOe avatar
SoWal Expert
#225
You lost me. I was simply pointing out a possible trend that perhaps the pendelum regarding "customary use" could be reversing.

Also your statement "SoWal beaches have traditionally been open to the public" is suspect.
I'll see if I can explain. The article is about driving on the beach in areas where there has not been traditional customary use (people had not been driving on the beach on those properties in the past). The Court ruled that there was not customary use and that the drivers cannot drive on the beach on the privately owned properties where they had not driven established customary use from a long history of driving on the subject properties.

In contrast, the beaches in south Walton, even the ones which are deeded to private parties, have traditionally been open to the public, which opens the potential for customary use by the public. Comparing one of these to the other is a far stretch from the way I understand the article.

I will also add that the comments you quoted in the first post regarding this link were coming from the lawyer, not the Judge.
BlueMtnBeachVagrant avatar
Beach Fanatic
#226
I'll see if I can explain. The article is about driving on the beach in areas where there has not been traditional customary use (people had not been driving on the beach on those properties in the past). The Court ruled that there was not customary use and that the drivers cannot drive on the beach on the privately owned properties where they had not driven established customary use from a long history of driving on the subject properties.

In contrast, the beaches in south Walton, even the ones which are deeded to private parties, have traditionally been open to the public, which opens the potential for customary use by the public. Comparing one of these to the other is a far stretch from the way I understand the article.

I will also add that the comments you quoted in the first post regarding this link were coming from the lawyer, not the Judge.
SJ, the way I read the article is this...that even where the "public" had been using "private" beach for bathing, that the use of vehicles on private property is not a legitimate use. On TOP of that, the use of vehicles would of course be prohibited on private private beach where the public did not traditionally bath. This conclusion from the first sentence:

"In a victory for homeowners and other landowners all along Florida's coasts, a trial court has been ordered to reconsider a case brought by beachfront property owners against Volusia County's practice of letting the general public drive and park on private ocean-front property, even property that hasn't traditionally been open to the public."

You say I quoted a lawyer? What's wrong with that?;-) (disclaimer...there are some honest lawyers out there).:biggrin:

OK, from the same article - a quote from the JUDGE!!!!.....

"We do not believe that [Florida Supreme Court precedents relating to beach access] intended to announce a right by custom for public use of the entire sandy beach area of the entire State of Florida," wrote Judge Jacqueline R. Griffin, in Friday's ruling. The decision went on to express skepticism that beach driving ever can be part of the public's customary rights to beach areas.

My English interpretation: just because the "public" prevailed with the Tona-Rama case (Daytona), this does not imply carte blanche access to the rest of the beaches in Florida (vehicle or otherwise).

SJ, all I was trying to imply is that the interpretation of "customary use" is tightening....no denying this.

AGAIN, that is why the State Attorney General said that customary use must establish on a case by case (lot by lot, owner by owner).

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