Beach Property Rights - public/private

Discussion in 'Local Government and Groups' started by hi n dry, Nov 11, 2007.

  1. hi n dry

    hi n dry 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
     
  2. seacrestkristi

    seacrestkristi Beach Fanatic

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    Re: Public's beach rights being attacked

    Well, AMEN, Alan Newsome! :bow::bow::bow: Free Walton County Beaches! :D
     
  3. DuneAHH

    DuneAHH Beach Fanatic

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    Re: Public's beach rights being attacked

    Ditto. Right-on!
     
  4. rapunzel

    rapunzel Beach Fanatic

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    Re: Public's beach rights being attacked

    Great. Let's all post a happy emoticon.

    It doesn't matter a bit how much we support public use of the beach on this board, though. Not unless we back it up by showing up for this meeting and voicing our opinions.

    So, roll call....who will be attending?
     
  5. seacrestkristi

    seacrestkristi Beach Fanatic

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    Re: Public's beach rights being attacked

    :D Unfortunately I am 500 miles away. So in the meantime, I think it does help to say how I feel on the board. Awareness and speaking up encourages others. Sorry i won't be there but i can still let the commissioner's know how i feel in writing. So can every one else in my situation. :wave:
     
  6. Andy A

    Andy A Beach Fanatic

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    Re: Public's beach rights being attacked

    It is important that I take my wife to M.D. Anderson for tests regarding her renal cancer. I have already sent an e-mail to Commissioner Cindy Meadows voicing my strong agreement with the position expressed by SWCC in their letter. Anita will be looking out for us.
     
  7. Busta Hustle

    Busta Hustle Beach Fanatic

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    Re: Public's beach rights being attacked

    if the attendance at this meeting does not set an all time record i'll be totally disappointed...i hear there will be snacks and balloons and cute baby puppies and a beautiful topless waitstaff:D
     
  8. DuneAHH

    DuneAHH Beach Fanatic

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    Re: Public's beach rights being attacked

    I'll be there.
     
  9. Bobby J

    Bobby J Beach Fanatic

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    Re: Public's beach rights being attacked

    This might be the biggest issue ever facing the BCC and residents of Walton county. Lets just hope the BBC does the right thing. The common sense thing. Everyone make sure you make this meeting if you can. Those that oppose the issue will be organized and have a plan. If we do not show support, the BBC will lean toward private beaches.
     
  10. Matt J

    Matt J SWGB

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    Re: Public's beach rights being attacked

    BBC? Is that Board of Baffon Commissioners?

    Seriously though I will attend, the beaches must remain in the public domain or SoWal will fold.
     
  11. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

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    It truly is a sad state of affairs when the "majority" feel entitled to be able to deprive private property owners from their property for ANY justification (other than true imminent domain situations). The beach is not a road or a school ground or a powerline path or a sewage treatment plant location.

    The problem is not the occasional trespassing skirmish hyperbolized by the local news. The real problems are the "promises" of "beach access" made by developers of huge projects when there is none.

    Who REALLY stands to lose out here? Follow the money, as they say, and you'll have your answer.

    It's NOT the vacationing family who is building a sand castle along with memories. It is the ($100,000,000+) Redfish Village developments. It is the County and commisioners who "think" they will benefit from the increased tax base at the expense of overcrowding on the beach. These people are the ones fighting for de-privatization of private property. They have solicited your help without your really knowing the true sides of the issue.

    If Walton County is allowed to continue to approve non-appropriate developments, we're only a step away from becoming a Destin or Panama City. "I love your area because it is not crowded like Destin and Panama City" is something I've heard over and over. I and many others feel the same.

    With undeveloped beachfront property practically extinct, how else will developers command the prices they seek in our area? The developer's solution?...simply build off the beach where the land is cheaper and "truck-em" in. Ooops, they can't do that just anywhere since there are stretches of private beach (unless they get the county and state to throw away private property rights).

    60 years or so ago, you would be hard pressed to find a soul on the beach in our area. Yet private property lines extended to the water even back then. The true beach pioneers were the ones who came when everyone else thought this area was a wasteland. They PURCHASED beachfront property, built their block homes and enjoyed the area for what it WAS: quiet and private. Others of us who felt the same purchased the property from them...and so on.

    Today everybody wants to be on the beach. We have grocery stores, air conditioning, running water, sewage, roads and more than enough restaurants.

    And of course we have a beautiful beach which is why people bought private property in this "wasteland" long ago in the first place. Now EVERYBODY wants to be in this area...most of all, the developers. Somehow, many people have translated this into a personal entitlement.


    As a kid, I remember playing at the creek in our neighborhood. I was never run off the many years that I did play there. Yet I can not imagine ever going to the owner of the adjacent private property today and saying the public is entitled to their private property simply because I and many other kids before me and after me played at that creek and we were never run off.

    Not much of a real difference here except for the following: money.

    Counter-intuitively speaking, the de-privatization of the beach will benefit the developers more than the "public". The charm and serenity of our area will be greatly compromised (even more so) if this is allowed to happen.
     
  12. John R

    John R needs to get out more

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    Re: Private Property Owner's Rights Being Attacked

    On the other hand, if the entire length of the beach was accessible by the everyone, then we (users and purported owners) could get back to the status quo, before all the nastiness began. And, the off-beach developers would have nothing to sell with regards to the sand.
     
  13. Pirate

    Pirate Beach Fanatic

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    Re: Private Property Owner's Rights Being Attacked


    I think you may need to drop your lawyer for a cardiologist in the near future. Try to enjoy it, even if people block your view.
     
    Last edited: Nov 12, 2007
  14. Smiling JOe

    Smiling JOe SoWal Expert

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    Re: Private Property Owner's Rights Being Attacked

    I acknowledge the huge parking, transportation and beach access problems being created by the Planning Commission and Board of County Commissioners approving developments without forethought of addressing these problems.

    However, regarding private property rights, the State Supreme Court believes that property rights of sandy beach is limited, compared to other property.
     
  15. seacrestkristi

    seacrestkristi Beach Fanatic

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    Re: Private Property Owner's Rights Being Attacked

    The difference is the man was NICE enough to let you children play. He knew how to share. He didn't run call the police and have you all arrested. He didn't harass your family in the creek like the lady did who didn't want the fishermen even looking at her house. :nono1: To me there is also a big difference in a creek and the Gulf of Mexico. The pioneers purchased Gulf front not the Gulf itself. I bet they never kicked anyone off the beach either. They had greater respect for God's gift to EVERYONE. They sure didn't put up ugly, polluting, private property signs all over the beach.

    What are you so afraid of? Someone sitting on the beach behind your place? If the beaches are public but there's no public access at every beach then WTH are you so worried about, BMBV? Population is increasing in the world. Sowal is not immune to that. There's goning to be more people on the beach whether you call it private or public, period. We're going to have to educate tourists and new homeowners about keeping the beaches clean and pristine and free of obstructions for the nesting turtles.
     
    Last edited: Nov 12, 2007
  16. JustaLocal

    JustaLocal Beach Fanatic

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    Re: Public's beach rights being attacked

    I will be there.
     
  17. Bear

    Bear Beach Comber

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    Re: Private Property Owner's Rights Being Attacked

    Ok I may have read this wrong,but are you saying that you don't want people on the beach behind your property.That there are trespassing on your property by hanging out on the beach. Like I said I may have understood your post,if so disregard my rant. So I am to believe that you think that only the very wealthy have the right to enjoy the beach:bang: If don't want people in your back yard dont live on the beach. You are one of the successfully few that has the means to live in a lifestyle like this, and Im sure you worked hard for all you have and that it is well deserved.That being said.You are wrong here I dont care what the law is the beach is not yours to own. The beaches and the ocean are for all to enjoy.Your just like the huge cattle tycoons of the old west that fenced off all the free range and shut out the small ranchers .If I was 10years younger I would start using your front yard for my beach parking:lolabove: .
     
  18. John R

    John R needs to get out more

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    Re: Private Property Owner's Rights Being Attacked

    LMFAO. where's the ::sticking it to the man:: smilie when you need one?

    What's 10 years got to do with it? PM me when you're headed over to park and I'll bring my camera and join you.

    BMBV, you know I enjoy your threads.
     
  19. 30A Skunkape

    30A Skunkape Mr. Small Box

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    Re: Private Property Owner's Rights Being Attacked

    BMBV, couldn't you at least have some fun with this and plant a few of these bad boys in the renourished beach?:lol:
     
  20. rapunzel

    rapunzel Beach Fanatic

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    Re: Private Property Owner's Rights Being Attacked


    So, let me see if I have this straight, BMBV -- what I understand you to say is that you are asserting your property rights in order to fight overdevelopment. Doesn't protecting your unfettered property rights in fact just reinforce the developers' argument that they should be allowed to develop as many units per acre as they want because of their property rights?

    Do you feel that the the only way to stop the raping and pillaging of SoWal by developers is to make the beaches inaccessible to any but the first tier owners and therefore make the area unattractive to tourists and those who might want to build a second home?

    Asserting property rights to prevent others from asserting property rights -- that's an interesting approach to fighting the man, BMBV. Do you not fear that when enjoyable beach access is only available to the elite few that could buy from the first wave of gulf front pioneers, perhaps the people who supported restricting the building heights in SoWal in order to preserve the beach community, old Panhandle feel in this one place may decide that it didn't work? If there's no popular support for the restrictions, and the developers and people who work in construction are starving in the streets, maybe the big 20+ story casino style condos won't be so repugnant to the rest of us second and third tier people. A crowded beach is better than no beach at all.

    If the spirit of New Urbanism dies out in SoWal, if all anyone is concerned about is their own property rights, and fighting back the marauding hordes with security patrols and tacky signs, then this little experiment in a livable beach community will have failed. We may as well be like Destin and Panama City.

    If you want an uncrowded beach, I think becoming politically active and fighting the unfettered development, holding county commissioners like Scott Brannon accountable for their bad decisions, and perhaps even attempting to divert funds from tourist development might work better for you in the long run.
     

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