Beach Property Rights - public/private

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

  1. John R

    John R needs to get out more

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    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."
     
    Last edited: Dec 6, 2007
  2. Smiling JOe

    Smiling JOe SoWal Expert

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    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.
     
  3. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

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    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.
     
  4. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

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    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?​
     
    Last edited: Dec 6, 2007
  5. Smiling JOe

    Smiling JOe SoWal Expert

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    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.
     
  6. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

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    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).:D

    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).
     
  7. Smiling JOe

    Smiling JOe SoWal Expert

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    The only part with which I agree with you is your last paragraph above. In WalCo, we aren't trying to establish public driving on the beach on privately deed property, by saying that the sunbathing public had established a customary use. The use is not changing, as it did in the Case to which you refer. By the way, is Judge Jacquiline R Griffin a Florida Supreme Court Judge? Supreme Courts don't like to be toyed with like that. Read the statements of the Supreme Court Judges in the Tona-Rama case.
     
  8. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

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    Well hell...one paragraph is better than no paragraphs. I won't give up on you that easily.

    You don't like lawyer quotes. I give you a judge's quote. Then you don't like the judge's quote because she may not be on the Supreme Court. Throw me a rotten bone...please! I interpret the judge's quote. You disagree yet you don't throw in your own interpretation.

    SJ, its no secret that you want my (our) private property for yourself and your buds. I just want to know why you think you're entitled other than "customary use" which, by the way, nobody has defined for me (i.e. frequency of visitation, quantity of people, repeatability of the same people visiting, time window in years, and of course - accurate record keeping requirements).

    Your general and vague statement that the beaches in Sowal have been open to the public doesn't fly in my book and probably won't at the judicial level. I've been trying to shed a little light regarding this here in FLORIDA (not Oregon, Hawaii or Texas).
     
  9. Smiling JOe

    Smiling JOe SoWal Expert

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    -The lawyer's quote made it sound like he was the law, not the lawyer.
    -The Judge is saying something contrary to the Florida Supreme Courts written comments on a closed case.
    - I already gave my interpretation of it twice.
    -I don't want your property.
    -On numerous occasions, I have spoken on the specific questions you have regarding customary use. I see no point in repeating the same thing over an over again. That is just silly.
    -I do not recall having mentioned customary use of beaches in Oregon, Hawaii, nor Texas.
     
  10. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

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    "-The Judge is saying something contrary to the Florida Supreme Courts written comments on a closed case. "
    I quote a judge's quote verbatim from this past September and you say the judge is contradicting a closed case? What's it take to make a point?

    "- I already gave my interpretation of it twice. "
    Well I guess we see what we want to see.

    "-I don't want your property."
    Then what's the point of all this?

    "-On numerous occasions, I have spoken on the specific questions you have regarding customary use. I see no point in repeating the same thing over an over again. That is just silly."
    No its not silly. At least I'm not laughing. Its the core of the argument of this thread, SJ. It's the core on why people are getting arrested. Its the core why TDC sees this as a threat to tourism and the overall economy in SoWal. Its the core why beach renoursihment is being tied up in the Supreme Court that could affect all renourishment projects in Florida. It is the core reason why you and I and others are butting heads.

    If you did answer, it surely did not resonate with me.

    You are without a doubt the most verbose person on this board. Surely you could endulge me once more with your interpretation of customary use and save me (us) the time of searching for your numerous previous answers.

    Again what conditions does your interpretation of customary use meet and what are the values? (frequency, quantity, documentation, etc.)


    "-I do not recall having mentioned customary use of beaches in Oregon, Hawaii, nor Texas."
    You're right...you didn't, I did. Just pointing out that Florida is a different state (with some different legal interpretations) than the other states that made the beaches public...that's all.


    SJ, as you know, I don't take private property rights lightly. Sorry for the heavy-handed tone. Night.
     
  11. Smiling JOe

    Smiling JOe SoWal Expert

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    Read into my statements as you wish, but I stated that the Judge whom you quoted, claimed to be interpreting the FL Supreme Court, but in truth, it appears that she is misinterpreting and contradicting that which the FL Supreme Court wrote.

    You say its not silly for me to repeat myself, so here I am repeating myself. It is silly for me to continuously explain the same thing over and over again to someone who doesn't want to see that I am explaining myself. It is getting old, quickly.

    I never asked for beach nourishment and think that the beach would be just fine if people would stop building on the dune system, and stop erecting seawalls. The only reason why the beach isn't as wide as it once was, is due to Man interfering with Ma Nature, and preventing the dunes from collapsing as dunes naturally do. Man is preventing natural nourishment by stopping the dunes from collapsing.

    I'm not interested in rehashing my written thoughts on prescriptive easements. I've written several lengthy posts on the subject, and if you are truly interested in my thoughts, take the time to read what I've typed, rather than continuously asking me to answer the question which I already answered several times.

    As for the other states' decisions, I could care less. I have referred to only the FL Supreme Court Decisions and Florida Law. The last time I checked, the beaches in Walton County Florida are located in the State of Florida. If the FL Supreme Court wants to look at other states rulings, I'll leave that solely to them.
     
  12. John R

    John R needs to get out more

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    This is on the same level as BMBW requesting the tax ID# for Surfrider.

    customary use: park at beach, walk onto sand, turn left/right to get out of traffic, lay down towel/deploy chair, enjoy beach, repeat
     
  13. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

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    We are not discussing prescriptive easements. Stay focused.

    I just searched for the word "prescriptive" on SoWal that were posted by you....just 4 instances prior to this latest exchange. In one place you basically state that the public has a prescriptive easement to private property if they tresspass and the property is not "hostilely defended" by the private property owner. Weak case for public rights over private property.

    Even this from ecopal's post where he quoted items from the Tona-Roma court case:

    "....The court found that the Plaintiff had not established all of the technical requirements for a ?prescriptive easement? to exist in favor of the public. The court did, however, establish what some have called a ?doctrine of customary usage?."


    "The Tona-Rama case did not establish a blanket right of customary use on all of Florida?s beaches. That case and subsequent court cases have recognized the doctrine of customary use but have indicated that its application to a particular area of beach must be determined on a case-by case basis. In other words, the person or entity trying to establish the right must show that the public use of a particular beach area has been ?ancient, reasonable, without interruption and free from dispute, etc?.


    I have just been simply asking what constitutes customary use? This is a simple question that can affect more than just gulf front property owners. Sorry if you're getting frustrated as I detect with your tone.

    I can't find any specifics other than the quote above. Even BeachSiO2 [ame="http://sowal.com/bb/showpost.php?p=267431&postcount=17"]admitted in July [/ame]that he is not sure what constitutes "customary use". So that makes at least two of us on SoWal who admit it.

    I can't find anything so far in your posts that effectively and DIRECTLY addresses the question. But I did find some old interesting stuff in the meantime that needed addressing on the other thread.;-)
     
  14. BeachSiO2

    BeachSiO2 Beach Fanatic

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    Yeah, but what does he know. He is admittedly NOT a law student, attorney, land use attorney, or judge. Heck he doesn't even stay in a Holiday Inn Express when he travels. I wouldn't hang my hat on any interpretation he makes of legal mumbo jumbo.:D
     
  15. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

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    Maybe not, but a little birdie tells me that "he" knows more than the average bear.:lol:
     
  16. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

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    Scott, Geoffrey R. ?Expanding Public Trust Doctrine: A Warning to
    Environmentalists and Policy Makers.? ​
    Fordham Environmental Law
    Journal
    10 (1998): 1?70.

    Scott argues that while the public trust doctrine has been applied and adapted to a wide variety of situations, they all have been based on the currently popular social need of providing access to the shore without compensating the private property owner, rather than on good jurisprudence. He describes two very different applications of the public trust doctrine in neighboring states?liberal application in New Jersey and strict application in Delaware?to demonstrate the lack of uniformity in interpreting the doctrine. The adherence of Lucas v. South Carolina Coastal Council and related cases to the Fifth Amendment is signaling that the limits of the doctrine have been reached. Scott argues that the judicial system is used to redress imbalances. While the public trust doctrine accommodates public interests, it denies any quid pro quo for private interests. The same forces that expanded the public trust doctrine can swing back to restrict it unless both sides with interests in the shoreline are accommodated.

     
  17. Bob

    Bob SoWal Insider

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    No Trespassing signs, rent-a-cops, beach tasering and or hand cuffing, fences.....perhaps you can dye the sand to read "mine"!
     
  18. Smiling JOe

    Smiling JOe SoWal Expert

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    HELLO, Tona-Roma was 100% about prescriptive easements. You and others claim that gulf front owners are losing something by the public using the beach, and that is what makes it a Prescriptive Easement issue. You are the one who has drifted off topic.

    Perhaps this article from floridalandlaw.com is more informative than the news flash which you posted:

    Tuesday, September 25, 2007
    Fifth District: Volusia County Must Demonstrate Historic Use of Beach

    In Trepanier et al v. County of Volusia, the Fifth District got into a veritable scrum of overlapping issues involving the County's assertion of the right to occupy platted lots. That are beachfront. It overturned a summary judgment on behalf of the County for most of the counts, but basically blew that takings issue (more below) and upheld the lower court.

    A bunch of folks have beach front lots, with a seawall back into the property. Used to be lots of beach in front of the platted lots, but hurricanes resulted in what appears to be avulsion (not gradual erosion, but sudden loss of land).

    The County then decided that it would help people invade the lots. It staked out areas up to the dune line (way past the high water mark), and delineated areas in which people could drive and park that were within the platted area of the lots. This appears to have been the veritable straw, as the various landowners seem to have been accepting of some give and take with the public for crossing or sitting on the beach, but didn't like the cars.

    Suit ensues, with claims of trespass and taking, as well as requests for declaratory and injunctive relief.

    The County not only claims that the entire beach in Volusia County (more on the definition) is open to the use and access of the public, but that cars can use it, too. Yes, Tona-Roma returns, with a vengeance (montazuma's vengence). The County demands that the court establish an easement across the landowners' lots up to the seawall or line of permanent vegetation. Not only that, but the County actually counter claims against the homeowners for some ancient cause called "perpresture" -- which the court explains in a footnote is "[a]n encroachment upon public rights and easements by appropriation to private use of that which belongs to the public." Yep, the County claimed that, by asserting that they still owned their lots and had any right to exclude the public (or at least its cars), the homeowners were stealing from the public.

    Lenin would be so proud to know that Volusia County agrees that property is theft. (remember the right to exclude, core stick in that bundle?) On the County's motion for summary judgment, the circuit court also apparently pulled out a copy of "What is to Be Done?" along with its Southern Reporter. In what sounds like excrutiating detail, the circuit court turned effective title much of the lots to the County, ruling that (quoting from the 5th DCA opinion):

    This court declares that the defendant, COUNTY OF VOLUSIA, on behalf of the
    public, holds a superior claim to possession and use of the beach landward of
    the mean low water mark of the Atlantic Ocean to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation in accordance with the definition set forth in Fla. Stat. section 161.54(3) (2004).

    Plaintiffs are permanently enjoined from impeding public access to the beach or from acting in any manner inconsistent with the free use of the beach by the public,
    including access by motor vehicle, subject to the regulatory power of the County of Volusia.


    Ok, so first the Court declares that the County actually owns the real rights to the beach for the public (yeah, Lenin!) - for what else is a "superior claim to possession and use"? The court then declares that the area of the beach is defined not by common law, but by Florida Statutes. It enjoins the landowners from acting "in any manner inconsistent with the free use of the beach by the public," which appears to me to mean that the public has a right to set up a tent in front of the Plaintiffs lots to enjoy the beach, but if the Plaintiffs do the same thing they are in contempt.
    The circuit court does a handwave to Tona-Rama, but completely bastardizes the fact-specific holding that case. For those who don't read all the obscure land use cases, Tona-Rama held that (in very fact specific circumstances) parts of the beach at Daytona Beach around the pier had been subject to public use for so long that a prescriptive easement had been established, one that prevented the owner of the pier from developing on parts of the beach that had been essentially the public beach. The circuit court reached around Tona-Rama and added a dose of its own public policy to hold that the beaches throughout Volusia County (again, defined by the statute) are public as a matter of law, and open to vehicles.


    It also finds prescriptive use rights based on (uncited) open and historic use of the beach.

    Oh, and it doesn't stop.

    The circuit court also agrees with the County that whenever the beach changes landward, the public's rights automatically migrate with it (no review whatsoever of whether changes are avulsion or erosion - too petty a detail to consider when homeowners are stealing the beach).

    The Fifth District, to its credit, puts most of this to a screeching halt. It wants to see a factual record on whether this area of the beach was historically used by cars, and for what part of the beach (like, did people ever drive within the platted lots?). The Fifth also wants findings on the avulsion/erosion issue, and whether the use of the beach was permissive (which doesn't create prescription) versus adverse.

    In other words, the Fifth is going to require fairly strict application of the common law principles that underlie Tona-Rama and not simply wink at judicial expropriation of the beach through some newly minted rule of law. The opinion deals with the critical Tona-Rama case this way:

    Although we recognize that the issue is far from clear, we conclude, both from
    our reading of the supreme court's various opinions in Tona-Rama and from reading the underlying decision of the First District Court of Appeal in City of Daytona Beach v. Tona-Rama, Inc., 271 So. 2d 765 (Fla. 1st DCA 1972), that the intent of the supreme court was to declare the right of customary use in the public only for the area of beach at issue in that case, for which it had an extensive factual record of customary public use. Indeed, the decision of the First District Court of Appeal was explicit in this regard, as it necessarily had to be, because the remedy that court embraced was prescriptive easement.



    On the question of whether the right to use the beach above the high water line (if it were established) also moved, the court held that the avulsion/erosion issue had to be addressed. It went on to hold:

    Certainly, if it can be shown that, by custom, use of the beach by the public as a thoroughfare has moved seaward and landward onto Appellant's property with the movement of the mean high water line, that public right is inviolate. However, it is not evident, if customary use of a beach is made impossible by the landward shift of the mean high water line, that the areas subject to the public right by custom would move landward with it to preserve public use on private property that previously was not subject to the public's customary right of use.


    The Fifth also noted that the entire issue is going to require resolution by the Florida Supreme Court: "We recognize that a question as important as the meaning and scope of Tona-Rama and the migration of the public's customary right to use of the beach will ultimately have to be determined by the Supreme Court of Florida, not this court. We believe, however, that this case should not go to the high court until the evidentiary issues we refer to have been developed in the trial court. "

    After all this good work, the district court blows the final act when it upholds the circuit court's dismissal of the landowners' takings claims:

    Finally, we agree with the trial court's analysis of the "takings" issue. If the law
    recognizes that the public has a customary right to drive and park on Appellants'
    property as an adjunct of its right to other recreational uses of that property, as
    recognized in Tona-Rama, then no takings claim can be made out.


    The problem should be obvious: if the circuit court finds that the public does not have a customary right to drive on these lots, then the County's actions in staking out parts of the Plaintiff's lots and letting people park and drive on them is a taking! Remember Loretto? One of the remaining "per se" takings claims - significant interference with the right to exclude?

    The problem with this mistake (and you can understand it in context) is that it implies that there isn't a taking or recompense for the plaintiffs even if they win and the County refuses to stop. Very sad that in order to fix this giant hole in an otherwise smart and thoughtful decision, the landowners might have to ask the supreme court to review it.

    Maybe the landowners should simply start putting out calthrops or other barriers to the cars and let the county sue them and move for a temporary injunction to stop them. Would be a VERY interesting case at that point regarding who's rights are initially recognized - the fee owner seised under the common law or the invading government, claiming on behalf of the public that the landowners "seisin" constitutes a seizure.

    In any case - VERY important stuff and at least some glimmer that the rule of law and cooler heads sometimes prevail. Lenin may be weeping, but Locke and Blackstone smile.
     
    Last edited: Dec 7, 2007
  19. Smiling JOe

    Smiling JOe SoWal Expert

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    Also, keep in mind that Tona-Rama decision of the FL Supreme Court was based on another case, White v. Hughes, in which the Florida Supreme Court stated:


    "there is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto. The lure of the ocean is universal; to battle with its refreshing breakers a delight. . . . The attraction of the ocean for mankind is as enduring as its own changelessness. The people of Florida—a State blessed with probably the finest bathing beaches in the world—are no exception to the rule. . . . We love the oceans which surround our State. We, and our visitors too, enjoy bathing in their refreshing waters.

    and the FL Supreme Court, in Tona-Rama concluded:

    "the beaches of Florida are of such a character as to use and potential development as to require separate consideration from other lands with respect to the elements and consequence of title. The sandy portion of the beaches are of no use for farming, grazing, timber production, or residency—the traditional uses of land—but has served as a thoroughfare and haven for fishermen and bathers, as well as a place of recreation for the public. The interest and rights of the public to the full use of the beaches should be protected.

    Furthermore, the court recognized:

    the propriety of protecting the public interest in, and right to utilization of, the beaches and oceans of the State of Florida. No part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches. And the right of the public of access to, and enjoyment of, Florida's oceans and beaches has long been recognized by this Court"
     
  20. Smiling JOe

    Smiling JOe SoWal Expert

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    BTW, BMBV, you can find most of the answers to your questions regarding the legal definitions of prescriptive easements in Court Cases. Try looking them up on the FL Supreme Court's website.
     

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