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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
momof2kids avatar
Beach Fanatic
#77
Re: Private Property Owner's Rights Being Attacked

Here is more food for thought- Consider why you feel so strongly towards this wonderful area and why you LIVE there -it's quiet, very little traffic, not many people. Great reasons!! Why don't you live in Destin or Panama City? Because it's crowded, lots of traffic-right?

Well guess what? Destin and Panama city use to be just like 30-A, BEFORE THEY MADE THE BEACHES PUBLIC!!!! Developers have stayed away from 30-A because the beaches are private. 30-A is the last horizon in the panhandle.

If the beaches go public, than they can develop all around 30-A. Once they get public beaches approved, the next thing will be eliminating the height restrictions (which will a PIECE OF CAKE next to the beach issue) and putting up 40 story high developments in your front and back yards.

Those of you who want the beaches to go public-the developers have you right where they want you-you are being sucked in by them.

Keep the beaches private, the developers will go away because they can't sell the property and we all have our pristine beaches back.

Some people like the crowds, the college kids at spring etc... Hey, I use to and I went to Panama City, Daytona, Ft. Lauderdale, Destin. I didn't want to go to some boring place like 30-A, there's no action there!! But now, we have a chance to preserve this quiet stretch of beach that we all love. Once it goes like Panama City and Destin, we can't get it back.


:blink: there are public beaches in Destin & PC?? I thought there were just shopping centers & restaurants... go figure!
jodiFL avatar
Beach Fanatic
#78
Re: Public's beach rights being attacked

You know when I moved here few roads were paved, no cable was available, no sewer, and not too many people lived here. No problems with crowds or traffic. Nobody ever asked me to get off the beach. By your reasoning we need to get rid of paving, cable, and sewer.
there werent even WALKOVERS when I moved to SOWAL.
jodiFL avatar
Beach Fanatic
#79
Re: Private Property Owner's Rights Being Attacked

…….your only hope is to keep trying to wip up some sort of fear in people that public access to the beach will somehow result in 40 story condos, massive overdevelopment and the eventual destruction of SoWal.

Not buying into the scare tactic. Sorry.
Me either..since there is not enough gulf front property left in SOWAL to accomodate the parking required for a hirise.
BlueMtnBeachVagrant avatar
Beach Fanatic
#80
Re: Private Property Owner's Rights Being Attacked

".....we are just wanting people to be able to use the beaches as they have for YEARS.
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That concept is where I have a real problem.

If "someone" uses your property over and over, they feel entitled to it. There is some law here in Georgia that if you've driven a path over private property everyday for x number of years unimpeded, you basically get an easement. I can see that. It is one individual usually trying to get to their property that may be landlocked (public road wise), etc.

But the difference between the above and the beach situation, in my opinion only, is that we're NOT talking about an individual. We're talking about the public. I'm no lawyer, but I believe the legal rights afforded to the "public" are not the same as the rights afforded to an individual or other LEGAL entity. I believe this is the only reason why Walton County, a legal entity, can drive on the beach through our property. They have done it for x number of years without oppsosition.

So what defines the public as using the beach for X years? Joe Blow showed up in 1987 and Jane Doe showed up in 1994? I hope you see my point. I believe this is exactly why the attorney general said it would have to be decided on a case by case basis.

What is your opinion on the definition of "the public has used the beach for years"?
scooterbug44 avatar
SoWal Expert
#81
Re: Private Property Owner's Rights Being Attacked

You just put parking under the building :biggrin:................seriously though, this is the same scary building they won't be able to get approved, get financing for, or sell off the units in the current inventory heavy market!!!

The issue is people being able to use the beach! Go to the meeting and if you can't, email or call the county commissioners. The voices they are hearing are those of the property owners, so you have to let them hear from YOU! :angry:
scooterbug44 avatar
SoWal Expert
#82
Re: Private Property Owner's Rights Being Attacked

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What is your opinion on the definition of "the public has used the beach for years"?

My opinion is that if you spent 1/10 of the amount of time enjoying the beach as you do trying to prevent others from using it, your continued use would guarantee you towel/chair space and a view of the sunset!

How exactly is the hideous "public" hurting you by going to the beach? :idontno:
jodiFL avatar
Beach Fanatic
#83
Re: Private Property Owner's Rights Being Attacked

This was my response in another thread as to what I am fighting for here


Maam I dont think that you fully understand exactly what is being fought for here regarding the public/private thing. We are not trying to take your property away from you. But with all the development the accesses for the residents that dont live on the beach are approximately 12' wide. They are made to park and walk a long way to get to one of these accesses and then have no where to go but either to the left or right of that small strip but when "Private owners" tell them they cant go past a certain point when they get there it is not customary use of that beach we all claim as ours. As was said before, the county cleans that beach so its not like they are going to trash the beach, if they do our tax dollars pay to clean it. They arent going to come up your walkover and park it on your deck, they are going to stay at the waters edge.But I personally dont like to put my blanket or chair IN THE WATER.
BlueMtnBeachVagrant avatar
Beach Fanatic
#84
Re: Private Property Owner's Rights Being Attacked

Dumb argument (scare tactic).

If the county racked up millions of dollars in litigation fees, so would the property owners.

BMBV?.you will inevitably follow the path of least resistance and pain ?grudgingly acknowledging the public?s continued access to the beach and opting not to spend millions (apparently) to fight a losing battle.

????.your only hope is to keep trying to wip up some sort of fear in people that public access to the beach will somehow result in 40 story condos, massive overdevelopment and the eventual destruction of SoWal.

Not buying into the scare tactic. Sorry.

Please, don't appologize.

If you can't see what has ALREADY happened up and down 30A when several of the beaches are private (as declared by Walton TDC), then my friend you are just blind if you think that red blooded American (or foreign for that matter) captialists won't take full advantage of this newly opened door called "public" beaches.


Remember, a blind person won't show any fear when he is about to get run over by a truck.


Regarding your warm and fuzzy comment, "...you will inevitably follow the path of least resistance and pain ?grudgingly acknowledging the public?s continued access to the beach and opting not to spend millions (apparently) to fight a losing battle."

Do you think Seaside and Rosemary Beach and Water Color and on and on are going to open their already crowded private beaches to the public? Do you think they'll agree with you against the hundreds and hundreds of their association members? This time I'll let them fight the first battle with the county. You're right, I'm broke. They have much deeper pockets than I do.
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Oh...
Guys and gals, don't take any of this private vs. public stuff personally. It is a hot button and you'll usually side with whatever side of the railroad tracks you're on. Problem is one day, you'll be on the "other" side on some issue. I've just tried to point out that things are not always black and white.

Of course we all know things definitely won't get resolved on this board so please continue to send happy faces with bouncing hearts to each other.
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NotDeadYet avatar
Beach Fanatic
#85
Re: Public's beach rights being attacked

Well guess what? Destin and Panama city use to be just like 30-A, BEFORE THEY MADE THE BEACHES PUBLIC!!!! Developers have stayed away from 30-A because the beaches are private. 30-A is the last horizon in the panhandle.
This is just backwards. The "making public" of the beaches in Destin, which is only a 20ft compromise anyway, came after overdevelopment put so many people on the beaches. People staying in the highrises that were already built.
Or maybe you mean the Destin renourishment :idontno: which only "made public" the renourished part of the beach that taxpayers paid for.
This cause and effect idea that you have is just bizarre. Never ceases to amaze me what people will believe in an effort to justify their screwy opinions. :blink:
BlueMtnBeachVagrant avatar
Beach Fanatic
#86
Re: Private Property Owner's Rights Being Attacked

My opinion is that if you spent 1/10 of the amount of time enjoying the beach as you do trying to prevent others from using it, your continued use would guarantee you towel/chair space and a view of the sunset!

How exactly is the hideous "public" hurting you by going to the beach? :idontno:

ScooterBug, with over 1900 posts since May of 2007, it would seem to me that you spend all your time in front of the computer chatting on SoWal. I know it can be addictive !!!:biggrin: Do you ever get a chance to go the beach?

Soooo lets play pretend... if I bring my friends and family, 3 mobile coolers, 2 @ 10 foot square shade tents, play my radio, toss a little trash here and there, allow my little toddler run up and down your garden, grill some hot dogs on my hibachi, etc.....

and do this in your front yard, that you truly still don't see the "hurting" as you put it?

You want something for nothing, and then you dodge a hard core question regarding what constitutes continued public use. I won't give up my property on anyone's whim. Nor would I expect you or anyone else to do the same.

Edited

Uncle Timmy avatar
Beach Fanatic
#87
Re: Private Property Owner's Rights Being Attacked

Please, don't appologize.

If you can't see what has ALREADY happened up and down 30A when several of the beaches are private (as declared by Walton TDC), then my friend you are just blind if you think that red blooded American (or foreign for that matter) captialists won't take full advantage of this newly opened door called "public" beaches.


Remember, a blind person won't show any fear when he is about to get run over by a truck.
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2 can play this game:

If we allow a handful of specific property owners to assert that their property rights trump historical precedent and the common welfare of the majority of the county, then what is to stop property owners/developers from challenging SoWal's restrictive (relative to Panama City) zoning and Building Codes?

Isn’t it arguable that if beachfront property owners assert an exclusive control of their land to the water’s edge than it should be their right to build all the way to the water’s edge? Or as high as they want. It is their property afterall. If the county tells you that you can’t build over 50’ then haven’t they in effect seized control of your property from 50’ and above?

We allow Private Beaches, then we will have 40 story Condos right at the water’s edge all along SoWal's shoreline.

Scare tactic seen, acknowledged……and bettered.
BlueMtnBeachVagrant avatar
Beach Fanatic
#88
Re: Private Property Owner's Rights Being Attacked

And one more time, I'll ask a question that we all know the answer to....

Has anyone been stopped from going to any of the truly public beaches that exist in Walton County?

"NO you IDIOT!!!...WHAT's YOUR POINT????", I think heard someone say to me.

There are beaches and accesses currently available. It's just everyone off the beach simply wants more.

The letter generated by SWCC just made me shake my head in disgust. No, they wouldn't be happy with the "resolution" that Destin has now regarding the 20 foot distance. SWCC wants the WHOLE damn thing!!! Pretty obvious attempt of trying to set the stakes high and "settling" for the 20 foot thing. Guess what, as Uncle Timmy says, I'm not buying that.

Edited

Beach Fanatic
#89
Re: Private Property Owner's Rights Being Attacked

Yeah, what Uncle Timmy said! :cool: Are you going to be at the meeting, Uncle Timmy? :clap:
scooterbug44 avatar
SoWal Expert
#90
Re: Private Property Owner's Rights Being Attacked

Soooo lets play pretend... if I bring my friends and family, 3 mobile coolers, 2 @ 10 foot square shade tents, play my radio, toss a little trash here and there, allow my little toddler run up and down your garden, grill some hot dogs on my hibachi, etc.....

and do this in your front yard, that you truly still don't see the "hurting" as you put it?

Nope, feel free to use my yard! You can even use my grill if you bring your own charcoal & lighter fluid. I'll be down at the beach doing therapy for my Sowal addiction :D.

Seriously, find a spot in my yard that has a 1-2 story drop from the rest of the yard, is accessible by walkways built by the county, is patrolled for safety hazards, is periodically swept away by tropical storms and hurricanes, and has daily trash pickup (fresh bags provided daily too) and I'll buy your beer and provide daycare for the toddler!
Uncle Timmy avatar
Beach Fanatic
#91
Re: Private Property Owner's Rights Being Attacked

Oh...
Guys and gals, don't take any of this private vs. public stuff personally. It is a hot button and you'll usually side with whatever side of the railroad tracks you're on. Problem is one day, you'll be on the "other" side on some issue. I've just tried to point out that things are not always black and white.

.

The most honest point made on the "Private" side of this debate yet.

Let's just cut thru all the scare tactics and keep the discussion honest. You got your slice of the pie and would rather not share it. While I may not agree with your position, I can understand it.

Let's leave all this silliness about 40 story condos and the ruin of south Walton out of it.
Jdarg avatar
SoWal Expert
#92
Re: Public's beach rights being attacked

Bump- let's keep this at the top. This issue is on the agenda at 4:40.
Kurt avatar
Admin
#93
I merged the two threads.
Beach Fanatic
#94
:cool: We were gettin' dizzy! :biggrin:
InletBchDweller avatar
SoWal Insider
#95
I merged the two threads.
:blink: I thought I had run off the deep end- of a public beach!!!;-)
BlueMtnBeachVagrant avatar
Beach Fanatic
#96
Re: Private Property Owner's Rights Being Attacked

2 can play this game:

If we allow a handful of specific property owners to assert that their property rights trump historical precedent and the common welfare of the majority of the county, then what is to stop property owners/developers from challenging south Walton’s restrictive (relative to Panama City) zoning and Building Codes?

Isn’t it arguable that if beachfront property owners assert an exclusive control of their land to the water’s edge than it should be their right to build all the way to the water’s edge? Or as high as they want. It is their property afterall. If the county tells you that you can’t build over 50’ then haven’t they in effect seized control of your property from 50’ and above?

We allow Private Beaches, then we will have 40 story Condos right at the water’s edge all along south Walton’shoreline.

Scare tactic seen, acknowledged……and bettered.

Bettered? Don't think so.

We can't build to the waterline for the same reason you can't build up to the right of way. It's called setbacks. And that is not the issue.

I don't want to build the waterline anyway. I wish we were about 100 feet northward.

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.

Keep in mind that this highrise would be a hell of a lot more desirable as most of the units would have a good to GREAT gulf view....a lot better than Redfish Village.

If you can spare us the words such as "dumb" and "silliness" maybe this dialog would elevate where it should be. Just a thought.

Also it does not have to be a 40 story condo. Several 10 or 20 story condos would fit the bill north of 30A.
BlueMtnBeachVagrant avatar
Beach Fanatic
#97
Re: Private Property Owner's Rights Being Attacked

The most honest point made on the "Private" side of this debate yet.

Let's just cut thru all the scare tactics and keep the discussion honest. You got your slice of the pie and would rather not share it. While I may not agree with your position, I can understand it.

Let's leave all this silliness about 40 story condos and the ruin of south Walton out of it.

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.
John R avatar
needs to get out more
#98
I'm thinking historical use is "as long as people have been going to the beach". Long before any of the BMB crew bought and built.

do people actually climb up and use your grill?? that's ballsy.
jodiFL avatar
Beach Fanatic
#99
If you can't see what has ALREADY happened up and down 30A when several of the beaches are private (as declared by Walton TDC),
The TDC (Tourist Development Council) has ABSOLUTELY no authority to declare anything public or private.
scooterbug44 avatar
SoWal Expert
#100
Everybody should be getting ready to GO TO THE MEETING!!!

Our beaches should say:welcome:

NOT

"get off my sand" :angry:!
Uncle Timmy avatar
Beach Fanatic
#101
Re: Private Property Owner's Rights Being Attacked

If you can spare us the words such as "dumb" and "silliness" maybe this dialog would elevate where it should be. Just a thought.

Can you spare us the silly scare tactics?

I will continue to use terms such as silly if you keep making SILLY arguments that allowing people to use the beach in front of your house will somehow translate into SoWal being over run with high rise condos.

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