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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
Beach Fanatic
#127
They didn't even discuss the beach issue? :confused:
jodiFL avatar
Beach Fanatic
#128
Not really. The attorney for a few folks on the east end of SOWAL wanted the WCC to revoke a ruling about "customary use" but the WCC hasnt GOT an ordinance about that so they basically told him to sit down.
BlueMtnBeachVagrant avatar
Beach Fanatic
#129
No I am NOT saying that they should. I too was astonished at this but it is what it is. But they (anyone in a vessel on the water) can tie up to any dock and i think it has to do with the whole "shelter in a storm" thing. (If they are having problems and the boat sinks and you dont let them tie up you can get in trouble) So if you think people walking or sitting on the beach in front of you house is such an invasion maybe you should talk to those that have lake, bay, or creek front property.

Well that's an encouraging sign. If I owned a dock, I certainly would let a boater in trouble tie up, not a second thought.

What should I say to the bay, lake, creek and golf people? Watch your back? Your neighbors want to use your land? Keep your teen-age daughters inside? Pick up your dog-doo or the sheriff will write you a citation? Hey, did you know you can't drink a bottled Heineken in your own yard? Better not leave that chair out overnight or your neighbor will feel entitled to remove it?

Edited

InletBchDweller avatar
SoWal Insider
#130
I obviously am getting in on this way too late.

BMV, is there a specific incident that happened to make you feel the way you do??? From what I am gathering it seems that someone actually came into your back yard....((not the sand)). I have no idea where you live in Blue Mountain, how far is your house from the water line???
Do you have neighbors that feel the same way???
Did at one time you have more property on the Gulf side and now most of it is gone b/c of storm surge???

I am just trying to gather information on if you have physically been violated or if you just dont want anyone in front of your house. I just can not understand your side of the story. I am not trying to be a smart arse just gathering information.
Jdarg avatar
SoWal Expert
#131
Not really. The attorney for a few folks on the east end of SOWAL wanted the WCC to revoke a ruling about "customary use" but the WCC hasnt GOT an ordinance about that so they basically told him to sit down.

That was pretty funny.

Actually it was even funnier that lots of people including a TV reporter showed up after the fact and were baffled that nothing had happened.

Edited

Beach Fanatic
#132
:D :biggrin: :floor:
Beach Lover
#133
I would think that a group of gulf front property owners could afford an attorney that at least dressed that part. He did look kinda "ambulance-chaser-ish", didnt he?

No, he looked like Matlock!
NotDeadYet avatar
Beach Fanatic
#134
No discussion of the beach issue - just letting it go. Our County Attorney basically said he hasn't done anything about further researching the Council's options per the last meeting. I got the feeling he isn't really planning to any time soon.

The lawyer for the beachfront property owners said he is going to draft an ordinance for the councils consideration next time. I will be at that meeting too.

Well now this is interesting. :scratch: The county drags its feet and this attorney is going to get busy and draft an ordinance. Wonder what the vacuum of inertia might suck in? Government by default? :bang:
Beach Comber
#135
InLetBchDweller you have asked some great questions.
Along time ago before any of us were at the beach, before walkovers, before the Red Bar, before Seaside-Walton County sold beach front property to individuals. The deeds state that ownership includes "to the mean high water line (MHWL) of the Gulf of Mexico." Yes, Walton County sold the beach to individuals. They built houses, condos, townhomes, etc. on their property. They have since sold them to others, as real estate goes.

The beachfront owners now, 40-50 years later are faced with the threat of the County taking our property away from us and making the beaches public. No, we have not had any mishaps or trespassing on our property as of yet, but when someone wants to take your property away from you-natural instincts kick in that make a person want to defend their property and rights.

There have been a lot of assumptions made on this thread that are wrong and need clarification:

I am not a whiney property owner that never comes to the beach and expects the County and taxpayers to take care of my property after a hurricane. We were and are responsible for the restoration of our beach. We did not ask, expect or receive any money from Walton County to restore the beach. Remember, they said we could own the property-we have to take care of it, which we did. also, my family and I try to get down once a month, we spend all of our holidays there and quite a bit of the summer.

Yes, the County picks up the trash bags on our beach property and they do a wonderful job! But the the trash has to get into those bags by someone else. That would be the owners of the property and the individuals who have rented from the owners. Again, we are responsible for the beach because we own to the MHWL to the Gulf of Mexico.

The trash pick-up is not for free-beach front owners pay very high taxes-we understand that, it is part of owning beach front property. Trash pick-up is the only service beach front owners receive different from non-beach front owners.

We are just trying to defend our rights and some people think we are wrong for doing so.
Jdarg avatar
SoWal Expert
#137
"The trash pick-up is not for free-beach front owners pay very high taxes-we understand that, it is part of owning beach front property. Trash pick-up is the only service beach front owners receive different from non-beach front owners."

Beachbliss- please explain. Do you pay higher taxes as a Gulf front Walton county property owner than I do as a 1 block off the bay property owner?
Uncle Timmy avatar
Beach Fanatic
#138
The beachfront owners now, 40-50 years later are faced with the threat of the County taking our property away from us and making the beaches public. No, we have not had any mishaps or trespassing on our property as of yet, but when someone wants to take your property away from you-natural instincts kick in that make a person want to defend their property and rights.

There have been a lot of assumptions made on this thread that are wrong and need clarification:

We are just trying to defend our rights and some people think we are wrong for doing so.

:bang:
Could we PLEASE maintain some grasp of reality when discussing this issue.

NO ONE is taking your property. NO ONE has drafted any resolution to redraw your property boundary. NO ONE is stealing a square foot of your land.

This is a move to reinforce the historical and legal access of the public to Florida?s beaches. Period.

You own a piece of the beach, therefore you must allow a degree of access to that beach.
Bear avatar
Beach Comber
#139
my family and I try to get down once a month, we spend all of our holidays there and quite a bit of the summer.

This makes me sick, They want to kick the locals off the beach so when they visit there extra house theres no crowd on the beach.:bang: Are you kidding me.

Edited

jodiFL avatar
Beach Fanatic
#140
This is a move to reinforce the historical and legal access of the public to Florida’s beaches. Period.
In 1974 the Florida Legislature determined that: " … the mean high water line as the boundary between state sovereignty lands and uplands subject to private ownership as well as the necessity for uniform standards and procedures with respect to the establishment of local tidal datums and the determination of the mean high water…"
As BB can read in this ..it is not Walton County or the "public" doing anything. This land is state sovereign.Meaning the state of Florida has owned this land since it BECAME A STATE.
We are just making sure that people from out of town that just happen to own property here keep Florida lands the property of Florida.

Edited

jodiFL avatar
Beach Fanatic
#141
The Legislature also authorized the Florida Professional Surveyor and Mapper as the only personnel qualified to establish the mean high water line.
And the topo maps they use were just updated so you might want to have another TOPO survey done on your property because you might not own what you think you do.
jodiFL avatar
Beach Fanatic
#142
well here goes....for some that dont want to dig through this,
(14) "Mean high water" means the average height of the high waters over a 19-year period. For shorter periods of observation, "mean high water" means the average height of the high waters after corrections are applied to eliminate known variations and to reduce the result to the equivalent of a mean 19-year value.
(21) "Nineteen-year tidal cycle" means the period of time generally reckoned as constituting a full tidal cycle.
(1) Mean high-water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership. However, no provision of this part shall be deemed to constitute a waiver of state ownership of sovereignty submerged lands, nor shall any provision of this part be deemed to impair the title to privately owned submerged lands validly alienated by the State of Florida or its legal predecessors.
(9) "Foreshore" means the strip of land between the mean high-water and mean low-water lines that is alternately covered and uncovered by the flow of the tide.

Edited

ShallowsNole avatar
Beach Fanatic
#143
.

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

They already can. My legal description is to the MHW of Choctawhatchee Bay, but people can get out of their boats and hang out on my 3 - 4 feet of beach. I have been told that as long as they don't climb the hill (or steal my boat :roll:), they are not trespassing on my property.

So, conversely, I believe that as long as I don't crawl up a beach property's private walkover or climb up over their dune/cliff, that I am not trespassing. Unfortunately, that is only ShallowsLogic, and nobody listens to me. :cool:
jodiFL avatar
Beach Fanatic
#144
Thank you Shallowsnole for clearing that up. How about if I put gas in the boat and share the fish I catch?;-) :floor: Not that i would consider getting that close to the drop off on most property around here on the bay. I have seen WAY too many snakes hanging out in those tree roots.:yikes:
InletBchDweller avatar
SoWal Insider
#145
BeachBliss, Thank you for responding to my questions.

I honestly do see both sides. That is why I am trying to ask questions.

Say if I had a gulf front house that was next to a public beach access. That access had massive amounts of people using it- they all camp out on the beach in front of my house and there was no room for my family to get on the sand and enjoy themselves. OR If loud music was playing so that I could hear it in the house, or if teenagers were funneling beer , etc etc etc then I would be upset. I would deal with it at that time. But that is how the cards fall, IMHO if you are unlucky?? enough to be beside a public beach, lake or river access. When you purchased your Gulf Front property were the beach access already in place?? If so then, even if I understood that I "owned a part of the beach" I would have thought more about it. Times do change and growth is inevitable.

If you have a gulf front house that is no where close to a public beach access and if a family comes and camps out in front of your house, and made a hike doing so, because there is a nice close sandbar, or just because, I just dont see the harm. That is why I asked the question how close the house was to the actual water. Some homes are super close to the water and some are hundreds of yards away. If your home is 100 feet from the gulf really how could several people aggravate you??? (unless they were causing a ruckus) EX. I had a board member for Paradise by the Sea call me b/c I am president of the Board for a condo across the street. She was rude and steaming mad (at me:idontno:) because a renter from "my" complex was on "their" beach sitting on a towel. She told me that it was a private beach and he was to get off and for me to contact all owners that they were NOT to be on their beach. I tried to pacify her, b/c of my position, but I really wanted to say...Your subdivision has some of the largest homesites on the Gulf in the area. THere is probably 6-8 homes where people actually stay so why does it matter??? Even if the subdivision was full of homes what does it matter??? I thought that there are alot of other things to worry about than a single man sitting on the beach. :roll:


Now as a local I understand/agree with the "other side' because I believe God created all this for us to enjoy and to block others is just not right. If people want to use the beach then they should be able to use the beach. Not your backyard, your dune, your shower or your steps. I dont think that anyone wants to take away your property they just want to use the beach. As far as the trash issue goes- I own inland and still I have to pick up trash that people throw out (which is on the countys property) but that is just part of being a responsible property owner, keeping it clean.

I dont believe that the County will allow mega story buildings in the area. Keep it at the issue at hand and dont try to steer the sheeple in your corral by scaring them.

I am all for everyone being able to use all beaches, everywhere. :clap:


Thanks for letting me put my dog in the hunt....:blush:
Pirate avatar
Beach Fanatic
#146
Re: Private Property Owner's Rights Being Attacked

.
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"?

The public has used the beach longer than the Sherriff has driven on it.
jodiFL avatar
Beach Fanatic
#147
Doesnt matter if it has been used or not ...you dont own property between the MHWL and the waters edge...
- The title to lands under navigable waters within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all people.
gardening1970 avatar
Beach Fanatic
#148
InletBchDweller - Very intelligent post. There are probably lots of people who can see both sides of this emotional issue. Good job at verbalizing what a lot of folks are thinking.
InletBchDweller avatar
SoWal Insider
#149
Thanks:blush: sometimes I surprise myself....:cool:
InletBchDweller - Very intelligent post. There are probably lots of people who can see both sides of this emotional issue. Good job at verbalizing what a lot of folks are thinking.
Rita avatar
margarita brocolia
#150
IBD - Thanks for the post ..... This is pretty much how I am thinking.

.
Beach Fanatic
#151
BeachBliss, Thank you for responding to my questions.

I honestly do see both sides. That is why I am trying to ask questions.

Say if I had a gulf front house that was next to a public beach access. That access had massive amounts of people using it- they all camp out on the beach in front of my house and there was no room for my family to get on the sand and enjoy themselves. OR If loud music was playing so that I could hear it in the house, or if teenagers were funneling beer , etc etc etc then I would be upset. I would deal with it at that time. But that is how the cards fall, IMHO if you are unlucky?? enough to be beside a public beach, lake or river access. When you purchased your Gulf Front property were the beach access already in place?? If so then, even if I understood that I "owned a part of the beach" I would have thought more about it. Times do change and growth is inevitable.

If you have a gulf front house that is no where close to a public beach access and if a family comes and camps out in front of your house, and made a hike doing so, because there is a nice close sandbar, or just because, I just dont see the harm. That is why I asked the question how close the house was to the actual water. Some homes are super close to the water and some are hundreds of yards away. If your home is 100 feet from the gulf really how could several people aggravate you??? (unless they were causing a ruckus) EX. I had a board member for Paradise by the Sea call me b/c I am president of the Board for a condo across the street. She was rude and steaming mad (at me:idontno:) because a renter from "my" complex was on "their" beach sitting on a towel. She told me that it was a private beach and he was to get off and for me to contact all owners that they were NOT to be on their beach. I tried to pacify her, b/c of my position, but I really wanted to say...Your subdivision has some of the largest homesites on the Gulf in the area. THere is probably 6-8 homes where people actually stay so why does it matter??? Even if the subdivision was full of homes what does it matter??? I thought that there are alot of other things to worry about than a single man sitting on the beach. :roll:


Now as a local I understand/agree with the "other side' because I believe God created all this for us to enjoy and to block others is just not right. If people want to use the beach then they should be able to use the beach. Not your backyard, your dune, your shower or your steps. I dont think that anyone wants to take away your property they just want to use the beach. As far as the trash issue goes- I own inland and still I have to pick up trash that people throw out (which is on the countys property) but that is just part of being a responsible property owner, keeping it clean.

I dont believe that the County will allow mega story buildings in the area. Keep it at the issue at hand and dont try to steer the sheeple in your corral by scaring them.

I am all for everyone being able to use all beaches, everywhere. :clap:


Thanks for letting me put my dog in the hunt....:blush:




I dont believe that the County will allow mega story buildings in the area. Keep it at the issue at hand and dont try to steer the sheeple in your corral by scaring them.

What are you basing your assumption on that the county won't allow mega story buildings?

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