Open question for beach front homeowners, their lawyers and their politician friends
- Thread starter Dave Rauschkolb
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Those are all elements that have to be demonstrated. The Trepanier court in describing "How is a Customary Use Right Established?" described them slightly differently - ancient, peaceable, certain, and consistent.
Also, FWIW, one thing that has me scratching my head is the following: The Florida Legislature is clearly ok with customary use. They are clearly ok even with customary use by ordinance. They just aren't ok with customary use by ordinance if it occurred after January 1, 2016. So if Volusia County had customary use by ordinance as of December 31, 2015, that is just fine. It's just hard to understand the logic there. I get that statutes often grandfather prior conduct and have to have some effective date going forward. But why reach back in time to cover some ordinances but not others?
The Walton County CU ordinance had no due process. The other two (St John's County and Volusia) did. Any counties in the future who wish to establish CU will have to follow HB631 as well. CU is not as controversial in areas that have been renourished, which is apparently a good bit of the Florida coastline. I don't know the exact figures/percentages.
St. Johns ordinance goes all the back to 2007. Volusia County...established by the court in 1976. Lets try to find some counties that are a little bit closer to the deadline. Maybe we should look at what Nassau Co./ Fernandina have been doing since they are one county that has not gone to court yet but passed an ordinance in May2018 anyway with the intent of going to the court.
Comments in [brackets]
twinbrew: My personal view (based on the materials I have reviewed) is that the doctrine of customary use as expressed by the Florida Supreme Court in Tona-Rama is binding Florida law and has been for 44 years [unsure what you intend by “binding’(1), definition below, but FSC “recognized” customary use – or did not preclude it. Only 225 sq ft of private beach was affected in Tona-Rama]. Federal and state courts over the last 44 years (and even as recently as this month) have recognized it as binding Florida law and followed it. That means that every property owner that purchased sandy beach property since 1974 has faced the possibility of customary use at the time they purchased their property if the elements of customary use could be met [every property owner that purchases property faces the possibility of eminent domain, prescriptive easement, and other legal doctrines as well - unsure why pointing out just custom / customary use can be claimed on ANY property - bay front - river banks - hunting areas; not just highly valued private beaches]. This is not something new [not new but is rare compared to other real property law - why is it commissioners do not try prescriptive easement or eminent domain; because custom doesn't require compensation]. Heck, there has even been litigation over whether customary use triggered title insurance policies (it did not) and a plaintiff in a 2007 case even conceded that they weren't challenging the public's right to customary recreational use (only the use of the sandy beach for parking and driving vehicles). There are only three ways that customary use could be abolished: (i) someone takes a case all the way to the Florida Supreme Court and the Florida Supreme Court decides to throw stare decisis out the window and reverse Tona-Roma; (ii) a court finds that customary use is unconstitutional (at least one Florida court has already addressed the issue and said no) [disagree; if you are referring to Blessey there was no ruling on customary use, the court declined, WITHOUT prejudice, according to the judge the case had not meet certain criteria to be heard in Federal court (yet).]; or (iii) the Florida Legislature abolishes it by statute. [(iv) The US Supreme Court rules real property custom claims are Unconstitutional.] The question of whether counties like Walton can establish customary use by ordinance rather than through a court action was litigated in federal court in Alford and the answer was that they could [and was under appeal when HB631 was passed – certainly the FL legislature and Governor felt the Alfords had a case.] The Florida Legislature reversed that outcome by passing HB631 but in doing so reaffirmed and codified the concept of customary use expressed in Tona-Rama (that was the conclusion of the federal court in Blessey). So what is the standard for proving customary use? One Florida appelate court (Trapanier) described it as follows in 2007 - “[W]e do not suggest that the County must prove that cars, horses, or other modes of transportation have customarily traversed and parked on Appelant’s specific parcels of property. Rather, we read Tona-Rama to require proof that the general area of the beach where [the] property is located has customarily been put to such use and that the extent of such customary use on private property is consistent with the public’s claim of right.” [Trapanier appellate court also stated; “[w]hile some may find it preferable that proof of these elements of custom be established for the entire state by judicial fiat in order to protect the right of public access to Florida's beaches, it appears to us that the acquisition of a right to use private property by custom is intensely local and anything but theoretical.” - that ancient historical custom is very fact based, commissioners have the burden of proof, under the rule of evidence.] So that is what will get litigated as Walton County moves forward. I'm sure others may disagree with my personal view. If there is authority out there to the contrary, happy to consider it and stand corrected.
(1) Binding. Legal phrase that an agreement has been consciously made, and certain actions are required or prohibited. For example, a lease for an apartment is legally binding, because upon signing the document, the lessor and the lessee are agreeing to a number of conditions.
twinbrew: My personal view (based on the materials I have reviewed) is that the doctrine of customary use as expressed by the Florida Supreme Court in Tona-Rama is binding Florida law and has been for 44 years [unsure what you intend by “binding’(1), definition below, but FSC “recognized” customary use – or did not preclude it. Only 225 sq ft of private beach was affected in Tona-Rama]. Federal and state courts over the last 44 years (and even as recently as this month) have recognized it as binding Florida law and followed it. That means that every property owner that purchased sandy beach property since 1974 has faced the possibility of customary use at the time they purchased their property if the elements of customary use could be met [every property owner that purchases property faces the possibility of eminent domain, prescriptive easement, and other legal doctrines as well - unsure why pointing out just custom / customary use can be claimed on ANY property - bay front - river banks - hunting areas; not just highly valued private beaches]. This is not something new [not new but is rare compared to other real property law - why is it commissioners do not try prescriptive easement or eminent domain; because custom doesn't require compensation]. Heck, there has even been litigation over whether customary use triggered title insurance policies (it did not) and a plaintiff in a 2007 case even conceded that they weren't challenging the public's right to customary recreational use (only the use of the sandy beach for parking and driving vehicles). There are only three ways that customary use could be abolished: (i) someone takes a case all the way to the Florida Supreme Court and the Florida Supreme Court decides to throw stare decisis out the window and reverse Tona-Roma; (ii) a court finds that customary use is unconstitutional (at least one Florida court has already addressed the issue and said no) [disagree; if you are referring to Blessey there was no ruling on customary use, the court declined, WITHOUT prejudice, according to the judge the case had not meet certain criteria to be heard in Federal court (yet).]; or (iii) the Florida Legislature abolishes it by statute. [(iv) The US Supreme Court rules real property custom claims are Unconstitutional.] The question of whether counties like Walton can establish customary use by ordinance rather than through a court action was litigated in federal court in Alford and the answer was that they could [and was under appeal when HB631 was passed – certainly the FL legislature and Governor felt the Alfords had a case.] The Florida Legislature reversed that outcome by passing HB631 but in doing so reaffirmed and codified the concept of customary use expressed in Tona-Rama (that was the conclusion of the federal court in Blessey). So what is the standard for proving customary use? One Florida appelate court (Trapanier) described it as follows in 2007 - “[W]e do not suggest that the County must prove that cars, horses, or other modes of transportation have customarily traversed and parked on Appelant’s specific parcels of property. Rather, we read Tona-Rama to require proof that the general area of the beach where [the] property is located has customarily been put to such use and that the extent of such customary use on private property is consistent with the public’s claim of right.” [Trapanier appellate court also stated; “[w]hile some may find it preferable that proof of these elements of custom be established for the entire state by judicial fiat in order to protect the right of public access to Florida's beaches, it appears to us that the acquisition of a right to use private property by custom is intensely local and anything but theoretical.” - that ancient historical custom is very fact based, commissioners have the burden of proof, under the rule of evidence.] So that is what will get litigated as Walton County moves forward. I'm sure others may disagree with my personal view. If there is authority out there to the contrary, happy to consider it and stand corrected.
(1) Binding. Legal phrase that an agreement has been consciously made, and certain actions are required or prohibited. For example, a lease for an apartment is legally binding, because upon signing the document, the lessor and the lessee are agreeing to a number of conditions.
There aren't more counties. The only (now three) counties that have customary use are Volusia, St. Johns and now Nassau (which is questionable). St. Johns and Volusia had quick work of it in court as the beach was a public road and a number of commercial public attractions (the tower for example) on the beach/pier.
On ECL here is a data source, also info on MHWL etc.
LABINS - Survey Data for Florida, aerial images.
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Couple of quick comments/corrections. I'm not sure what the dispute is over "binding." The customary use doctrine is the law in Florida (and has been since 1974) as determined by the Florida Supreme Court. Decisions of higher courts are "binding" on any lower courts. Therefore, the Tona-Rama decision is "binding" on all Florida courts. Seems uncontroversial. Small point but it was the tower the landowner built in Tona-Rama that only occupied 225 sq. ft. The Florida Supreme Court found there was customary use over 15,300 square feet of beach front. On whether customary use is unconstitutional, I wasn't referring to Blessey. I was referring to Trepanier, where the Fifth District Florida Court of Appeals said the following: "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 Appelants' property as an adjunct to its right to other recreational uses of that property, as recognized in Tona-Roma, then no takings claim can be made out." You might also want to read the discussion in footnote 22 of that decision. There was no need to add an item (iv) "the US Supreme Court rules real property custom claims are unconstitutional." The US Supreme Court could be one of the "courts" referred to in item (ii) of my list. As a practical matter, however, you realize how unlikely it is that a case would ever be granted cert by the US Supreme Court right? There is no appeal as a matter of right to the US Supreme Court.