Public vs Private Beach

Discussion in 'Local Government and Groups' started by BlueMtnBeachVagrant, Feb 24, 2008.

  1. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

    Joined:
    Jun 20, 2005
    Messages:
    1,289
    Likes Received:
    189
    I'm well aware of that aspect, that is why I immediately edited my post and CLEARLY stated "we cannot extend the beach past the new water line to where the old water line was".

    :floor::funn::lol::rolling::lol::D:D
    Guess what? I'm still laughing! I guess I should have deployed my new 100,000 watt ray gun and just stung that kid on the sand dune a few times. The Army ain't got nothing on me! Would that be better for my private property rights in your eyes?

    SJ, like I've said in the past, I try to keep things in perspective. But you are just itching for me to go out there and have someone thrown off our beach.

    Again damn if I do. I become a mean greedy beach front owner as it seems you want me to be.

    Damn if I don't. I lose my property because of customary use as you think it should be.

    Just damn.
     
  2. Busta Hustle

    Busta Hustle Beach Fanatic

    Joined:
    Apr 11, 2007
    Messages:
    434
    Likes Received:
    34
    BMBV: the only yes to nourishment without a majority rule vote would be for the emergency protection of life and limb or for roads or other necessary infrastructure.

    Now may we move together amicably to the laws of property deeds. If your gulf front deed states that you have the specific land in between say 4 GPS points there is really no discussion needed. You own what you own period like any other interior lot.

    If however somehow the county was dumb enough to give you a deed that states you own it to the gulf, i can only think that they owe you an apoligy and some compensation if they have to "take" that back sometime in the future.

    If they say you own it to the mean high water mark well that is just stupid cuz the future mean high water mark may be 50 feet north of you in the near future, God forbid. Does Florida Law littoral or riparian, state that you lose it completely if you go completely under water and the water line is north of your property?

    It is my opinion that your deed and all gulf front deeds need to be amended to 4 specific GPS points if that is not the case already( i guess that is obviously NOT the case)

    So here we sit with the courts to undo what the county has done with the help of the state and feds and a bunch of PUBLIC $$$...all without the consent of the public for use of those Public $$$...Lawyers REJOICE!!!

    Any thoughts?
     
    Last edited: Mar 17, 2008
  3. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

    Joined:
    Jun 20, 2005
    Messages:
    1,289
    Likes Received:
    189
    Regarding voting on beach nourishment: Is that somthing that was voted on before my time for Western Walton County and Okaloosa? I don't think so but I'm not 100% sure.


    The laws are very clear that the state owns any submerged lands bordering the gulf (navigable waters). They have defined the "border" as the MHWL which has a very exact definition associated with it. I have no problem with this aspect.

    And you are right...if we lose beach, we lose property. If we gain beach, we gain property.

    What's interesting is the amount of tidal change on the Atlantic coast. Where there are private beaches, the public can "time" the tide and have somtimes hundreds of feet of beach available to them. The difference on the gulf, as you know, is the tide doesn't change much. And as it is highest during the summer, the wet sand concept provides a reasonable means to delineate the beach. I'll even throw in a foot or two of beach (low tide vs. high tide) for all the SJs out there. :D

    Did you know a kid digging a big hole at water's edge could actually be changing our legal boundary. OK SJ, now go get your shovel and let the games begin.

    BeachSiO2 is an expert on this topic as he set me straight a while back.

    Edit: Forgot to address your important question: "If they say you own it to the mean high water mark well that is just stupid cuz the future mean high water mark may be 50 feet north of you in the near future, God forbid. Does Florida Law littoral or riparian, state that you lose it completely if you go completely under water and the water line is north of your property?"
    I can only hope that I don't have to address this in my lifetime. All the seawalls in Walton County would certainly and admittedly throw a kink into the analysis (at least for the walls still standing).
     
    Last edited: Mar 17, 2008
  4. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    From a private property owner's perspective, according to the private property laws, you would have been better defending the property a long time ago. In reality, the first owners who had the property deeded should have been defending the property, to establish their boundary. Since none of the previous owners consistently stopped the public from using the beach for sunbathing or other recreation, they have essentially given up some rights to the property.

    I don't want you to become a greedy beach front owner. I am just telling you about the real estate law as it relates to customary use of private property. IMO, it is too late to start defending it now, as The Retreat and others are doing.
     
  5. Busta Hustle

    Busta Hustle Beach Fanatic

    Joined:
    Apr 11, 2007
    Messages:
    434
    Likes Received:
    34
    one other thought is that now that the beaches are so "short" and properties are armored up you may find that more and more GULF beaches go under water at high tide in the future...that is the natural progression around armored properties without continuous nourishment. As mentioned before you have to swim around the bottom of the stairs already between redfish and 83 with the slightest wind driven surf.

    As far as i know there were never public votes on any of these issues.
    Perhaps the experts can chime in again on that.
     
    Last edited: Mar 17, 2008
  6. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    I have a few. You make some good points, but as a Realtor, I'm sure you are aware of easements on property. I've stated numerous times, that having a deed to a property does not give one full rights to the property. That is a huge misconception. There are plenty of things which could limit one's full rights to a property. Zoning, easements, encroachments, customary use, building height codes, restrictions, covenants, property taxes, liens, etc. Holding a deed to a property may give rights to the property, but full rights are not guaranteed. In the cases of the beach, the public has been using the beach for many years, without interference by the property holders of the deed. This, IMO, establishes customary use.

    In regards to the County taking the property for compensation, I believe that eminent domain isn't a tool which can be used for taking property for recreational use. Sunbathing is a recreational use. Why would the gov't want to pay for something which has been used by the public for decades, anyway?
     
  7. John R

    John R needs to get out more

    Joined:
    Dec 31, 2005
    Messages:
    6,772
    Likes Received:
    806
    Location:
    Conflictinator
    Be careful jmschill, before you know it, you'll be labeled a RFV supporter, and once the BMB crew have made up their minds, it's a done deal.
     
  8. BeachSiO2

    BeachSiO2 Beach Fanatic

    Joined:
    Jun 16, 2006
    Messages:
    3,294
    Likes Received:
    737
    The only area that has been built is Western Walton County after 7 workshops, numerous TDC meetings, about 50 monthly beach nourishment committee meetings, numerous BCC meetings, and other one-on-one and group meetings. As a matter of fact, I think Brad Pickel of the TDC got the 2006 Person of the Year Award by the Northwest Chapter of the Florida Public Relations Association for his efforts on spreading the word.

    For the Phase 2 project for 30A, there have been two workshops, 30 plus beach nourishment meetings, at least two BCC meetings, and numerous one-on-one and group meetings- once with SJ in attendance. Unfortunately, no more than 50 people have attended any workshop but the first one in 2000 and they are typically the same 50 people who want it.

    There have been at least two votes (maybe 3) so far on moving forward with 30A restoration by the BCC. As of now, Phase 2 restoration for 30A is in permitting and I would expect another workshop to be held on that in the next couple of months. I expect to meet all of you there because last time there was a workshop and the audience was asked if anyone had heard about the meeting on sowal.com where it was also publicized, you could have heard crickets chirping.... but then again they weren't there either. Also, there is a monthly beach management meeting held at the TDC at 8:30 on April 10th where it will be discussed again.
     
    Last edited: Mar 17, 2008
  9. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    For the record, I attended more than one, but thanks for noticing my interest in the matter.
     
  10. Busta Hustle

    Busta Hustle Beach Fanatic

    Joined:
    Apr 11, 2007
    Messages:
    434
    Likes Received:
    34
    BSIO2...So no public voted other than commissioners. I guess a referendum where the issue was voted on by all the registered public that care to vote is the legal terms of what i would like to happen on the issue of beach renourishment. By the way i thought you were b.p. i did not know there were others around with such knowledge of beach science. That's good to know.
    And yes i know it has been litigated to the hilt as well as discussed! Maybe 1 of these cyber nerds...sorry web masters can start another poll cuz we all can't show up for meetings or already know how we would vote if given the chance. I in no way suggest that any decisions have been made without plenty of public opportunity for KNOWLEDGE or COMMENTS. I have an idea that at least 1000 people would vote on a sowal poll. WE HAVE THE TECHNOLOGY.

    SJ i'm sure you know even though you are not a lawyer that in some court decisions by jury and in some cases by judges that facts don't matter and opinions matter less. Also your interpretation of customary use may be correct and ignored. Or your interpretation is just wrong as far as the judicial ruling, when that occurs. Why would the government pay for something already used by the public? Because they know they screwed up somewhere along the line when they deeded the beach as private to an individual. And as usual when new precedents are set it may not even be called eminent domain. Right now the law is on BMBV's side or at least the interpretation of the law is. Also my customary use of the beach for almost a century has been to sit and enjoy everywhere i please, and i have never been asked to leave so far. Happy St. Patty's day everyone.
     
    Last edited: Mar 17, 2008
  11. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

    Joined:
    Jun 20, 2005
    Messages:
    1,289
    Likes Received:
    189
    From a publication on Florida DEP's website, page 26 - just after an analysis of Tona-Rama:

    Written by

    Stephen Holland
    Center for Tourism Research and Development
    Department of Recreation, Parks and Tourism

    Jeffry Wade and Richard Hamann
    Center for Governmental Responsibility
    College of Law
    University of Florida
    Gainesville

    .....from page 26

    "Although "customary use" may form the basis for a right of beach access, there are several issues concerning its potential appicabilityin Florida. First it is not clear in Florida what character of customary use will allow an assertion that the public has rights to perpendicular or lateral access to beach areas landward of MHWL. The numbers of people required to have exercised such customary use, and over what period of time, have not been addressed by Florida courts. The doctrine is problematic in that, at least according to the Tona-Rama decision, it does not limit the owner's development of the land, consistent with the customary uses. This raises unanswered questions concerning what types of development would be considered consistent with the public's use of beaches for recreational purposes. The geographic applicability of the doctrine is also not clear, and it may require application on a case-by-case basis, raising the potential for litigation in each instance."



    Once again this is clear. Once again this is written by people with a better handle on the issue than you. Once again this is what the Florida Attorney General has stated.



    SJ, I'll casually remind you of this reference each time you continue to bring up customary use. As it mentions above, "The numbers of people required to have exercised such customary use, and over what period of time, have not been addressed".



    I never have received a straight answer from you or anyone else for that matter when I directly and repeatedly asked you the very same question. And again, if the courts can't figure out, what makes you think you can?



    You at least acknowledge you're not a lawyer. So Judge Joe, its your turn. I'll chase your tail if you chase mine.

     
  12. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    just because they have not been specifically addressed on each particular property, doesn't mean anything other than as people are arrested for sitting quietly on the beach, the courts will have to decide. What is new about that? I have not argued that, and until the Courts decide, I'll continue to sit quietly on the beach. I may even continue after the courts make a determination. No biggy to me. Go ahead and call the Sheriff on me.
     
  13. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

    Joined:
    Jun 20, 2005
    Messages:
    1,289
    Likes Received:
    189
    Your quote goes with my reply above.

    And aren't you are JUST a real estate agent, not a real estate attorney? Don't tell me about (your interpretation of) real estate law.

    And regarding "defending it now", I'll defend my property anytime I see fit. Don't you worry yourself.
     
  14. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

    Joined:
    Jun 20, 2005
    Messages:
    1,289
    Likes Received:
    189
    You don't hear too good or your memory is awful. Again, nobody ever got arrested for JUST sitting quietly on a beach. You're picking up on REV Jeremiah's tactics.:yikes:
     
  15. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    I was speaking of people being arrested in the future.

    Just curious, have you read Trepanier et al v. County of Volusia?
    It's an interesting 30 pages of reading. Here are a couple of snip-its.

    The circuit court turned effective title of much of the lots to the County, ruling that (quoting from the 5th District Court of Appeals 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."
    **********
    From the District Court hearing the appeal:
    "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."
     
  16. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    How about this one:
    "Under Downing v. Bird, 100 So. 2d 57 (Fla. 1958), the activity giving rise to the
    prescriptive easement must be both on the property of another and inconsistent with the
    owner?s use and enjoyment of the land. Id. at 64. As explained by the court in Tona-
    Rama, ?f the use of an alleged easement is not exclusive and not inconsistent with the
    rights of the owner of the land to its use and enjoyment, it would be presumed that such
    use is permissive rather than adverse. Hence, such use will neve r ripen into easement.?
    Tona-Rama, 294 So. 2d at 76-77. The burden is on the claimant to prove that the
    public?s use of the owner?s property was adverse. Id. at 76.
    "
     
  17. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    From the Florida 5th District Court of Appeals, Trepanier et al v. County of Volusia:
    "The common law public trust doctrine is embodied in Article 10, section 11 of the
    Florida Constitution. Under that provision, title to the portion of the beach below the
    mean high water line is held by the state in trust for all the people. The “beach,”
    however, includes more land than what is set aside for the people under the public trust
    doctrine. The area above the mean high water line is subject to private ownership. ?
    177.28(1), Fla. Stat. (2005). See also Clement v. Watson, 58 So. 25, 26 (Fla. 1912). In
    Florida, courts have recognized that the public may acquire rights to the dry sand areas
    of privately owned portions of the beach through the alternative methods of prescription,
    dedication, and custom.
    S. Brent Spain, Florida Beach Access: Nothing but Wet
    Sand?, 15 J. Land Use & Envtl. L. 167, 171-172 (1999)."
     
  18. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

    Joined:
    Jun 20, 2005
    Messages:
    1,289
    Likes Received:
    189
    SJ,

    See Link. Again it is absolutely rediculous to compare Volusia County (Daytona Beach) with Walton County. But only someone like you would...someone blinded with the urge to always be right at any cost.

    Why don't you threaten a sit-in and get arrested at Rosemary? Seaside? Watersound? Watercolor? Retreat? ...all private beaches...with large and well funded HOAs...most with "no trespassing" signs and willing to enforce it (and have in the past).

    I'll tell you and the others why you won't. It's because you're full of hot air and lip service.

    You have taken this whole thing to a definite personal level from you to me. Kind of wimpy in my opinion.

    Why don't you and the others make your "statement" at Seaside or the Retreat? You'll get your names and pictures in the paper. You'll have your chance to take them to court and prove customary use. You'll get to meet the Sheriff face to face. In short all your dreams will come true. You will become local folk heroes. You'll be famous and revered. Isn't this what you're really looking for?


    If you're going to talk the talk then walk the walk and quit threatening little ole me by telling me to call the Sheriff on you for sitting on my little piece of paradise. I should call your parents first for being a bully.


    AND again you still haven't ANSWERED what constitutes customary use.
     
  19. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    I really don't understand what you are saying. I don't stage a sit in because I have no desire to do so to organize a group of people. I just do what I do, and that does include sitting on the beach. I've done so numerous times on the beach in front of The Retreat, and I do so at least once a week in Seaside. To my knowledge, I haven't had my chance in court, because no one has ever asked me not to sit on the beach.

    Personally, I could care less if you were not involved in the issue, so your involvement isn't a personal issue with me. I don't even know you.

    You keep saying that customary use has not been defined, but it is defined by the Courts. It is very obvious to me that if you had read the cases I have cited, you would see that, but go ahead, continue to stick your head in the sand.

    From the 5DCA:
    "Florida's Supreme Court first recognized the public's "customary" right to the use of Florida's privately17 owned dry sand beaches in the Tona-Rama decision. 294 So. 2d at 74. There the court said:
    "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 consequences of title.
    The sandy portion of the beaches
    . . . [have] 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.
    294 So. 2d at 77. The court recognized that the public may acquire a right to use the sandy area adjacent to the mean high tide line by custom when “the recreational use of
    the sandy area . . . has been ancient, reasonable, without interruption and free from dispute . . . .” Id. at 78
    .

    The recognition of a right through "custom" means that the owner cannot use his property in a way that is inconsistent with the public’s customary
    use or “calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area.” Id."

    (A period of twenty years was specifically defined as "ancient." )

    For the record, I have not threatened you. When you make a statement like that, it is difficult to want to address you any further. Good day.
     
    Last edited: Mar 17, 2008
  20. BlueMtnBeachVagrant

    BlueMtnBeachVagrant Beach Fanatic

    Joined:
    Jun 20, 2005
    Messages:
    1,289
    Likes Received:
    189
    Like I asked Bear one time, then what's the problem?

    I some somehow find that disingenuous.

    Show me already! - in language we all can understand. Via courtesy I've distilled information for you in the past so you didn't have to thumb through hundreds of pages or be a legal wiz to understand someone else's quoted interpretation. Can't you at least return the favor?

    Does anyone else know what SJ is talking about? PLEASE???

    Didn't you just say "I may even continue after the courts make a determination. No biggy to me. Go ahead and call the Sheriff on me." ?
    Is that not a threat? Sure seems like one. And wasn't that directed at me?

    Good night.
     

Share This Page