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Shannon Lince

Beach Lover
Sep 9, 2018
103
97
Florida
You mean case law? Any adjudicated easement would subject a property to the terms of the easement yes. You keep saying the law in Florida - this is just an odd expression. There is case law and judicial precedent. And you are incorrect, where the criteria is proven in a court of law, judicial precedent could be used to support a public use easement on a parcel if a judge so rules affirmatively. But not until. This is not a statute where meeting a set of conditions merits a self declared easement - that is a political narrative and gross misinterpretation of Tona Rama.

You do understand there are four criteria even in the "new-doctrine" of Fla's Customary Use case law? And your great leap from what I described to "continuous, notorious public use" is probably left for someone else, there's an entire community of these folks who subscribe to these lines of belief. I'm not interested in these topics.

Finally, continuing to state that customary use is black law is not a fruitful discussion point.
 

BlueMtnBeachVagrant

Beach Fanatic
Jun 20, 2005
1,305
386
On use, you say random non-owners have occasionally used the parcel (sometimes with your knowledge and sometimes without). "That's a given." You say that the public hasn't used it. Where do we draw the line between the public and random "non-owners?"

And that’s exactly why (among other criteria), in my very humble opinion, customary use as it stands will be defeated at the federal level when the Blessey case “re-ripens” after the meeting in November.

The county should at least wait after they declare CU in November before investing more tax dollars in legal fees. The outcome of this case could negate all efforts to date and in the future.

Being a layman and reading the case with an open mind, it certainly appears to me that it has a good chance of winning.

Customary use by its own definition is much much too arbitrary for any reasonable minded and completely neutral party to be able to determine.
 

twinbrew

Beach Comber
Sep 17, 2018
16
16
Smyrna
You mean case law? Any adjudicated easement would subject a property to the terms of the easement yes. You keep saying the law in Florida - this is just an odd expression. There is case law and judicial precedent. And you are incorrect, where the criteria is proven in a court of law, judicial precedent could be used to support a public use easement on a parcel if a judge so rules affirmatively. But not until. This is not a statute where meeting a set of conditions merits a self declared easement - that is a political narrative and gross misinterpretation of Tona Rama.

You do understand there are four criteria even in the "new-doctrine" of Fla's Customary Use case law? And your great leap from what I described to "continuous, notorious public use" is probably left for someone else, there's an entire community of these folks who subscribe to these lines of belief. I'm not interested in these topics.

Finally, continuing to state that customary use is black law is not a fruitful discussion point.
This is where I just don't understand your continuing resistance to what should be an uncontroversial point. Yes, I am talking about case law from the Florida Supreme Court applied by the lower courts and Federal courts over the years. Saying a doctrine established by judicial precedent is "the law" is not an odd expression at all in litigation. It's no different than saying assumption of the risk or contributory negligence or mitigation of damages is "the law" in a given jurisdiction where it is clearly established by case law. We may not know if these legal doctrines apply under the facts of a specific case, but it is still "the law" to be applied. If this were to be litigated and you were to go into state court and say there is no doctrine of "customary use" in the Florida courts; it is not the law, the judge would likely give you an odd look and ask if you have read Tona-Rama.

Yes, I understand the criteria for customary use established under Florida case law. I have never suggested that they do not apply but they will have to be interpreted and applied by the court in an individual case.

Finally, I assume you mean "black letter law." I would argue that the existence of the customary use doctrine and its elements are black letter law in Florida. We just have to apply that law to the facts of individual cases.
 

Dave Rauschkolb

Beach Fanatic
Jul 13, 2005
1,006
790
Santa Rosa Beach
"Good luck with all that"

Supreme Court Turns Away Billionaire Who Wanted To Turn People Away From Calif. Beach.

Surfrider Foundation prevails landmark beach access case. Those pesky surfers....

Supreme Court Turns Away Billionaire Who Wanted To Turn People Away From Calif. Beach

NPR

The Supreme Court has refused to take up a billionaire's appeal of a lower court ruling that forced him to maintain public access to surfers and others who visit Martins Beach, a scenic spot near Half Moon Bay, south of San Francisco.

The case had been shaping up to be a showdown over California's Coastal Act, with possible ramifications for other states with laws to preserve public access to beaches. Advocates for public access are hailing the court's decision to decline the case as a victory. The Supreme Court declined the case on Monday, the first day of its new session.


THE TWO-WAY
California Court Orders Venture Capitalist To Reopen Disputed Beach

A legal fight over the beach had been brewing since 2008, when Vinod Khosla, a co-founder of Sun Microsystems, bought Martins Beach for some $37 million. Within a year, his management companies had begun locking a gate at the property; it then shut down a parking lot where members of the public had been able to pay a fee to reach the beach.

The abrupt change angered surfers and other locals and drew a lawsuit from the Surfrider Foundation, which said Khosla shouldn't be allowed to privatize a beach that people had used regularly for decades.

A California court ruled against Khosla in 2014; in August 2017, a California appeals court backed that decision, ordering Khosla — a venture capitalist who has invested in solar power, biofuels and clean energy — to reopen the beach.

"Today's decision is a significant win for beach access rights across the nation," said attorney Eric Buescher, part of the legal team representing Surfrider Foundation. In a statement released by the group, he added, "By declining to hear the case, the U.S. Supreme Court has rejected the owner's attempt to purchase a public resource."

To prepare for a potential Supreme Court showdown, Khosla had hired well-known attorney Paul Clement, a veteran of dozens of cases at the high court, including the challenge to the Obama health care overhaul.

But the justices declined to take the case on Monday, ending a lengthy process that included the initial appeal, a response by Surfrider, a counter-response by Khosla's lawyers and numerous briefs filed by interested parties.

Those exchanges had fed speculation that the Supreme Court would take the case. But the two sides also disagreed on whether the case was "ripe" for the Supreme Court's review at all. In its filing, Surfrider said the case wasn't ripe, because "the property owner has not applied for a permit to gain the relief they seek."

In reply, Khosla's legal team said their case revolved around private property rights, writing, "There is simply nothing unripe about having the government in your backyard or strangers on your property."

With the Supreme Court declining to take the case, the road to the beach must remain open to the public. Khosla still has the option of pursuing a Coastal Development Permit to change the status of the area along the beach.
 
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Shannon Lince

Beach Lover
Sep 9, 2018
103
97
Florida
Apples and bananas. This isn't California or Oregon, the left coast. If that's what your socialist vision is for Walton county - you'll fit right in.

Shannon
 
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lazin&drinkin

Beach Lover
Apr 13, 2010
174
154
The law in CA is the same as in FL as respects public beach, i.e., effectively the wet sand in both states. It is access to that wet sand, not to any private dry sand, which is guaranteed in CA . The point of contention in this case in CA was whether the state may force a private landowner to engage in a business by forcing him to apply for and receive a permit from the state to put up a gate and change the public admission to his private road as a pubic access to the wet sand of this particular beach. Denial in this case means the owner must get such a permit as was had and employed by the previous owner who was charging for both parking and access via his private road. Hardly the circumstances in Walton County.
 

FloridaBeachBum

Beach Fanatic
Feb 9, 2017
463
112
Santa Rosa Beach
"Good luck with all that"
Supreme Court Turns Away Billionaire Who Wanted To Turn People Away From Calif. Beach.
Surfrider Foundation prevails landmark beach access case. Those pesky surfers....
.
Dave R do you read the court papers, and facts, or only have emotional "stand your sand" euphemisms?
This CA case sounds very much like the Walton traditional neighborhoods WaterSound, Watercolor, Rosemary Beach, Seaside, gated private properties where you and Uhlfelder live that you have defended as fortunate to control beach access. Are you against this CA private property owner's rights to control access to his private property but OK for your neighborhood to have private beach access?

The SCotUS choose not to hear the case. One of the about 100 accepted from the 7,000 cases submitted annually. The CA case was not significant enough for the SCotUS to consider. SCotUS did not rule on anything about the case. The CA court ruled that a development order is required and without a permit the owner can not have private use of his property.
The property owner refused to seek a CA development order (permit) to ask permission from CA government to enforce his Constitutional property rights of private exclusive enjoyment or to close an unprofitable business admitting the public for a fee to the private property. The CA courts ruled yes, to close access and the business, required a permit.

The Supreme Court of the United states (SCotUS) questions presented were:
1. Whether a compulsory public-access easement of indefinite duration is a per se physical taking.
2. Whether applying the California Coastal Act to require the owner of private beachfront property to apply for a permit before excluding the public from its private property; closing or changing the hours, prices, or days of operation of a private business on its private property; or even declining to advertise public access to its private property, violates the Takings Clause, the Due Process Clause, and/or the First Amendment.


The CA property owner only has to apply for a CA development order permit to close the gates and be denied by the CA government, which is likely, to take the case back to the CA courts or SCotUS; which the property owner stated he will seek a CA development order permit and if denied would again seek to protect his Constitutional rights. That would likely ripen to a SCotUS acceptance.

CA Coastal Act key paragraph (c) Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners. Lofty goal but poorly worded overly broad law.

"The government may establish these [public access] rights (such as by purchasing land to create a public path to the beach) or they are sometimes established through historic public use.
Acquisition through historic use is explained in the California Coastal Access Guide in order for the public to obtain an easement by way of implied dedication, the essential elements that must be established are that the public has used the land 1) for a continuous period of five years as if it were public land [it was clear the public paid this property owner for access and was not public], 2) with the actual or presumed knowledge of the owner, and 3) without significant objection or significant attempts by the owner to prevent or halt such use.
The ultimate determination of prescriptive rights, if they are challenged, takes place in court."
 
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FloridaBeachBum

Beach Fanatic
Feb 9, 2017
463
112
Santa Rosa Beach
Martin’s Beach: A Matter of Principle & Property Rights May 8, 2018
Vinod Khosla

BELEIVE - in Constitutional Principals! Aug 11, 2017

Pacific Legal Foundation Youtube Sep 24, 2014
 
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