Who Owns the Beach? Part 3 – So What Can Local Governments Do?

private-beach

This is part 3 of a series of posts on beach access in Walton County, Florida.

Attorney General’s Opinion 2002-38 provides the clearest determination of the things that local government can control on the beaches within their jurisdiction. Opinion 2002-38 was written in answer to several questions posed by the City of Destin. Destin had passed an ordinance regulating certain activities on the beach, and wanted clarification on what they could and could not regulate, and whether the degree of regulation was dependent on the ownership of the property. Destin also asked whether their ability to regulate depended on a “customary use” determination pursuant to Tona-Rama.

Destin’s beach management ordinance covered the soft sand portion of the beach seaward of the permanent vegetation and landward of the mean high water line. It prohibited glass containers on the beach, established restrictions on animals on the beach, restricted wheeled vehicles on the beach, prohibited open fires, and established a number of other restrictions on conduct and structures on the beach.

The attorney general gave the opinion that the City of Destin could regulate, in a reasonable manner, the beach within its corporate limits. Any regulation must have a rational relation to, and be reasonably designed to, accomplish a purpose necessary to protect the public health, safety, and welfare. The local government could not exercise its police power in an arbitrary, capricious, or unreasonable manner, but the ability to protect the public health, safety, and welfare was not dependent on a customary use determination under Tona-Rama.

The final question raised by the City of Destin was the responsibility of local law enforcement to enforce trespass laws to discourage the public’s use rights on the dry sand of the beach. The attorney general noted that, without a judicial determination of customary use, private owners could complain to local law enforcement about trespassers. Under Florida Law, “[a] person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance . . . [a]s to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation . . . commits the offense of trespass on property other than a structure.” Section 810.09, Fla. Stat. Thus, to commit a trespass, the offender must defy an order to leave that has been personally communicated to them by the owner or some other authorized person. Opinion 2002-38 (citing Opinion 90-08) advised that a property owner could not pre-authorize law enforcement personnel to act as their agents for the purpose of communicating orders to leave private property. Private property owners can report trespass to law enforcement on a case-by-case basis, but there is no trespass unless they have given the offender notice to leave the property. “Posting” has very specific requirements, set out in Section 810.11, Fla. Stat. A sign like the one accompanying the first part of this article does not meet those requirements and would not constitute notice to leave.

Under the guidelines set by the Attorney General’s office, Walton County can legally regulate both conduct and structures on the beach, as long as the regulations are to protect the public health, safety, and welfare. Walton County can prohibit signs, fences, and other structures on the beach, pass regulations governing beach vendors, and outlaw breach of the peace and disorderly conduct. Carefully crafted and enforced, regulations like these might go a long way toward addressing the complaints of both the beach front owners and those who only wish to use the beach for recreation.

Who Owns the Beach? Part 2 – Quieting Title: Beach Highlands

private-beach

This is part 2 of a series of posts on beach access in Walton County, Florida

One of the events that brought the beach ownership issue to the forefront was a suit to quiet title (that is, to determine judicially that a certain party or parties have clear title to a parcel of property) brought by several homeowners in Beach Highlands.

The suit revolved around the plat of Beach Highlands, recorded in 1960.  (Plat Book 3, Page 47).  It showed an area south of the gulf front lots that was simply designated as “beach.”  At the time, the entire property was owned by the Beach Highlands Corporation.  The dedication, which was approved by the county commission “for record,” read as follows:

The undesigned [sic] corporation is duly organized under the laws of the State of Florida and the owners of the real-estate included in this plat, do hereby authorize the same to be recorded in the public records of Walton County, Florida and do hereby dedicate for public use all streets, alleys, roads and public places as shown on said plat.

(emphasis added).

The property owners whose lots abut the beach sued the Beach Highlands Corporation (which was dissolved in 1967) to establish that they own the beach to the mean high water.  Because the Beach Highlands Corporation is long dissolved, and because none of the members of the last known board of directors is still living, the court appointed an attorney ad litem to represent the corporation.  That attorney simply admitted the allegations of the complaint, resulting in the court granting summary judgment to the beach front owners.  In essence, the suit was unopposed.

In 1978, Leon Bishop, a former Secretary of Beach Highlands Corporation (already dissolved at that time) executed and recorded an affidavit in the official records of Walton County.  (Official Records Book 141, Page 112).  He stated, as a former member of the board, “That the corporation owned the said strip designated as beach and that the said area was intended to be dedicated and was dedicated to the mutual common enjoyment of the purchasers of lots in the said subdivision.”  The affidavit also stated that the lots in Block F (on the beach) were sold as water front lots, “and that it was the express intent of the said corporation in the plat dedication that the owners of said lots have an unobstructed view of the Gulf of Mexico and that nothing be constructed on the said beach strip and no acts or omissions be taken by any one to prevent the owners of said lots from full use and enjoyment of the beach area forever.”  That affidavit, along with several deeds referencing the mean high water, formed the basis for the judge’s determination that the owners of the lots along the beach owned to the mean high water.

Because Walton County was not named as a defendant in the suit, the court’s determination does not resolve the issue of Walton’s County’s potential rights in the property.  Based on the dedication language quoted above, Walton County may well have a claim that the plat dedicated the beach area to the public for public use.  Among other facts, there are no places on the plat that could be considered “public places” other than the area labeled “Beach.”  Florida law holds that language in a dedication should be construed against the dedicator and in favor of the public.  In Hollywood, Inc. v. Zinkil, 403 So.2d 528 (Fla. 4th DCA 1981), the court determined that a remarkably similar dedication was intended to dedicate the beach in question to the public.  The City of Hollywood provided other evidence of intent to bolster their interpretation of the dedication:  sales brochures, advertisements, statements to the press, and so forth.  Whether that type of evidence is available regarding Beach Highlands is an open question.

A dedication also must be accepted by the County.  The roads in Beach Highlands are maintained by Walton County, so presumably at some point in time the county commission accepted this dedication.  Under Florida case law, acceptance can be shown by public maintenance and use of a portion of the area dedicated by the plat.  Indian Rocks Beach South Shore, Inc. v. Ewell, 59 So.2d 647 (Fla. 1952).

Without further investigation, it’s impossible to tell how likely it is that Walton County could succeed in establishing that the plat of Beach Highland dedicated the beach to the public.  But Walton County owes it to their constituents to perform that investigation and, if warranted, to pursue their rights in court.

 

 

Who Owns the Beach? Part 1

private-beach

This is part 1 of a series of posts on beach access in Walton County, Florida

Conflict between beach-front property owners and the public (including both tourists and locals who don’t live on the beach) is increasing in Walton County.  People who have for decades used the beach for recreation – walking, running, swimming, sailing, surfing, paddleboarding, and just hanging out – feel threatened by beach-front property owners who want to protect what they see as their property from uses by non-owners.  Those who own tourism-dependent businesses, including beach front rentals, want to insure that tourists have access to the beach to keep them returning.  Those who own beach front property object to tourists who litter the beach, block their views with tents and chairs, disturb their peace and quiet, and damage the beach and dunes.

A recent legal case resulted in beach-front owners successfully obtaining title to beach area adjacent to their platted lots, including areas containing two dune walk-overs that have been used by the public for years.  This case, and a number of well-publicized confrontations between beach users and beach owners, have brought this issue to the forefront in Walton County.  The Walton County Board of County Commissioners will hold a public hearing at 5:00 p.m. on March 16, 2016, at the Emerald Coast Middle School to discuss the issue.  This article is an attempt to summarize some of the legal doctrines involved in this issue.

The Public Trust Doctrine

Centuries of legal precedent have addressed potential conflicts between public and private use of property and have attempted to balance competing interests for the greatest benefit of society.  The Ch’in dynasty in China (249-207 B.C.E.) protected public access to the water.  At least as far back as the Institutes of Justinian (530 C.E.), most western law has regarded running water, the air, the sea, and the seashore as property common to all and therefore owned by none.  The United States, and by extension Florida, inherited this concept through the English common law.  The Florida Constitution provides that the sea and the beach up to the point of mean high water are considered to be held by the state in trust for the public.  Some states have extended this principle across the dry sand of their beaches; Florida, so far, has not.

There are several issues that immediately arise when a property owner tries to establish where, exactly, their property ends and public land begins.  Mean high water is defined by the federal government as the average height of high tides over a period of 18.6 years, and most states follow the same sort of rule.  Short of having an engineer and a surveyor calculate and mark the boundary every year or so, this average doesn’t provide an easy way for a property owner to determine their boundary line.  The rule most often cited by property owners – that they own the dry sand, while the public owns the wet sand – tends to either understate or overstate the amount of property that is publically owned depending on whether there has been a recent high tide.  Further, most property owners don’t realize that their property boundary is constantly changing.  Between beach erosion and rising sea levels, most beach front owners own less and less land each year, a trend that shows no sign of slowing.

Ownership and Use of the Dry Sand

Within the United States, any state with a coastline has struggled with the issue of control over their beaches.  Some states, notably New Jersey, Oregon, Hawaii, Texas, and Michigan have established wide-ranging public access to their beaches under a variety of theories.  Other states, including Florida, are still litigating the right to public access.

The main Florida case to consider use of the dry sand beach is City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla. 1974).  In that case, the plaintiff sought to preclude the defendant from constructing an observation tower on the beach, arguing that the public had acquired a prescriptive easement over the area through many years of uninterrupted use.  The Florida Supreme Court disagreed with that argument, finding that although the public had long used the beach for bathing, sunning, and other recreational uses, those uses were presumed to be permissive.  Only if the public could establish that their use of the property was “open, notorious, continuous and uninterrupted” and that their use was inconsistent with the rights of the landowner could they establish a prescriptive easement.

Instead, the Florida Supreme Court relied on the doctrine of customary use to resolve the issue.  The court summarized this doctrine as follows:

If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner.  However, the owner may make any use of his property which is consistent with such public use and not 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.

This right of customary use of the dry sand area of the beaches by the public does not create any interest in the land itself.  Although this right of use cannot be revoked by the land owner, it is subject to appropriate governmental regulation and may be abandoned by the public. . . .

The general public may continue to use the dry sand area for their usual recreational activities, not because the public has any interest in the land itself, but because of a right gained through custom to use this particular area of the beach as they have without dispute and without interruption for many years.

The court found that the defendant’s observation tower was a reasonable use that did not interfere with the public’s customary use of the beach area and allowed the observation tower to remain.

Where some states (most notably Oregon) have used a similar doctrine to establish the right of customary use throughout the state, case law in Florida has limited Tona-Rama to specific pieces of property where the factual predicate of long-term use has been established.  In other words, under Florida law customary use “requires the courts to ascertain in each case the degree of customary and ancient use the beach has been subjected to and, in addition, to balance whether the proposed use of the land by the fee owners will interfere with such use enjoyed by the public in the past.”  Reynolds v. County of Volusia, 659 So.2d 1186 (Fla. 5th DCA 1995).   Thus, absent a specific lawsuit establishing the extent and nature of customary use, the public is relegated back to the area below the mean high water line.

There are other approaches that Florida and other state courts have considered in public access cases, but none of them have garnered general support.  The states that have ensured public access to beaches have generally done so through state-wide legislation.  Approaching the determination on a parcel-by-parcel, lawsuit-by-lawsuit basis is simply unworkable in the long run.  Currently there is no precedent in Florida for a local government – city or county – to make a “customary use” determination for its jurisdiction.

 

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