October 2018

THE BARNES WALKER EDUCATIONAL SERIES
proudly presents:

What About That New Florida Public Beach Law?

On July 1, 2018, a new Florida Statute, Section 163.035, went into effect regarding the public's ability to use public beaches and adjoined property. Almost immediately, charges were made that the Governor and the Legislature were turning Florida's public beaches private and denying the public access to them.

Is this true?

A. What rights does the public have to Florida's beaches?

As we learned in Barnes Walker's previous September article, "Is that Property Really Waterfront?," the land between the mean high-water mark (the line established by the average tides over a 19 year period) and the surf, along with the waters of the Gulf of Mexico and the Atlantic Ocean, are public lands for the use and enjoyment of the citizens of Florida. The other side, the land side of the mean high-water mark, is private beachfront property. The boundary between a private beachfront property and the public beach, then, is the mean high-water mark.

If the mean high-water mark is surveyed by the State of Florida and the survey is accepted by the Governor and the members of the Cabinet, acting as the Trustees of Florida's Internal Improvement Fund (the "TIIF"), it will be designated as an Erosion Control Line (the "ECL"). Once established, the ECL supersedes the mean high-water mark as the dividing line between private beachfront property and the public beach.

In fact, ECLs have been established for Anna Maria Island in Manatee County, Longboat Key in both Manatee and Sarasota Counties, along with Lido and Siesta Keys in Sarasota County. Therefore, in these areas, all of the beach lands west or "seaward" of the ECL are lands which are owned and can be used and enjoyed by the public, and to which this article will refer as the "beach(es)."

An important aspect of the ECL is that, unlike the mean high-water mark, accretion and reliction will not change the ECL, whose location, as stated above, supersedes any change in the mean high-water mark. Accretion is the gradual, imperceptible addition of sand to the shoreline, whereas, reliction is the increase in dry land by the gradual and imperceptible withdrawal of water from the shoreline. Without an ECL, accretion and reliction will add land to privately-owned beachfront property. Another legal concept that affects beaches is avulsion, i.e., sudden, "perceptible," actions such as man-made dredging and filling, or hurricanes, which can remove or deposit land along the shoreline. Avulsion will not change the mean high-water mark, will not add land to beachfront property, and also does not change the ECL.

To access a beach, if a member of the public does not own beachfront property, the person can access the beach from a public road that terminates at the beach or by beach accesses owned by one of the cities or one of the counties on Anna Maria Island, Longboat Key, Lido Key, Siesta Key, and Casey Key that extend from the side of a public road to the beach.

Therefore, in summary, the public has a right to both (1) use the beaches and (2) use one of the above-mentioned accesses to the beaches.

B. What occurred prior to the passage of the new law?

In some counties, such as Walton County on the coast of Florida's panhandle, beachfront property owners have benefited from all three actions of the Gulf of Mexico or Atlantic Ocean: accretion, reliction, and avulsion, and the public portion of the beach has been squeezed. When the Gulf or Ocean has added dry sand to the beach through accretion or reliction, according to Florida law, those actions have extended the mean high-water mark waterward, i.e., land is actually added to a private owner's beachfront property because his or her boundary line in the form of the mean high-water mark has moved toward the surf. In contrast, hurricanes and other storms have often washed away sand from the beaches, leaving less beach between the mean high-water mark and the surf. However, as you have read above, storms are a form of avulsion that do not move the mean high-water mark back landward, even though they are taking away sand and moving the surf closer to the mean high-water mark, the boundary of the beachfront owner's land.

With beaches in counties like Walton County becoming narrower, a solution could have been paying for ongoing beach re-nourishment in partnership with the U.S. Army Corps of Engineers to widen the beach and then establish an Erosion Control Line at the mean high-water mark as the boundary between private beachfront property and the now widened publicly-owned beach. The ECL would have prevented accretion and reliction from adding land to privately owned beachfront properties, and the ongoing beach re-nourishment would have replaced sand previously removed by hurricanes and other storms and replaced future loss of sands to such storms. In exchange for nice wide beaches, typically, the city or county engaged in beach re-nourishment requests the beachfront property owners to sign a beach restoration easement allowing the city or county to pump sand onto their property landward of the mean high-water mark, if necessary (and agreeing not to remove the sand), but typically this easement gives no other rights in the private beachfront property to the city or county.

Instead, counties like Walton County did not engage in beach re-nourishment or the creation of an ECL, and beachgoers started using the beachfront portions of private property because the public beach was so narrow. In response, private beachfront property owners started posting “No Trespassing” signs and fencing in their property, then calling the police if beachgoers trespassed on their property. Walton County's response to the actions of the beachfront property owners was to pass an ordinance declaring that beachgoers had a recreational public right to use those portions of the private beachfront property.

C. Does the public have recreational rights to use private beachfront property?

Walton County's ordinance was relying on a 1974 Florida Supreme Court case called the City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73, at 78 (Fla. 1974), which stated:

"If recreational use of the sandy area adjacent to mean high tide [private property on the land side of the mean high-water mark] 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 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 [the public beach seaward of the mean high-water mark]."

The only problem is that this public beach right must be determined to exist by a judge in a court of law in a lawsuit filed against the beachfront property owners, and the party that wants the determination, the county, standing in for the public, must prove it exists. These requirements are not unusual. For example, they are required when someone wants to become the owner of property for which they did not receive a deed, but which they have adversely possessed for seven years. They are also required when someone wants to have a legal right to travel over someone else's property along a pathway that they have used for 20 years or more, which is called a prescriptive easement (see Barnes Walker's previous article entitled "Easements: Everything You Didn't Want to Know, But Should Know"). They are required if you are the victim of another driver's negligence in a car accident or other lawsuits. In all these cases and others, the party who wants a legal determination must file a lawsuit, serve notice of it upon the other party, prove that the first party is entitled to the determination after the other party has presented its evidence to the contrary, and then obtain an order from a judge.

Instead, Walton County took a shortcut – they just passed an ordinance declaring what only a court should have determined. Walton County did not sue the beachfront property owners, did not convince a judge, and did not obtain a court order finding that the County was right when the County asserted that the public had a right to use, without payment, land privately owned by owners who had purchased the land and paid taxes on it.

D. So what did the Legislature and Governor Do? What does the new law state?

Did the Legislature and Governor take away the public's right to use beaches with the new law, or did they take away the property rights of private beachfront property owners?

Neither, the new law simply puts into the form of a statute essentially what the Florida Supreme Court decided back in 1974. The new law states that a city, county, or other governmental entity cannot enforce an existing ordinance or pass a new ordinance giving the public the right to recreationally use privately owned property adjoining beaches until: (1) the governmental entity publishes a notice of intent to pass the ordinance, (2) the notice lists the private beachfront properties that will be affected and the specific uses that the public will be given, (3) there is a public hearing on the ordinance, (4) the governmental entity files a lawsuit in the applicable Florida circuit court requesting a declaration approving the public usage, (5) each affected beachfront property owner is notified of the lawsuit and given a chance to intervene (appear) in the lawsuit, and (6) the circuit judge determines that the governmental entity has proven that the uses referenced in the ordinance have been recreational customary uses by the public that are "ancient, reasonable, without interruption, and free from dispute." (The quoted words being the requirements for use of private property by the public for beach purposes established by the Florida Supreme Court in the above-referenced 1974 case.)

Therefore, the new public beach law takes away no rights of the public or the private beachfront property owner, if those rights exist. All the new law does is take the customary legal procedure for establishing such rights and incorporate it into a statute, adding the public hearing requirement. If the public has been using private beachfront property in a way that is "ancient, reasonable, without interruption, and free from dispute," they have rights to continue that usage.

If the circuit judge determines the public does not have such a right of usage, the city, county, or other governmental entity still has the right to appeal that determination, and, if that fails, two more alternatives: (1) the governmental entity may partner with the U.S. Army Corps of Engineers, pay for a beach re-nourishment program that establishes an Erosion Control Line, and obtain beach restoration easements (if a beachfront property owner does not agree to provide such an easement, his or her portion of the beach will not be re-nourished), assuring the public of continuous wide stretches of beach for the future; or (2) the governmental entity may use its eminent domain power to condemn (take ownership of) portions of the private beachfront property adjoining the public beach, which then requires the governmental entity to reimburse the owners of such property for the full fair market value of the land taken from them.

E. Conclusion.

As discussed above, the legislature and governor neither took away the public's right to use beaches with the new public beach law, nor did they take away the property rights of private beachfront property owners. They only supplemented, without real change, the already existing Florida law regarding the rights of beachgoers and beachfront property owners.

Further, the law will not truly affect or alter the rights of beachgoers or private property owners already established in counties like Sarasota, Manatee, Brevard, Broward, and Pinellas, which have beach re-nourishment programs and Erosion Control Lines.

If you have any questions regarding Florida's public beach law, please do not hesitate to call us at 941-741-8224 or e-mail us (just use the first letter of our first name followed by our last name at BarnesWalker.com). As always, we will answer your questions at no charge.

Important Note: The information contained in the preceding Barnes Walker Educational Series article is summary in nature, does not cover all aspects of the law as it pertains to public beaches, and is sent for educational purposes only to you as a client or a member of the Realtor® Association of Sarasota and Manatee, Inc., of which we are a proud affiliate member. This article should not be considered as legal advice for your or a client's situation, if any, nor is it intended as specific or detailed advice, as we do not have any information specific to your or a client's circumstances. Further, the preceding article is not intended to be an all-inclusive discussion of public beaches, but a guide to the same, and there may be other matters not described in the article that may impact your or a client's particular situation. Therefore, always seek legal advice regarding your or a client's unique circumstances. Finally, this article is intended as a public service and is not a solicitation seeking legal employment of our firm by you or any clients.