■ BY MARCY SHORTUSE
House Bill 631, signed into law last month but just recently making headlines, has some Gasparilla Island homeowners and beachgoers puzzled about their rights to access local beaches. While the answer is – of course – clear as mud when you ask a lawmaker, be assured it isn’t as impactful as it sounds.
The wording in the Bill says that local governments are blocked from adopting ordinances to continue to allow public access to privately-owned beaches, and that if a a city or county wants to allow beachgoers to continue to use the taxpayer-paid-for beaches, they must sue the private landowners.
In order the make this a little clearer, we asked Lee County’s Public Information Officer Betsy Clayton for her input. This is a statement she issued, copied from a memorandum between the Florida Shore and Beach Preservation Association and Diana Mergus, Esq. representing Rutledge Ecenia:
The public has a right of access along Florida’s beaches and shorelines below the mean high water line. Article X, Section 11 of the Florida Constitution provides that the state holds the land seaward of the mean high water line (MHWL) in trust for the people …
This is commonly known as the “Public Trust Doctrine.”
“Customary use” refers to public use of the dry sandy areas of the beach and is an extension of the common law doctrine of custom. This is a broad principle of property law which provides that, if an activity has continued for a long time without interruption, the law will eventually recognize that activity and provide a legal right for it to continue. Some states, such as Oregon, Texas and Hawaii, have applied the doctrine of custom broadly to the entire shoreline of the state.
Florida courts have recognized common law customary use in a more limited way, as applied to a specific area of a particular beach. The Florida Supreme Court has stated that “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.” But the Fifth District Court of Appeal clarified this recognition further, requiring “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.”
HB 631 prohibits a governmental entity from adopting or keeping in effect an ordinance or rule establishing customary use of privately owned dry sand areas. A governmental entity seeking to establish the customary use of privately owned lands is required to adopt, at a public hearing, a formal notice of intent, provide notice to affected parcel owners, and file a complaint with a circuit court to determine whether the land is subject to the customary use doctrine. This section of the bill does not apply to a governmental entity that had an ordinance or rule adopted and in effect prior to January 1, 2016. A governmental entity may raise customary use as an affirmative defense in proceedings challenging an ordinance or rule adopted prior to July 1, 2018.
It should be noted that HB 631 does not affect the statewide beach management program or any beach restoration, nourishment, or erosion control projects that participate in the program.
Any beach restoration, nourishment, or erosion control project is part of the state’s beach management program and must have an erosion control line (ECL) established. Once an ECL has been established in accordance with Chapter 161, F.S., the ECL replaces the MHWL and the common law no longer applies. Title to all lands seaward of the ECL is vested in the state as sovereign, and title to all lands landward of the ECL is vested in the riparian upland owner. Additionally, the program requires the provision of upland access to the beach.
The state’s beach management program is well established, and the process for fixing an ECL to replace a fluctuating MHWL prior to initial project construction is well settled, having been established in 1965 and upheld by the United States Supreme Court in an opinion written by Justice Antonin Scalia in 2010.
The petitioner for this United States Supreme Court case and the preceding case in the Florida Supreme Court was Stop the Beach Renourishment, Inc., the same group of Walton County property owners that were the proponents for HB 631. However, the process for establishing customary use by a governmental entity through a circuit court that is created in HB 631 was amended to contain negotiated language. Additionally, the existence of customary use was a judicial determination prior to HB 631, and the bill requires courts to determine whether the recreational use or uses at issue “have been ancient, reasonable, without interruption, and free from dispute.”