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Landmark Legislation Balances Interests of Private Landowners and Public to Use Beachfront Property

March 21, 2018 - 9:30am

Without a doubt, one of the most controversial and highly misunderstood bills passed by the 2018 Florida Legislature involved public access to Florida’s beaches contained in House Bill 631. 

With an estimated 60 percent of Florida’s beaches privately owned, the need to protect the public’s ability to enjoy its shorelines for recreational uses is paramount. Equally important is the need to protect the ability of private property owners to use their property for uses consistent with the public’s recreational uses of another’s property.

Local governments have tried to resolve these conflicts through the adoption of customary use ordinances. These ordinances have been challenged, creating tension between affected parties and generating legal costs borne by the taxpayers.

Legislation passed by the 2018 Legislature resolves this conflict by creating a streamlined and efficient process for a government entity to affirm a recreational customary use on
private property through a judicial determination. That determination provides due process for the private property owners and notice and public hearings to all interested parties. 

This procedure is intended to avoid legal challenges to customary use ordinances adopted without judicial determination.

But first, what is customary use? Customary use is a judicial doctrine that provides the public with a non-possessory use in privately owned land based on the following elements that must be established with evidence: the use must be ancient, reasonable, free from interruption and without dispute. Where the elements are established, there is no taking of private property and accordingly, no compensation due to the private land owner.

Most people are surprised -- and even dismayed -- to learn that beaches may be privately owned. While the wet sand area below the mean high water mark is held in trust by the state for the public, the dry sand area above the mean high water mark may be privately owned. Customary use deals with the dry sand area which is privately owned. The legislation does not privatize public beaches nor does it impact the public’s ability to enjoy our public beaches.

Counties that already have customary use ordinances based on prior court cases or determinations are upheld so there will be no disruption to those counties. The 1974 Florida Supreme Court case of City of Daytona Beach v. Tona-Roma, Inc. also provides guidance on the extent to which a city or county may enforce regulations on private property subject to a customary use ordinance. 

Local governments may continue to enforce appropriate regulations under its police powers. Furthermore, the private property owner may continue to use his or her property for all legal uses provided those uses are not meant to interfere with the public’s recreational uses of the property.  HB 631 resolves longstanding conflicts over the adoption of customary use doctrines and balances the interests of private property rights and the public’s right to continue enjoying and using privately owned beachfront property just as it has since time immemorial.

State Rep. Katie Edwards-Walpole, D-Plantation, has represented the 98th District, which includes parts of Davie, Plantation, and Sunrise in southern Broward County, since 2012. She has said she will not seek a fourth and final term. See her farewell address here.


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Comments

Disgusting new law eliminates home rule and gives Ric Scott, Karl Rove and Mike Huckabee (to name a few) private beaches. The Republicans are no longer conservative they are pure corporate. I'm changing to independent and voting out my current state reps. As to Gov Scott's current Fla US Senate campaign. Just say no.

Same thoughts in North Florida. The Reps here were immediate with their responses to HB 631---"nothing will change". That is dead wrong. Carlton Dunes, in Nassau County already posting No Trespassing Signs.

Now that homeowners are going to own the sand to the water how will Beach renourishment be billed since this bill has been passed. It clearly needs to be addressed the cost to homeowners on the beach.

Just like we always have after every storm or high tides OUT OF OUR POCKETS with no help from any Government Agency or any of the people who come over and flop down in front of my House !!!

I want a refund check for the 100 millions of Dollars I have spent for beach replenishment from all the landowners that have this new so-called private beach. Also I want a refund check for the amount spent on beach grooming and trash collection for the last thirty years I have lived in Florida on this private property. And don't tell me I get a benefit from tourism that is why I have to pay for free improvements to the Beach Hotels, condos and millionaire mansions. I have never worked in any industry dependent on tourism. I also want to be paid for the loss of home value from taking away my right to access the beach. I think a $100,000 check to all residents would be the bare minimum, so whadda you say Rick Schitt? I wouldn't run for senator if I were you, might want to find a new state to live in also. Start a business selling Cokes to Navy men, or run a Hospital or something.

Scott lost my vote!

We pay high enough tax bills to live a block away from Melbourne Beach. I’ll be damned if some condo, hotel, business, or home owners association is going to tell me I can’t walk on any part of the beach as long as it’s not the dunes I’m walking on. if I want to sit my ass on dry sand with an umbrella, then I’m gonna do it. Floridians pay taxes to manage and restore the beaches so you can either repay all the taxes or kick us off. I’m sure you’d rather have the tax dollars.

yeah ok you put your towels or blankets down on the wet sand only again another legislative land grab for the rich

The missing point here is the definition of Mean High Water Line. The MHW is NOT the wet sand. It is the Average High Tide for 18.6 years. Normally, this is the upper edge of the beach near the base of the dunes. The FL Statutes are clear in this regard.

Common people of Florida, The rich now will be able to harass you, and kick you off the beach. Even better, when the storms wash away the beach, the beach/waterfront owners will take your state tax dollars to rebuild/re-nourish the sands you can't walk or sit on...

Sorry Sir , you're wrong I've lived on the Beach for 25 Years and the State, the City nor the County has never paid a dime of our beach restoration ! You get them to do that and you're welcome to sit in front of my house and make a mess !!!

California and Hawaii don't privatize beaches. Whether it's a hotel/resort or a house that sits on the beach front, EVERYONE has access. What the hell is wrong with Florida?!

Scuttlebutt has it Scott wanted the entire beach at his house

As usual, scuttlebutt is a lie. No facts. If you bother to read the article, NOTHING WILL CHANGE!!! The bill, in essence, keeps the government from making a law to overturn the current law, which makes the beaches PUBLIC PROPERTY.

Why did your legislation grandfather 2 of the 3 counties that have already adopted customary use? It deliberately targeted one county nowhere near your area of responsibility.

Why did your legislation grandfather 2 of the 3 counties that have already adopted customary use? It deliberately targeted one county nowhere near your area of responsibility.

Why did your legislation grandfather 2 of the 3 counties that have already adopted customary use? It deliberately targeted one county nowhere near your area of responsibility.

Why did your legislation grandfather 2 of the 3 counties that have already adopted customary use? It deliberately targeted one county nowhere near your area of responsibility.

Note that the author of this piece is the same politician who introduced the amendment even though it had NOTHING to do with the area she represents. Who's got who's pocket? Grrrr.

If there is a customary use ruling and someone gets hurt on the dry sand owned by a property owner who holds the liability?? The county?

NOT !!!

If nothing has changed, why the need for more legislation? And I agree with the above, let the private property owners pay for their own beach renourishment not tax payer money. The beach belongs to all, not just rich people. And the sponsor of this bill does not represent the east coast. So what's up with this. Only the rich and attorneys will benefit. We need less government not more. The government which governs least governs best. Politicians don't get it. People just want politicians to follow the constitution.

Private “dry sand” exclusivity is overturned where ever public funds (state, county or city) are used for beach sand renourishment. The entire beachfront area in front of Trump Hollywood condominium is currently used by the public here in Broward County.

If property owners also own the wet sand on the beaches then let THE OWNERS pay for the beach renourishment after storms and hurricanes not taxpayers that foot the bills now!

We do , with no help !! I'm the only Taxpayer paying there to do anything . Is that what you call private ???

AMEN!

Exactly!

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