04 • 11 • 2018
Customary Use Doctrine Continues to Allow Beach Access in Florida
Recent beach access legislation adopted in Florida has spurred many questions and confusion in the media regarding its potential effect and impacts on the public’s ability to enjoy Florida’s beaches. The Surfrider Foundation has clarified some of the questions and misinformation surrounding H.B. 631, Possession of Real Property, and the particular provisions codified in Florida Statutes, Section 163.035, in this Frequently Asked Questions document.
Of relevance to beach access in the Sunshine State, particular provisions in the bill prevent local governments from enacting “Customary Use Ordinances,” except where such ordinances are adopted pursuant to a particular process and are affirmed by a court. “Customary Use Ordinances” are local ordinances that recognize, regulate, and protect existing public beach access rights based on the legal doctrine of custom, or “customary use.” In Florida, as the Florida Supreme Court has recognized, customary use rights arise where the public’s use has been ancient, reasonable, without interruption, and free from dispute.
To be clear, “custom” is simply one of many bases for public beach access rights in Florida. The public has rights to access all beaches seaward of the mean high tide line, based on the public trust doctrine, as codified in the Florida Constitution (Article X, Section 11). The doctrine of custom is an additional source of potential rights based on historic use of Florida’s sandy beaches above the mean high tide line. Other sources of public rights include express and implied easements (the right to use privately owned property), dedications, and where public tax dollars are spent to dredge and fill beaches, the public has a right to enjoy those beaches as well. (Florida’s Beach and Shore Preservation Act, Title XI, Ch. 161; FL DEP v. Stop the Beach Renourishment (2010)) H.B. 631 relates only to the “custom” basis.
In November 2017, the U.S. District Court for the Northern District of Florida upheld the right of Florida counties to pass customary use ordinances protecting the public’s existing rights to recreational beach access where the public has traditionally recreated. Local governments could enact such ordinances on their own, providing clarity and notice to the public regarding the public’s existing rights, without having to go to court and obtain an affirmation. According to the Court, beachfront property owners who may dispute the existence of custom in their area of beach could go to court to seek a judicial resolution.
H.B. 631 takes away this local “home rule” right and prevents local governments from autonomously passing such ordinances, and instead requires that counties engage in a specific process for adopting ordinances and getting court approval.
However, the law regarding custom ultimately remains the same. The public continues to have rights to access and recreate on Florida’s sandy beaches, where public use has been ancient, reasonable, without interruption, and free from dispute. As the Florida Supreme Court has recognized, “[n]o part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches. And the right of the public of access to, and enjoyment of, Florida’s oceans and beaches has long been recognized by this Court.” (City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974)) H.B. 631 doesn’t change that, and doesn’t provide beachfront property owners with any new rights; they still cannot block public beach access where a custom of beach access has previously existed.
Now, however, local governments will have to follow the specific procedures established by H.B. 631 before adopting proactive customary use ordinances. These include providing a noticed hearing to adopt a formal notice of intent to affirm the existence of customary use rights, and going to court within 60 days to have those rights affirmed. Particular notice requirements are required for all owners of subject beachfront parcels, and those owners will have the right to intervene in the proceedings. In all such court proceedings, the local government will have the burden to prove that a recreational customary use has been ancient, reasonable, without interruption, and free from dispute.
Make no mistake, the new procedure outlined is more arduous and will be more time consuming than the home rule authority local governments previously had to autonomously recognize customary use rights. This, however, should not diminish the will of Florida cities and counties to protect their public beach access. Florida’s local governments can and should proceed with seeking judicial affirmance of customary use in order to continue protecting the public’s customary right to coastal recreation. As the Florida Supreme Court has said, “There is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto.” (City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974))
It must also be noted that H.B. 631 only applies to and preempts ordinances passed after January 1, 2016. While Volusia and St. Johns Counties passed ordinances before 2016, and therefore remain in effect, Walton County’s ordinance, adopted in October 2016, will be preempted as of July 1, 2018.
Despite losing its ordinance, Walton County is committed to protecting their public beach access and is planning to proceed with the new judicial declaration process immediately. If you or your family have any historic documentation or photographs of beach access in Walton County, you can help by sending them to: firstname.lastname@example.org. Stay tuned to the Surfrider Foundation Emerald Coast Chapter for more updates. Outside of the Emerald Coast, you can also help by encouraging your city and county to take action and proceed with this process to protect access to your local beaches.