Florida’s coastline, the longest of the U.S. contiguous states, is treasured by millions of Floridians and tourists alike. In the first quarter of 2022 alone, the state welcomed 36 million visitors, and according to the Florida Office of Economic and Demographic Research, beaches are the most important feature of Florida’s brand and have the strongest effect in terms of attracting tourists.
But tourists may find more than just sugary white sand and palm trees when they arrive. Increasingly, they may find No Trespassing signs, ropes, or even hostile oceanfront property owners trying to keep them off the sand. As discussed in this recent blog post, Walton County in the Florida panhandle, has become a hot bed for recent disputes over public beach access – and in particular, disputes over whether the public can access the dry sandy beaches above the water’s edge. In Florida, the public has the right to access all beaches seaward of the “mean high tide line,” under the public trust doctrine (codified in the Florida Constitution, Article 10, Section 11). As recognized by the Florida Supreme Court in City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (1974), another doctrine commonly known as “customary use” may provide rights to use the dry beach above the tide’s reach. As the Court recognized in 1974, the public’s customary use rights arise where use has been ancient, reasonable, without interruption, and free from dispute. In 2018, the Florida Legislature established a process for local governmental entities seeking judicial affirmance of customary use rights on their beaches. Walton County is currently going through the process, seeking a judicial declaration of the public’s customary use rights to its 26 miles of sandy beaches.
However, two oceanfront property owners have challenged the doctrine of customary use as recognized by the Florida Supreme Court, arguing that it violates their right to exclude, and therefore violates the U.S. and Florida Constitutions. In March, the Circuit Court in the First Judicial Circuit for Walton County concluded in Northshore Holdings LLC and Lavin Family Development LLC v. Walton County, that in Tona-Rama, the Florida Supreme Court indicated that custom is a background principle of Florida property law, inhering in the title, and as such, it must be considered in any “takings” analysis. (And in other words, since custom is a background principle of Florida property law, where that custom has existed, a beachfront property owner does not have the right to exclude recreational users, and judicial affirmance of the right takes nothing from the owner.) The court was also without authority to overturn the Florida Supreme Court’s clear recognition of customary use in Tona-Rama. The property owners have appealed.
Surfrider Foundation, on behalf of the Emerald Coast Chapter, has filed a motion for leave to file an amicus curiae (friend of the court) brief in support of Walton County, and in defense of Floridians’ longstanding custom of recreating on the state’s sandy shores.
Surfrider’s brief emphasizes that the Florida Supreme Court has recognized the universal custom of recreating along Florida’s shores for nearly 85 years, and that this custom is reflected in Florida’s vibrant tourist and recreation economy. And that for nearly half a century, Tona-Rama has been relied upon by Florida courts, Federal courts, local governments, property owners, and title insurance companies. “Customary Use” is thus a solid background principle of Florida property law, similar to other principles which can also provide a right of use to beaches above the mean high water line – prescription, dedication, and adverse possession. Surfrider also argues that just because Tona-Rama didn’t explicitly recognize custom until 1974, doesn’t mean it didn’t exist. Prior to that decision, customary use of Florida’s dry sandy beaches was simply engrained in Florida culture and had not been disputed in that location. Finally, Surfrider emphasizes that states have authority to establish their own body of property law and that, similar to Florida, several other coastal states whose economies depend on beach recreation have embraced “customary use.”
The property owner-appellants filed a motion to expedite oral argument and the court’s decision in the case, but the court has denied the request. In the meantime, Surfrider also continues to keep a close watch on the County’s broader customary use action. In that case, an eight-week trial has been scheduled to begin May 16, 2023.
Update:
On April 12, 2023 the First District Court of Appeal ruled in favor of Walton County, holding that the trial court lacked jurisdiction to rule upon appellants’ declaratory relief claim. Essentially, the court held that appellants have not demonstrated a bona fide, actual, and present practical need for declaratory relief – a requirement for bringing their suit. Walton County has merely acted in accordance with Florida Statutes, Section 163.035, seeking to judicially affirm the existence of customary use rights on county beaches. But as of yet, there has been no determination as to whether customary use rights exist on appellants’ properties. Accordingly, the Court of Appeal vacated the lower court’s ruling, and dismissed the property owner’s lawsuit challenging the County and the doctrine of customary use.
The County’s broader customary use lawsuit, seeking to affirm the doctrine of customary use on over 1,000 beachfront County properties is currently scheduled to begin an 8 week trial on May 22.