Let’s Tell the Truth About Beach Access
What Passidomo said, but what you need to know
Here’s some background: Effective July 1, 2018, the new state law (entitled Possession of Real Property) gives beachfront property owners more control over the beach up to the high-tide line. Prior to this law, a city council or county commission could declare an area of beach to be subject to “customary-use,” thus preserving the publics’ right of access. This new law mandates that only a court, not a local government, can make the customary use determination.
When Rick Scott iossued an executive order trying to stop enforcement of the bill, Passidomo issued this statement: “The executive order is actually a good thing. It did not reverse HB-631, it actually confirmed it because the thing is, HB-631 is exactly what we want, which is local governments have to use a process whenever they are expanding their beach, and this gives them the tools to do that… Hopefully, it will clear up some misinformation…”
I do not buy that the law is simply misunderstood. As should be crystal clear to all, under the new law, instead of passing a customary use ordinance, local governments must now initiate lawsuits, possibly on a parcel-by parcel basis, in order to establish customary use. This will likely result in more litigation and a corresponding increase in legal costs to local governments, which, in turn, will be a deterrent for them to pursue customary use cases. Concurrently and, very importantly, while all this litigation is occurring, the public will increasingly be challenged on our beaches. No doubt a boon to law firms specializing in property rights cases, the increased litigation resulting from the new law will degrade public beach access rights.
I also take issue with several key implications in her recent commentary–specifically that the new law is in response to local governments “expanding their beach,” that prior to the new law, local governments had no real process for making these determinations, and that the courts previously had no say in customary use cases.
First, I would not characterize local governments protecting public beach access rights as expanding “their” beach (i.e., the government’s). Second, local governments had a public process in place prior to the new law. It was to enact customary use ordinances. Passidomo’s bill removed that process and replaced it with a more costly and court-centric legal process. Finally, I would point out that in Walton County, prior to the new law, the local government passed a customary use ordinance which was challenged in the courts by several local property owners. While the residents lost that appeal, they did have their day in court.
In my view, Passidomo’s beach access legislation certainly is not in the interests of the vast majority of Floridians, including her own constituents who have a right to enjoy Florida’s beaches (and to enjoy safe, clean beaches that are now under threat from offshore drilling or toxic algae sludge); nor is it in the interests of Florida businesses who rely on tourists drawn here in large part by the promise of a relaxing beach vacation. Bad for Florida’s citizens and bad for business, this law should be repealed.
A rebuttal to Bob Rommel’s defense of the new law
Rommel: The law creates a framework to resolve disputes where property lines have been drawn on beachfront property. Nothing in the law privatizes public beaches.
Rebuttal: The new law replaces one way to resolve disputes for another. Under the new process, litigation will increase, it will be more costly for local governments and consequently local taxpayers, and during the litigation process the public will not have beach access rights. The previous process was more protective of the public’s beach access rights.
Q: What did the Legislature pass?
Rommel: In HB 631, the Legislature passed a structure for courts to ensure private property rights are not infringed while also maintaining the public’s access to our beaches. Decisions that affect both public access to beaches and private property rights should be decided by courts, not political entities. In doing so, we are protecting the rights of all Floridians.
Rebuttal: We already had a ‘structure’ and process in place, to include appeal rights to the court, that not only protected public beach access rights but in cases where there was litigation, the public continued to enjoy access until the litigation was resolved. The new law replaces one process for another more bureaucratic process. Under the new process, litigation will increase, it will be more costly for local governments and consequesntly local taxpayers, and during the litigation process the public will not have access rights. As to the role of local government, since when did local governments not have the right to enact zoning related ordinances? Also important to note that under the old process the courts were available as a higher appeal authority.
Q: How much beach access is currently impacted?
Rommel: Currently, the controversy surrounding the enforcement of this process affects only 2 percent of Florida’s coastline, and even in the area where this issue has come up—there are over 50 public beaches in a 26-mile stretch.
Rebuttal: Key word is ‘currently’. The current controversy is up in Walton Country. But we can fully expect property owners throughout the state to increasingly take advantage of the new process and attempt to restrict public access.
Q: People are claiming the Legislature privatized beaches and this will affect tourism. Is this true?
Rommel: No. The legislation did not privatize any coastline, it created a process to ensure local governments are not improperly encroaching on private property through a unilateral ordinance. Furthermore, the overwhelming majority of Florida’s beaches have never been subject to a local government’s property ordinance, and the public has enjoyed beach access without issue.
Rebuttal: Again, the new law did not ‘create’ a process as if there wasn’t one already in place. It created a NEW process that is more disadvantageous to local governments, to local taxpayers, and to public beach access rights. As we see more instances of people being kicked off beaches, as we have already in Walton Country, word will spread and we can expect impacts on Florida tourism.
Q: Why did we need HB 631?
Rommel: Recently, a local government passed a blanket ordinance granting the public access to private beaches. The bill created a process that ensures decisions are made fairly with evidence and facts. The bill also ensures any ordinances are made with transparency and requirements for sufficient public notice.
Rebuttal: In Walton County an ordinance was passed to ensure continued public access to the beach under the customary use doctrine. Apparently influential property owners objected to the ordinance, appealed the ordinance in the courts….and lost their appeal. It seems a bit ironic that the central argument of the proponents of the new law is that governments should not be involved, only the courts (see Answer No. 1 above). Yet when the courts ruled against the influential property owners, they apparently used their influence with a political entity (state government in this case) to change the law! Sponsors and supporters of this new law are doing exactly the opposite of what they claim is the core rationale for the new law. Hypocrisy at it’s finest and another example of big money in government overriding the interests of the vast majority of Florida citizens. This law took away the authority of your local government to enact customary use ordnances where needed.
Q: What is the customary use doctrine?
Rommel: Under certain circumstances, the public may access private property under the longstanding legal doctrine of customary use. The doctrine applies where the public use of private property has been ancient, reasonable, without interruption, and free from dispute. If customary use is established, private property is available for public use. Historically, the public has enjoyed access to many dry sand portions of private beach property without issue. When disputes have arisen, courts have determined whether dry sand portions of private property were subject to the customary use doctrine. This law requires a court to review a customary use ordinance and determine whether the doctrine applies, after a full and fair hearing.
Rebuttal. Correct on Customary Use. But as noted, the old process also included recourse for “…a court to review a customary use ordinance and determine whether the doctrine applies, after a full and fair hearing.” What’s changed is that the responsibility is now on thebacks of local government to initiate customary use lawsuits (at great expense to the local taxpayer) and, while that litigation is pending the public can be prevented from accessing the beach(es) in question. Previously the onus was on the property owner to initiate legal action and while litigation was pending the public could continue to access the beach.
Q: Local governments are relying on their own interpretation of customary use in their ordinances. Why is this an issue?
Rommel: A government entity should not be able to unilaterally infringe on private property rights. This is an issue because these governments can make these determinations without considering appropriate evidence or applying legal standards established by courts.
Rebuttal: And a beachfront property owner should not be able to restrict the public’s access to Florida beaches which are held in trust by the state on behalf of the public. Local governments have always had authority to enact and enforce local land use and zoning rules and I expect in just about all cases they did consider evidence and legal standards in so doing. Property owners already had the right of recourse to the courts prior to this new law.
Q: Did the Governor’s Executive Order overturn the law?
Rommel: No. The Governor’s Executive Order is a declaration to protect public access to Florida’s public beaches. Nothing in the legislation infringes on that right.
Rebuttal: Arguably, the Governor’s Executive Order, and other attempts by Sen. Passidomo and other legislators to defend this new law, are election year ploys to convince constituents that somehow making it more difficult and costly for the public to access Florida’s beaches was in their interest and not a reflection of the influence of big money in government. Don’t believe it.