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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