Updated April 6, 2018
TALLAHASSEE – A new Florida statute has some beachfront property owners around the state jumping at the prospect of keeping the sand all to themselves, and some beachgoers are hopping mad.
But on Anna Maria Island and many other beaches in the state, everyone might as well sit back down in their beach chairs and relax.
Despite misleading news accounts statewide, Florida Statute 163.035, which goes into effect July 1, requires cities and counties to go to court – instead of simply passing an ordinance – if they want to designate a privately-owned beach as public under the “recreational customary use” doctrine.
When beachgoers have historically surfed, fished, sunbathed, picnicked, walked or otherwise used a private beach, that beach may be considered public under the customary use doctrine if the use has been “ancient, reasonable, without interruption, and free from dispute,” according to state law.
However, “The statute is going to have a very limited application and impact given that most beaches are publicly held or subject to renourishment projects,” said Florida environmental attorney Patrick Krechowski, with the Florida-wide law firm of GrayRobinson, which is getting calls on the new law. “The lines have already been set.”
Lines in the sand
The lines – mean high water lines and erosion control lines – have vastly different implications on beaches.
In some counties without beach renourishment, the beach seaward of the mean high water line, sometimes called “wet sand,” is public, while the beach landward of the line – “dry sand” – is private, owned by whoever owns the upland property.
“It’s different everywhere you go,” said Krechowski, formerly with the Florida Department of Environmental Protection Office of Beach and Coastal Systems. For example, “In Duval County, private property lines don’t go to the mean high water line,” he said.
In Manatee County on Anna Maria Island, private property ends at the erosion control line (ECL) that was established by engineers during state- and federally-funded beach renourishment projects, leaving most of the beach open to the public.
Erosion control lines replace the mean high water lines on renourished beaches, and “supercede state legislation to the contrary,” said Charlie Hunsicker, director of Manatee County’s Parks and Natural Resources Department, who is in charge of local beach renourishment. Hunsicker referenced a memo from Deborah Flack, president of the Florida Shore and Beach Preservation Association, who wrote beach managers across the state on Wednesday that “Once the ECL has been set, common law no longer applies.”
“Where renourishment has taken place, the public has reasonable access to those beaches seaward of the ECL,” Hunsicker said.
On the Island, the ECL “meanders roughly along the dune vegetation line,” he said, not leaving much beach for municipal officials to talk about, except for one patch of sand in Anna Maria south of Pine Avenue where the ECL is not as close to the dune line due to the natural accretion of sand deposits there.
“The city could be exclusionary there, but our Island and its economy is based on abundant public access coupled with adequate public parking,” he said. “We should celebrate the fact that we have a welcoming community and not an exclusive community.”
Municipalities that decide to press the private-public issue must, under the new law, adopt a notice at a public hearing stating their intent to designate a private beach as public, then file a “Complaint for Declaration of Recreational Customary Use” with the circuit court in the county in which the beach is located within 60 days, providing notice to the property owner.
The municipality has the burden of proving that a recreational customary use exists, such as calling witnesses who have long used that beach, or producing historic photographs of public use.
In addition to prohibiting new ordinances on the issue, the law also invalidates existing ordinances passed after Jan. 1, 2016.
Other than in Walton County, which has such an ordinance, the law should not have much effect on beach access in the state, according to the Surfrider Foundation, which champions public access for surfers and other beachgoers around the world.
However, the organization opposed the law with the Sierra Club of Florida and the Florida Wildlife Federation, contending that the law makes it harder for local governments to protect beach access since they now have to go to court to pass local customary use ordinances, according to the Surfrider website.
Local state legislators Sen. Bill Galvano and Rep. Jim Boyd both voted in favor of the bill, according to state legislative records.
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