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mean high water line Anna Maria

Mean high-water line surveyed

Written by Joe Hendricks on . Posted in Anna Maria, Community News.

ANNA MARIA – The lines in the sand have been drawn – aka surveyed and staked – in two beachfront locations along South Bay Boulevard.

On Wednesday, May 2, surveyors placed three wooden stakes along the mean high-water line that establishes the private property line in front of a beachfront home along the 500 block of South Bay Boulevard. As a second point of reference, Mayor Dan Murphy also asked the surveyors to stake the mean high-water line near the public access path on the 600 block of South Bay Boulevard.

The handwritten phrase “Apparent MHW” appears on each of the survey stakes. The city also has been provided the GPS coordinates of the survey points should the stakes be removed by nature or humans. Murphy said the survey work cost approximately $900.

Murphy requested the surveying at the city’s expense because the beach area between the water and a bayfront home on South Bay Boulevard has been discussed at recent city commission meetings as a source of confrontation between the property owners and people walking the residential beach along the Tampa Bay shoreline.

Last summer, the property owners placed two signs between their home and the water that say: “No Trespassing. This beach is private property.”

A visit to the newly staked areas at 10:20 a.m. on Thursday, May 3, revealed the incoming tidal waters of Tampa Bay had already risen above the mean high-water line in both locations – and high tide wasn’t expected that day until 2:20 p.m.

According to the stakes, people walking landward of the mean high-water line are walking on private property and the property owners have the right to ask them to leave. For much of last week, anyone walking that section of beach would have had to walk in the water to avoid walking on private property.

Private property owners have no such rights when it comes to people walking seaward of the mean high-water line. All land seaward of the mean high-water line (or the erosion control line where beach renourishment has occurred) is state-owned public land.

The mean high-water line is established using a 19-year average based on local tidal data established by tidal observations made at specific tide stations.

When asked how the city plans to deal with future conflicts that may arise between private property owners and people walking along that stretch of residential beach, Murphy said, “My advice is that we all respect each other and are tolerant with each other.”

When interviewed on April 12, one property owner correctly estimated where his property line was, and said he was considering installing rope and bollard fencing to delineate his property line and discourage foot traffic.

Installation of a beachfront fence will require a permit from the city, but a recent federal lawsuit supports property owners’ right to install fences.

In March 2017, Walton County commissioners adopted a customary use ordinance in response to beachfront property owners erecting fences.

“No individual, group or entity shall impede or interfere with the right of the public to utilize the dry sand areas of the beach that are owned by private entities,” the ordinance said.

In November 2017, a federal court ruled the Walton County ordinance language prohibiting fencing was unconstitutional and violated property owners’ First Amendment rights. The federal court viewed fences as an expression of free speech that conveyed a message to others to stay off their property.

During the City Commission’s April 26 meeting, property owners Pat Olesen, Dr. David Bulley and Dean Foster were among those who expressed concerns about people walking and congregating on the private beaches in front of their bayfront homes. Their public testimony contributed to the City Commission’s decision to discontinue the pursuit of a customary use ordinance as a potential means of protecting the historic and customary public use of privately-owned beach lands.

A new state law that takes effect July 1 will require a court order before local governments can adopt or maintain an ordinance based upon the public’s customary use of any portion of beach above the mean high-water line. The new law does not apply to ordinances adopted and enacted before Jan. 1, 2016.

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Anna Maria customary use property

Commission jettisons customary use ordinance

Written by Joe Hendricks on . Posted in Anna Maria, Community News, Featured.

ANNA MARIA – City officials have abandoned the pursuit of a customary use ordinance as a means of ensuring continued public access to state-owned public beach lands that lie between private property lines and the city’s coastal waters.

According to the Surfrider Foundation website, a local customary use ordinance recognizes and protects existing public beach access rights based on the legal doctrine of customary use.

On April 12 – in response to a new state law taking effect July 1 –  Anna Maria commissioners directed City Attorney Becky Vose to start working on a customary use ordinance to be adopted before that date. Once the state law is enacted, municipalities will no longer be able to declare customary beach use through a local ordinance. They will need a declaration from a circuit court.

On Thursday, April 26, Mayor Dan Murphy recommended the commission forego the customary use ordinance. After commission discussion and public input, the commissioners voted 4-1 in support of Murphy’s recommendation, with Commissioner Doug Copeland casting the opposition vote.

The public beach areas in question are those seaward of the mean high tide line that establishes property lines on the unrenourished beaches on the Tampa Bay and Sarasota Bay (east) side of Anna Maria Island, and seaward of the erosion control line – closer to the dune line than the mean high tide line – that establishes property lines on the renourished beaches on the Gulf of Mexico (west) side of the Island.

“For 110 years we’ve all gotten along without this because the mean high line has been the rule of the land. Yes, from time to time there are some issues, but for the most part, people don’t mind people walking by their house. What I would suggest is that we leave what’s been in place and not embark on an ordinance that we probably don’t need because of a few places that are hot spots,” Murphy said.

One such hot spot is Terry and Pat Olesen’s bayfront home on South Bay Boulevard. Terry’s recent confrontations with beach walkers were discussed at a city meeting on April 12.

Murphy said that if needed, the city could prove customary use without a new ordinance.

Commissioner Amy Tripp suggested customary use is a county issue, not a city issue.

Commissioner Carol Carter said she knows at least 14 people who recently moved from Anna Maria, and she’s concerned that adopting a customary use ordinance would drive more full-time residents away.

Commissioner Brian Seymour agreed and asked Murphy about the beach surveying scheduled for this week.

“We’re having two, possibly three properties surveyed. These are properties where the owners have stated they want to know exactly where the boundaries are,” Murphy said.

The Olesens’ property is among those that will be surveyed and staked at the city’s expense.

Public input

Several South Bay Boulevard residents opposed the customary use ordinance and no one spoke in favor of it.

Anna Maria customary use public input
Dr. Jose Erbella shares his thoughts on a proposed customary use ordinance. – Joe Hendricks | Sun

“I don’t think we should change anything. I love having my neighbors walk behind the house and enjoy the beach. Our biggest fear is making changes that will really impact our quiet neighborhood,” Dr. Jose Erbella said.

Erbella owns two beachfront homes. He lives in the one on South Bay Boulevard, and his children live in the one on North Shore Drive that until recently had about 40 yards of beach.

“Just a few weeks ago my kids lost their beach on North Shore. The storms completely took their beach away. The water is back to the seawall,” he said of the impermanent nature of beachfront property.

“Walking is a wonderful thing, and I’m all for it, but once you start putting bunches of people out there, there is no room because there is basically no beach,” Jack Whiteside said.

“Terry and I really have no problem with people walking as long as they stay by the water. For us, it’s a liability issue and the enjoyment of our property,” Pat Olesen said.

“We don’t use our back deck as much as we could. We just find it too uncomfortable sometimes. People are almost in our face, and if it gets closer, it’s going to be uninhabitable, and we will be one of the residents that leave,” Dr. David Bulley said.

“There’s no harm in walking the beach. There is harm when people start to encroach on your space,” Sheila Fusé said.

Ashok Sawe asked why there are so many public access paths leading to residential beaches.

Murphy said they were created before he became mayor.

Public access to the beach is required for the county to get beach renourishment funding.

“The access could be water; it could be beach. It all depends on where the mean high tide is. We need to find that out so we can handle these instances on a one-by-one basis. The new law doesn’t change any of that,” he said.

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Beach access not a problem in Holmes Beach

Written by SUN contributor on . Posted in Community News, Holmes Beach.

HOLMES BEACH – City leaders don’t think a new Florida law regarding ownership of the beach will be an issue in Holmes Beach.

That’s because Anna Maria Island beaches have been renourished, paid for by tax dollars.

Beachfront property owners had to give up some of their rights to the sand in front of their homes to participate in beach renourishment programs to combat erosion. In renourishment projects, property lines are pushed up to the erosion control line. The erosion control line is located near the dune and vegetation line on the landward side of the beach sand.

City Attorney Patricia Petruff said the number of property owners who opted out of the beach renourishment program is very few, if any, in the city. With the erosion control line so far up the landward side of the sand, she said it’s unlikely beachfront property owners will be able to block off sections of the beach to prevent public access and establish private beaches.

Commissioner Jim Kihm said he thinks the city should consider putting an ordinance into effect establishing customary use on Island beaches in Holmes Beach’s jurisdiction and preventing sectioning off of the sand. Petruff agreed that city leaders should fight back if public use of the beach is challenged, but only if a property owner legally challenges the public’s right to use the beach in front of their home.

Under the new law, the city can’t create a new ordinance to prevent privatizing the beach and any ordinances put into effect in 2016 or later are preempted by the state law which goes into effect July 1. If a challenge does arise, it’s up to city leaders to demonstrate continuous, ordinary use of the beach in question by the public. To designate a private beach as public, city leaders also would have to go through the courts and prove customary historic public use of the space. However, due to participation in beach renourishment projects, Petruff said the likelihood that a property owner will challenge the public’s right to the sand is very small.

A challenge for the city, if a legal case is filed, is the time and research needed to establish an updated map of the erosion control line and make sure that any properties not participating in the beach renourishment program are identified. Building Official Jim McGuinness said building department workers would have to go out and physically measure boundary lines to create an exact, updated map.

In an April 3 email to city administration, Commissioner Rick Hurst said he feels city leaders need to make a public statement on the issue to explain what the new state law means for Holmes Beach residents and visitors, potentially at an upcoming public meeting. While he said he expects the regulations to have little to no effect on beachgoers because of how far up the erosion control line is, he feels it’s important to determine the boundaries for visitors and property owners.

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Coquina Beach

New beach law has little effect on AMI

Written by Cindy Lane on . Posted in Community News, Featured.

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.

Erosion Control Line
Part of the erosion control line on Anna Maria Island in 2017, from north of Manatee Avenue to south of Cortez Road. – Manatee County Property Appraiser’s Office | Submitted

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.”

Charlie Hunsicker
Charlie Hunsicker, Manatee County’s Director of Parks and Natural Resources, on Anna Maria Island during a beach renourishment. – Cindy Lane | Sun

“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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