A federal appeals court on Friday overturned a ruling that backed waterfront property owners in a battle with a Pinellas County town about public beach access.
The decision by a panel of the 11th U.S. Circuit Court of Appeals focused, in part, on a highly controversial 2018 Florida law that put restrictions on what is known as “customary use” of beaches.
The panel said U.S. District Judge James S. Moody should not have granted summary judgment to a group of property owners in Redington Beach who argued that an ordinance allowing public access to certain parts of the beach violated the 2018 law. The Atlanta-based appeals court also tossed out Moody’s conclusion that the ordinance resulted in a “taking” of property.
“The customary use at issue here is the public’s access to the Town’s dry sand beaches,” the court ruled. “Florida law allows for localities to recognize the public’s customary use of their beaches, with Florida courts invoking the English common law tradition of the doctrine. … Florida courts have for decades recognized the customary use doctrine.”
[In anticipation of the 2018 law, Flagler County Attorney Al Hadeed prepared a “customary use” ordinance in the spring of 2018 that was to protect public use of local beaches as had long been the case. Residents spoke at County Commission meetings to establish an extensive record of such a use. The Town of Redington had done likewise in preparation of its ordinance. The 11th Circuit’s decision described the process: “Beyond that, the Town provided testimonial and photographic evidence supporting the longstanding perception that the Town’s beaches are available for public use. As one longtime resident attested, “It’s always been a public beach.” The mayor, who moved to the Town as a child in 1955, testified that people “just felt like the beach was there for us to enjoy and use.”
“A Town Commissioner attested to raising his children in the Town and, throughout those years, accessing the dry sand beach through the public access points. He testified that at no point was he told that he and his family could not be on the dry sand beach. The Town’s corporate representative also testified that she would run on the dry sand. The representative testified that she saw others on the dry sand areas outside of the bounds of the city park. As one example, she said she saw fisherman waiting on the dry sand beach while their poles were mounted in the wet sand. Another Town commissioner also testified that his family would routinely use the dry sand areas behind the homes and that he had “been doing this for years.” Several commissioners identified some of the pictures of people gathering on the dry sandy areas of the beach behind a resident’s home.”
The process the federal court described was almost identical to the one Hadeed coordinated before the commission. The Flagler commission passed the ordinance in June 2018. Had Flagler not acted ahead of the state law becoming effective, it would have had a more complicated route to establishing customary use. Today’s decision vindicates Flagler’s method.]
Friday’s decision sent the case back to district court for “further determination” about whether the town had properly established customary use of the disputed portions of the beach. Summary judgments are issued without full trials.
The Florida Constitution ensures public access to portions of beaches “below mean high water lines,” often described as wet areas of beaches. But the lawsuit and the 2018 state law focused on dry-sand portions of beaches closer to homes.
Customary use is a legal concept that involves people having access to property “based on longstanding customs,” the appeals court said Friday. The 2018 law put in place an extensive process for local governments that want to have ordinances aimed at ensuring customary use of beach areas above the mean high-water line, including requiring them to receive judicial approval.
The law took effect July 1, 2018, but Redington Beach approved an ordinance on June 6, 2018, designed to allow the public to continue the customary use of dry-sand areas of the beach.
The seven beachfront property owners filed a lawsuit in 2019, challenging the ordinance and saying their lot lines included dry-sand portions of the beach. In a brief filed at the appeals court, attorneys for the property owners said the ordinance violated the state law and that Moody’s ruling in 2020 should be upheld.
“The district court properly declared the town’s customary use ordinance was void as violating (the state law),” the brief said. “There is simply no way to read (the state law) as authorizing the town’s decision to keep its customary use ordinance in effect beyond July 1, 2018.”
But the appeals court disagreed with the property owners’ reading of the law and said Moody erred in discounting evidence “supporting customary use.” It pointed to evidence dating back to Charles Redington, who founded the town in 1935 and donated beach-access points.
“As such, the town provided evidence suggesting that residents and nonresidents alike use the dry sand beaches, including residents who do not own beachfront property,” said the 24-page decision, written by Judge Beverly Martin and joined by Judges Britt Grant and Andrew Brasher. “This overview of the evidence is not exhaustive. Nevertheless, it reflects competent evidence put forward by the town in support of its customary use defense.”
–Jim Saunders, News Service of Florida, and FlaglerLive