Old angers die hard, especially when incited by new ones. Just listen to Susan Colley talk about any possibility that private property owners would fence off their part of beach .
“I’ve only lived in Flagler County for 50 years,” Colley said. “I’m not a smooth talker, I’m very abrasive. But, the fatcats don’t want to see the hoi polloi cluttering up their private beach, and I’m sorry but that’s just wrong. They made us quit driving on the beach. I’ve never run over a turtle. I live like the Beverly Hillbillies, with my lawn chairs and my umbrellas and my coolers, have a ball. Never hurt a thing. But, that’s gone, never coming back. Now they’re trying to keep us from the beach and I predicted this. I don’t know if Mr. Hadeed remembers when the driving stopped, I predicted that the public would be confined to a hundred yards north and south of the pier, and it’s coming true. Maybe in my lifetime. And it’s wrong.”
The fencing off of beaches north and south of the Flagler Beach Pier isn’t about to happen, but a new state law does give private property owners whose land fronts the beach a new avenue to close off their portion of sands, even those sands that have customarily been used by the public for decades and more. The new law would force local governments that want to preserve that customary use to take the property owner to court and make their case there. Alternately, local governments have until July 1 to assert that customary use in an ordinance, which would then reverse the burden: the property owner would have to take the government to court and dispute the ordinance if fencing-off is disallowed.
So for the past two weeks the Flagler County Commission has been working toward just such a customary-use ordinance, with two of three public hearings already completed, and a third and final hearing scheduled for June 18. The commission’s new ordinance is expected to be approved then.
The hearings, organized by County Attorney Al Hadeed, who is drafting the ordinance, have been an absorbing combination of Flagler County history, folklore, political and legal positioning as the county’s ordinance may become what the vacation-rental ordinance became after it passed in 2014: both a template for other beachside governments and a lightning rod for legal challenge—but at a far greater pace: The vacation-rental; ordinance took a year’s work. With the customary-use ordinance, “we have essentially 60 days to do what may take a year to do.”
So Hadeed organized the hearings with Flagler Beach attorney Dennis Bayer in such a way as to include a series of sworn testimonies from long-time beach users, like Colley and many others, whose memories and current use of the beaches provide first-hand accounts of what it’s meant to have truly public beaches.
It’s all being done faster than the county hoped, because legislators themselves passed the new law with little discussion in the ending days of the last legislative session, giving governments little time to react. For Flagler, the potential legal problems are amplified by the fact that the county is in the midst of a massive, $25 million dune-rebuilding project to repair the severe erosion wrought by hurricanes Matthew and Irma, with much of those rebuilding sands being dumped on private property.
“What we are doing is unprecedented to save our beaches, because of the unique situation we’re in,” Hadeed told commissioners. “What is also unprecedented is the extent to which we have to rely on our own dollar resources to perform this project as opposed to having an overwhelming subsidy from the state and federal government, which is what typically happens. We’re ponying up, if you will, with more resources than other communities facing this issue, and plus, we’re doing it from county line to county line.”
The proposed customary-use ordinance would ensure that the public may still use not just the “wet sands” area of the beach, below the mean but ever-shifting high-tide line, which is protected for public use regardless, but also the “dry sands” areas above that line, and to the foot of dunes, which is private property, depending on whether private homes or businesses front that portion of beach. The proposed ordinance would also ensure that the public dollar spent on dune repairs are not questioned or put in question because the underlying land is owned privately.
“So we don’t want our ability to perform this work from county line to county line, threatened, because we are conferring principally [public] benefit to private property,” Hadeed said. “You know we don’t do that. We can’t do that, constitutionally. So the question is, why are we doing that today? It is because from time immemorial, our beaches have not been segmented, blocked, obstructed, fenced, flagged whatsoever, except—I have to be precise—except that we did ban beach driving, so in one sense that’s a blocking, and because of the county’s commitment to sea turtles nesting and habitat, we do stake off portions of the beach where people are not permitted to go on. So but for those exceptions, our beaches have been open and have been used by the public from county line to county line over the ages. That is regardless of whether we’re talking about Native Americans who used those beaches before it was privately owned, the Spanish who came to colonize Florida, the early colonists then beginning with statehood and going forward.”
At Monday’s hearing, he provided maps to commissioners going back to the early part of the 20th century and earlier.
“How fortunate we are to have so many people inside or outside of Flagler County that have made themselves so available to assist us,” Hadeed said, referring to the more than dozen people who’d then testify before the commission, among them old colleagues and friends: ex-Commissioner Barbara Revels, Anne Wilson, who’s served on innumerable county advisory committees with an interest in environmental protection, Steve Emmett, the mayor of Beverly Beach, and Carl Laundrie, for a quarter century a reporter and Flagler Bureau Chief for the News-Journal, later the county’s chief spokesman and recently one of its centennial’s organizers.
Dave Sullivan, a county commissioner, said he’d heard the argument that the new law changed nothing regarding public access to beaches—an argument Flagler’s Paul Renner, the House member, reiterated to an audience at the Palm Coast Community Center last month. “Well, if the law didn’t change anything, why did they pass the law?” Sullivan asked: the commission’s support for the proposed ordinance is unanimous, but that does not negate the importance of getting testimonies on the record as a preemptive way to show broad and long-standing public uses of the beaches even in the dry sands areas.
Revels established the template of those testimonies when she spoke two weeks ago. She spoke of her 63 years in the Flagler County area and of her family’s presence going back to her great-great grandparents.
“So as a young child my mother was a frequent beach-goer,” Revels said, remembering when she played with friends on the beach. “Later as I grew older, friends that had dune buggies, as driving was allowed on the beach–remember there was no Palm Coast, there was no Hammock Dunes, the entire beachfront was available from county line to county line–and we would travel up and down the beaches, fishing and picnicking and having cookouts and camping sometimes.” That was on the dry sands area.
Bayer asked her if she’d see others doing likewise. “Yes,” Revels said, “many people carried out the same pursuits as well as other visitors from other areas.” For a time Revels was a waitress at the Pier restaurant—“that’s how I got to have different pairs of shoes in high school”—and during that time she’d encounter big groups of beach travelers from out of the county who’d frequently drive their dune buggies in a caravan from Jacksonville to Flagler Beach, and have lunch at the restaurant.
In those 63 years, she said she never saw fences, no-trespassing signs and the like. Not on the beach. Nor was she ever shooed off a beach. But she also remembered a much wider beach, which has now “disappeared” because of erosion, which makes the dry-sands area even more of a playground.
Emmett, the mayor of Beverly Beach, provided another memorable testimony.
“Beverly Beach is the only town probably in the state of Florida that sits directly on the beach,”
he said. “I can throw a stone from my back office and hit the water. Right next to us is a campground, about 137 sites. Every other weekend we pick up about 200 extra people in the town. Every morning, I go out and I sit on our handicap ramp that we built not too long ago, and watch the people from the campground, watch the people from the residences that live across the street in 200-and-some homes over there, walk that beach south, and heading toward Flagler Beach. A lot of them who’ve got the strength, they get into Flagler Beach, they go to the local businesses that are out there on A1A, the Java [Join] coffee house, shell shop, the Turtle Shack. They walk to them. In our town, I have not known of any incident or complaint from a resident about use of the public walking down that beach. Never got a formal complaint in the town. I’ve been there 15 years now, and heard nothing. You’ve talked to the residents, and I do, because we’re a small town, I will tell you without fail, every one of them thinks that beach should be public. And bottom line is, you guys are the ones that are going to make that happen with this ordinance you’re putting together, and that’s very, very important, because you know how it goes when something becomes private. It extends itself. It goes on. Bottom line, I live there, I love it, I love that beach, it’s God’s gift to this county, and to do anything to make that private is absolutely wrong.”
The hearings have not featured any voices from the opposition.
Laundrie lent the proceedings a more immediately historical perspective dating back to his days as a reporter.
“I happened to be at the meeting in 1979 when Betty Steflik said she wanted to build dune walkovers,” Laundrie said, referring to one of Flagler Beach’s storied names: Steflik has a park named after her now. “At that point there were no dune walkovers, people just picked paths down the beach, which caused problems, because once it rained it would create gullies going down to the beach. She told the fellow city commissioners in Flagler Beach that she was going to try to get dune walkovers and they laughed at her and said, sure Betty, go ahead. They didn’t know Betty Steflik because she went out and got landowners to donate the property, and about two years later we had a whole bunch of dune walkovers. So you could drive down A1A, see the beach, stop, park, and walk right on the beach.”
North, south, dry-sand areas: it made no difference, Laundrie said. He also remembered how in the 1980s Hammock Beach wanted to close off five miles of beach, but county commission ensured access and openness through such beachheads as Malacompra Park.
Hadeed in his preface to the hearings responded to a comment questioning why the county was moving on the ordinance now, when it had years to do so previously.
Because the county had never needed—never had a reason—to pass an ordinance, just as it never conducted a renourishment program for its dunes, Hadeed said. Now, it’s “a matter of necessity.”
“How many times have you ever heard of a local government needing to go first to court, and get a decision out of a court, before you can pass an ordinance? It just doesn’t exist that way,” Hadeed said, though that’s just what the new law would require in the absence of a customary-use ordinance. That method has been the goal of certain interest groups–to require local governments to have to do just that, which would require “an enormous amount of labor” on local governments, thus potentially discouraging them from adopting such ordinances.