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
Click to access customary-use-decision.pdf
Click to access Cartographic-Evidence-of-Customary-Use-Power-Point.pdf
Elke Jensen says
I don’t care how many people com and use my beach. I am just worried about loosing my view again.
Peaches McGee says
Build a taller house.
You cannot. There are height restrictions on buildings throughout the county – typically 35′ maximum depending on whether you have a gable roof or not. Read the code. Variances are almost never granted. The tall building in Flagler Beach was built before the existing code was established.
Lance Carroll says
Please explain how folks walking on the beach makes you worry about losing your view again?
Elke Jensen says
I don’t care how many people sit on my beach. I am just worried about loosing old Flagler, No one read the contract,
Our beaches, including dry sand above the high tide water line, should remain open for public access and enjoyment of everyone. Too often, those with too much money who love living on the beach buy beachfront property and then want to close the beach sand down to the water line off to everyone else. If we allowed people with gads of money to do that we would decimate the public’s right to beach access in this country. This story reminds me of the few holdouts in Flagler Beach who stubbornly refuse to allow the county easement access to their tiny, unbuildable dune “property” in order for dune restoration that will help save both the dunes as well as the actual beach sand. Those people too are willing to doom the future of the entire beach for purely personal reasons, mainly because the project might interfere with their view of the ocean, they have said. How irresponsible some beach side property owners can be when they believe their personal rights and desires should outweigh the rights of the public when it comes to access and maintaining the beach for the future enjoyment of the public.
Pretty damn good lawyering Al Hadeed!
That is not at all what it ruled. The Court sent the case back to the trial court to be tried since the Judge at the lower court level committed error in ordering summary judgement for the private landowners without first hearing the case since there are issues of material fact in dispute. Nothing has been decided except the case is due to be tried.
Ray W. says
Great point, Debi. Thank you.
Skibum has an viewpoint founded on one form of populism. I suppose one might consider the opening line of our Declaration of Independence, which concludes with the phrase, “… life, liberty and the pursuit of happiness.” It has long been argued that Thomas Jefferson’s original working point prior to publication was “life, liberty and the pursuit of property”, which some think derives from John Locke’s phrase: “Life, liberty, and estate.” Property rights were central to the thoughts of our founding fathers. For example, eminent domain actions require 12-person juries, whereas people can be convicted and ultimately sentenced to life in prison by six-person juries, at least in Florida.
The author mentions that one’s private property is connected to the mean-high-tide line, which is updated every so often. When a person purchases oceanfront property, he or she has the legal right to argue ownership of the land all the way to the mean-high-tide line. Perhaps, this is why the appellate court focused on “customary use” as a possible exception to a home-owner’s property rights to be considered by the trial judge.
The mean-high-tide line can change over time. As a child, I recall my father talking about mean-high tide lines (one benefit of growing up in a legal family), and explaining to me and my siblings that our property was 600′ deep; he talked about the State having hired a surveyor to determine the mean-high-tide line every so many years (my recollection was that he said every 10 years, but I never researched the issue). I recently spotted a neighboring home being listed for sale, with the lot size being printed on the for sale sign as 389′ deep. The roadway between my childhood home and the home for sale is straight and the beach between the lots is straight. How did the beach lose 211′ feet of mean-high-tide line, give or take a few feet, over nearly 50 years?
Elinor Ostrom won a Nobel Prize in Economics for her work describing an alternative to property ownership, which was long thought to be limited to either privately- or publicly-held property.
It has long been argued, I think sometimes falsely, that private ownership of property would lead to its preservation, because the private owner has an interest in preserving the value of his or her land. The recent red tide in the St. Petersburg area, possibly linked to the draining of a phosphate retention lake because the levees were in danger of failing, gives some proof to the argument that some private land ownership can lead to the destruction of the value of the land. After all, the phosphate company seems to have walked away from the property, leading to deterioration of the levees.
The original concept of the tragedy of the commons was that public use of “common” property that was not publicly owned would lead to its destruction because no one person held an interest in the common land sufficient to preserve its value. Hence, public ownership of the commons was deemed the most effective way to conserve the value of common land. Some governmental entity would serve as the steward of the commons, to avert the destruction of the land.
Elinor Ostrom’s work supported an argument, some say controversial, that a third option existed sufficient to avert the destruction of property, which is that everyone associated with the commons recognized that he or she has an interest in the preservation of the land without holding an ownership interest in the land. She pointed to numerous cohesive organizations around the world that willingly shared land to everyone’s benefit. One example that caught my interest was her description of European cattlemen in a mountainous valley region who had for centuries voluntarily limited the size of their herds, by cooperative agreement, and opened all lands in the valley for grazing, i.e., no fenced land. Thus, everyone benefitted by mutual consent. If one region in the valley was lush with grass, all cattlemen received grazing access, without denuding the groundcover. The land benefitted, the cattlemen benefitted, and the tragedy of the commons was averted. But, this required acknowledging a common interest in the value of everyone’s land, something that may be a bit too much to ask of American beachgoers, many of whom think of beaches as a large sandy trash depository. If this point holds true, it greatly weakens Skibum’s point. A property owner who purchased land down to the mean-high-tide line might be more concerned with having to pick up trash every evening after people who seem to have little interest in preserving the homeowner’s land dump all kinds of litter onto the sand.
Building higher, as Peaches McGee says, might not be the answer, as a taller home will neither pick up trash nor obscure the homeowner’s view of the trash.
The dude says
“Common interest” simply doesn’t exist in the right wing vernacular any more.
They’re all rugged, bootstrappy individuals who don’t need anything ( in their tiny minds) but to be left alone… and access to public infrastructure like roads and telecom and such… but bootstrappy nonetheless.
Mark Tayler says
everyone is welcome on my beach, anytime.Flagler Beache is one of the very few places you can drive and still see the beach.This easement is assignable. Assignable to WHO, for WHAT, for How MUCH ? Allmost all the other beaches up and down the coast have buildings east of A1A . Flagler will also. Why is the contract ASSIGNABLE.?
Lance Carroll says
As I read over the posts to this thread, “my beach” is a reoccurring description by some making comment. As per that: I say, put a fence up and watch the ocean take it down. I wonder how many folks pick up trash on other folks’ beach…how many sea turtles lay eggs on someone’s beach…how many waves crash on someone’s beach…how many government dollars have been spent on replenishing sand on “my beach?” Food for thought, I guess…