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Private landowner rights can clash with public beach access

Last Updated Nov 22, 2017 at 10:20 pm EST

ROSEMARY BEACH, Fla. – Nestled between the high-rise condominium towers lining Panama City Beach to the east and Destin to the west is Walton County Road 30 A ? a 24-mile stretch of multi-million dollar beachfront homes and exclusive resorts that are experiencing a tourism boom.

The once remote swath of turquoise Gulf waters and gleaming white-sand beaches serves as a vacation home to Nashville stars like Faith Hill and Kenny Chesney and national Republican notables like former presidential candidate Mike Huckabee and strategist Karl Rove.

Once known for its Southern charm and casual atmosphere, this Panhandle beach has become a flashpoint in a fight between beachfront homeowners and Gulf coast vacationers with the outcome potentially defining who controls access to Florida’s beaches.

While Florida’s bright sandy coast seems open to all, beachgoers could be walking on someone’s backyard without knowing it. Only the wet sand — the beach up to the high tide line — is public under state law, not all areas where visitors lay their towels or anchor their umbrellas.

Most beachgoers wouldn’t know if they set up a chair or blanket on private sand. No big red line dissects the beach. Fences are rare. Landowners try to make their beach private with varying effect.

Property owners can legally kick sunbathers off the beach — except in Walton County.

There is no landmark court ruling, no overarching state law outlining who ultimately controls access to Florida’s beaches. Only a few narrow rulings challenging moves by counties over beach access are on the books.

Many property owners avoid provoking beachgoers. But some owners have tried to limit public access to their land. A Naples hotel blocks beach access some days to save room for guests; south Lee County beach residents placed “No Trespassing” signs on their sand.

Many counties want to keep things quiet, mainly to avoid conflict, said Alyson Flourney, University of Florida Levin College of Law professor.

“There may be a few conflicts, but if it isn’t causing a lot of problems, a county might not want to weigh into this contention area,” she said. “But as the sea level rises and beachfront shrinks, counties will be faced with this sort of conflict, and they need to address it more systematically.”

The lack of a statewide answer to who controls access to Florida’s beaches looms larger as coastal communities prepare to spend millions of public dollars to put sand on shores damaged by Hurricane Irma.

A proposal for such a statewide measure, in favour of private property rights, failed in the Legislature this year. A late-hour amendment to a bill would have prohibited local governments from enacting laws that provide public access to beaches. The bill died under the amendment’s weight.

House sponsor Katie Edwards, D-Plantation, said the amendment, which she will offer again in the next session, was not meant to block public access to privately owned beaches. But a judge should decide the issue on a case-by-case basis so local governments don’t act as Walton County did with its ordinance.

“Things like this happen to spread like wildfire,” said Edwards, who represents an inland portion of Broward County.

Public access to Pensacola Beach and Navarre Beach is unique from other Florida beaches because the local beaches were deeded to Escambia County by the federal government after World War II. Development of land on the two beaches is controlled by a system of 99-year leases.

Walton County tore apart the status quo by adopting a law in December that opens dry sand for basic beach activities, even if it’s privately owned.

Homeowners quickly sued the Walton County Commission in federal court, and now local governments across the state are watching to see whether the case is decided in favour of landowner rights or public beach access.

The county measure, the first in Florida, created a private 15-foot buffer from the toe of the dune or habitable structure. Any other sand is open to basic public beach activities including walking, picnicking and building “sand creations.”

The law is not completely open-ended, specifically prohibiting use of tobacco, walking animals or putting up tents on the privately-owned beaches.

The local measure spawned several state lawsuits focused on individual pieces of property. But it’s the federal lawsuit that could define beach access in Florida.

“If Walton County (wins the case), we could see other counties following suit,” said attorney D. Kent Safriet, representing homeowners suing Walton County. “It’s important that way. That’s a reason there’s not a bunch of ordinances like this.”

A federal judge has ruled on part of the case, saying landowners should be allowed to post signs on their private beach, including “No Trespassing” signs, as a First Amendment right. But the judge has yet to rule on the potentially groundbreaking aspect of the suit — whether a local government is allowed to create a customary use law.

“Customary use” means a beach that has been continuously used, sometimes since ancient times, remains public even if it is privately-owned.

The homeowners say the county overstepped its authority by passing a law declaring the beach qualified for “customary use.”

“Establishing” customary use is not up to a local government, Safriet argued. It must be proven through a court process, allowing cross-examination and other legal steps.

From Walton County’s perspective, the law is simply “recognizing and protecting” customary use, said county representative David Theriaque.

“The county’s position is that customary use of dry sand areas has been in existence for generations,” he said. “Even before plaintiffs bought property here, customary use already existed.

“The plaintiffs are saying (the customary use ordinance) is taking away their rights. We disagree. What we are doing is preventing property owners from interfering” with beachgoer rights.

The entire case came about because of rowdy beachgoers. Visitors have boomed in recent years, and conflicts have become more common, Safriet said.

“The real problem are tourists disrespecting the people who own the beach,” he said. “People will set up stadium tents and leave them there for days.”

Land owners began placing “no trespassing” signs along their beaches, which prompted the county law restricting use of signs or fences on the sand.

Walton County Sheriff Michael Adkinson said his deputies have responded to many calls through the years involving disputes about beach access.

“We were getting calls from the public saying that they were being asked to move off the beach,” he said. “There have been quite a few conflicts as places hire private security and the security officers tell people they have to leave.”

Adkinson said his deputies are not issuing trespassing tickets involving the sandy beach.

At Rosemary Beach, an exclusive beachfront neighbourhood where vacation rental cottages go for up to $1,800 a night, security guards monitor each of the beach entrances.

Vacationer Jacob Marek said the exclusive feel is part of the reason he drives 12 hours from Austin, Texas, for his annual family vacations.

“The beach is beautiful. You don’t get beaches like this in Texas. I like that once we get here I can loosen up for the week and just relax,” he said.

While Walton County is tackling the beachfront battle in court, much of the state is content to ignore public use of private sands unless forced into conflict.

For decades, Collier County’s beachfront in Southwest Florida has been a welcoming place.

Naples’ founding fathers ended the city’s east-west avenues at a street now buried under the sand. The extended avenues mean that, even today, each beach end has parking on every block. For a while, that was enough.

But explosive growth soon made beach parking a big issue. City leaders threatened to start charging county residents for beach parking stickers. The county built the Vanderbilt Beach parking garage to help alleviate the coastal space strain.

So when the Ritz-Carlton first tried to mark off its beach south of the new garage for the exclusive use of hotel guests, the public fought back. It was Collier’s first realization that the beach might not be the publicly owned sandy park everyone believed they had an undisputed right to roam.

The Florida Department of Environmental Protection was called in to make sure the line was drawn in the right place. During especially busy times, the Ritz would post a guard to shoo away visitors who weren’t hotel guests. The county and the Ritz settled into an uneasy understanding in which the hotel uses the entire length of its beach for guests about 30 peak days a year and opens some of it to the public on other days.

Then one spring morning in 2010, visitors walked onto Vanderbilt Beach and found cones and signs marking off a part of the beach in front of the Moraya Bay condominium.

For more than a week, the condo was the focus of angry beachgoers who wanted back what they thought was theirs all along: the beach.

They overran County Commission chambers, demanding commissioners fight back. They did, voting to take whatever steps were needed, including going to court.

Moraya Bay eventually relented, removing the cones and the signs, and making court action moot.

“It looks like a free country,” a 77-year-old Cape Cod woman observed as beachgoers spread their chairs and blankets over sand that had been off-limits the day before.

Moraya Bay developers argued they were simply trying to make the same use of its private beach as other Collier beach clubs, including the Port Royal Club, the Edgewater Beach Hotel, the Naples Beach Hotel and Golf Club, the Ritz-Carlton and La Playa.

After a new County Commission was seated this year, commissioners received emails from the Naples Park Association and beach access advocate Graham Ginsberg about Moraya Bay again marking off its beach.

“Collier County government has yet to provide a solution and fairness for the public use of our beaches,” Ginsberg wrote in one email.

County Attorney Jeff Klatzkow told commissioners this summer he could offer a public beach access law for their review. It would be limited to Vanderbilt Beach and based on the customary use doctrine and the $20 million in public money used to maintain the beach, he wrote.

But, he added, it also might not be worth the trouble unless more beach visitors come forward with stories of being wrongfully run off the beach.

“My concern is that such an ordinance will be controversial, will bring out both the private property groups as well as the public access groups, and may result in bad feelings among many,” Klatzkow wrote.

Residents of Lee County shared horror stories similar to beachfront owners in Walton County, said Dawn Koncikowski, long-time resident of Little Hickory Island.

“Since the early 2000s, I’ve had a ‘No Trespassing’ sign on the beach behind my house,” she said. “There were break-ins in people’s homes and property, and the police recommended to put up signs. I’m just protecting my private property rights.”

On a recent sunny afternoon, Mike and Traci Duckworth of Evansville, Indiana, relaxed under an umbrella at a public beach access point off Walton County Road 30 A. The couple, who had rented a vacation home across the street from the beach, said they were surprised by the limited beach access.

“It used to be quainter here, smaller,” Mike Duckworth said.

Traci Duckworth said she can understand why people who own beachfront property would want to keep their property private. But tourism dollars benefit the entire region and restricting beach access makes tourists feel less welcome, her husband said.

“Without the tourists, they have a hard time paving the roads and providing public services,” he said.

In the exclusive Seaside neighbourhood, known for its pastel beach cottages and boutique shops, the beach recently was lined with the resort’s blue umbrellas and lounge chairs.

Signs up and down the beach read: “Private beach wristband required ? Seaside Neighborhood Association.”

Vacationer Eric Hammons, visiting from West Monroe, Louisiana, with his wife, daughter and grandson, said he can see both sides of the beach access dispute. The restrictions are needed to protect property values, but it seems wrong for people to be kept off the state’s beaches.

“It’s not an easy issue,” he said.