Monday, June 18, 2018

Public access to Florida beaches will be harder for local governments to guarantee under new law

A controversial new law restricting local ordinances over public access to Florida’s beaches is one to watch out for as you head out to the waterfront this year.

HB 631, which Gov. Rick Scott signed into law in March, “blocks local governments from adopting ordinances to allow continued public entry to privately owned beaches even when property owners may want to block off their land,” according to Craig Pittman at the Tampa Bay Times.

That public access is known as “customary use,” and allows people to use any part of the beach that normally is covered by high tide, called the mean high-water line. Private property owners, meanwhile, control the sand in front of their homes that remains dry.

It’s been a constant battle in some parts of Florida, with property owners in some cases going so far as to try to rope off parts of the beachfront to keep people away. Three counties — St. Johns, Volusia and Walton — have passed local ordinances barring property owners from taking such action. The new law restricts any such ordinances enacted after Jan. 1, 2016.

The Florida Supreme Court has ruled that if a private property owner tries to put up a fence or calls police to eject beachgoers who have been using the beach for years, the local government can cite “customary use” to allow the public to remain — but only if such use has been “ancient, reasonable, without interruption and free from dispute.”
Ordinances enacted by two of the three counties, St. Johns and Volusia counties, were left standing by wording in the new law.
The only beach access ordinance being abolished is the one passed last year in the Panhandle’s Walton County, where the list of beach homeowners includes such well-known names as former Arkansas Gov. Mike Huckabee and ex-White House adviser Karl Rove. Last year when a similar bill was proposed in the Legislature but failed, it was nicknamed “the Huckabee amendment.”
The law won’t automatically cut off public access to the 60 percent of Florida beaches that front private property, Pittman wrote. But it will make it much more difficult for local governments to regulate access the way they see fit. Now cities and counties will have to get a judge’s approval before enacting such an ordinance, and to do that, they’ll have to sue private landowners.
The new law “is very bad for local governments,” said Alison Fluornoy, a University of Florida law professor. “Suing coastal landowners as the only avenue to establish access is not an attractive option.” She also pointed out that requiring a lawsuit means the Legislature put an added burden on the courts without offering any additional funding.
The bill passed both the state House and Senate during the 2018 legislative session by wide margins, although it faced stiff opposition. The Florida Wildlife Federation, the Surfrider Foundation and the Florida Association of Counties opposed the law, as did Realtors and many business owners who feared turning away the public would affect their livelihoods. When the bill passed, many of them urged Scott to veto it instead of signing it.The outcry fell of deaf ears. Pittman writes that “Scott’s office reported that opponents outnumbered supporters by an 8-1 margin, with 327 calls and messages against the bill and 40 in favor.” Pittman also noted that the governor himself owns a beachfront manse in Naples.
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