Beach access debate lands in Pinellas court

Redington Beach is being sued by two two residents over access to the sand above the mean high water line. [Florida Beach Insider photo]
Redington Beach is being sued by two two residents over access to the sand above the mean high water line. [Florida Beach Insider photo]
Published November 8 2018
Updated November 9 2018

REDINGTON BEACH — Two homeowners are suing their town over beach access, highlighting ongoing confusion sparked by a new state law making it harder for local governments to guarantee public rights to Florida’s sand.

The lawsuit filed recently by Pamela Greacen and Arthur L. Buser Jr. zeroes in on an ordinance Redington Beach commissioners unanimously passed in June.

The ordinance affirms "customary use," or the long-standing use of dry sand for public recreation, including on private property. The state estimates about 60 percent of the state’s beaches are privately owned, encompassing the dry sand upland from the mean high water line.

Enter House Bill 631, which sparked widespread backlash and confusion before going into effect July 1.

The law blocks local governments from passing ordinances guaranteeing public access to private beaches without going through a multi-step process. That includes getting a judge’s approval by suing beachfront landowners who would be affected by the ordinance.

Greacen and Buser contend in their lawsuit that their town’s ordinance flies in the face of the law and infringes on the town’s private beaches, including the dry sand behind their $2.1 million home at 16120 Gulf Blvd.

Redington Beach Mayor Nick Simons declined to comment on the lawsuit but said the commission felt comfortable passing the ordinance based on advice from their town attorney, Jay Daigneault.

They felt even more comfortable when Gov. Rick Scott, who signed the bill into law, issued an executive order diminishing its power. In a move critics saw as bowing to public backlash, the order prohibited state agencies under Scott’s control from restricting beach access and urged local governments to do the same.

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"We thought this thing would ride off into the sunset a little bit," Simons said, "but that appears not to be the case with Buser and Greacen. We’ll wait and see how this plays out."

Greacen and Buser could not be reached for comment Thursday, nor could their St. Petersburg attorney, Paul Crochet.

Daigneault, the town attorney, wasn’t available for comment Thursday. But a 12-page memo he wrote to commissioners in May spells out his reasoning.

The town would likely be exempt from the law, Daigneault wrote, because of a provision tucked in the bottom: "This section does not apply to a governmental entity with an ordinance or rule that was adopted and in effect on or before January 1, 2016." According to the memo, Redington Beach already had one.

Still, Daigneault recommended adopting "an even more detailed customary use ordinance" prior to July 1 to reinforce the first one.

He told commissioners at a meeting in May that it would be "just another bullet in the chamber" that would "foreclose the very, very small possibility," that the town’s beach access would be impacted by the law, according to Tampa Bay Newspapers.

Greacen and Buser don’t buy it, according to the lawsuit. It contradicts Daigneault, saying the town didn’t have a customary use ordinance in effect before Jan. 1, 2016, and requests the court to render the June ordinance invalid.

It goes on to say that the government has violated their rights protected by the Florida Constitution by seizing their land without paying for it.

The ordinance eliminated "all viable use of the property, and caused damage to the value of the property in limiting exclusivity and privacy as well as development potential," the lawsuit says. "The city acted to gain a public benefit by regulatory actions in lieu of payment" to Greacen and Buser.

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Daigneault’s memo addressed that potential and now tangible concern, saying the town can’t take from the owners what they didn’t have in the first place.

"I’ve lived on the beach a long time," Simons, the mayor, said. "We all know what the beach is for. It’s for the pleasure and enjoyment of people to use and along the way respecting the rights of property owners."

Contact Kathryn Varn at (727) 893-8913 or Follow @kathrynvarn.