A content Analysis of The Legal Cases and Laws Surrounding Beach Land Use

The Legal Cases and Laws Surrounding Beach Land Use

Dr. Ted Gournelos

Abstract: This paper contextually analyses the approaches that Florida can take to seize land for public use. Using Supreme Court cases form different states and from the federal courts, different legal justifications have been created and justified. Each has its benefits and pitfalls, however Florida will have to take an stand and either begin to claim land or allow developers to.

Honor Code: I have not given, nor received, nor witnessed and unauthorized assistance on this work.

Ben Schumann

The laws surrounding the use of beach front property in Florida has its roots in Roman Justinian law with the public trust doctrine. It came to fruition with statehood in 1845 and gave Florida the responsibility of ensuring the lands remain free for public use. However until development of coastal areas sparked and private and public interests started to peak, the public trust doctrine was never really tested.

Present day Florida land use laws are a bit conservative on their dolling out of public access and rights to the beach. Yet the possibility for a more liberal turn is still available. Citing Dworkin’s legal chain novel theory, Florida is still at the initial defining stage of a few chapters in. There are only a handful of Florida court cases deciding the fate of the beach and even they are limited.

Florida could go the way of states such as New Jersey or Oregon and expand on the public trust doctrine. In the case of New Jersey there was an attempt to privatize the beaches by different clubs charging exorbitant membership rates for seasonal and year round and life time memberships. The companies cited the fact that without the ability to limit access the property was one of the sole beneficial uses of beachfront property. However the New Jersey Supreme Court saw otherwise. They wrote that holding profit up with public interest is “incompatible.” (Raleigh Ave. Beach Ass'n v. Atlantic Beach Club)

Likewise Texas has expanded on the public trust doctrine also. Instead of having public land begin at the high water line, the gulf coast state brings it back to the vegetation line.

An arguably related case concerning Wisconsin and the Great lakes coastline swings the other way however. On the coastline public land was usually understood as the high water line per usual. A Wisconsin Supreme Court case in 1923 however changed that and made from the vegetation line towards the water all private land. This decision gave land owners “exclusive privileges” at the expense of the public good. (Domel v. Jantz)

All of these cases rely on an interpretation and expansion of the public trust doctrine. Florida’s only state Supreme Court case involving a public trust interpretation is pretty limited. During the 70’s a group of citizens sued a man who had built an observation tower on a pier in the dry sand area. The case, the City of Daytona Beach vs. Tona-Rama Inc, a group of citizens sued saying that due to, what is called a prescriptive easement that this paper will address later, the observation tower was also public land. The State Supreme Court ruled against the group of citizens saying the tower was still the owner’s property. (City of Daytona Beach v. Tona-Rama)

Moving on from the case, there are more ways for Florida to become more liberal in their legal decisions on beach access. An interpretation of the public trust doctrine is not the only way to justify it juridically either. Thee are also State Supreme Court cases dealing with some of the justifications. Returning to the City of Daytona Beach case, prescriptive easements were set up by an even earlier case in the 50’s entitled Downing vs. Bird, it was established that the public could acquire access to private property if a

“…claimant may establish such a right-of-way after demonstrating his or her uninterrupted use of the property for a set number of years- 20, as defined by the Florida Supreme Court.” (Downing v. Bird) (Miami Beach)

Basically meaning that if an citizen an prove that in order to access beach water lines they used private property for over 20 years by way of a path or route that is clearly defined, against the owner’s will the public can seize the land for public access. This route for Florida is a little tough and generally frowned upon in courts because it is hard to prove the intricate details needed to seize the land. (Downing v. Bird)

The next way for the public to seize land for access use is by way of express or implied dedication. The dedication comes from a private landowner allowing, whether through action or express statements, the use of their land for public use. This is difficult to apply on a large long-term scale because they are easily revoked by the landowner and can only be legally made on a case-by-case basis. (Miami Beach) Although direct cases have never come to the Florida Supreme Court, Texas has used express and implied dedication to control property. (See Seaway Co v. Attorney General) However this will most likely not be the route the state of Florida takes.

A twist on dedication is an approach that California is taking called mandatory dedication. When plans are submitted to local and state governments, plans for public access points to offset the building and restricting of the land are required. This seems to be the best way to ensure public land and public trust however it has been deemed unconstitutional in California Supreme Court. (Nollan v. California Coatstal Commission)

Eminent Domain is another, better known, route that the state can take to seize lands on the grounds of condemnation for public use. Problematic for Florida’s long stretches of beachfront land because the government must compensate for the land.

Another legal rationale that Florida could pursue is the use of implied reservation. When a property is landlocked the owner can claim an easement across another property owner’s land. This type of justification is hard to prove in court much like prescribed easements.

If Florida does want to take a liberal swing is during a busy hurricane season. Natural accretion or beach nourishment occurs after a large storm reshapes the coastline. The state steps in and using taxpayer’s money brings sand and rebuilds the coastline. This occurs after every sizeable hurricane in Florida. It was just decided by the United State Supreme Court that the sand that is brought in then creates public space. (Beach and Shore Preservation Act) The only loophole to this is that if a group of private homeowners decides to refuse the build up they can keep the land and have zero dry sand area. This is a risky move however because it could expose the foundation of the home or the beach may never be rebuilt naturally.

Since Florida has not made a distinct decision one way or the other, many localities have taken to deciding themselves. In Pensacola land is given only on a rental basis of ninety-nine year leases. There is no private beach and condos or hotels cannot have private parking lots or private access ramps. My hometown of Daytona Beach has restricted beach driving by having passes for the season or day and having specific driving and no driving zones. In addition access points are only in parks or are tucked in between houses at sometimes-inaccessible points.

Now, returning to the chain novel, we arrive at the crossroads for Florida. The state can either hold the private interest at heart or make the vegetation line to the water line private. This would force people to only use certain city owned parks, if you will. Or Florida can extend the public line to the vegetation line and make the entire dry sand area of the beach public. Expanding on the public trust doctrine could only help Florida. Given the tourism based economy and the beaches drawing or adding to the tourism package, it only makes sense to make it more accessible.

Works Cited Consulted:

(1995), REYNOLDS v. COUNTY OF VOLUSIA 659 So.2d 1186. n.d.

Act, Beach and Shore Preservation. n.d.

City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 75-76 (Fla. 1974). n.d.

Co., City of Miami Beach v. Undercliff Realty and Investment. n.d.

Domel v. Jantz, 193 N.W. 393. (Wis. 1923). n.d.

Downing v. Bird, 100 So. 2d 45 (Fla. 1958). n.d.

Miami Beach, 14 So. 2d at 175. n.d.

Nollan v. California Coatstal Commission, 483 U.S. 825 (1987). n.d.

Raleigh Ave. Beach Ass'n v. Atlantic Beach Club, 879 A.2d 112 (N.J. 2005). n.d.

See Seaway Co v. Attorney General, 375 S.W.2d 923 (Tex. Civ, App. 1964). n.d.

State v. Goodnight, 11 S.W. 119, 120 (Tex. 1888). n.d.