Common Law Tools to Promote Beach Access

The public has a right of access along the beaches and shorelines of Florida situated below the “mean high tide line” (see diagram below). Article X, Section 11 of the Florida Constitution clarifies that the state holds the land seaward of the mean high-tide line (MHTL) in trust for the public. This is commonly known as the “Public Trust Doctrine.” Traditionally, the public trust doctrine contemplated fishing, commerce, and navigation as a basis for public access, but more recently has been expanded to embrace recreational uses such as bathing and swimming. Some have argued to expand state land “held in the public trust” to cover just the wet sand to cover the dry sand as well.

Expressed / Implied Dedications

In Florida, a land dedication is viewed as a license (or permission from the land owner to use their property) that can be revoked at-will.

Prescriptive Easements

The public can establish an easement, or right to use the property of another for a specific purpose, by prescription. Prescription is an adverse use of property, or use without permission, for a set period of time. In Florida, prescriptive easements are difficult to prove because courts require a strict finding of “adversity.” This is hard to establish because courts often view public access across private property as something a private landowner has acquiesced to, or given implied permission.

Eminent Domain

This involves a government taking property for a legitimate state purpose, in this case access to the beach. Although this may be viewed as a legitimate state purpose, it is far too expensive for Florida to acquire all oceanfront lands so all the sandy beaches belong to the state.

“Customary Use” Doctrine

Florida’s best option may be to apply the doctrine of custom broadly, as has been done in Oregon, to the entire state.

Pioneered by Oregon, some states (like Texas and Hawaii) have followed suit by recognizing that people have customarily gathered to live, hunt, fish, navigate, trade, cook, etc. along the shore, therefore the public has acquired the right by “ancient” custom. In Florida there is a burden of proof issue, requiring a proponent of the doctrine to establish the particular parcel of beach in contention has been customarily used by the public, and that use has been uninterrupted for a long duration. This can be difficult to establish, but it has been done.

The FL Supreme Court has recognized, in a limited way, the “custom doctrine” (as applied to a specific area of a particular beach) in City of Daytona Beach v. Tona-Rama Inc., 294 So. 2d 73 (Fla. 1974). However, in Reynolds v. County of Volusia, 659 So. 2d 1186 (Fla. 5th DCA 1995), the Fifth District Court of Appeal clarified the geographic scope of the Supreme Court’s opinion in Tona-Rama. The court stated that the doctrine of custom requires “courts to ascertain in each case the degree of customary and ancient use the beach has been subjected to and, in addition, to balance whether the proposed use of the land by the fee owners will interfere with such use enjoyed by the public in the past.” Therefore, unlike Oregon, the doctrine of custom according to Reynolds is applied on a tract-by-tract basis in Florida.

State Statutes

Fla. Stat. § 161.55 (5) PUBLIC ACCESS
Where the public has established an accessway through private lands to lands seaward of the mean high tide or water line by prescription, prescriptive easement, or any other legal means, development or construction shall not interfere with such right of public access unless a comparable alternative accessway is provided. The developer shall have the right to improve, consolidate, or relocate such public accessways so long as the accessways provided by the developer are:

• Of substantially similar quality and convenience to the public;
• Approved by the local government;
• Approved by the department whenever improvements are involved seaward of the coastal construction control line; and
• Consistent with the coastal management element of the local comprehensive plan adopted pursuant to s. 163.3178.

Fla. Stat. § 163.3177(e)
A recreation and open space element indicating a comprehensive system of public and private sites for recreation, including, but not limited to, natural reservations, parks and playgrounds, parkways, beaches and public access to beaches, open spaces, waterways, and other recreational facilities.

Fla. Stat. §§ 163.3178(7) and 163.3178(2)(g)
“Beach access” addressed in coastal management element of local comprehensive plans.

Fla. Stat. § 187.201(8)(b)(2)
Seeks to “Ensure the public’s right to reasonable access to beaches.” (A fundamental objective set forth in the State’s Comprehensive Plan).

Fla. Stat. § 375.251
Limitation on liability of persons making available to public certain areas for recreational purposes without charge.

Florida Beach and Shore Preservation Act, Parts I and II of Chapter 161, Florida Statutes
The purpose of the Florida Beach and Shore Preservation Act is to preserve and protect Florida’s beach and dune systems.

Coastal Construction Control Line, Fla. Stat. § 161.053
The CCCL program, one of three interrelated components of the Statewide Beach Management Program, protects the beach and dune system from imprudent upland construction which could weaken, damage, or destroy the integrity of the system. A 2012 study suggested that many coastal property owners are unaware of the CCCL regulations. CLICK HERE TO VIEW THE FULL REPORT ON PROPERTY OWNER PERCEPTIONS OF THE CCCL

Beach Management Funding Assistance Program, Fla. Stat. § 161.101
The BMFA program, one of three interrelated components of the Statewide Beach Management Program, provides for the restoration and maintenance of critically eroding beaches.

Joint Coastal Permit Program, Fla. Stat. § 161.055
The JCPP program, one of three interrelated components of the Statewide Beach Management Program, protects the shoreline from activities which could contribute to erosion, water pollution or habitat degradation.

Federal Law

Coastal Zone Management Act
Administered by NOAA’s Office of Ocean and Coastal Resource Management (OCRM), this Act provides for management of the nation’s coastal resources, balancing economic development with environmental conservation.

Boating

State Statutes

Florida Vessel Safety Law, Chapter 327, Florida Statutes

Vessels: Title Certificates; Leins; Registrations,
Chapter 328, Florida Statutes

Federal Law

Code of Federal Regulations to Recreational Boating
Provided by the U.S. Coast Guard’s Boating Safety Division.

Working Waterfronts

State Statutes

Waterfronts Florida Legislation, Fla. Stat. § 342.201
Statute defines purpose of program “to provide technical assistance, support, training, and financial assistance to waterfront communities in their efforts to revitalize waterfront areas.”

Waterfront Protection Legislation

• Waterfront Property, Chpt. 2005-157, HB 955
• Regulating Natural Resources, Chpt. 2005-158, HB 989
• Growth Management, Chpt. 2006-220, HB 683