Article Courtesy of The Orlando Sentinel
By Thaddeus Mast,Melissa Nelson Gabriel, Eric Staats
Published December 3, 2017
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.
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 favor 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 favor 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 neighborhood 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 neighborhood, 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.
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