Recreational Rights to the Dry Sand Beach in Florida: Property, Custom and Controversy

Abstract

At the close of the 2018 legislative session Florida Governor Rick Scott signed HB 631 into law. Included in the bill, which addressed a number of issues relating to actions for ejectment from real property, was an amendment to the Florida Community Planning Act entitled “Establishment of Recreational Customary Use.” The new statute immediately created a sandstorm of controversy as the media seized on what many in the public perceived to be a land grab over the public’s right to recreate on Florida’s sandy beaches. As it turns out, the story is considerably more nuanced, and neither the advocates on both sides nor the media did the public any favors in the commentary and reporting on this issue. However, both the background to the legislation and subsequent events indicate that the public is rightly concerned about efforts to limit recreational access, some of which have been spurred or exacerbated by what had been a largely localized controversy.

This paper begins by briefly describing the history of the current controversy, which had its origins in Walton County, Florida. The conflict centers on arguments about the public’s right to use the dry sand beach -- that area of the beach that is between the line of vegetation and the mean high tide line, and is often privately owned. We then discuss the broader legal context that gives rise to boundary disputes along dynamic shorelines and provide the essential policy-relevant facts concerning public and private sandy beach ownership. In order to fully understand the legal basis for the public’s claim of right to use the sandy beaches and the legislative response, we summarize the history of the relevant legal doctrine – known as customary use -- that came over from England during the post-colonial era and made its way into the law of a number of states, including Florida. We offer a detailed review of the Florida Supreme Court’s landmark case on the customary use doctrine along with subsequent lower court cases interpreting it. We then attempt to identify the legal issues that have created widespread confusion regarding the interplay among the common law property rights at issue, local ordinances that recognize and regulate those rights, and particularly, the state legislation that precipitated the widespread attention to and conflict over this issue -- HB 631, now codified in Fla. Stat. 163.035. After flagging several legal issues at the heart of the conflict, we provide an annotated summary of the statute that describes the interpretive issues it raises or may raise. We conclude by discussing some of the options available to the Florida legislature to resolve the sandstorm of controversy that HB 631 engendered.

Keywords: customary use, custom, dry sand beach, beaches, beach law, recreational beach access, customary use ordinance, ambulatory boundaries, sea-level rise, property rights, beach renourishment, common law, legislation, state law, Florida law, HB 631, judicial process, special injury rule, law reform,