The law may affect local beaches in decades to come, if rising sea levels change the line between wet sand, which is public access, and dry sand. The latter is not open to the public along areas of private property. Jerry Lower/The Coastal Star
Amid confusion about new law, beachgoers likely to see no sudden changes in enforcement
By Dan Moffett
As if separating public and private beach rights weren’t contentious and confusing enough, a new state law signed by the governor in March adds another layer of complexity to Florida’s long-running quandary.
What’s clear is that House Bill 631 is probably the most controversial and misunderstood measure to come out of the 2018 legislative session.
Champions of public beach access rights have called it a travesty. Some municipal officials have criticized it as an infringement on home rule. Some waterfront property owners have complained that it doesn’t go far enough.
“This law has caused a lot of confusion,” said South Palm Beach Mayor Bonnie Fischer. “People aren’t sure what it means.”
What coastal residents in Palm Beach County should understand is that Gov. Rick Scott signed into law a bill that is narrowly focused, has limited impact and, most important, changes nothing about beach access as it exists today.
“We don’t see any substantive impact on the town of Ocean Ridge,” said Town Manager Jamie Titcomb. “Our beach areas are defined and determined.”
The same goes for coastal communities throughout the county, their officials say.
Some law enforcement authorities, however, believe HB 631 could have the unintended benefit of making it easier for them to enforce the line between public and private beach. The law specifically cites the mean high-water line as a standard, reaffirming an ambiguous and shifting boundary that over the decades has been routinely misunderstood and contested.
The Florida Constitution says the wet sand area below the mean high-water line is considered public and state-owned. The dry sand above it is private. Roughly 60 percent of Florida’s beaches are adjacent to private ownership.
Manalapan has no public beaches and has struggled for years to keep interlopers from wandering off the wet sand onto private property. Police Chief Carmen Mattox says language in the new law affirms how his officers are patrolling the town’s beachfront.
“I believe the new law delineates what part of the beach is public and what part is private property,” Mattox said. “It confirms Manalapan’s beaches are private.”
Law built on ‘customary use’
The thrust of the new law, which goes into effect July 1, prevents county and municipal governments from enacting “customary use” ordinances that allow public access to private beach property without first getting approval from the courts.
The Florida Supreme Court has recognized the principle of “customary use” rights when the public has a tradition of use that “has been ancient, reasonable, without interruption, and free from dispute.” In other words, historical precedent can matter when it comes to determining access.
There have been only a few customary use beach ordinances passed in the state’s history, according to the Florida League of Cities, and those have been in three northern counties: Volusia, St. Johns and Walton. No South Florida government has made a serious attempt at passing one, league officials say.
Once the new statute goes into effect, it will require a judge’s sign-off on these relatively rare local laws that have sprung up along the Panhandle and the northeast coast.
It was an ordinance in Walton that prompted the legislature to act this year. Some prominent Panhandle property owners, among them former Arkansas Gov. Mike Huckabee and Republican political adviser Karl Rove, complained about a local customary use ordinance and filed suit.
Rep. Katie Edwards-Walpole, D-Plantation, who sponsored HB 631, said the new law strikes a balance between public and private rights.
“The legislation does not privatize public beaches nor does it impact the public’s ability to enjoy public beaches,” she told legislators.
While the law abolishes Walton’s ordinance, it leaves intact all others, those passed before 2016.
The law mandates that, from now on, any city or county that wants to enact a customary use beach ordinance must first get a judge’s approval and make the case in court.
Future sea level rise could muddle interpretation
The Florida Wildlife Federation, the Florida Association of Counties and the Surfrider Foundation, a nonprofit group dedicated to beach preservation, vigorously opposed the bill, arguing it was an alarming precedent that was sure to cause confusion — which it surely did.
Here’s how the Surfriders put it: “This bill is bad. It makes it harder for local governments to protect beach access for the public, it’s confusing and damaging for local tourism economies, and it sets a bad precedent. That said, unless you are in Walton County, it should not cause immediate changes in beach access or your ability to utilize the beach.”
That last sentence is critical for towns such as Ocean Ridge, Manalapan and South Palm Beach, where beach access has been questioned. There are no immediate or foreseeable changes to any beach activity: From renourishment projects to sunbathing to morning walks, everything is as it was before HB 631.
The law’s most significant impact in Palm Beach County could come years or decades from now, if rising seas shift the demarcation lines between wet sand and dry sand, and muddle public-private access.
Future government councils and commissions will find it more difficult to invoke the customary use doctrine to sort out changing boundaries on the beaches, parties on all sides agree. The new law will shift some of the decision-making from municipal officials to judges.