By Kelly Wolfe
It’s a typical summer afternoon in paradise.
A large, black cloud hangs low over the Ocean Ridge beach and the air is so muggy, a short walk results in impressive sweat stains.
No wonder the only figure on the sand is Jim McCracken, 61, of Michigan, who’s “just passing through.” “Nope,” he answers, when asked if he knew there was a line on Florida’s beaches delineating the public from the private.
Did he know he might be standing on private property?
McCracken shrugged. “I have no idea.”
That’s the problem, said Ericka D’Avanzo, Florida regional manager for the Surfrider Foundation. According to state statutes, the only guaranteed public part of the beach is below the average high-tide mark — the compact part of the sand closest to the water. Anything above may be private, except at parks. But, like McCracken, few visitors know that.
For example, D’Avanzo said, vacationing beach goers in the Panhandle were recently arrested on a private beach. They were told to move along, but thought all the beach in Florida was public — a common misconception.
At the Ritz-Carlton in Naples, resort guests were given wristbands to wear. Police monitored the beach for naked wrists.
“Our police are not supposed to be working for individuals to keep other individuals off our public beaches,” D’Avanzo said. “That’s not what our money should be spent on.”
D’Avanzo said the Surfrider Foundation wants the state Department of Environmental Protection to step in and say what’s private and what’s public.
A request to interview a beach specialist at the DEP was ignored, but a spokesman did issue a statement reiterating the high-tide mark rule.
But that’s not enough, D’Avanzo said. “We have people putting up signage, roping off the beaches, putting up [signs citing] statutes that don’t even exist, building a structure where it’s very difficult to climb over. Those are some of the issues we deal with on a daily basis.”
Last year, D’Avanzo worked with state Rep. Maria Sachs, D-Delray Beach, on a beach access bill, but it died in the Senate in March. Now, the only way to know for sure if you are standing on private property is to look at a deed, said Ocean Ridge Town Commissioner Terry Brown. And the property owner would have to be the one enforcing the rule.
“The property owner would have to run out and give a warning,” Brown said. If the trespasser didn’t leave, then the property owner could call the police, he said. Plus, Brown said, even if beach property is privately owned, it is still subject to reasonable regulation.
“For example, it might belong to you, but you can’t build a building on it, you can’t park a car on it.” So, who’s to say you can’t keep the public off it?
“Our goal is a no net loss,” D’Avanzo said. “We want to preserve what we have before we lose anymore.”
What is Public/Private?
in Florida, the part of the beach falling landward of the mean high water mark is typically owned by the owner of the adjacent lot. The only publicly owned part of the beach is that part falling between the mean high and low water lines: the foreshore region. However, while beachfront property owners in Florida generally have title to the dry sand beach down to the average high tide line, ownership of this property does not necessarily mean that the exclusion-of-others stick is within the bundle of rights attached to this part of the property. Title to any property may be subject to explicit or implied easements, limitations based on traditional right of use, or common law prohibitions of activities considered nuisances.
— Florida Bar Journal, June 2009.
Dear Kelly Wolfe, you do not have the story about beach usage rights fleshed out enough. So let me help you with an addendum.
Yes Kelly, the line of mean high water is the point of demarcation between public beach usage and private land, but over a 19 year period (Florida Statue Chapter 177.27(14) : You can Google Florida Statue 177 Land Boundaries Part II). Nineteen years. Not today’s tides. By Florida law and by the Florida Constitution (and Federal law and English Common Law) this includes the forces of sand gain (accretion), sand loss (erosion), tides receding and exposing more sand (reliction) and massive loss or gain of sand, such as in a hurricane (avulsion), over those nineteen years. These are so called ambulatory boundaries. Public and private property can change under these ambulatory boundaries. If we go straight by Florida law, then the line of mean high water and the boundaries of private property/public usage could potentially be up next to A1A, or down in the surf, if you include the loss and gain of sand over the last nineteen years.
Ah, but Kelly, it is not that simple. When the state does something to assist in repairing the beach (such as beach renourishment in Ocean Ridge), then the state can set a fixed erosion control line (ECL) to be used instead of the line of mean high water. The state can potentially claim all of the new sand which is accreted by renourishment for itself and the public (this has yet to be fully constitutionally challenged).
Again, depending where this ECL is set, the public usage rights could encompass the whole beach up to A1A. Especially if the ECL was set years ago, when the ocean almost touched our current dunes. Now, does our area have erosion control lines? I do not know, nor have any idea where they would be? My guess is that, due to beach improvements made by the state, the public has much more beach than the private landowners.
, do your homework and let me know what you find. The fundamental thing you have to understand is that beach public usage rights are part of the U.S. Public Trust Doctrine. This states the beaches (tidelands) were given by the federal government to the states to be held in trust for public usage. The Public Trust Doctrine is a big deal and is part of our post-revolutionary federal government’s passing of property rights to the states. You could also educate yourself about the legal ideas of custom and implied dedication as tools used by states for public beach access. States like California and Texas are very proactive in guaranteeing public beach access and usage rights. Florida has been less so. My guess is that the Surfrider Foundation is forcing this point in court. Finally, you have to also understand that public beach access is part of Federal doctrine. The U.S. Coastal Zone Management Act of 1972, as well as Federal subsidies for beach renourishment and Federal money for flood insurance all have binding clauses which give the public certain beach access and usage rights. In example, if Ocean Ridge accepted Federal money for their beach renourishment, then the private property owners have to accept these provisions. In the 1990s, there was one Ocean Ridge home which refused to participate in beach renourishment and maybe this was why? A good case study where you can start your research. Other ways the state takes beach property and sets up fixed boundaries is through retreat from the shoreline and the coastal construction control line.
So Kelly, you have some homework to do. Let me know what you find regarding our area and good luck.
Let's get specific: The Ritz-Carlton in Manalapan intrudes on the public beach all the time. It's cabanas and marine equipment are often placed well seaward of the median high water line. They run various motorized vehicles to move their stuff around on the beach. All that may be tolerable as long as they don' try to prohibit others, But now they post signs to advise beach-goers that an area seaward of the hotel is "reserved." I don't think the law is okay with this. If the Ritz gets away with it, I predict that others will follow and we will find that our beaches have been confiscated for private use... Ken Matthews, Lantana
Comments
Yes Kelly, the line of mean high water is the point of demarcation between public beach usage and private land, but over a 19 year period (Florida Statue Chapter 177.27(14) : You can Google Florida Statue 177 Land Boundaries Part II). Nineteen years. Not today’s tides. By Florida law and by the Florida Constitution (and Federal law and English Common Law) this includes the forces of sand gain (accretion), sand loss (erosion), tides receding and exposing more sand (reliction) and massive loss or gain of sand, such as in a hurricane (avulsion), over those nineteen years. These are so called ambulatory boundaries. Public and private property can change under these ambulatory boundaries. If we go straight by Florida law, then the line of mean high water and the boundaries of private property/public usage could potentially be up next to A1A, or down in the surf, if you include the loss and gain of sand over the last nineteen years.
Ah, but Kelly, it is not that simple. When the state does something to assist in repairing the beach (such as beach renourishment in Ocean Ridge), then the state can set a fixed erosion control line (ECL) to be used instead of the line of mean high water. The state can potentially claim all of the new sand which is accreted by renourishment for itself and the public (this has yet to be fully constitutionally challenged).
Again, depending where this ECL is set, the public usage rights could encompass the whole beach up to A1A. Especially if the ECL was set years ago, when the ocean almost touched our current dunes. Now, does our area have erosion control lines? I do not know, nor have any idea where they would be? My guess is that, due to beach improvements made by the state, the public has much more beach than the private landowners.
, do your homework and let me know what you find. The fundamental thing you have to understand is that beach public usage rights are part of the U.S. Public Trust Doctrine. This states the beaches (tidelands) were given by the federal government to the states to be held in trust for public usage. The Public Trust Doctrine is a big deal and is part of our post-revolutionary federal government’s passing of property rights to the states. You could also educate yourself about the legal ideas of custom and implied dedication as tools used by states for public beach access. States like California and Texas are very proactive in guaranteeing public beach access and usage rights. Florida has been less so. My guess is that the Surfrider Foundation is forcing this point in court. Finally, you have to also understand that public beach access is part of Federal doctrine. The U.S. Coastal Zone Management Act of 1972, as well as Federal subsidies for beach renourishment and Federal money for flood insurance all have binding clauses which give the public certain beach access and usage rights. In example, if Ocean Ridge accepted Federal money for their beach renourishment, then the private property owners have to accept these provisions. In the 1990s, there was one Ocean Ridge home which refused to participate in beach renourishment and maybe this was why? A good case study where you can start your research. Other ways the state takes beach property and sets up fixed boundaries is through retreat from the shoreline and the coastal construction control line.
So Kelly, you have some homework to do. Let me know what you find regarding our area and good luck.
Don Gentile
Dog Beach