City passes Customary Use Ordinance on First Reading

Submitted by Suanne Z. Thamm
Reporter – News Analyst

May 17, 2018 12:49 p.m.

City Attorney Tammi Bach

On May 15, 2018, City Attorney Tammi Bach presented the Fernandina Beach City Commission (FBCC) with an ordinance intended to preserve customary use of city beaches and public access in light of Florida’s passage of HB 631 during the recently completed legislative session.  This Ordinance does not negate the City’s actions to seek a judicial determination of customary use. This Ordinance, in response to Florida Laws Ch. 2018-94, gives the City an affirmative defense of customary use should a property owner challenge a City Ordinance related to beaches such as no open fires on the beach. The City Attorney is still pursuing a judicial determination of customary use through the Courts as a declaratory action in order to get a ruling protecting the dry sand areas of the beaches for public access.

Commissioners gave unanimous consent to the proposed ordinance.

Bach advised city commissioners that Nassau County is also pursuing a customary use ordinance in light of statewide confusion over the implications of HB631, which was introduced in a flurry of last minute activity before adjournment of the legislature. She allowed that the measure was intended to address problems in Walton County, but now has caused problems throughout the state.  The legislature would be unlikely to revisit the measure soon, she opined.

She explained that from Fort Clinch along the beach to Amelia South condos, public beach access is currently protected by an erosion control line that was established in connection with beach renourishment efforts.  Florida law states that lands seaward of the erosion control line are open to the public.

But there has been no beach renourishment between Monument 34 and the southern city limit.  Some of those beachfront properties extend to the mean high water line and others stop at the dune line, she said, adding that the proposed customary use ordinance will be an affirmative defense for the city, should any of these property owners try to restrict public beach access on dry sand areas.

The ordinance must be in place by July 1, 2018, if it should need to be used in a legal case.  But this is only the first step.

Bach said that with the consent of the FBCC, the city would go through a notice of legal intent for determination of customary use for these same properties.  This is a costly process, which cannot be completed by the July 1 deadline.  Bach said that in the meantime, the Police Department knows that non-violent conflicts between property owners and beach users should be treated as civil, not criminal, issues.  Property owners are not allowed to fence off the beach, or erect signs without permits. The city currently has a moratorium on granting such permits until the larger issue is resolved.

Bach invited the public to raise any questions directly with her by phone (904) 310-3275 or via email [email protected].

Commissioner Chip Ross asked how the city would propose demonstrating the public’s “ancient and customary use” of the beaches.

Bach said that she did not necessarily agree with County Attorney Mike Mullin’s opinion that the matter required an evidentiary hearing.  However, she pointed to existing aerial photographs dating back to the early 1900’s and statements of long time, older residents as potential evidence.

Mac Morriss

In seconding Ross’ motion to approve the ordinance, Vice Mayor Len Kreger noted that the city has 48 beach accesses, which constitute city right of way across the beach.

Mac Morriss, representing Citizens for Public Beaches, reported that his organization has been working with Nassau County on this matter.  He pointed out that the evidence they are collecting would potentially be used if a case were to be brought before the Florida Supreme Court or the Supreme Court of the United States.  He said that the Florida Wildlife Commission also has historical data on sea turtle nests, which have generated public traffic on the beach. He cited historical photos, which are being submitted, along with affidavits from people dating back to the 1980’s on public beach usage.

Morriss also said that Nassau County is working on a form downloadable from their website to be notarized which would allow individuals to provide evidence for use in a hearing.

Editor’s Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne’s many contributions to the Fernandina Observer.

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Doug Adkins
Doug Adkins (@guest_51248)
5 years ago

Thank you Mac Morris for standing in the gap! This is a terrible piece of legislation that should never have been adopted, I would have expected Representative Byrd and Senator Bean to have at least sought an exemption for barrier Islands such as Amelia Island to ensure that this environmentally sensitive Island was protected and that public access to these beaches was preserved. A declaratory statement under FS 120.565 is the right direction, this will allow the court to annunciate a legal opinion. Alternatively the Florida House legal counsel could also offer Representative Byrd a legal opinion if he was to request such an opinion. He was suppose to speak last night at the Republican REC, but bailed out at the last minute in order to huddle with other lawmakers in Orlando, it was stated he would come back in June to speak. Thanks again Mac for standing up!

Robert Warner
Robert Warner (@guest_51256)
5 years ago

Well done, Tammi Bach – a legal and local legislative foundation that applies common sense, rationality, and a determines public ownership of our common beaches. Let’s hope the bad bill which necessitated this effort will be fixed by those who failed to do their homework, soon.

Douglas Adkins
Douglas Adkins (@guest_51288)
5 years ago
Reply to  Robert Warner

While we often disagree Robert, upon the right to access to beaches, we find ourselves in agreement. This is plain and simple a case of not paying attention or just failing to read the bill before you vote on it. I am unsure how you vote for this type of legislation when your district includes so much beach frontage. Thanks to our City Attorney for her leadership!