HB631 redux: whose dry sand is this?

Submitted by Suanne Z. Thamm
Reporter – News Analyst
April 12, 2018 12:32 p.m.

Adding amendments to bills during the final, hectic days of the Florida legislative session sometimes has unforeseen consequences. The latest example of that is HB631, which looks as though it is on its way to becoming a fulltime employment act for attorneys who specialize in land use. Before this bill became law, a property owner who wished to restrict beach access had to take the matter up in court. Soon that situation will be reversed with the local governments having to defend why the dry sand areas should be open to the public. Once HB 631 takes effect on July 1, 2018, it will be left to judges to decide if the public can make recreational use of private beach property above the mean high-water line.

The new law has not been easily or uniformly understood around the state. HB 631 has set off a firestorm among Florida’s beach loving residents who fear that their constitutionally provided right to access ocean beaches is being eroded by this law. Owners of private property that fronts on beaches wonder if they can/should start roping off their property and posting “No Trespass” signs. Law enforcement bodies are trying to grapple with how to handle charges of trespassing that will probably arise from this new law. Lawyers are trying to determine where this newest wrinkle puts communities and private property owners in light of not only the state constitution but also previous court rulings and at least one Attorney General opinion.

In a nutshell, HB631 (Short title: Possession of Real Property) in its final days of floor hearing was amended to include the following language: “A governmental entity may not adopt or keep in effect an ordinance or rule that finds, determines, relies on, or is based upon customary use of any portion of a beach above the mean high-water line, as defined in s. 177.27, unless such ordinance or rule is based on a judicial declaration affirming recreational customary use on such beach.”

Nassau County Attorney Michael Mullin tried to outline the problems HB631 has raised for counties during the last meeting of the Nassau County Board of County Commissioners (BOCC) held on April 9, 2018. He asked county commissioners to consider the implications of the new law and be prepared to discuss possible actions at the next BOCC meeting, which will be held on April 18, 2018.

Some communities, like Fernandina Beach, have felt confident that dry sand rights of recreational beach users are protected because of easement agreements. But even that is not necessarily sufficient.

According to the new law, the court must determine whether the evidence presented in challenging a private property claim “demonstrates that the recreational customary use for the use or uses in the notice of intent have been ancient, reasonable, without interruption, and free from dispute. There is no presumption regarding the existence of a recreational customary use with respect to any parcel of property, and the governmental entity has the burden of proof to show that a recreational customary use exists. An owner of a parcel of property that is subject to the complaint has the right to intervene as a party defendant in such proceeding.”

Mullin said that HB 631 has been a major topic of discussion and head scratching among the state’s county and municipal attorneys. Nowhere in this law is the term “customary use” defined, leaving attorneys to rely upon common law definition. He said that there have been calls for a Special Session of the Legislature to repeal the law, but that seems to be highly doubtful. In the meantime, those counties and municipalities with ocean (and river) beaches are trying to fashion a way forward.

It is possible that the Florida Supreme Court or ultimately the Supreme Court of the United States will be required to rule on this issue.

It appears likely that Mullin will propose a county ordinance to protect the public’s “recreational customary use” of county beaches. But without a statewide definition of “customary use,” the public is left to wonder whether this means that they would only be able to walk along dry sand areas of the beach. Or whether, since it has been customary, they may be able to set up beach chairs and cabanas, hold parties or light beach fires, etc.

Legal representatives of the county (Mullin), Fernandina Beach (City Attorney Tammi Bach), and the Sheriff’s Office (Bobby Lippelman) have begun meeting to fashion a solution to a problem that was caused by representatives from the Florida panhandle.

According to the language of the adopted bill, this particular section “does not apply to a governmental entity with an ordinance or rule that was adopted and in effect on or before January 1, 2016, and does not deprive a governmental entity from raising customary use as an affirmative defense in any proceeding challenging an ordinance or rule adopted before July 1, 2018.” That’s why county and municipal governments around the state are racing to get a customary use ordinance in place by July.

Fernandina Beach City Attorney Tammi Bach, although opining that city beaches would not be impacted by HB 631 due to previously executed agreements with property owners , is continuing to study the matter and is working on a customary use ordinance for the city out of an abundance of caution.

But at this writing it is important for beachgoers and property owners to understand that the new law has not yet gone into effect. It is also important to understand that while the city and the county will undoubtedly be working closely together to write parallel customary use ordinances, there is much more in regard to notices and public hearings that needs to take place. Also, law enforcement needs to be a part of the drafting and implementing the new ordinance as well.

Stay tuned for developments on this front in the city, the county and around the state, where other jurisdictions are also grappling with the effects of the last minute inclusion of the beach use issue in what appeared to be a bill covering evictions.

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.