RPPTL White Paper on Proposed Beach Access Legislation CS/HB 527

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1 I. SUMMARY RPPTL White Paper on Proposed Beach Access Legislation CS/HB 527 The Section supports substantial revision to proposed legislation (CS/HB 527/SB 488) or any similar or companion bills or legislation which amends portions of Ch. 161, Florida Statutes, to provide that the Erosion Control Line (ECL), where established, or the mean high water line, is the sole line of demarcation between private and public ownership; which further provides for public access to public beaches and prohibits blocking or asserting private rights in what may or may not be public beaches and accessways. II. CURRENT SITUATION 1. Ownership Boundaries on Public Waterbodies. The common law provides that an upland owner abutting tidal waters owns to the Mean High Water Line (MHWL) of the abutting tidal water body. Chapter 161, Florida Statutes, already provides that after a beach restoration, the ECL is intended as the line of demarcation between private ownership and public ownership. Immediately prior to the beach restoration, the ECL is to be established at the then MHWL. In the recent and controversial decision, Walton County v. Stop the Beach Renourishment, 2008 WL (Fla. 2008), a case in which the ECL was established at the MHWL, the Florida Supreme Court upheld the Ch. 161 designation of the ECL as a public/private ownership boundary. However, there are instances in which the private owners own waterward of the MHWL, whether or not an ECL has been established. Those instances may include, without limitation, Spanish Land Grants; instances where an upland owner acquired the submerged lands from the State of Florida; instances where submerged lands were properly filled under the Butler Act or other legal authorization; judicial determinations of ownership; and legislative grants (such as, the submerged land within the City of Tampa and certain submerged lands in the City of St. Petersburg). In 1991, Attorney General Robert Butterworth published a book enumerating the various laws affecting water and water bodies. A great many of these were private bills granting ownership and other rights in sovereign waters. Laws of Florida Relating to Water and Water Bodies , Office of the FL. Attorney General, Soft Sand Public Rights In a single appellate level case, the court declared that under some circumstances privately owned beach properties could become imbued with public rights and privileges. In City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73, 78 (Fla. 1974), the court stated that: [i]f the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner. However, the 1

2 owner may make any use of his property which is consistent with such public use and not calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area. * * * The general public may continue to use the dry sand area for their usual recreational activities, not because the public has any interest in the land itself, but because of a right gained through custom to use this particular area of the beach as they have without dispute and without interruption for many years. These are sometimes referred to as Soft Sand Public Rights. Until these have been judicially established, neither the existence nor the extent of soft sand public rights are known and are probably unknowable. The most recent court interpretation concluded that the Tona-Rama case did not establish a general customary public use of all Florida beaches, but only sets up a framework for courts to analyze, on a case-by-case basis. Trepanier v. County of Volusia, 965 So.2d 276, (Fla. 5th DCA 2007). As with prescriptive easements discussed in more detail below, Trepanier recognized the presumption that a use is permissive rather than adverse and shifted the burden to the claimant to prove that the public's use was adverse. 3. Prescriptive Easements. Under Florida law, easements and other usage rights can also be acquired by prescription. The law concerning prescriptive easements is set forth in Downing v. Bird, 100 So.2d 57 (Fla.1958). See also Crigger v. Florida Power Corp., 436 So.2d 937 (Fla. 5th DCA 1983). Like adverse possession, the right to such an easement is acquired only by actual, continuous, uninterrupted use by the claimant for a prescribed period, in this instance twenty years. The use must be adverse and either... with the knowledge of the owner or so open, notorious, and visible that knowledge... is imputed. 100 So.2d at 64. It must be inconsistent with the owner's use and enjoyment, and must not be a permissive use such that the owner has a right to legal action to stop it. Quoting Phelps v. Griffith, 629 So.2d 304, (Fla. 2 nd DCA 1993) If the use of an alleged easement is not exclusive and not inconsistent with the rights of the owner of the land to its use and enjoyment, it is presumed that such use is permissive rather than adverse; the burden is on the claimant to prove that the public's use was adverse. Trepanier v. County of Volusia, 965 So.2d 276 (Fla. 5th DCA, 2007) (in the context of beach access); Dan v. BSJ Realty, LLC, 953 So.2d 640 (Fla. 3d DCA 2007); Farley v. Hiers, 668 So.2d 248, (Fla. 1st DCA 1996) ( proof required to overcome presumption of permission cannot be established by loose, uncertain testimony which necessitates resort to mere conjecture. ) 2

3 4. Recording Acts. Certainty of land ownership has always been a fundamental principal in Florida Law. One of the core Florida precepts in furtherance of that certainty is that one has an absolute right to rely on record title. This common law notion has been formally codified in Florida Statutes since 1828, see , Fla. Stat. (2008). This Recording Act goes well beyond simply declaring that record title is prima facie evidence of ownership or establishes a presumption. Record title in the hands of a good faith purchaser without notice is an affirmative shield against contrary claims and interests. III. EFFECT OF PROPOSED CHANGES CS/HB 527 attempts to accomplish the following: 1. Declares that any sandy beach below the mean high water line or a recorded erosion control line is public, and a private entity, absent a board of trustees deed or authorization, may not restrict access along the shoreline across such beaches. 2. Restrict any changes to existing beach access by development or construction unless alternative access is provided. 3. Criminalizes the exercise of traditional private property rights to fence, exclude or post no trespassing signs on private property if such property is subject to Soft Sand Public Rights, a prescriptive easement or other public right of use. 4. Restricts the circumstances under which the government may place any fencing, barricade or other obstruction upon a public beach. 5. Absolutely prohibits a governmental entity from limiting the public s access to a public beach unless alternative access which is of substantially similar quality and convenience to the public is provided. 6. Provides that record title ownership is not prima facie evidence that a landowner has the right to exclude the public from areas in which Soft Sand Public Rights have accrued or a prescriptive or other easement has been established. The Real Property, Probate and Trust Law Section of the Florida Bar has the following concerns about this bill. 1. The proposed legislation would make a strict line of demarcation between private control and public access at either the MHWL or the ECL. Those lines of demarcation are not uniformly reflective of the extent of private property rights. As discussed above, there are a number of circumstances when private landowners own and have the right to exclude others from lands below the MHWL or ECL. As such, this bill potentially takes vested property rights of landowners who own land waterward of the MHWL or ECL, subjecting the state to expensive litigation and damages. 3

4 2. There is an undeniable right of the public to move laterally along sovereign beaches (generally those areas below the ECL or MHWL, subject to exceptions as discussed above). Unfortunately, the bill goes well beyond a prohibition of barring access along lands which are undeniably state owned and purports to restrict the exercise of traditional property rights to fence, post no trespassing signs and exclude on privately owned lands which have been impressed with Soft Sand Public Rights, a prescriptive easement or other usage rights. Until public rights have been established by a recorded grant or judicially, neither the existence nor the extent of prescriptive easements or soft sand public rights are known or knowable, and since a presumption exists in Florida law that adverse use was permissive it will be a comparatively rare situation in which public rights would actually have vested. To the extent this bill is used by law enforcement personnel to prohibit a landowner from exercising traditional property rights as to lands which are undeniably private property is almost certain to be a compensable taking or to trigger very expensive litigation to factually prove (notwithstanding the presumption) that public rights had somehow vested. To criminalize the exercise of those same private property rights if the landowner happens to guess wrong about whether or not a prescriptive easement or other public right may exist is fundamentally wrong. 3. The proposed legislation also provides for strict maintenance of public accessways to public beaches, and prohibits blocking either public accessways or the public's right to laterally traverse public beaches. However, the legislation does not indicate what might constitute blockage of the public's right to traverse the public beaches, thereby leaving it open to interpretation. One interpretation might be that hotels and resorts or other owners could not create walkways over the sand to the beach areas, and may be precluded from placing cabanas or other articles for use by guests on the beach, as these may be considered to be blocking the public's right to traverse the beach. 4. The bill turns our private property recording system upside down by providing that proof of record title is NOT prima facie evidence that the titleholder has a right to exclude the public. As discussed above, Florida s record title act goes beyond an evidentiary presumption of ownership, to create an affirmative shield against contrary claims and interests. Not only does this create wholly abrogate the recording act, it will necessarily attract constitutional takings claims. Interestingly, by eliminating the presumption of private ownership, it will make trespass convictions all but impossible on beachfront property. Few now recall that one of the sovereignty lands cases leading up to Coastal Petroleum was asserted in the context of a criminal trespass charge. 5. The language of CS/HB 527 drops the one desirable portion of the original bill which would have permitted a landowner to file a notice and allow public access and use of 4

5 their property without fear of liability and without losing their property rights as a result of their public spirited generosity. The absence of that desirable protection, coupled with a clear risk of losing property rights under this bill will lead most counsel to advise their clients to immediately fence and post the full extent of their private property. We suspect that most attorneys would advise in favor of protecting very valuable private property rights even in the face of possible misdemeanor charges (which we would suggest are unsustainable as no reasonable person can know the extent of an as yet undetermined prescriptive easement). 6. Although a subset of the concern about restricting property rights on indeterminate lands, the provision stating development or construction shall not interfere with such right of public access unless a comparable alternative accessway is provided is problematic in requiring (or permitting the extortion of) an affirmative grant of rights in lands where none have been proven to currently exist. There is also an inherent ambiguity of what might be considered a comparable alternative 7. Sandy Beach is not an adequately defined term, but is used throughout the bill. Since the definition of Sovereign Beach is defined as that portion of a sandy beach, does this bill not apply to rocky or muddy beaches? One would hope that to be the case, because if applied to any transition from private to sovereign ownership, the bill can be read to prohibit the construction of private seawalls, rip-rap and other shore protection measures and perhaps the maintenance or replacement of existing shore structures. 8. We note that the proposed new subsection prohibiting certain governmental restraints on beach access (161.82(2)(a)) is phrased in the disjunctive, so that the government can deny access INDEFINITELY to protect sea turtles or when necessary for public health, safety and welfare, and can prohibit access for up to 30 calendar days even if it's not for such purposes (i.e., for purely arbitrary reasons?) (2)(b) would seem to prohibit a governmental entity from completely closing a beach even in response to the most dire of health and safety concerns. IV. FISCAL IMPACT ON STATE AND LOCAL GOVERNMENTS The proposed legislation would likely result in costly litigation (for both property owners and the State) over ownership and boundary issues. It may also create costly litigation regarding what constitutes blockage of the public's right to traverse the beach. Many of the owners making use of the beaches are hotels and resorts, which may be restricted on the placement of cabanas and other articles for use by tourists. This could have an adverse effect on tourism and the tax dollars generated by tourists. Additionally, the establishment of new or false boundaries could result in a devaluation of the valuable beachfront properties, as these properties would lose rights, such as the right to accretions, direct beach access, and the right to wharf out to navigability. Such devaluations would result in lower ad valorem tax revenues. V. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR 5

6 Owners of beachfront property will likely become embroiled in costly litigation over ownership and boundary issues, as well as issues regarding the abutting owner's use of the beach and the exercise of riparian/littoral and other traditional property rights. VI. CONSTITUTIONAL ISSUES The proposed legislation appears to be unconstitutional with regard to the taking of private property rights without due process or compensation. V. OTHER INTERESTED PARTIES Florida Land Title Association Hotel and Resort Groups Stop the Beach Renourishment Pacific Legal Foundation and other property rights coalitions Condominium and Homeowners Association Groups # _v1 6