Beachfront Customary Use
Florida beachfront properties
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A Look at Florida's Private vs. Public Beachfront Property Rules

2018's House Bill 631 included a change to the process that local governments use to grant public access to private beachfront property, known as “customary use.”

In 2018, then-Gov. Rick Scott recently signed House Bill 631, updating the process local governments use to establish customary use ordinances on beaches under their jurisdiction.

"Customary use" is a common law term referring to public access to private beachfront property. Generally speaking, beachfront property owners in Florida own the "dry sand" area leading down to the mean high tide line. The land seaward of that, commonly known as the "wet sand" area, is held by the state in trust for the public.

The process known as customary use allows a local government to adopt an ordinance that allows public access to the private dry sand area of beachfront property where the use has been ancient, reasonable, without interruption and free from dispute. It's not uncommon, however, for property owners to challenge a newly adopted customary use ordinance in court.

Starting July 1, 2018, local governments have to go through a revised process in order to adopt a customary use ordinance. First, they need to hold a public hearing to make the public aware of the new customary use ordinance. They also need to notify every affected property owner of the proposed ordinance in writing, as well as identify the use they are seeking and show evidence of the need of that use. They will then bring the proposed ordinance forward for a judicial determination, which gives affected property owners 45 days to intervene.

The intent of the new law is to allow customary use practices to continue, but in a way that is more transparent, efficient, economical, while encouraging active dialogue between local governments and private property owners on the front end to avoid costly legal challenges.

 

Here are answers to some commonly asked questions about Florida's customary use law:

Q: What is customary use?

A: "Customary use" is a common law term referring to public access to private beachfront property. Generally speaking, beachfront property owners in Florida own the "dry sand" area leading down to the mean high tide line – the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The land seaward of that, commonly known as the "wet sand" area, is held by the state in trust for the public. The process known as customary use allows a local government to adopt an ordinance that allows public access to the private dry sand area of beachfront property where the use has been ancient, reasonable, without interruption and free from dispute. 1

Q: Are customary use ordinances new?

A: No. The public trust doctrine is embodied in Art. 10, s. 11 of the state’s Constitution. Further, the customary use process has existed in Florida for many decades.

Q: If customary use is not new, then what does this new law (HB 631) that was passed actually do?

A: The previous process for adopting a customary use ordinance was not structured in a way that encouraged active dialogue about the issue between property owners and the local government. The intent of the new law is to allow customary use practices to continue, but in a way that is more transparent, efficient and economical, while requiring active dialogue between local governments and private property owners on the front end to avoid costly legal challenges.

Q: What was the old customary use process and how does it work now?

A: Simply put, prior to this law a local government would evaluate its public beach needs and previous public use, draft a customary use ordinance to address the issues they found, and then vote to adopt that ordinance. Property owners affected by the new ordinance could then pursue a legal challenge if they wished to. Under the new law, the local government must first hold a public hearing to make the public aware of the new customary use ordinance they want to adopt. They also need to notify every affected property owner of the proposed ordinance in writing, as well as identify the use they are seeking and show evidence of the need of that use. They will then bring the proposed ordinance forward for a judicial determination and must notify affected property owners that they have 45 days from receipt of the notice to intervene in the legal proceedings. 1 1974, in the case of City of Daytona Beach v. Tona-Rama, 294 So.2d 73 (Fla. 1974)

Q: Does the new law allow property owners to put up fences and other barriers to block beach access?

A: The new law is silent on the issue of fences or other barriers.

Q: Is public access to Florida’s beaches cut off under this new law?

A: No. The law only changes the process by which a local government would follow to adopt a customary use ordinance.

Q: I live in a county that has an engineered beach/erosion control line. Does this issue affect me?

A: There are 35 coastal counties in Florida. An engineered beach/erosion control line – a jurisdictional boundary established in beach renourishment project areas – has been established for a majority of the coastlines of 26 of these counties. If you live in one of these counties, then customary use ordinances are highly unlikely for your area. There are nine counties that do not have an engineered beach/erosion control line on the majority of their coastline. These counties are: Walton, Jefferson, Taylor, Dixie, Citrus, Hernando, Pasco, Volusia, and Flagler.