Florida Town Asks Panel to Reinstate Beach Access Ordinance

(CN) — The town of Redington Beach is fighting to overturn a federal judge's ruling that it claims jeopardizes local governments' ability to safeguard public use of Sunshine State beaches.

In a Wednesday hearing before a three-judge panel for the 11th Circuit, the Florida town argued the ruling improperly axed an ordinance which protected public use of beaches regardless of private property lines in the sand.

Under the ordinance, beachgoers were allowed to freely walk and sunbathe on beaches across the barrier island town, save for a 15-foot buffer zone near private residences.

A group of wealthy beachfront homeowners sued to overturn the measure in 2019, alleging that miscreants regularly intruded on the homeowners' beach property, leaving trash, setting off fireworks, urinating and having sex in plain view.

Generally, private ownership of beach land in Florida begins where the high tide line ends.

The homeowners won summary judgment in the Middle District of Florida in February 2020. The district judge found that the town fell short in its attempts to assert Florida's "customary use" doctrine. Traced back to the 1974 Florida Supreme Court decision in Daytona Beach v. Tona-Rama, the doctrine holds that public use of private land should not be interrupted if it is "ancient, reasonable, without interruption and free from dispute."

The district judge also sided with the plaintiff homeowners regarding their argument that the ordinance, on its face, amounted to an unlawful taking of private property under the Florida and U.S. Constitutions.

On appeal, Redington Beach's attorney Robert Eschenfelder is telling the 11th Circuit panel that the 2020 ruling has wide-reaching implications for local governments' beach access protections. If the ruling is upheld, then "any government recognition" of customary use rights on beaches "will instantly be a taking," Eschenfelder argues.

"We are going to keep going round and round until an appeals court tells us once and for all if customary use is still a viable doctrine in Florida property law. If customary use represents a 'taking,' everybody would just stop trying to enforce it," Eschenfelder said in an interview. "Then beaches that are now open for the folks to use and enjoy . . . they'd become roped off, private beaches for the wealthy folks that purchase them."

The homeowners' counsel Timothy Weber countered that the lower court ruling did not truly delve into broad constitutional matters because the judge hinged his analysis on case-specific evidence. Nonetheless, Weber invited the 11th Circuit to tackle whether the customary use doctrine is constitutional.

The prospect that customary use "could be applied to secure public access to private property without any compensation being paid to the landowner" makes the doctrine "constitutionally suspect," Weber wrote in his brief.

Fielding the appeal Wednesday were U.S. Circuit Judge Beverly Martin, a Bill Clinton appointee, alongside U.S. Circuit Judges Britt Grant and Andrew Brasher, appointees of Donald Trump.

It's unclear how wide-ranging an 11th Circuit decision in the case will be -- and what implications it will have for beach-access rights in Florida. The panel on Wednesday floated the idea of taking the rare step of presenting a certified question to the Florida Supreme Court to clarify legal quandaries in the case.

On the evidentiary side, Eschenfelder stood behind an expert report and local resident testimony that were presented in the trial court to establish a history of public enjoyment of Redington Beach's shoreline.

"We had local commissioners, who lived there for decades, talk about use of the beaches. What did the other side have? Nothing," Eschenfelder said. "Those homeowners just moved here a few years ago and plumped down their millions of dollars to buy their stretch of heaven. They saw people on the beach and were saying, 'Get out of my backyard.'"

In response to the district judge's finding that the town's expert report was too vague, Eschenfelder pointed to a 2007 state appellate court decision in Trepanier v. County of Volusia. According to Eschenfelder, the decision indicates that customary use for a specific beach parcel can be established by presenting evidence for that use in the surrounding area.

The appellant brief describes Redington Beach as a small town, little more than a square mile -- part of a cluster of municipalities that were divided off from west Florida's Long Key in the 1940s and 50s.

On behalf of the homeowners, Weber argued that the "town came nowhere close to establishing customary use exists on [the plaintiffs'] private property or anywhere else in Redington Beach."

"If a practice is so ubiquitous that it has been occurring since time immemorial, and no inhabitant could ever remember a time when it wasn't happening that way, then you'd think you'd have no problem proving it in court," Weber said in an interview. The attorney characterized Redington Beach as a sleepy town whose beaches began to get busy after the popularization of short-term rentals on websites like Airbnb and VRBO.

The case is part of a line of litigation which followed Florida's 2018 passage of a law restricting local governments' beach-access protection measures. Before the 2018 overhaul, local governments were able to readily pass ordinances that protected public use of beach areas beyond the high tide line.

The 2018 law made it so that local governments, before passing such ordinances, had to secure a court's determination that there was customary, recreational public use of the stretch of beach in question.

The parties in the Redington Beach case butted heads over whether the town's ordinance ran afoul of the 2018 statutory overhaul. The district judge last year declined to issue a ruling in that vein, noting that the matter was rendered moot after he found a lack of evidence in the town's customary-use argument

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