What does ‘customary use’ of the beach mean?
“There is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto. The attraction of the ocean for mankind is as enduring as its own changelessness. The people of Florida – a State blessed with probably the finest bathing beaches in the world – are no exception to the rule.” – Armstead Brown, White vs. Hughes, Florida Supreme Court, 1939
Those words are from a ruling by the Florida Supreme Court in a case where a sunbather on Neptune Beach was struck by a vehicle. Brown ruled that sunbathers had at least as much right to the beach as cars.
Now, local governments are working to ensure that the public has as much right to the beach as people who own beachfront property.
The right of the public to enjoy Florida’s 1,200 miles of coastline was the subject of recently passed legislation, HB 631, which appears to limit public access to the area of the beach above the mean high water line, or the official point where sand gets wet during high tide. The so-called dry sand area is the point of contention. The new law says that beachfront private property owners could, theoretically, stop the public from accessing that part of the beach.
However, the new Florida law includes this caveat: “If the recreational use of the sandy area adjacent to the 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.”
This is where the definition of “customary use” comes in.
Fernandina Beach City Attorney Tammi Bach explained that if a beachfront private property owner wants to stop the public from using the beach on the so-called dry sand areas above the high water line on their property, they could file suit to do so.
However, the city could cite that the dry sand area has been in “customary use” by the public.
Customary use could be used in what is referred to as an affirmative defense: the public has been using the beach, so that right cannot be taken away.
However, in order to use that defense, HB 631 says a local ordinance must take effect before the new law takes effect on July 1 of this year.
Bach and Nassau County Attorney Mike Mullin are busy crafting city and county ordinances about local beaches that would do just that – prove customary use – before July 1.
“This is going to apply to us, so I want to pass this ordinance before July 1,” Bach said. “It’s a great way to defend ourselves if someone comes to sue us.”
The city already has easements on most of the beach properties that are in city limits due to past beach renourishment projects in which the U.S. Army Corps of Engineers put sand on beaches to mitigate erosion.
Bach said the easements, called Perpetual Beach Storm Reduction Easements, as well as the proposed ordinance, if passed, could be used as a defense if an action was to be taken against the city by property owners who want to keep the sandy areas to themselves.
However, some properties within the city limits, about 100 south of Beach Access 34, which is just south of the Amelia South condominiums on South Fletcher Avenue, have not required nor received beach renourishment. Those property owners never granted easements to the city. In those cases the proposed “customary use” ordinance would be the city’s defense.
Mullin recently told the Board of County Commissioners he thought their consideration of a customary use ordinance would be a smart move to protect the right of the public to use the county’s beaches too.
“I think that for you as a county commission to try to establish the customary use of that beach, the prudent thing would be to direct that we pursue an ordinance and have it done by July 1,” Mullin told the commissioners.
A Fernandina Beach resident and member of the group Citizens for the Preservation of Public Beaches, Mac Morris, spoke at the BOCC meeting at which Mullin asked the board to begin the process of passing the new ordinance. Morris indicated there is plenty of proof of the customary use of the beaches of Amelia Island.
“There is documented history that goes back over 100 years in photographs,” Morris said. “(The University of Florida) has archives that are dated. The (Amelia Island) Tourist Development Council has a lot of photos they use in their marketing showing customary use of that beach. Using social media, I’m sure Citizens for the Preservation of Public Beaches can help get photos in from tourists and people who live here part time.” Morris is also an administrator for the Amelia Island Fernandina Beach Network page on Facebook.
Mullin told the News-Leader that the county has scheduled four fact-finding public meetings that he, the county manager, and the director of the county’s Planning and Economic Development Department will attend. The public is being asked to provide information in these meetings that can be used as testimony to the customary use of dry sand beaches in the county.
Those meetings will be held in Commission Chambers, at 10:30 a.m. May 15, 6 p.m. May 17, 3 p.m. May 22 and 3 p.m. May 24.
Mullin also said his staff is working with the state’s Department of Environmental Protection as well as local museums to gather information.
“We will assemble information to help me craft an ordinance,” Mullin said. “We typically have one reading before we pass an ordinance, but we will do two readings of this one to be on the safe side.”
Mullin said the first reading is scheduled for a Board of County Commissioners meeting at 6 p.m. Monday, June 11, with the second one following at a meeting at 6 p.m. Monday, June 25. The board meets at the James S. Page Governmental Complex, 96135 Nassau Place, in Yulee.
Bach said the city is lining up witnesses who can testify to customary use. The first reading of the city’s ordinance is scheduled for a City Commission meeting at 6 p.m. Tuesday, May 15. A second reading, and potential passage of the ordinance, will tentatively take place at the meeting held at 6 p.m. Tuesday, May 29. The Fernandina Beach City Commission meets at City Hall, 204 Ash St.