Feeling the Squeeze: The Troubled Future of Lateral Beach Access In Florida

Environmental and Land Use Law Section of The Florida Bar

Publication
March 01, 2014

By Carly Grimm, Land Development & Government Relations Associate, Amanda Broadwell & Thomas T. Ankersen

“No part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches.”2

Introduction

A beachgoer strolling down the beach spots a large obstruction in the distance. As she nears the barrier, it takes the shape of a large rocky outcropping protruding into the tide, waves crashing against it in a confused swirl of shallow whitewater. The obstacle is a revetment, engineered to absorb and deflect wave energy before it hits an adjacent seawall, which dutifully protects a multistory condominium. Faced with the challenge of wading through the turbid ocean surf, the beachgoer instead works her way up a dune at the edge of the revetment and begins walking along the narrow cap of the seawall, anxious to return to the sandy beach several hundred feet away. Midway through her journey, a man who has been relaxing by the condominium’s pool shouts at her to get off the property. She is trespassing, he screams.

This is a true story, at least in its essential facts, and is one likely to be increasingly reenacted over the coming decades as rising tides, erosion and coastal armoring interrupt public access along Florida’s shores. Of the state’s 825 miles of sandy beaches, over 485 miles, nearly 60 percent, are experiencing erosion.3 Absent human interference, beaches tend to naturally migrate inland as higher water levels erode the shoreline.4 Intensive development along Florida’s coasts and the construction of seawalls and revetments has arrested this process, resulting in a phenomenon ecologists have termed “coastal squeeze.” Now, met with an increasingly immobile shoreline, rising seas are gradually swallowing up the beaches that have long served as a cornerstone of Florida’s economy, ecology, and culture.5 This trend presents a tremendous obstacle to public “lateral” access: that is, the ability of the public to move down the beach along the wet sand, a common law right it possesses on most shores.6

Much of the existing body of literature regarding public beach access in Florida focuses on access to the beach rather than along the beach. This article evaluates whether current Florida law is equipped to address the growing number of impediments facing lateral access along the state’s beaches and discusses possible future legal innovations to tackle this problem. The article first examines the tools provided by Florida common law doctrines relevant to beach access by the public. A review of the way in which other coastal jurisdictions have applied these common law doctrines to protect access to the beach follows. The article then considers whether current Florida statutory law regarding coastal construction and beach access provides sufficient protection for public lateral access. The advantages and shortcomings of each legal avenue are expressed in turn, accompanied by a brief discussion of where the law may go.

Public Access Under the Common Law

Rooting the public’s right of lateral access to Florida’s beaches in common law doctrine rather than addressing the issue statutorily helps to protect the state from constitutional takings challenges brought by private property owners.7 Defining the various rights of public and private users of the shoreline through the common law does not modify or extinguish the property rights of littoral property owners, but simply clarifies the boundaries of such rights as they currently exist.8 There are a number of common law doctrines in Florida relevant to public access to the state’s beaches that may be useful in ensuring continued lateral access. Each are considered below.

A. The Public Trust Doctrine

The public trust doctrine is an ancient legal principal, originating from early Roman law, under which the sovereign holds title to certain submerged lands in trust for the benefit of its citizens.9 American law adopted this doctrine from English common law and applied it to the original 13 states.10 Under the equal footing doctrine, each new state received the same property interests in submerged land as granted to the original 13.11 The public trust doctrine is codified in Article 10, Section 11 of the Florida Constitution, which states in pertinent part: “The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people.”12 This provision creates a constitutional duty on the part of the state to hold in trust certain lands seaward of the mean high water line (MHWL) on behalf of the citizens of Florida for the purposes of bathing, fishing, navigation,13 and “other implied purposes.”14

As a beach slowly erodes or accretes over time, the boundary between the land held in trust for the public and the dry sand beach, subject to private ownership, migrates with the MHWL.15 Analogizing to traditional property law principles, one commentator has described the land on either side of the MHWL as comparable to a defeasible estate, title to which changes hands upon the occurrence of a specific event – in this case, erosion or accretion.16 The public trust doctrine in effect reserves to the public a reversionary interest that vests when land becomes submerged seaward of the MHWL.17 These lands held in trust by the state may only be transferred out of the trust under limited circumstances and only when it is in the public interest to do so.18 Private use of these lands is permitted only when not contrary to the public interest.19

In addition to its duties under the public trust doctrine, the state of Florida has the complementary obligation to conserve and protect Florida’s beaches as important natural resources. Article II, Section 7(a) of the Florida Constitution states in relevant part, “It shall be the policy of the state to conserve and protect its natural resources and scenic beauty.”20 As the Supreme Court of Florida has articulated, “[c]oncisely put, the State has a constitutional duty to protect Florida’s beaches, part of which it holds ‘in trust for all the people.’”21

On eroding beaches, the construction of seawalls and other coastal armoring structures artificially prevents the migration of the MHWL, potentially relegating (and shrinking) the public’s reversionary interest to the vertical space between the mean low and mean high water lines on the structure. On eroding armored beaches this practice will eventually result in the complete loss of the beach, depriving the public of the ability to use the wet sand beach seaward of the MHWL for the exercise of its public trust rights – bathing, fishing, navigation, and other implied purposes. Some commentators have suggested that overly broad armoring privileges granted by the state to littoral property owners that lead to such destructive outcomes are not within the property owners’ existing common law rights.22 They argue that administrative permits aside, courts should find such grants to be illegal transfers out of the trust: “[s]eawalls violate the public trust in a time of rising seas.”23 By permitting coastal armoring on eroding beaches, the state arguably breaches its common law and constitutional duties regarding the protection and conservation of state beaches. Scholars have recommended that in light of the ancient principals underpinning the public trust doctrine, courts should support regulatory and statutory efforts that prohibit armoring that would impair public rights under this doctrine.24 The public trust doctrine and accompanying constitutional provisions may provide the broad legal foundation needed to support regulatory decisions that allow the natural migration of the MHWL.

B. Custom

A second major common law source of the public’s right to use of the beach is the doctrine of custom. Distinct from the public trust doctrine, custom is a method by which the public may acquire rights to use the dry sand area of the beach above the MHWL that is subject to private ownership. The Supreme Court of Florida first recognized the doctrine of custom in the 1974 case, City of Daytona Beach v. Tona-Rama, Inc.,25 in which the court acknowledged the importance of public access to state shores:

We recognize the propriety of protecting the public interest in, and right to utilization of, the beaches and oceans of the State of Florida. No part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches. And the right of the public of access to, and enjoyment of, Florida’s oceans and beaches has long been recognized by this Court.26 In Tona-Rama, the court found that the public may acquire a right to use the dry sandy beach landward of the MHWL as a matter of custom if the recreational use of that area has been ancient, without interruption, and free from dispute.27 The court clarified that such a right by custom prohibited the owners of the sandy area at issue from using their property in a way inconsistent with the public’s customary use or “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.”28 Although the doctrine of custom may secure the public’s use of discrete sandy beaches, its utility in ensuring unimpeded lateral access along the shore has been limited in a number of ways by the 5th DCA in Trepanier v. County of Volusia. In that case, the court established that the requisite elements of custom must be proven on a case-by-case basis and cannot be applied to the sandy beaches of Florida as a whole.29 A court must “ascertain in each case the degree of customary and ancient use the beach has been subjected to.”30 This requirement renders the doctrine of custom an unsuitable tool for acquiring public access rights to those private beaches where proof of ancient, uninterrupted, and peaceable recreational use is lacking.

Presenting a second challenge for the use of custom to preserve lateral access, the court held that even where the public’s right to use of a beach is successfully established through custom, this right is not ambulatory. That is, the right to use by custom does not migrate onto private property as beaches erode. Despite arguments from the county that to immobilize the doctrine of custom in the face of moving shorelines is to deny the public its right to access the beach, the 5th DCA established that where customary use of a beach is made impossible by the landward shift of the MHWL, “it is not evident … that the areas subject to the public right by custom would move landward with it to preserve public use on private property that previously was not subject to the public’s customary right of use.”31 Migration of the public’s customary use of the sandy beach is a matter of proof.32 Pending a split among the district courts of appeal or an opinion by the Supreme Court of Florida overturning the precedent of the 5th DCA, the common law doctrine of custom is of limited use in ensuring continued lateral access along Florida’s beaches as they are reshaped by rising seas and coastal armoring.

C. Prescriptive Easements and Dedication

Two final common law doctrines are worth noting in relation to public access. Both prescriptive easements and dedication have been used to acquire public use rights in private land, though neither is a particularly apt tool for preserving lateral access.

In order for the public to gain a prescriptive easement in land, its use of private land must be actual and continuous, for a period of 20 years, adverse under a claim of right, and must be either known to the owner or so open, notorious, and visible that knowledge of the adverse use by the public can be imputed to the owner.33 One cannot gain access through prescription if the property owner expressly or impliedly allows that person to be there,34 which is often the case on Florida’s sandy beaches. Further, like custom, a prescriptive easement is location-specific and granted on a case-by-case basis. These factors make it an impractical and cumbersome method by which to gain access along Florida’s 825 miles of shoreline.

The public may also acquire the right to use private coastal property through dedication. To claim use through dedication a private property owner must have expressed “a present intention to appropriate his lands to public use.”35 Long and continued use by the public will not lead to a presumption of dedication; the burden is on the government to prove dedication.36 Because this doctrine operates parcel by parcel and is dependant on a voluntary act of individual property owners, it too is an ineffective common law device for removing obstacles to lateral access.

D. Common Law Doctrines and Public Access in Other Coastal Jurisdictions

 

As currently interpreted and applied, the common law doctrines of Florida provide only a patchwork of legal tools with which to secure public lateral access along the state’s coast. The common law approaches applied in a number of coastal jurisdictions are examined below as they may prove instructive for the future of lateral access in Florida.

i. Texas

Texas has upheld and enforced a rolling easement doctrine longer and perhaps more forcefully than any other state.37 Broadly speaking, the term “rolling easement” is used by one commentator to describe a collection of regulatory and legal mechanisms that require human activity and development to yield the right of way to naturally migrating shores.38 The easement ensures public tidelands and associated public uses are allowed to migrate inland as sea levels rise at the expense of existing private uses.39

 

Texas’s rolling easement is grounded in the Texas Open Beaches Act (TOBA), enacted in 1959 to codify common law principles of public access and use of state coastal areas.40 The Act declares that it is the public policy of the state that if the public has acquired a right of use or an easement over an area by prescription, dedication or has retained a right by virtue of custom, “the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.”41

Although the language of the Act requires the public to prove the elements of the common law doctrines of prescription, dedication, or custom, Texas courts have been notably deferential to claims of public right under the TOBA.42 Amendments to the TOBA throughout the 1980s and 1990s further strengthened the public easement through measures such as disclosure requirements for executory contracts regarding the purchase of property located seaward of the Gulf Intracoastal Waterway.43 All such contracts must include language warning purchasers of the legal and economic risks of purchasing coastal property near a beach, namely that structures found to be located on the public beach as a result of natural processes may be subject to suit by the state for their removal.44

The Supreme Court of Texas abridged the breadth of the state’s rolling easement doctrine in 2012. In Severance v. Patterson, the court overruled a 1986 decision of the Texas Court of Appeals holding that after a hurricane moved the natural line of vegetation landward of appellant’s property, the public acquired the right to use the newly-located beach based on the doctrine of custom.45 The Supreme Court of Texas reversed this portion of the opinion, asserting that rolling easements exist only where they are created by the gradual process of erosion and may not be found when coastal land is eroded through a sudden and violent occurrence known as “avulsion.”46

As of the time of publication, proposed legislation has been introduced to the Texas Legislature to amend the definition of “public beach” within the TOBA to read “any beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico, as the line of vegetation may shift over time as a result of avulsive events or other forces of nature.”47 If signed into law, this new definition would “correct” the holding in Severance and ensure the enforceability of the rolling easement even following avulsive events such as hurricanes.

ii. New Jersey

The New Jersey Supreme Court has employed the public trust doctrine to address problems of public access to the state’s beaches, both above and below the MHWL. As discussed by the court in Matthews v. Bay Head Improvement Association, the rights traditionally ensured by the public trust doctrine are effectively eliminated without coexisting rights to use adjacent sandy beaches. In rejecting the use of prescription, dedication, or custom to ensure continued public access to dry sand beaches, the court opined, “[a]rchaic judicial responses are not an answer to a modern social problem. Rather, we perceive the public trust doctrine not to be ‘fixed or static,’ but one to be ‘molded and extended to meet changing conditions and needs of the public it was created to benefit.’”48 The court applied this dynamic public trust doctrine to ensure not only the public’s right to use the land seaward of the MHWL for fishing, navigation, and recreation, but also to provide the public a right to use the dry sand beach. “[W]here use of dry sand is essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public’s use of the upland dry sand area subject to an accommodation of the interests of the owner.”49

iii. Oregon

The state of Oregon has invoked the common law doctrine of custom to keep its sandy beaches open to the public. Unlike Florida’s use of custom in Tona-Rama, however, Oregon did not limit the doctrine to a case-by-case application. Instead, the Supreme Court of Oregon, recognizing that the public had enjoyed the dry sand areas along the Pacific shore since the beginning of the state’s political history, held that “[o]cean-front lands from the northern to the southern border of the state ought to be treated uniformly.”50

iv. Montana

Even with the right of public access to submerged lands and sandy beaches secured at common law, physical barriers such as revetments and seawalls may continue to interfere with lateral access along state shores as illustrated by the introduction of this article. The Supreme Court of Montana addressed this issue directly in 1984, by carving out a small exception to the common law rule that the public has the right to use state-owned waters only to the point of the high water mark. Acknowledging the difficulties physical obstacles pose for common law public use and access, the court held that when such barriers are present, the public is allowed “portage around such barriers in the least intrusive way possible, avoiding damage to the private property holder’s rights.”51

E. The Future of Common Law Public Access in Florida

The gaps left in the common law of Florida regarding public access to its beaches leave local communities that wish to preserve lateral access in a difficult position. In 1999 and 2000, the city of Destin, Florida proposed three ordinances meant to address public beach access problems. The only ordinance of the three to make its way into the city’s code prohibits beach vendors from setting up within 20 feet of the water east of Henderson Beach State Park where the beaches are narrower.52

A second proposed ordinance attempted to codify a 10-foot pedestrian zone for lateral access through the voluntary granting of easements by littoral property owners. The proposed ordinance failed after concern from the public that this ordinance could effect a regulatory taking and pose enforcement problems.53 The third proposed ordinance carved out a 25-foot public use buffer zone from the most seaward permanent structure on the private beach. This ordinance was rooted in the doctrine of custom announced in Tona-Rama, but despite efforts by the city land use attorney to gather sufficient historical and archaeological evidence to prove that particular area should be protected by custom, the ordinance failed to pass after threats of suit from private landowners.54 Destin eventually turned to an administrative tactic to preserve public access. The Okaloosa County Sheriff’s Office, charged with patrolling the beaches of Destin, allows the public a leeway of 10 to 15 feet landward of the MHWL so long as there is no misconduct or disturbances.55 Beyond this point, deputies will ask public beachgoers to leave the area only when a private beachfront property owner makes such a request.

Over the coming decades the common law doctrines of other coastal jurisdictions may provide valuable guidance in safeguarding lateral access to Florida’s shores. Were Florida to extend the doctrine of custom to encompass all beaches uniformly, as Oregon did, the public would not have to resort to case-by-case litigation to establish use rights and avoid trespass claims. Expanding the public trust doctrine to encompass the dry sand beach as New Jersey did would accomplish as similar result. Overruling Trepanier to allow customary public use rights to the wet sandy beach to move with the MHWL as Texas has done (with respect to the dry sandy beach) would help preserve access along eroding coastlines. Allowing limited trespass around obstructions to permit free passage along the beach, in a manner analogous to Montana, would maintain the public’s ability to exercise its public trust or customary right to use the beach. Regardless of whether the public gains a usufruct of some nature over private dry sandy beach, prohibiting shoreline hardening that impedes the migration of the MHWL will ensure the continued existence of a wet sandy beach on which to exercise public trust rights, at least for the near term future.

Statutory Protection of Public Access

Until Florida revisits the common law to address lateral public access, legislative action may serve to fill a number of gaps. The primary statutory scheme regarding the conservation and protection of Florida’s coasts is the Beach and Shore Preservation Act (the “Act”), enacted in 1965.56 Among its many provisions, the Act regulates two key realms of activity that have major implications for lateral access: beach restoration and coastal construction.

A. Beach Restoration and Nourishment

Because erosion is the primary contributing factor to the problem of interrupted lateral access, a seemingly simple solution is to replace and maintain the sand that has washed away. Though the Act does include a legal mechanism by which to accomplish beach restoration and subsequent nourishment, this practice is no silver bullet for continued public access. In recognition that “beach erosion is a serious menace to the economy and general welfare of the people of this state,”57 the Act declares that it is the responsibility of the government to manage Florida’s beaches, protect them from erosion, and to make necessary provisions for beach restoration and nourishment projects.58 The Act creates a cost sharing scheme wherein the state may pay for up to 75 percent of the cost of restoring and nourishing an eroded beach, the balance of which is covered by the local government in which the beach is located.59 All restoration projects completed under the Act must take place in an area designated as “critically eroded” shoreline, or must benefit an adjacent critically eroded shoreline.60 The Florida Department of Environmental Protection (DEP) serves as the beach and shore preservation authority within the state and is charged with making the determination as to which beaches are “critically eroded.”61

Beyond ensuring beaches will not be completely submerged as rising seas meet seawalls, restoration projects have other positive implications for public access. First, in order to receive state funds, a project must provide for “adequate public access.”62 Second, and more significantly in relation to lateral access, upon commencement of a restoration project, an erosion control line (ECL) is established and replaces the MHWL as the legally significant boundary by which to determine title to coastal lands.63 In other words, the common law ambulatory boundary ceases to operate and title to all lands seaward of the ECL, whether wet or dry sand beach, is vested in the state. It follows that once the ECL is established, the common law “no longer operate[s] to increase or decrease the proportions of any upland property lying landward of [the ECL], either by accretion or erosion or by any other natural or artificial process.”64 The functional result of this statute is the creation of a new dry sand beach, accessible by the public.

Despite these boons to public access, the practice of beach restoration and nourishment is an expensive approach to a complex and permanent problem. Armored and heavily developed coasts have created barriers beyond which shorelines cannot migrate, as they would naturally. Without the addition of new sand, these beaches become increasingly narrow. Over the last 10 years, the state of Florida has thrown $393 million in matching funds onto its beaches through nourishment projects.65 It is estimated that local, state, and federal entities spend roughly $100 million each year in efforts to maintain the state’s shoreline.66 This continuous battle against the forces of nature fought along hundreds of miles of beach may not be economically feasible in the long term.

Even if the money keeps flowing, the sand may not. A second major problem facing beach nourishment projects is a shortage of sand, namely “beach quality sand.” Beach quality sand is defined by regulation as sand “similar to the native beach sand in both coloration and grain size” and free from foreign debris.67 As of February 2014, Miami-Dade County has reportedly used the last of its easily accessible and environmentally safe offshore sand to nourish its beaches.68 The dilemma has sparked politically charged conflicts between counties throughout southern Florida and some have resorted to trucking in sand purchased from central Florida, a practice that is more expensive and logistically difficult.69 In a sign of true desperation, Broward County has gone so far as to consider making sand out of recycled glass.70

Finally, any increase in public access provided by beach restoration projects may be short-lived. If beach restoration is not commenced within two years following the establishment of the ECL or the restoration project is halted for a period exceeding six months, the ECL becomes null and void and title to coastal land reverts back to the MHWL under common law.71 The same result is reached if the entity charged with maintaining the restored beach fails to do so.72 Absent vigilant, perpetual, and costly upkeep, beach restoration and nourishment offer only a temporary solution to increased lateral access in the face projected sea level rise.

B. Coastal Construction Permits

In addition to restoring and nourishing our beaches, the Act declares that it is in the public interest “to preserve and protect them from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access.”73 To this end, the Act requires that any individual or entity wishing to engage in construction below a line referred to as the Coastal Construction Control Line or CCCL first obtain a coastal construction permit, issued by the DEP.74 Coastal construction activities below the MHWL must obtain a similar permit, which is consolidated with federal approval and authorization to use state lands.75 “Coastal construction” is defined broadly and includes “any work or activity which is likely to have a material physical effect on existing coastal conditions or natural shore and inlet processes.”76 The Act and Florida Administrative Code set forth a number of standards that must be met by a permit applicant before the DEP may issue a permit. One such criterion is that the proposed project will not interfere with public access,77 defined under the Act as: [T]he public’s right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987, or where the public has established an accessway through private lands to lands seaward of the mean high tide or water line by prescription, prescriptive easement, or any other legal means.78 The definition also declares, “development or construction shall not interfere with such right of public access unless a comparable alternative accessway is provided.”79 If the DEP determines that a development’s interference with public access is unavoidable in order to protect the beach or an endangered upland structure, it may require, as a condition of the permit, that the developer provide alternative access.80 Finally, any structure that does not meet such requirements of the Act will be declared a public nuisance and may be removed upon request of the DEP.81

Though, at first blush, these provisions seemingly provide robust protection for public access, the width of any mandatory alternative access may not be required to exceed the width of the access that will be obstructed as a result of the permit being granted.82 This limitation on permit conditions is likely a direct response to the U.S. Supreme Court’s regulatory takings jurisprudence in which the Court has held that there must be an ‘essential nexus’ between the legitimate state interest and the condition on the permit.83 The Court also requires a rough proportionality between the projected impact of development and the permit conditions.84 Because the consequences of coastal armoring structures such as diminished sand supply and subsequent interference with lateral access are often delayed rather than immediately perceptible, it is difficult to condition permits to account for a development’s actual impacts that may occur over the life of the structure. Moreover, coastal construction permits are just that – construction permits. Unlike other environmental permit regimes, there is no accompanying operation permit that must be renewed periodically, based on long term monitoring and inspection.85

In order to protect lateral access, coastal construction permits theoretically may be conditioned to require a permittee to grant the local government a future interest in certain property that would vest upon the occurrence of an event, such as when the MHWL reaches a point at which there is no longer a sandy beach. In addition to ensuring an essential nexus and rough proportionality of such a permit condition, a further difficulty with the use of future interests as a sea level rise adaptation tool may be the common law rule against perpetuities, codified in Florida Statute § 689.225. The rule states that a non-vested property interest in real property is invalid “unless: 1) when the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or 2) the interest either vests or terminates within 90 years after its creation.”86 Under Florida’s current laws, therefore, if none of the events specified by the grant of a future interest occur within 90 years to trigger the vesting of such interest, the future interest fails and the permittee holds the land in fee simple.87 For this reason, the “use of future interests generally represents a complex, arcane, and limited ability to aid local governments in efforts to improve their long-term coastal resilience and efforts to adapt to rising sea levels.”88

Conclusion

Neither the common law nor the acts of the state legislature and its agencies provide sufficient protection for lateral access along Florida’s shores in a time of rising seas and a diminishing and increasingly costly sand supply. Adopting measures to allow the public limited ingress to private property to circumvent obstructions as Montana has done will help to avoid the trespass scenario described in this article’s introduction. Were Florida law to reflect a prospective consideration of the impact of coastal construction on the public’s right to a wet sandy beach under the public trust doctrine, the causes of interrupted lateral access may be addressed more directly. Such an approach would include the denial of construction permits on eroding beaches (which may raise constitutional issues) or conditioning them to provide for the public’s future interest in lateral beach access. Finally, a more sweeping judicial interpretation of the doctrine of custom and recognition that the customary use of the beach should roll with the tide would offer the greatest potential to realize the Supreme Court’s admonition that “No part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches.”89

 

Endnotes:

2 City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 75 (Fla. 1974).

3 Beaches and Coastal Systems: Why Restore Eroded Beaches? Florida Department of Environmental Protection (February 28, 2013), http://www.dep.state.fl.us/beaches/programs/becp/restore.htm. Erosion is the result of both natural and human activity. As of early 2013, 387 miles of sandy beaches had experienced “critical erosion,” a level of erosion threatening substantial development, recreation, and environmental interests. Id.

 

4 Meg Caldwell and Craig Holt Segall, No Day at the Beach: Sea Level Rise, Ecosystem Loss, and Public Access Along the California Coast, 34 Ecology L.Q. 533, 540 (2007).

5 This article assumes that current sea level rise trends and sea level rise acceleration scenarios proffered by the Intergovernmental Panel on Climate Changes are accurate. Intergovernmental Panel on Climate Change, Climate Change 2013: The Physical Science Basis, (2013), http://www.ipcc.ch/report/ar5/wg1/#.Uvf2MUKwLGk.

6 Lateral access is to be distinguished from “perpendicular access” to the beach, which refers to the ability of the public to navigate from highways and parking lots to the sand.

7 For a compendium of beach access legal literature related to Florida see generally Public Rights in Water, Florida State Law Research Center, (Feb. 23, 2012), http://guides.law.fsu.edu/content.php?pid=188286&sid=1580350.

8 Caldwell and Segall, supra note 4, at 551-552.

9 Norwood Gay, Tidelands, 20 Stetson L. Rev. 143 (1990),

10 See Martin v. Waddell’s Lessee, 41 U.S. 367 (1842).

11 See Mumford v. Wardwell, 73 U.S. 423, 436 (1867).

12 Fla. Const. art. X, § 11.

13 Walton County v. Stop Beach Renourishment, Inc., 998 So. 2d 1102, 1109 (Fla. 2008) aff’d sub nom. Stop the Beach Renourishment, Inc. v. Florida Dept. of Envtl. Prot., 560 U.S. 702 (2010).

14 State v. Black River Phosphate Co., 13 So. 640, 648 (Fla. 1893); see also City of West Palm Beach v. Board of Trustees of Internal Imp. Trust Fund, 714 So. 2d 1060, 1062 (Fla. 4th DCA 1998).

15 An exception to this rule exists where land is gained or lost through avulsion, defined as a sudden or violent event such as a hurricane, the effect of which is perceptible as it happens. In such a case, the boundaries between public and private land do not move.

 

16 James G. Titus, Rising Seas, Coastal Erosion, and the Takings Clause: How to Save Wetlands and Beaches Without Hurting Coastal Property Owners, 57 Md. L. Rev. 1279, 1370 (1998).

17 Id. at 1371.

18 Fla. Const. art. X, § 11.

19 Id.

20 Fla. Const. art. II, § 7(a).

21 Walton County v. Stop Beach Renourishment, Inc., 998 So. 2d 1102, 1110-1111 (Fla. 2008) aff’d sub nom. Stop the Beach Renourishment, Inc. v. Florida Dept. of Envtl. Prot., 560 U.S. 702 (2010).

22 Caldwell and Segall, supra note 4, at 555.

23 Id. at 554.

24 Id. at 555.

25 City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974).

26 Id. at 75.

27 Id. at 78.

28 Id.

29 Trepanier v. Cnty of Volusia, 965 So. 2d 276, 290 (Fla. 5th DCA 2007).

30 Id. (emphasis in the original).

31 Id. at 293 (emphasis added).

32 Id.

33 Downing v. Bird, 100 So. 2d 57, 64 (Fla. 1958); see also Trepanier, 965 So. 2d at 284.

34 Id.

35 Trepanier, 965 So. 2d at 285.

36 Id.

 

37 Richard J. McLaughlin, Rolling Easements As A Response to Sea Level Rise in Coastal Texas: Current Status of the Law After Severance v. Patterson, 26 J. Land Use & Envtl. L. 365, 369 (2011).

38 Titus, supra note 16, at 1313 (1998).

39 McLaughlin, supra note 37, at 369 (2011).

40 Id. at 370.

41 Tex. Nat. Res. Code § 61.011(a) (2013).

42 McLaughlin, supra note 37, at 371 (2011).

43 Id. at 372.

44 Tex. Nat. Res. Code § 61.025(a) (2013).

45 Matcha v. Mattox on Behalf of People, 711 S.W. 2d 95, 98 (Tex. App. 1986).

46 Severance v. Patterson, 370 S.W. 3d 705, 730 (Tex. 2012).

47 2013 Texas House Bill No. 325, Texas Eighty-Third Legislature (emphasis added to proposed language).

48 Matthews v. Bay Head Improvement Ass’n, 471 A. 2d 355, 365 (N.J. 1984).

49 Id.

50 State ex rel. Thornton v. Hay, 462 P. 2d 671, 676 (Or. 1969).

51 Montana Coal. for Stream Access, Inc. v. Curran, 682 P. 2d 163, 172 (Mont. 1984).

52 Jennifer A. Sullivan, Laying Out an “Unwelcome Mat” to Public Beach Access, 18 J. Land Use & Envtl. L. 331, 341 (2003).

53 Id. at 342.

54 Id. at 343.

55 Id. at 344.

56 See, Fla. Stat. Chapter 161.

57 Fla. Stat. § 161.088 (2013).

58 Id.

59 Fla. Stat. § 161.101(1) (2013).

60 Fla. Stat. § 161.088 (2013).

61 Fla. Stat. § 161.101(1) and (2) (2013). The Florida Administrative Code defines “critically eroded” shoreline to include beaches “where natural processes or human activities have caused, or contributed to, erosion and recession of the beach and dune system” to the extent that development, recreational, environmental, or cultural resources are threatened. The definition also includes shorelines that may not currently be eroded but “their inclusion is necessary for continuity of management of the coastal system or for the design integrity of adjacent beach management projects.” Fla. Admin. Code R. 62B-36.002(5).

62 Fla. Stat. § 161.101(12) (2013).

63 Fla. Stat. § 161.141 and § 161.191 (2013). The constitutional validity of these provision have been challenged and upheld. See Walton County v. Stop Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008).

64 Fla. Stat. § 161.191 (2013).

65 Lilly Rockwell, Impact: Beach and Shore, Florida Trend (Jul. 8, 2013), http://www.floridatrend.com/article/15815/span-stylecolor777impactstyle-beach-and-shore.

66 Tamara Lush, Beach Replenishment A Tough Issue In Florida, St. Joseph Peninsula, Huffington Post (Mar. 15, 2012), http://www.huffingtonpost.com/2012/03/15/beach-replenFEELING THE SQUEEZE from page 23 ishment--tou_n_1346656.html.

67 Fla. Admin. Code R 62B-33.002(8) (2013).

68 Lizette Alvarez, Where Sand is Gold, the Reserves are Running Dry, N.Y. Times, (Aug. 24, 2013), http://www.nytimes.com/2013/08/25/us/where-sand-is-gold-the-coffers-are-running-dry-in-florida.html?pagewanted=1&_r=0.

69 Id.

70 Id.

71 Fla. Stat. §161.211(1) (2013).

72 Fla. Stat. §161.211(2) (2013).

73 Fla. Stat. § 161.053(1)(a) (2013) (emphasis added).

74 Fla. Stat. § 161.053(2)(a) and (4) (2013).

75 Fla. Stat. §161.041(1) (2013). Section 161.055 consolidates coastal construction permits, environmental resource permits and sovereign submerged lands authorizations for the DEP to consider concurrently and issue a single “joint coastal permit.” Fla. Stat. §161.055(1) and (2) (2013).

76 See Fla. Stat. §161.021 (2013).

77 Fla. Admin. Code R. 62B-33.005(4)(g).

78 Fla. Stat. § 161.021(1) (2013).

79 Id.

80 Fla. Stat. § 161.041(1)(a) (2013).

81 Fla. Stat. § 161.053(6) (2013).

82 Id.

83 Nollan v. California Coastal Com’n, 483 U.S. 825, 836-37 (1987).

84 Dolan v. City of Tigard, 512 U.S. 374, 391 (1994). The Supreme Court recently clarified that these requirements apply even where a permit is denied. Koontz v. St. Johns River Water Management Dist., 133 S.Ct. 2586, 2596 (2013).

85 Not only are permitted construction projects free from future audits, empirical research suggests that denial rates of coastal construction permits by DEP are notably low. A large majority of permit applications are approved with no system in place for continued inspection. See Thomas Ruppert et al., Eroding Long-Term Prospects for Florida’s Beaches: Florida’s Coastal Management Policy, University of Florida Institute for Food and Agricultural Sciences, 82 (August 19, 2008), http://www.law.ufl.edu/_pdf/academics/centers-clinics/clinics/conservation/resources/coastal_management_finalreport.pdf.

86 Fla. Stat. §689.225(2)(a) (2013).

87 Thomas Ruppert, Use of Future Interests in Land as a Sea-Level Rise Adaptation Strategy in Florida, Florida Sea Grant College Program, https://www.flseagrant.org/wp-content/uploads/2012/08/Use-of-Future-Interests_8.8.12.pdf. A possible solution to the 90-year limitation imposed by Florida Statute § 689.225 is the use of a trust as the third party in which the future interest will vest upon the occurrence of the specified condition. Section (2)(f) of this statute states that as to any trust created after December 31, 2000, the provisions of § 689.225(2) shall apply to a non-vested property interest or power of appointment contained in a trust “by substituting 360 years in place of ‘90 years’ in each place such term appears in this section unless the terms of the trust require that all beneficial interests in the trust vest or terminate within a lesser period.” Fla. Stat. § 689.225(2)(f)(2013).

88 Id.

89 City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 75 (Fla. 1974).

 

This article was first published on eluls.org.

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