If a new state law goes into effect July 1 without a mitigating local ordinance, Flagler County residents and visitors could find portions of the beach closed to them.
FLAGLER BEACH — A controversial new private property law that could restrict public beach access in many of Florida's coastal counties has attorneys for the city of Flagler Beach and Flagler County scrambling to compose ordinances in response.
Though some critics characterize the law signed by Gov. Rick Scott on March 23 as a move to give away swaths of public beach to owners of adjacent private properties, the reality is more nuanced.
“It doesn’t create new property rights,” Flagler Beach attorney Drew Smith told city commissioners during a Thursday night meeting. “It doesn’t extend your property line. It doesn’t do anything to your property line.”
What it does, according to Smith, is keep local governments from enacting what is called a “customary use ordinance.”
Customary use is a commonly held practice of tempering property rights where there has been long-term, reasonable, undisputed and uninterrupted use of privately owned land by the public.
Volusia and St. Johns are the only counties exempt from the new law because both enacted customary use ordinances prior to July 1, 2016.
In Flagler County, the public has traditionally used the dry sand areas of the beach to plant their sun shades or spread their blankets — regardless of who owns it. Residents and visitors picnic, hike, fish and bicycle on the sand and it has never been fenced off or otherwise barricaded.
So long as members of the public don’t interfere with a landowner’s “reasonable enjoyment of the beach or their property,” Florida's beaches have always been open.
After the law, HB 631, takes effect on July 1, however, some coastal land owners will be able to deny public access to the portion of their properties between the mean high-water mark and the dunes.
“It would affect any beachfront property except where the beachfront is owned by the government,” Flagler County Attorney Al Hadeed said Friday. “For example, this is not an issue for the River to Sea Preserve in Marineland, the Mala Compra Road park, the 16th Road park, Varn Park.”
Flagler County Commissioner Donald O’Brien said Thursday that Hadeed is working in concert with other county attorneys around the state to write an ordinance to bring before the county board before the July 1 deadline. The ordinance would establish customary recreational use of the beaches countywide.
“We’re actively working on it, and it’s a high priority for us,” said O’Brien.
The County Commission is scheduled to discuss the issue Monday at a workshop session.
Without the ordinance, the process for establishing customary use would be, in Hadeed’s words, “very onerous.”
In that case, the local government would be required to adopt a formal notice of intent to claim recreational customary use at a public hearing. Affected parcel owners would have to be notified 30 days prior to the meeting. Then, 60 days after adopting the notice, the local government would have to make a filing to the circuit court and give each parcel owner the option to intervene. The court would then rule on the claim.
Hadeed said the county doesn’t want to have to go through that.
“We want to preserve the status quo of our open beaches,” he said. “We want to preserve the rural ambiance of our beaches. They’re very unique, because we’re not as developed. The intensity of development on the beach is much less here than many other communities around the state. We think that’s a unique asset, and we seek to preserve that asset.”
Though it will already be covered by the county ordinance, the city of Flagler Beach plans to write one of its own to “piggyback” on it.
“We’re just going to follow in their footsteps,” said Smith.
Whether such ordinances will prove effective remains to be seen. A portion of the law added just prior to passage is ambiguous on the matter and may have to be settled by a judge.
As it stands, Flagler Beach has fewer private properties that back up to the mean high-water line than other communities, so the impact could prove less.
Smith said he is optimistic.
“We’ve never had an issue with somebody claiming, ‘Oh, I’m not going to allow people to traverse this section of beach anymore,’” he said. “It’s just never come up before.”
Still, the new law could discourage members of the public who would otherwise commit themselves to protecting the beaches from erosion.
At a recent workshop, Flagler Beach City Commissioner Jane Mealy asked former resident and environmental expert Chad Boda about the law’s possible impact on beach stewardship.
“If you remove their right to public access, what incentive do they have to care?” he said.
— Staff Writer Matt Bruce contributed to this report