Flagler County xommissioners moved Monday toward ensuring that all the beaches along the county's coast remain open to the public -- even where they are privately owned.
BUNNELL — Flagler County commissioners on Monday unanimously voted to advance an ordinance designed to preserve public access to privately owned beach property. It will come up for a second reading May 21.
The move was necessitated by the passage of a new state law (HB 631) that allows coastal land owners to deny public access to some portions of the beach they own. That law was signed March 23 by Gov. Rick Scott. It takes effect July 1.
Opponents say the change runs counter to the long-held doctrine of “customary use.” This is the practice of tempering property rights where there has been long-term, reasonable, undisputed and uninterrupted use of privately owned land by the general public. In this case, it refers to that portion of the beach between the dune and the mean high water line.
While the county’s ordinance would not allow activities such as overnight camping in those areas, it would preserve the public’s ability to hike, bike, fish and picnic there.
Commissioner Donald O’Brien asked County Attorney Al Hadeed about the effect of the new ordinance.
“If a property owner puts up a fence, we would demand the fence come down, citing the ordinance as the reason,” O’Brien said. “And that person can challenge that ordinance in court at that point?”
“That’s correct,” said Hadeed. He added that the person making the challenge would have to prove there was no customary use on their particular parcel.
To establish that customary use has been the norm along the Flagler coast, independent attorney Dennis Bayer was enlisted to call witnesses. Among them were former county commissioner Barbara Revels and Beverly Beach Mayor Steve Emmett.
“I love that beach,” Emmett said. “It’s God’s gift to this county.”
He said he regularly speaks with the town’s residents and has heard from them about the issue.
“I will tell you, without fail, every one of them thinks that beach should be public,” he said.
Like many of the witnesses who had long lived near the beach, Revels recalled fishing, picnicking, cooking out and camping on the beach in her youth. She said that in the 63 years she has been visiting the beach, she has never encountered fences or “no trespassing” signs.
Bayer added his own recollections to the testimonies. As a student at the University of Florida in the late 1970s, he and his friends would camp on the beach and do some surf fishing. He also began surfing the beach at about that time and did so along the entire length of the county shore.
Referring to the practice of beaches in South Florida charging admission, Bayer suggested that open access to the beach is one reason people choose to live in Flagler County.
“It would really be unfortunate if all of a sudden we became like South Florida and some of the other coastal communities that do have privatized areas of the beach,” he said. “Everybody I’ve talked to since this legislation was passed thinks this legislation is a bad idea and what the county’s doing is a good idea.”
The county had already been considering a customary use ordinance because it could mean more federal funding to restore and protect beaches following a hurricane — including areas that are privately owned.
But the passage of HB 631 forced the county to accelerate its plans.
Only two counties are exempt from the new state law, Volusia and St. Johns, because both had customary use ordinances in place before July 1, 2016. All other counties have the option of passing their own ordinances, but they must do so before July 1 to avoid greater difficulty in keeping private beaches open.
The only complication Flagler and other counties may face is the possibility that a member of the public will challenge a county ordinance. But waiting until after July 1 could force counties to sue their own residents to establish public access.