The whole length of the Flagler County coastline will remain open to the public after the Board of County Commissioners passed an ordinance to that effect this week.
BUNNELL – Flagler County commissioners passed an ordinance this week to preserve public access to the full length of Flagler County’s 18.1 miles of beach. It was an ordinance few would have thought necessary just three months ago.
“We didn’t need one,” said county attorney Al Hadeed during a presentation before the commission. “We never needed one.”
But that changed March 23 when Gov. Rick Scott signed a private property law that allows coastal landowners to deny public access to portions of the beach they own that lie between the dunes and the mean high-water line. That line is constantly shifting, but essentially the law affects the dry sand area most people think of as “the beach.”
When passed, House Bill 631 was thought to address the situation only in Walton County where some property owners have opposed a beach access ordinance passed there in October 2016. But the language made it applicable to all of the Florida’s coastal counties.
All but two, that is: St. Johns and Volusia.
The state law grandfathers beach access ordinances for those counties that bookend Flagler, but would void the one passed in Walton. That’s because it recognizes only those ordinances passed prior to July 1, 2016. Volusia’s claim to beach access was validated in a 1976 court case. St. Johns County passed its ordinance in 2007.
Had HB 631 become law without amendment, the only way a county could preserve public access to private beach would have been through a judicial process. It would have had to notify each property owner by certified mail that it intended to enact a beach access ordinance, file a lawsuit against them and prevail in court.
Hadeed called this the sole example where a local government would first have to go to court to enact an ordinance.
But language added to the state law at the 11th hour opened the door for counties like Flagler to pass their own ordinances before a deadline of July 1. That’s what the Board of County Commissioners unanimously did Monday.
The ordinance is based upon the long-held doctrine of “customary use.” This is the 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.
Flagler’s ordinance, passed less than two weeks before the deadline, came up for a vote only after four quasi-judicial hearings held over two months. The hearings, orchestrated by Hadeed with the assistance of Flagler Beach attorney Dennis Bayer, recorded testimony from long-time residents and experts in the history of Flagler County. The purpose of the testimony was to establish the unchallenged practice of customary use at the beach going back to the pre-Columbian era.
The extensive testimony will be posted online along with other data, including videos, to shore up the county’s ordinance should anyone later decide to challenge it.
“What we want to do is tell somebody, ‘Hey, before you think about suing us, you need to take a look and see how well firmly established our customary use is,’” said Hadeed.
The state law’s last-minute, amended language is ambiguous and open to multiple interpretations – some, according to Hadeed, “absurd.” Still, there is no indication that the county ordinance will be challenged in the near future. To date no one has voiced or penned opposition to the idea of customary use at the beach. This may, however, reflect the relatively few properties in the county that would be affected. By comparison, Volusia has 47 miles of beach and 14,550 private properties along the coast.
Though restriction of the public’s ability to hike, bike, fish and picnic on the privately-owned beach has received most of the attention since passage of the state law, another activity is at stake: protection and restoration of the beach following damaging storms.
According to Hadeed, the county had been planning a customary use ordinance prior to passage of HB 631, but the state law accelerated the need to do so.
Such an ordinance gives the county access to greater levels of funding from the Federal Emergency Management Agency, the value of which has become apparent following damage in hurricanes Matthew and Irma as well as some recent unnamed storms.
The reduced level of federal funds has placed greater stress on the county’s taxpayer-supported resources and heightened the need to seek special appropriations from the Legislature.
In support of the county’s action, the city of Flagler Beach enacted its own beach access ordinance May 24. Passed unanimously, that ordinance nevertheless denies public access to private beach between 10 p.m. and sunrise.