Beach access might be in jeopardy; FL landowner fights 'customary use' premise

Access to Florida's beaches lies in the hands of a Pensacola judge after a new lawsuit was filed challenging the principles used to establish public access.

A Walton County beach owner is fighting a customary-use ordinance, which opens private beaches in some places under the reasoning that public use has been historical and ongoing there.

This federal case is broader than a half-dozen other lawsuits about beach access. Instead of picking apart a piece of an ordinance, the new lawsuit asks whether the core idea of customary use is legal.

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The effects could spread far outside Walton County. Many popular beaches, including the sands around Naples Pier, are publicly owned and would not be affected by the lawsuit. But the public relies on the decades-old customary-use principles to retain access to stretches of beach behind homes, condos and hotels.

Any laws pertaining to customary use could be invalidated, including a recently passed bill providing more protections for beachfront landowners. Naples’ recently passed customary-use ordinance also could be voided.

In Collier County, the public walks on private beaches with relatively little problem. Almost all of Little Hickory Island in Bonita Springs is privately owned, but beachgoers still fill the dunes without homeowners' complaints.

If the judge in the Walton County case rules in the landowner’s favor and against customary use, hotels and homeowners might rope off their sands, thinking the local governments couldn’t do anything.

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The Ritz-Carlton beach resort in North Naples could take advantage of such a ruling. The county and The Ritz have an agreement that keeps the hotel's beach stretch open to the public except for the busiest 30 days of the year. Without the possibility of a customary-use ordinance, those beaches could be roped off every day.

Customary use is invoked outside Florida as well, said Walton County attorney Sidney Noyes.

"This has big implications we'll see maybe across the country," Noyes said.

States such as Oregon and Texas have public beach access based on similar customary-use principles. Depending on how a ruling is interpreted, these states could face similar public access questions.

Other court cases are winding down. Walton County’s customary-use ordinance, which has been in place for more than a year, will end July 1 when the new state law goes into effect, and the older lawsuits are specific to ordinances.

The state law requires that a judge, not a county commission or city council, decide whether customary use has been in place at a beach and whether it therefore should be open to the public.

Walton County commissioners have said they will begin another process to write a new ordinance. But the lawsuit is cutting in to ask whether customary use is even legal, said Kent Safriet, the Walton County beach owner's attorney.

“The county is going to have to go through this brand-new process that no one has been through,” Safriet said. “It makes sense to have this threshold decision now rather than later.”

More:Public access to beaches behind homes supported by new Naples ordinance

Beachfront property owners are unhappy with the ordinances, contending the county is taking their land without just compensation. The takings argument serves as the basis for the federal case.

The last customary-use lawsuit went for more than a year, and Walton County is in it for the long haul, Walton County Commissioner Tony Anderson said in a written statement.

“This kind of stuff burns me up,” Anderson said. “This is about doing the right thing. It’s time we stood up and took back our beaches.”

Safriet said the Walton County lawsuit ultimately could go the U.S. Supreme Court.