For the second year in a row, St. Johns County is contending language in property rights bills filed in the Florida House and Senate containing language that could affect local governments’ ability to protect long-standing customary use by the public of beaches behind oceanfront homes.
In a letter Wednesday to Sen. Greg Stuebe and Sen. Lizbeth Benacquisto, chair and vice chair of the Committee on Judiciary, the county says it has “expressly recognized and protected customary use for many years.” This is through a 2007 ordinance, also known as the Beach Code, which regulates conduct on county beaches.
The county says the Florida Supreme Court has held that customary use of dry sand beaches is established (and should not be interfered with by private property owners) where recreational use has been “ancient, reasonable, without interruption and free from dispute.”
County Attorney Patrick McCormack told The Record on Tuesday that the county’s fear is if either bill as proposed were to become a law, it could be used by property owners to interfere with well-established public use of the beaches that has long been protected by the county. Additionally, he said the bill could essentially shift the burden of proof from the property owner to the county in any disputes over public versus private rights.
Both provisions in question take up just a few lines of larger bills dealing with separate property rights issues, but take up the bulk of the bill analyses.
House Bill 631, introduced by Rep. Katie Edwards-Walpole, a Plantation Democrat, provided that common law claims for customary use may only be determined by a court of competent jurisdiction, on a parcel-by-parcel basis, by clear and convincing evidence.
Analysis of the bill by the Civil Justice and Claims Subcommittee staff, posted Monday, said differences in court decisions and an Attorney General opinion over the years “illustrate that local officials, municipalities, and private property owners have struggled to determine the scope of local authority regarding customary use ordinances and determining who may affect the property rights of private property owners through the common law doctrine of customary use.”
The analysis said the effect of the language, as originally proposed, would prohibit a county or municipality from enacting such ordinances, and rather, require any customary use determinations to occur in a court case on a property-by-property basis.
However, Edwards-Walpole offered an amendment to her bill Tuesday night that, among other language changes, makes an exception for ordinances adopted and effective prior to Jan. 1, 2016.
In an email on Wednesday, McCormack told The Record the new language, if adopted, would help the county as its relevant ordinance is from 2007. However, he said the county is still pushing for a general redaction of the customary use language in Senate Bill 804.
The Senate bill, introduced by Sen. Kathleen Passidomo, a Naples Republican, provides that a common law claim of customary use for the public use of private property must apply to a particular parcel and must be determined by the court.
Analysis of the bill by the Committee on Judiciary staff, posted Tuesday, said the language “effectively precludes the use of local government ordinances to establish broad rights to access private property with little notice to affected property owners.”