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Dylan Reingold, County Attorney, William K. DeBraal, Deputy County Attorney Kate Pingolt Cotner, Assistant CountyAttomey i3.A. Attorney's Matters - B.C.C. 05.22.18 Ofce of INDIAN RIVER COUNTY MEMORANDUM TO: Board of County Commissioners FROM: Kate Pingolt Cotner, Assistant County Attorney DATE: May 16, 2018 SUBJECT: Customary Use ATTORNEY Background: The public has a right of access along Florida's beaches and shorelines below the mean high water line. Article X, Section 11 of the Florida Constitution provides that the state holds the land seaward of the mean high water line (MHWL) in trust for the people. This is commonly known as the "Public Trust Doctrine." The public also can access the dry sand areas of the beach above the MHWL if the activity has continued for a long time without interruption. This is commonly known as the "Customary Use Doctrine." While customary use is not an interest in the land itself, it is a right to enjoy the land for recreational purposes. In the past, Florida courts have recognized the Customary Use Doctrine applies to a specific area of a particular beach and not on a parcel by parcel basis.' It is determined on a case-by-case basis where the court must balance whether the proposed use of the land by the fee owners will interfere with such use enjoyed by the public in the past. ,2 Recently, there has been some confrontation in other jurisdictions between coastal homeowners who erected fences and/or "no trespassing signs" and beach goers who want to access and recreationally use the dry area of sand above the MHWL. Walton County, Volusia County and St. Johns County have each passed ordinances to address this issue, but not without some controversy. In particular, Walton County adopted an ordinance in 2016 declaring the dry sand areas of the county subject to the customary use doctrine. Based on that finding, the ordinance prohibits signs, fencing and other obstructions within the dry sand areas. The ordinance was quickly challenged by a group of coastal homeowners. In November of 2017, a federal judge in Pensacola sided with Walton County and ruled that it had not overstepped its bounds by passing an ordinance because it was not prohibited by Florida law.3 The federal judge also ruled that coastal 'See Cit of f Daytona Beach v. Tona-Rama. Inc., 294 So. 2d 73 (Fla. 1974); See also Trepanier v. County Of Volusia, 965 So. 2d 276, 287-288 (Fla. 51 DCA 2007). 2 Reynolds v. Cty. of Volusia, 659 So. 2d 1186, 1190 (Fla. 5th DCA 1995). 3 Alford v. Walton County, No. 3:16CV362/1\4CR/CJK, 2017 WL 8785115, at *16 (N.D. Fla. Nov. 22, 2017). C:IUsersllegi—WppDaWLo ATempWCL TechnologiesleasyPDF 81@BCL BO]992DF@BCL@B01992DF.docx - 195