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10-A. L MEMORANDUM TO: Jason E. Brown, County Administrator THROUGH: Richard B. Szpyrka, P.E., Public Works Director FROM: James D. Gray, Jr., Natural Resources Manager DATE: September 24, 2018 SUBJECT: Notice of Intent to Affirm the Existence of a Recreational Customary Use on Private Property BACKGROUND The common law public trust doctrine is embodied in Art. 10, s. 11 of the state's Constitution. Under that provision, title to the portion of lands beneath navigable waters up to the mean high water line is owned by the state and held in trust for the people. The doctrine applies to all navigable waters, both freshwater and salt water. While areas above the mean high water line are generally subject to private ownership, Florida courts have recognized the public may acquire rights to the dry sand areas of privately owned portions of a beach through common law prescription, dedication, and custom. This is commonly referred to as the customary use doctrine. The customary use doctrine is a broad principle of property law which generally provides that, if an activity has continued for a long time without interruption, the law will eventually recognize that activity and provide a legal right for it to continue. Florida courts have recognized the customary use doctrine. In the case of City of Daytona Beach v. Tona- Rama, the Florida Supreme Court stated that "the general public may continue to use the dry sand area for their usual recreational activities, not because the public has any interest in the land itself, but because of a right gained through custom to use this particular area of the beach as they have without dispute and without interruption for many years."' The Fifth District Court of Appeal later clarified this recognition further, requires "courts to ascertain in each case the degree of customary and ancient use the beach has been subjected to and, in addition, to 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 It is important to note the courts have determined that when showing customary use, the historic use does not need to be specific to the parcel at issue; rather, the use must be within the "general area" of the beach where the parcel is located.' Early this year, the Florida Legislature created section 163.035, Florida Statutes, concerning the establishment of recreational customary use. Section 163.035, Florida Statutes, sets forth a new statutory framework for a governmental entity that seeks to affirm the existence of a recreational customary use on private property. Pursuant to the statute, the governmental entity must, at a public hearing, adopt a formal notice of intent to affirm the existence of a recreational customary use on private property. The notice of intent must specifically identify the following: 1 City of Daytona Beach v. Tona-Rama, 294 So.2d 73, 78 (Fla. 1974). 2 Reynolds v. County of Volusia, 659 S0. 2d 1186, 1190 (Fla. 5th DCA 1995). 3 Trepanier v. County of Volusia, 965 So. 2d 276, 290 (Fla. 5th DCA 2007). Cr Users VegistarWppDatakLocaffemp OCL Technologies leasyPDF81@BCL@ECOC7E9DI@BCL@ECOC7E9D.doe 195