The War for Florida's Beaches

Posted by Meigan Montoya on April 13, 2018

If you ask a Formula 1 racer what they think of going from 0 - 100 in half a second, they'd be thrilled by the idea. If you ask anyone else how they feel about going from 0 - 100, in almost all situations, that's a bad thing. Community Association Management pros know this better than just about anyone.

More often than not, when a homeowner incurs a violation fine and refuses to pay, the only real options are to keep adding to the fines hoping they eventually buckle and pay up, or put a lien on the property.

From one end of the spectrum to the other with no in between and no alternatives is a struggle for both sides--something beachfront properties in Florida are going to find out first-hand starting July 1, 2018.

Sand, Sand, and More Sand

Though there was extensive lobbying against it (with opposition outweighing support by an 8:1 margin), Florida Governor Rick Scott signed HB 631 (the Possession of Real Property Bill) in March 2018.

This bill states that local governments may no longer enact beach access ordinances to permit public access to private beach sand. Instead, if the local government wants to grant public access to private beach property, it must file a lawsuit against the property owner. (See what I was saying about  0 - 100?)

Public and private beach sand is split by what is called the mean high-water line. This is basically the average line that high tide hits on a beach. So all "wet sand" is considered public, with "dry sand" behind coastal properties being seen as private.

Think of it this way--you can put a fence around the grass in your backyard, right? But you can't fence off the road behind it, because that's public space. The line where your grass ends is the mean high-water line where the tide hits. And people want to use your grass (sand) to enjoy the street behind it. It's enough to frustrate anyone.

This becomes an issue for public beaches that are surrounded by private coastal property owners. If all of the private beach property is roped off by property owners, how can the public enjoy the beach? Once high tide rolls in, all of the public space is underwater. And even during low tide, the space between the mean high-tide line and the water is minimal. Certainly not enough to sustain the numbers beaches tend to attract.

Sadly, there is no real happy medium in this situation. Mutual respect is the best case scenario. Worst case, one side is going to have to give a little (or a lot).

What This Means for Property Owners

In the past, if a property owner chose to rope off the expanse of beach sand in front of their property, they could do so. However, they would likely face heat from a local ordinance forcing them to remove the barricades. And the ordinance would also usually stop them from calling police to forcibly eject the public. 

This bill basically redistributed that power back to the property owners. Now, they have the freedom to rope off their section of private beach sand with little risk. If local government wants get involved, their only available recourse is filing a time consuming, costly lawsuit.

The likelihood of a local government finding the time, resources, and finances to sue even 1/10th of the private beach owners in the Sunshine State, where nearly 60% of beach is considered private, is slim. 

However, the right motivation could back local government into a corner, forcing them to take coastal property owners to task.

Why Would the Government Take You to Court?

Florida Residents

While Florida is home to a wide array of gorgeous beaches, not a lot of Floridians own beachfront property, contrary to what television may tell you all. (Let the record also show that not a lot of us own ATV-riding alligators either!)

But us less fortunate folk who are stuck living inland still find the time to take a beach day, or two, or twenty! Half the reason people choose to live in Florida, after all, is primo beach access. 

If Florida residents start to feel that their rightful access to the beach is being cut off, they could pressure local government to take action.

With enough voices behind them, there would be no choice but to levy a lawsuit against coastal communities, especially large resort-style communities that could take up the most sand. 

Local Business

Early morning Yoga. Wedding ceremonies, receptions, and vow renewals. Photography shoots. All things people do on our beautiful Florida beaches. All things that need a lot of dry sand to be successful.

Imagine asking a bride to stand in the middle of the public beach space (behind the mean high-water line, that is) while the tide is coming in. Or trying to do a downward dog in the middle of high tide. It would kill business, and force business owners to take action.

If enough disgruntled business owners feel that private property is hurting their sales, they could rally their consumers to urge local officials to go after the private property owners. 

Tourism

I think at a certain level, everyone hates seasonal tourists. None of them can drive, they're always asking about "hidden gems." Why can't they be more like you or I? We never do that when we travel, surely!

But regardless of how we feel about tourists on a personal level, they're an enormous benefit to the economy. Florida is lucky to have some inland attractions that can hold their own if beach access and attendance dwindles.

But The Mouse can't do all the work, and especially with our own Clearwater Beach ranking #1 in the country by TripAdvisor in 2018, public beaches will always be our most effective tourist trap.

If the local government thinks that private homeowners are stifling tourism in the area, they would be forced to act in whatever ways they can to preserve the tourist attractions as much as possible.

What a Coastal Community Can Do to Prepare

So what does all of this mean for properties with private beach access?

I sat down with Andrea Meyer, CMCA, AMS, PCAM, and Amanda Hilton, CMCA, AMS to find out. The two have a combined 27 years experience in the industry, and had a few suggestions on what property managers can do to plan for this kind of potential lawsuit. 

  1. Getting ahead of the problem by addressing your homeowners directly.
    By holding a meeting and acknowledging the freedom homeowners will have to close off their beach space, you can explain why it is in their best interest not to abuse that new freedom. It also gives you a chance to go over how to handle public beachgoers before resorting to completely barricading their property, or calling the police to eject the public.
  2. Check your insurance parameters, and ensure that all insurance plans are up to date.
    In the event that a lawsuit is filed against an association and succeeds, each homeowner whose private beach space has been compromised could file a lawsuit against the association. They could claim that their property rights were infringed upon due to the community's inability to defend those rights. 
  3. Call your association's attorney.
    The communities most likely to face this kind of lawsuit would be large, resort-style communities, many of which should have an attorney at their disposal. Lean on them for information. Your lawyer will know best the most effective steps you can take to ensure that your community is complying with the language of the bill, and how best to prepare financially and legally in the event the government chooses to sue the community.

With Great Power Comes Great Responsibility

While you're not getting spidey super powers, your homeowners are getting a fair amount of power handed to them. And it's a good thing! It's important that a homeowner be allowed to keep their private space private. But beach space is tricky, and it's important to convey the level of responsibility coastal property homeowners will have so as to avoid inciting the power of the local government.

Going from 0 - 100 is the last thing either party wants, so choosing to be accommodating when it comes to public beach usage is likely the best chance a community has to avoid a costly and time-consuming lawsuit.

 

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