Florida Draws Lines in the Sand to Protect Public Interest
FORT MYERS - Who owns the sand on the beach? Is it the oceanfront property owner or the public? The answer is actually quite complex and can vary widely from state to state.
Many times this issue comes to light when sand needs to be added to the beach to correct an erosion problem. This is currently an issue in Walton County, Fla., where the city of Destin and Walton County completed a beach restoration project to put sand back on the beach after Hurricanes Opal (1995) Ivan (2004) and Dennis (2005) slammed into the Panhandle coast.
Four beachfront property owners in Walton County objected that the renourished beach seaward of a state-set erosion control line would become public land, as is mandated by state law. The case is now before the U.S. Supreme Court and will have national implications.
In the case, entitled, "Stop the Beach Renourishment v. The Florida Department of Environmental Protection et al.," the court will decide whether state legislation to restore eroded beaches constitutes a regulatory taking or violates the Fifth Amendment guarantee that private property cannot be taken for public use without just compensation.
"In Florida, once a decision is made to pursue a beach restoration project, engineers conduct a survey of the beach to establish an Erosion Control Line (ECL) along the beach," said Gary Oldehoff, an attorney for Boca Raton-based Lewis Stroud & Deutsch. "That line is surveyed in accordance with the statutes and rules adopted by the Florida Department of Environmental Protection, and results in a line of demarcation for the purposes of the project."
The governor and Cabinet must approve the proposed ECL before any project may move forward. Once approved, the ECL represents the boundary between private upland property and state sovereign lands. The line fixes a boundary that was once private property extends landward of the line, while the state owns the land seaward of the line.
In Florida, the ECL is based upon the location of the Mean High Water Line (MHWL), which is established based upon the average height of the high tide over a 19-year period along the coastline in question.
Florida Statutes say there is no taking of private lands through the establishment of an ECL and that upland property owners will continue to enjoy all of their common-law riparian rights. Riparian rights are the property rights that accompany ownership of land that borders water. Plaintiffs in this case claim the establishment of an ECL and a public beachfront diminishes their property's value by changing it from Gulf-front to Gulf-view land.
"The state can't construct a building or anything else that would change the view of the water for the private property owner," Oldehoff said. But this law does allow the public access to the beach seaward of the ECL, either via public access points or from the adjacent public beachfront area.
The part of the beach seaward of the ECL is considered a Public Trust Area and belongs to the public.
(This information is provided by the American Shore & Beach Preservation Association.)
Return to Current Edition