Careful where you put the blanket on the sand after July 1, you might be trespassing.
HB631 probably doesn’t mean much to many people, but its consequences may. It’s the number of the bill Gov. Rick Scott signed into law March 30. The Possession of Real Property Act becomes effective July 1.
The law states that beachfront property owners may declare as private the portion of their property on the sand to the mean high-tide line. But it may not signal the end for most beachgoers on Anna Maria Island.
Charlie Hunsicker, director of Manatee County Parks and Natural Resources, says the law changes very little on the island.
Erosion Control Lines — ECLs — will control where the new law is enforced. In 1992, the three island jurisdictions established a “permanent” ECL. The island ECL does not meander with the tide, it runs with the land for beach improvements.
According to Hunsicker, this law established that anywhere beach renourishment has occurred on the island, the beach becomes public domain. It supersedes the Possession of Real Property Act.
A challenge in 2010 led to the U.S. Supreme Court ruling that if taxpayer money is used to maintain sand on a beach, that sand is public.
“Where renourishment has occurred, the beach is public domain. The law does not apply, that’s it,” Hunsicker said in a phone interview April 6.
“That’s a lot of Anna Maria Island. In the places where it hasn’t been done, the jury is still out on where those property rights fall,” Hunsicker continued.
On the beach
Robert Smith, a visitor from California, didn’t know about the new law as he tied up a hammock at a beachfront rental at 2905 Ave. F in Holmes Beach. On the street side of the property, beachgoers already were not welcome to walk through the property to the sand.
A “no beach access” sign was propped up against a tree and appeared to be an old addition to the yard. To the left, nautical ropes and floats cordoned off the property and a ladder laid sideways blocked access on the other side of the home. The homeowners already had taken matters into their own hands to keep people from trespassing to get to the Gulf of Mexico.
“I wasn’t aware of the law,” Smith said, after hanging the hammock. “Will that work?”
At Smith’s rental on Avenue F, the beach was renourished and the sandy shoreline is public domain. But there’s no reason for the owner to give access to the beach on his property.
Like others in so many beachfront rentals on AMI, Smith will come and go in a week or so. Owners of some beachfront rental homes may not step foot often on the beach at their properties. So will renters even care who lounges on the sand in front of the home? Will rental managers make trips to see anyone has intruded on the sand?
Scott, according to news reports, said the law would protect landowners but give people access to enjoy the sun and sand.
“The way the bill works is, you’re going to continue to have access to the beach, but we’re also going to protect property rights,” Scott said in a signing statement. The state of Florida estimates that 60 percent of the state’s beach property is privately owned.
Sandy Zinck, general manager at the Waterline Marina Resort and Beach Club, said April 3 the Waterline’s beach area at Mainsail Beach Inn, 101 66th St., Holmes Beach, is currently not privatized.
It also is a renourished beach that is accessible at the terminus of 66th Street.
“We’ve had no discussions at this time about making it private. The law has huge implications. It could change Anna Maria Island,” Zinck suggested.
What other local condominiums and motel properties will do with beach areas remains to be seen.
At the Rod and Reel Resort on the north end in Anna Maria, owner Suzette Buchan said she uses moveable stanchions to mark their beach and kayak area.
“Our property extends 30 feet into the water and we offer guests private beach space with our chairs, umbrellas and gear, while allowing walking privileges and respecting ordinances designed to protect native wildlife and fauna,” Buchan said April 3.
Hunsicker also addressed the matter of “customary use” — the public’s historical use of dry, sandy areas of the beach — and the public’s right to continue the practice.
He said public beach access points would remain public — unaltered by the new law.
“For courtesy’s sake, you should always set up from a vegetative line forward,” Hunsicker said of picking a spot on the beach.
For owners considering staking their territory on the beach: Don’t even consider it during the May 1-Oct. 31 turtle nesting season. On Anna Maria Island, the beach must remain clear of obstacles at night. This includes keeping the beachfront free of “No trespassing” signs, stakes in the sand and ropes and bollards.
A legal ‘opinion’ on HB631
Deborah Flack, president of the Florida Shore and Beach Preservation Association, released a memo April 4, which she said was closer to a legal opinion than the organization’s normal bill summaries.
Written by lawyer Diana Ferguson, the memo addresses customary use and the public’s use of Florida beaches, the “Public Trust Doctrine,” for which the state holds land seaward of the mean high water line.
“Customary use refers to the public use of the dry sandy areas of the beach and is an extension of the common law doctrine of custom,” the memo stated. It explained the 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.
In bold print, the memo also stated, “It should be noted that HB631 does not affect the statewide beach management program or any beach restoration, nourishment, or erosion control projects that participate in the program.” These programs must have an erosion control line — an ECL — established before the project and once an ECL has been established, it replaces the mean high water line and the common law no longer applies.
This means, all land seaward of the ECL is vested in the state as sovereign. Additionally, upland access to the beach is required.
The memo also states Florida’s beach management program is well established since 1965, when the fixed ECL was established and was upheld in an opinion by the U.S. Supreme Court in 2010.
For more information about the opinion, contact the Florida Shore and Beach Preservation Association at 850-906-9227 or email firstname.lastname@example.org.
— Sandy Ambrogi