Category Archives: Enviroment

Private Until Proven Public: New Law Restricts Public Access to Florida’s Beaches

Private Until Proven Public


For many Floridians, there’s only one way to spend the Fourth of July – at the beach. Each year, thousands commemorate our nation’s freedom by flocking to the roughly 600 beaches of coastal Florida.  As fireworks paint the sky shades of red, white, and blue, friends and strangers sit shoulder to shoulder on the shores below – a fitting celebration of the hard-earned rights, majestic natural lands, and solidarity shared by fellow Americans. And Floridians have long taken public beach access as a right.

best fireworks shows

Cape Coral: the largest 4th of July fireworks display in Southern Florida.

On Independence Day this year, however, those in the Sunshine State will have a bit less liberty to celebrate – and a lot less beach on which to do so.  

A newly passed state law allows Florida’s waterfront property owners to restrict public access to the sandy shores that fall within their property lines.  Signed a few weeks ago by Governor Rick Scott – despite the impassioned opposition of thousands of activists and beachgoers from throughout the state – House Bill 631 effectively strips the people of Florida of their right, which has been protected since the state’s inception, to recreational access to the state’s coastal lands.  

Public Access to Florida Beaches: A Brief History

The relationship between public beach access and private property rights is a sticky, often complicated issue that has been the subject of countless legal disputes between private owners and municipal or state governments.

Public trust doctrine – the ancient legal principle that governments may protect certain natural resources for public use – has long maintained the common law right of state governments to hold in trust all beaches for public use. Today, each individual state is responsible for articulating, interpreting, and enforcing the particular guidelines that determine which beach land may be designated as public.

In Florida, coastal land below the “mean high water line” – all parts of the shore that become awash during high tide – have been arduously defended by municipal governments as open to the public, irrespective of private property lines.  Wet sand has always been treated as belonging to the public domain, and while many beachfront property owners have fought to restrict public encroachment on their land, public trust doctrine has routinely been used to maintain the right to public access.  

Local governments have often adopted “customary use ordinances” to preserve these rights, by identifying the state’s long and storied tradition of public use.  In a landmark ruling in 1974 – City of Daytona Beach v. Tona-Rama, Inc. – the court enforced the public’s right to access a privately owned stretch of Daytona Beach by citing the deep, long-established connection between Florida’s coastal lands and its inhabitants: “No part of Florida is more exclusively hers, nor more properly utilized by her people,” the ruling proclaimed, “than her beaches.  And the right of the public of access to, and enjoyment of, Florida’s oceans and beaches has long been recognized by this Court.”

The case also established a legal precedent that would yield enormous influence in similar disputes in the decades that followed.  “If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute,” the court reasoned, “such use, as a matter of custom, should not be interfered with by the owner.”  The case of Trepanier v. County of Volusia, in 2007, helped establish a means by which customary use could be systematically proven, through “eyewitness testimony, expert testimony, and aerial photographs of the general are of the beach.” Often, just a longtime local’s testimony, together with old family photographs of a trip to the shore, would be enough to establish customary use, and public beach access, within a contested beach region.  

But those days are over.  With the passage of HB 631, it is no longer in the hands of municipal governments to proclaim customary use; now, that capacity belongs solely to judges.  Under the new law, customary use can only be proven in court, on a case-by-case basis, using ample and convincing evidence. Local governments no longer have the legal right to enforce public beach access to private beaches by passing customary use ordinances; the process has been moved to the judicial realm.  

Public beach access

While private property owners previously had to build their case, the onus is now on members of the public to obtain judicial affirmation of customary use.  To put it another way: for years, Florida’s coast was regarded as public until proven private, but now, it is private until proven public. Beachfront owners are now legally allowed to prohibit the public from walking along the sands above the high-tide line, whether by roping off parts of their beach property, constructing fences, or putting up signs.  

Opponents of the new law assert that it benefits a few at the expense of many.  Public beaches, they argue, are the heart of Floridian culture, extending all the way back beyond the state’s beginnings.  Others warn that the ruling will cripple Florida’s tourism industry – the lifeblood of the state economy.

Private beach

Florida Beach Laws Change

It is no coincidence that we celebrate our nation’s freedom and solidarity all along our coastal lands.  In commemorating our nation’s independence, we celebrate the rights afforded to us as a result of our freedom – the hard-fought liberties it is our obligation to preserve.  Chief among them is our right to enjoy the beautiful shores of our nation’s coasts.

As thousands of Americans descend upon the shores of the Sunshine State this Fourth of July – just three days after HB 631 officially goes into effect – we may do well to remember what it is we are celebrating.  We may do well to remember the words to an old folk tune we know so well – a Woody Guthrie song that has been hailed, appropriately, as a national anthem in its own right – and which has become, to many Americans, synonymous with Independence Day celebrations:

“This land is your land, this land is my land

From California, to the New York island

From the Redwood Forest, to the Gulf Stream waters

This land was made for you and me

And we may do well to remember an earlier version of the song, with a lesser known but particularly timely verse:

“There was a big high wall there that tried to stop me.

The sign was painted, said ‘Private Property.’

But on the backside, it didn’t say nothing.

This land was made for you and me.”



Is it a House or a Vessel? Floating Homes and the Landmark Supreme Court Ruling that Expanded Their Rights

Riviera Beach Marina; Riviera Beach, Florida

Of the hundreds of homes lining the waterfront in Riviera Beach, Florida, Fane Lozman’s was a bit…unique. A 60-by-12-foot plywood structure plopped atop empty bilge space that kept it afloat, the floating home contained no engine, no rudder, no bow, and no sails; unlike neighboring houseboats, it had no means of self-propulsion, and could only travel when towed. Land based utilities, in the form of an extension cord and garden hose, provided the home with its energy and running water, and sewer lines connected it to the septic system of its dock.

Fane Lozman’s floating home

That isn’t to say that Lozman’s home lacked for charm; French doors on three of its sides opened up to views of the Atlantic, and its water system, if a bit crude, allowed for a full-use bathroom and kitchen. A sitting room, private bedroom, and closet space rounded out the first floor, and a stairway led to a quaint second story office space.

In the latest of a string of legal disputes concerning the peculiar floating home, owner Fane Lozman is suing the city of Riviera Beach for $365,000 in restitution for seizing and destroying the structure, as a result of two court rulings that were later overturned by the United States Supreme Court.

The story begins in 2006, when the city of Riviera Beach made public their plans to seize 2,200 homes via eminent domain, along with the public marina, to sell to a private developer. Lozman was among the many Riviera Beach residents who rallied against the governmental seizure, which was ultimately prevented from happening.

Early rendering of the Riviera Beach Marina redevelopment

In what can perhaps best be described as an act of petty retaliation for his outspoken opposition to their development aspirations a few years earlier, the city made several unsuccessful attempts to evict Lozman from the marina. In 2009, with the help of a federal admiralty lawsuit alleging that Lozman’s home was in violation of federal maritime law, Riviera Beach was finally able to seize Lozman’s home.

In district court, the city argued that Lozman’s home was in fact a vessel, since it was capable of transportation on water, and Lozman should therefore have been paying dockage fees for the three years that it had been moored in the city’s marina. The court ruled in the city’s favor, on the basis that the structure’s capacity for transportation qualified it as a vessel, rather than a home. Since vessels fall under what is known as admiral jurisdiction, placing them in the legal domain of federal maritime authorities, Lozman’s home was found to be in violation of admiral law since it had avoided federal inspection, dockage fees, and other regulations to which all waterborne ships are subject. As a result, a lien was placed on the home, and Lozman was evicted.

Lozman’s home, shortly after it was seized

Lozman filed an appeal in the Court of Appeals shortly thereafter, asserting that his floating home was in fact a home, and not a ship, and therefore subject to the same regulations and protections as ordinary, land-based homes. The Court of Appeals confirmed and upheld the district court’s ruling, however, echoing the lower court’s contention that the home’s capacity for transportation on water effectively classified it as a vessel.

The Court of Appeals decision was based on a passage from the United States Code of Law, which defined a ‘vessel’ as any watercraft “used, or capable of being used, as a means of transportation on water.” First established in 1873, and re-codified in the Rules of Construction Act of 1947, this definition has remained virtually unchanged in the nearly 150 years since its inception, and has served as the deciding factor in a number of similar cases.

Deemed a vessel, and not a home, the structure fell under the jurisdiction of federal maritime law, rather than state-tenant law, with which Lozman had been complying.

As punishment for failure to pay three years’ worth of dockage fees and for violating maritime law, Lozman’s structure was ordered sold at auction, whereupon the city of Riviera Beach purchased it and had it promptly destroyed.

Lozman was incensed, understandably, by the ruling; his home was incapable of self-propulsion, and could only be used as a means of transportation when towed by another vessel. Other than being towed by another boat to the Riviera Beach marina three years prior, the home had never been moved, and it had been used explicitly for residential purposes ever since. Anyone with two eyes and a shred of sense could see, he insisted, that it was a home, seldom used for transportation. How could a vague and antiquated legal definition – the primary function of which was to ensure that commercial and other vessels operated safely and responsibly – overlook the obvious fact that this floating home was just that – a home – and not a ship?

Ignoring the fact that it was too late to salvage his home, Lozman decided to take the fight to the Supreme Court. In the outside chance that his case would be picked up, he reasoned, a victory would at the very least afford him financial restitution – and a sense of justice – for the destruction of his house.

Against all odds, Lozman’s case was selected for review by the Supreme Court, and against even greater odds, the rulings from both previous proceedings were overturned. In January of 2013 – four years after Lozman’s floating home was seized from him, and three years after it was destroyed – the United States Supreme Court determined in a 7-2 majority ruling that a waterborne structure’s capacity for transportation is not sufficient to qualify it as a vessel.

Of the 9 U.S. Supreme Court Justices, only Justice Kennedy and Justice Sotomayor voted to uphold the previous rulings

In explaining their decision, the Justices asserted that the definition of “transportation” – the conveyance of people or things from one place to another – must be applied in a practical, rather than literal, way. In other words, floating homes capable of being towed across water, presumably transporting household items along with them and nothing more, are not necessarily ‘vessels’ for transport, and should not be classified as such.

Accordingly, the ruling established an important legal precedent concerning homes and other structures that float on water, whereby federal maritime law cannot be applied in disputes involving structures whose functions and legal designations are ambiguous; instead, these structures must instead be governed by state law.

The decision marks a significant victory for the owners of the estimated 10,000 floating homes throughout the country. Federal maritime law tends to be inflexible and unfriendly to the interests of owners, relying on an outmoded legal definition that ignores the ways in which the disputed structures are actually used. Under admiralty jurisdiction, floating homes are often mischaracterized as vessels, making them liable for dockage fees, U.S. Coast Guard inspections, and a number of other undue restrictions.

Under the jurisdiction of state law, however, floating homes are much more likely to be recognized as residences, and afforded the same rights and protections – homestead exemptions, for example – of land-based homes.

This ruling was reached in 2013. Why are we talking about it now?

Well, four years after the Supreme Court overturned the rulings that saw his home seized, auctioned off, and demolished, Lozman has yet to receive a penny of reimbursement. He has already returned to court – the same district and appeals courts whose rulings were later reversed by the Supreme Court – in order to fight for restitution. Again, both courts have ruled against him.

Lozman asserts that the city of Riviera Beach owes him $165,000 for the destruction – later deemed unwarranted by the Supreme Court – of his floating home. He is also demanding compensation for his legal fees, to the tune of $200,000. “When the Supreme Court says something,” he contends, “it’s not for the lower courts to blow off their mandate.”

In a new floating home, Lozman and his dachshund continue to live in Riviera Beach

While the initial Supreme Court ruling sets an important precedent for future disputes involving waterborne structures such as Lozman’s, it does not carry with it an explicit mandate requiring the city of Riviera Beach to retroactively make good, so to speak, on their seizure and destruction of Lozman’s home. Neither the district nor the appeals courts have found the city responsible for compensating Lozman. The city’s main defense is that they had been acting in accordance with the law at the time; the Supreme Court decision, they maintain, has no bearing on actions that preceded it, only on those that follow after.

As improbable as it was that Lozman’s first case would be selected for review by the U.S. Supreme Court, it’s even more unlikely that his new filings will reach the Court. While Lozman may be a hero to the thousands of floating homeowners across the nation, whose rights were protected and expanded by the precedent established by his case, it’s unlikely that Lozman himself will be able to cash in. He may have to settle for the role of martyr.




Chesapeake Bay: The Prosperity, Decline, and Restoration of an American Treasure

With over 150 major rivers and streams from six different states flowing into it, Chesapeake Bay is the largest estuary in the lower 48 states. It plays a crucial role in both the ecology and the economy of Maryland and Virginia, the two states it spans, and has long been treasured for its pristine beauty and abundant, diverse wildlife.

Home to more than 300 species of fish and copious amounts of clams and oysters, Chesapeake Bay has supported one of the highest-grossing seafood industries in the United States.   It has also proven wildly popular among tourists, lured in hordes to its gorgeous blue waters, scenic shores, and the ample opportunities for fishing, crabbing, boating, and sailing that it offers.

The Dawn of Decline

Beginning in the early 1970s, however, Chesapeake Bay began to be plagued by a number of troubles, many of which persist to this day. Its rivers and streams, once a glassy, shimmering blue, had become enveloped in toxic green sheaths that permeated the air with an acrid, putrefying odor.

Its shores, once teeming with wildlife, were experiencing dramatic reductions in aquatic vegetation and animal life. Entire populations of fish were being wiped out, their corpses floating to the surface and washing up on the banks, in some cases by the thousands.

These problems, which seemed to crop up overnight, proved only the beginning of the sudden and steep decline that the bay would continue to experience. In less than a decade, Chesapeake Bay had become the poster child for human-induced environmental degradation, and all of its entailing devastation.

The Cause of Decline

What was the cause of all of this? How had one of the Eastern seaboard’s most prosperous biodiversities become its most polluted region, and in so short a time?

Intent on finding answers to these questions, Congress funded extensive scientific research of the Chesapeake Bay in the late 1970s and early 1980s. The findings of these series of investigations revealed that the problems plaguing Chesapeake Bay were largely the result of human activities. Construction, agriculture, and industry were found to be the primary contributors to the bay’s deteriorating health, because of the enormous amount of waste that each activity generates. These wastes, the studies showed, were being funneled directly into the bay by runoff, causing rampant growth of algae across the bay’s surface.

Algal blooms not only use up a great deal of oxygen that is present in the water, but they also block sunlight from penetrating below the surface. As algae proliferated across the surface of the bay, huge swaths of aquatic vegetation – unable to withstand the loss of oxygen and sunlight – were completely wiped out. Without vegetation, vast regions of the bay became uninhabitable, and the wildlife they had been supporting either dwindled or perished altogether.

Algae completely blankets the surface of the water in this Chesapeake Bay tributary.

Working Towards a Solution

In response to these findings, the governors of Maryland, Virginia, and Pennsylvania, along with the mayor of Washington DC and the administrator of the United States Environmental Protection Agency, signed the Chesapeake Bay Agreement of 1983. The agreement signified their collective dedication to restoring Chesapeake Bay to its former grace, and outlined a number of measures by which they planned to do so. Each measure belonged to one or more of five basic categories: living resource management, vital habitat protection, community engagement, water quality, and sound land use.

Most of the legislation that proceeded from the agreement focused on the last of these categories: sound land use. Given that the leading agents behind Chesapeake Bay’s deteriorating health – construction, farming, and industry – were also those most responsible for altering the natural landscape, the Maryland and Virginia state governments recognized the need for stricter land use policies. A host of new laws aimed at protecting the bay from waste-filled runoff were soon implemented, with new regulations that specified which lands could be used for which purposes and which lands were off-limits altogether.

Waterfront development that requires the use of cranes is particularly harmful to Chesapeake Bay health. Cranes remove vegetation, which destroys wildlife habitat and erodes soil, which ends up in the water and produces algae.

Critical Area Law

One of the most stringent of these measures, Maryland’s Critical Area law, came right on the heels of the Chesapeake Bay Agreement, and represented a groundbreaking advance in environmental legislation. It was the strongest of several laws that comprised the Chesapeake Bay Initiative, which then-Governor Harry R. Hughes had hoped would return the estuary to its former glory. By restricting development within 1,000 feet of the shoreline and disallowing any disturbance to land or vegetation within 100 feet of the water, Critical Area law sought to improve Chesapeake Bay’s water quality and preserve its waterfront wildlife habitat by ensuring the preservation of 5,200 miles of Maryland shoreline.

Only under exceptional circumstances – in theory, at least – could a landowner become exempt from these restrictions, by applying for a variance and receiving approval from the county.

Critical Area law pioneered a nationwide surge in environmental legislation that placed restrictions on development.   By prohibiting any and all construction on Maryland’s waterfront land, Critical Area law was expected to curtail further pollution of Chesapeake Bay, and thus ameliorate its diminished water quality, revivify its dwindling vegetation, restore its damaged habitats, and revitalize its waning wildlife.

So, did it succeed?

Unfortunately not. Today, Chesapeake Bay is just as contaminated, and in some areas far more so, than ever before. Several species of fish and shellfish in the bay have reached record lows, as have numerous species of aquatic plants. The two nutrients responsible for the algal blooms that continue to plague the bay, nitrogen and phosphorus, remain present in far higher levels than what is healthy and normal. And the bay is still ridden with marine dead zones – areas so lacking in oxygen that they cannot support plant or animal life – that render the bay more and more uninhabitable.

Swirls of green and black represent the unhealthy amount of nutrients present in the bay.

Why did it fail?

A number of follow-up studies have been conducted in order to determine why it is that Chesapeake Bay’s deterioration has persisted in spite of the introduction of so much, and such aggressive, environmental legislation. One such study, published in 2008, investigated Critical Area law and the influence it has had on the health of the bay since its inception. The study’s findings indicate that while Critical Area law has proven effective in preventing large-scale development of Chesapeake Bay, poor enforcement of the law has more or less negated its impact on smaller-scale development. Lenient approval of variances and lax monitoring of compliance have seen the law tiptoed around – or ignored completely – by droves of waterfront landowners over the past three decades.

Solomons Island, Maryland – an example of Chesapeake Bay’s densely concentrated waterfront properties

According to the study, variance requests by owners hoping to build on their waterfront property had been approved at a whopping 75% – a staggeringly high rate that far exceeds what the authors of the bill had envisioned in 1983.

Those without permission to build – either because their variance requests were denied or because they hadn’t bothered applying – went ahead and built anyway. Less than a decade after the new law went into effect, structures of every imaginable type – gazebos, pools, porches, full-size homes, even mansions and lighthouses, to name a few – had sprung up across the Maryland shoreline, many of them well within 1,000 feet of Chesapeake Bay.

Though these structures reflect a brazen disregard for state law, the study found that the vast majority of these violators went unpunished. County agencies tasked with monitoring compliance were too understaffed and underfunded to supervise so many miles of coastline, let alone administer sanctions. For the most part, punitive action was only taken when waterfront property owners lodged formal complaints against neighbors whose illegal structures impeded their views or beach access. The fines these violators were assessed were laughably small, hardly enough to deter anyone from building illegally.

The study also showed that violators were rarely ordered to tear down their illegal structures. In one case, an enormous mansion on a small island in the Magothy River – replete with a lighthouse, pool, gazebo, and boat ramp – was built without a single approval, went unnoticed for four years, and, after finally being discovered, was permitted to stand (other than the pool and gazebo, which were ordered removed).

Illegally built mansion on a small island in the Magothy River, Maryland

When caught, violators often applied for ‘retroactive variances’ which, for the most part, were just as easy to obtain as those requested prior to construction.

Has anything changed?

How has Critical Area law been more effective in the past decade? Did the findings from the 2008 study lead to stronger enforcement?

A study recently published by University of Maryland’s Environmental Law Clinic reveals that enforcement of Critical Area law has become even more ineffectual in recent years. Among the six counties included in the study, data showed that variance requests between 2012 and 2014 had been granted from 89% to 100% of the time. Those applying for variances frequently cited the term “unwarranted hardship” to justify their need to build. Without explicit guidelines by which to evaluate these ‘hardships,’ however, counties were given far too much discretion in approving construction, and proved far too accommodating.

In addition to woefully substandard oversight and lenient granting of variances, each of the six counties failed to keep adequate records of the few interventions they did make. Without proper records of each case they dealt with, they were unable to keep track of the waterfront properties they had monitored, and consequently, the variances they had denied and penalties they had assessed.

Algal blooms pervading Chesapeake Bay waters.

Another contributing factor to the rampant development of Maryland waterfront along the bay is the fact that most counties in the state do not have an inspector whose primary task is to examine properties for their Critical Area law compliance. That duty belongs to any number of field staff, whose primary focus is on other matters, such as construction grading and stormwater management. Additionally, many counties do not have their own boat, which severely limits the amount of oversight they are able to exercise. Anne Arundel County, for instance – one of the 6 counties studied – contains over 500 miles of shoreline, containing thousands of waterfront properties that couldn’t possibly be monitored adequately without a boat.

Skipjack boats, commonly used for dredging oysters, float on Chesapeake Bay.

The future of Chesapeake Bay – what does it look like?

It’s hard to say. A number of factors do not bode well for its eventual restoration, not least of which is the fact that an estimated 100,000 new residents move into areas around the bay each year. Additionally, many of the surrounding counties remain underfunded and incapable of policing waterfront construction.

Fines for violators remain low, often less than $1,000, and homeowners continue to build as they please. Approval of variances remains high, and Maryland’s tradition of local control means that any law that would grant the state the authority to permit variances would never pass.

It is unlikely that the federal government will intervene either, as President Trump just signed an executive order repealing one of former President Obama’s major environmental regulations, which aimed to protect American waterways. The regulation was initially issued as part of the 1972 Clean Water Act, which was inspired by the contamination of Chesapeake Bay, the Mississippi River, and Puget Sound. Completed by the Obama administration in 2015, the rule was intended to restore federal authority to limit pollution in the nation’s major waterways, as well as the streams and wetlands flowing into them. President Trump’s move to repeal the regulation precludes Chesapeake Bay from receiving federal assistance.

But there is also reason for hope. In 2010, the ecosystem health of Chesapeake Bay was given a rating of 31, which, although dismal, is three points higher than it scored in 2008 – a significant increase.

Additionally, recent polls have revealed that Americans are becoming increasingly wary of the threat posed by climate change. As more and more people across the nation accept the reality of climate change and the need to combat it, Americans are becoming increasingly receptive to policy aimed at mitigating our collective impact on the environment. Though perhaps no cause for celebration, the upward trend in national concern for climate change is certainly a cause for optimism. And as for restoring Chesapeake Bay to the state of prosperity from which it only so recently fell, it may be our only hope.