Tag Archives: Florida

Public or Private? Current Battles over Beachfront Access of Waterfront Homes

A number of legal battles concerning the relationship between public access laws and private property rights for waterfront homes are unfolding across the country, four of which are being closely followed due to the broader implications of their rulings and the precedents they will set — particularly as they affect waterfront homes for sale.

Each dispute pertains to waterfront land that is privately owned yet falls under the protection of public trust doctrine – the legal principle that permits governments to designate certain natural resources for public use. Belonging to the public and private realm simultaneously, this type of land is frequently the subject of lengthy legal proceedings in which the right of landowners to exclusive use of their property is weighed against the right of the government to retain shoreline, bodies of water, and other natural resources for public use. Litigation is often necessary to provide case-specific interpretation of the rights and limits of each involved party.

Two of these legal battles continue to be waged in court, but rulings have recently been reached in the other two. In both cases, the panel upheld the public’s right to use land that is privately owned yet also designated, under public trust doctrine, for public use.

WISCONSIN WATER RIGHTS BATTLE

The first of these cases concerns the right of a waterfront property owner in Wisconsin to construct a dock on flowage waters that border her property, but which also flow over submerged land – the riverbed – that belongs to her neighbor.

Sailor Creek Flowage, Fifield, Wisconsin

Claiming that his ownership of the waterbed beneath the flowage gave him the right to exclusive use of the water flowing above it, David Lobermeier sued his neighbor Gail Movrich – who also happens to be his sister – for installing a dock over the flowage.

Citing the Wisconsin Constitution, which holds navigable waters in trust for public navigation and recreation, the panel ruled against Lobermeier on the grounds that the state’s public trust doctrine grants Movrich, as a member of the public, unrestricted access to the flowage waters, and consequently, the freedom to build a pier as “a natural extension of the navigational and recreational activities” that she is guaranteed.

The case is significant because it set the precedent for disputes involving the right to access a water body that abuts one’s property, yet also happens to flow atop a riverbed owned by someone else. The unique designation of the water body as a “flowage” – a body of water formed by overflowing – also factored into the panel’s decision, as did the fact that Lobermeier owned only a fraction of the flowage waterbed. Had it been a lake, for instance, and the entire waterbed owned by Lobermeier, the panel reasoned, the Wisconsin Constitution would have allowed Movrich to access the water, but not to build a dock atop it.

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WHO OWNS THE DRY SAND IN NORTH CAROLINA?

In the second case, the New Jersey Supreme Court ruled against a retired couple’s claim that an ordinance prohibiting them from building within a 20-foot wide stretch of beach behind their North Carolina home was a violation of their right to exclusive use of their property.

But reasoning that the North Carolina public trust doctrine guarantees public access to all of the state’s beaches – not, as in the couple’s home state of New Jersey, just the wet-sand sections – the Court preserved a long-standing North Carolina common law which holds the entirety of the state’s beach land in trust for the use and enjoyment of the public.

Emerald Isle, North Carolina

Had the Court decided differently, the repercussions would have been so dire, and so far-reaching, that a host of other coastal towns throughout North Carolina contributed money and support to Emerald Isle’s defense efforts.

For instance, important public services including emergency response, beach patrol, trash collection, and environmental conservation groups are all reliant on full public access to the state’s beach, and would have had to drastically modify or even suspend their services had the Court defended the right of private owners to exclusive use of public beach within their property lines.

Another consequence of such a ruling would have been the fencing off of privately owned beach properties from the public portions of beach, which would have proven disastrous as far as the appeal of these beachfront communities for visitors, and dealt a blow to coastal businesses that rely on revenue generated by tourism.

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HALF MOON BAY FIGHTS BACK

In Northern California’s Half Moon Bay, desire for public access to a beach that has been closed to the public since 2010 is so widespread and fervent that the community has mobilized the California State Lands Commission in hopes of seizing the beach from its owner through eminent domain.

Martins Beach, Half Moon Bay, Carolina

Though the cost of doing so could reach up to tens of millions of dollars – a sum that is highly unlikely to be raised, even in the affluent town of Half Moon Bay – state Senator Jerry Hill introduced a bill which would appropriate money from the general fund and allocate it toward the cause.

The California State Lands Commission is unlikely to act until the three pending cases involving the property are settled, the most recent of which is a lawsuit filed by the owner against the Commission and two other government agencies he alleges to have violated his 14th Amendment rights by denying him exclusive use of his own property.

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ZUCKERBERG vs. KAUAI

In Kauai, a public uproar has been caused by the island’s newest inhabitant – Facebook CEO Mark Zuckerberg – whose disregard for the state’s public access laws and indifference to the rights and desires of native residents is rubbing many the wrong way.

Zuckerberg’s new home – a 700-acre estate he purchased for $100 million – contains within its boundaries a number of public beach access points, a popular coastal pathway, and a trail believed by many to be the Ala Loa – a legendary ancient footpath protected for public use under the Highways Act of 1892.

One of two public beaches which flank, and at times overlap, Zuckerberg’s property

Historians, activists, advisors to the Department of Land and Natural Resources on Native Hawaiian Cultural Matters, and many others have been pleading with Zuckerberg to allow public access to the trail – which is in fact guaranteed to the public under the state’s public access laws – but Zuckerberg refuses to respond. Additionally, several community members have reported being accosted and threatened by Zuckerberg’s security guards for using the coastal pathway that runs through his estate. In June, a 6-foot tall rock wall constructed around the property was interpreted by many as an expression of the Facebook mogul’s indifference to their rights and wishes, as well as his blatant disregard for public access law.

The recently constructed wall surrounding Zuckerberg’s estate

Zuckerberg has been urged to at least create easements that make it easier for the public to utilize the beach access points on his property, which lead to two of Kauai’s most legendary and beloved beaches – Ka’aka’anui and Pilaa – but he shows no intention of doing so. According to public access law in Hawaii, the public is afforded unrestricted access to all of the state’s beaches, as well as the right to safe passage along the entire coast, even if safe passage requires people to traverse private property.

Despite the ongoing tension between Zuckerberg and so many of his new neighbors, lawsuits have thus far been avoided. If the Facebook CEO continues to deny them access to these public resources, however, expect the dispute to be settled in the courthouse. Public trust doctrine, the Highways Act of 1892, and common decency each hold that the residents of Kauai are entitled to enjoy any public resources that fall within Zuckerberg’s 700 acres.

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CONCLUSION

For hundreds of years, open access to oceans, shores, and other natural resources has been maintained and enforced as an inalienable human right. A host of factors – overdevelopment of waterfront houses for sale chief among them – have led to a colossal decline in universal enjoyment of this liberty over the past century, however, as privatization of land continues to sequester more and more of our planet’s offerings for the sole enjoyment of a privileged few.

As beaches and shores continue to vanish underneath steadily rising seas, causing rapidly receding coasts to encroach ever more on privately owned waterfront, the problematic relationship between private property rights and public access laws will not only persist, but intensify. One can only hope that waterfront landowners, their governing bodies, and the general public can learn to find compromise; one that acknowledges proprietary entitlements and allows for waterfront homes, yet adheres to the idea that our planet’s natural resources are the rightful domain of all living beings, and not merely the few who purchase and inherit them. True democracy demands, and perhaps begins with, the democratization of land.

Florida’s Sinking Coast – Part 2

Mounting recognition of global warming and its likely effect on the Florida coast has mobilized many people in the state to take action. Though some continue to doubt the existence, much less the severity, of climate change, many Floridians are actively engaged in efforts to mitigate the damage that global warming is expected to inflict on their coast.

The election of Donald Trump as next President introduces a new set of variables, however – and a heightened level of risk – to the situation. Trump has long been a skeptic of human contributions to global warming, and his stance does not appear to have softened at all since being elected. To head his transition team for the Environmental Protection Agency, Trump recently selected Myron Ebell – a prominent climate contrarian – who is expected to help Trump deliver on his campaign vow to repeal the Obama administration’s climate change policies. Climate scientists fear that the Trump administration’s cavalier attitude towards climate change – and of the causal role played by humans – will significantly hasten the consequences of global warming, including the flooding of United States coastal regions.

Ironically, real estate mogul and President-elect Trump owns a slew of South Florida properties, some situated in regions considered to be at risk of disappearing underwater by the end of this century. Whether or not Trump’s personal and business ties to coastal Florida will make him any more sympathetic to the pleas of climate scientists, we may soon find out.

UNITED STATES - JANUARY 22: Aerial view of Mar-a-Lago, the oceanfront estate of billionaire Donald Trump in Palm Beach, Fla. Trump and Slovenian model Melania Knauss will hold their reception at the mansion tonight after their nuptials at the Episcopal Church of Bethesda-by-the-Sea. (Photo by John Roca/NY Daily News Archive via Getty Images)

President-elect Trump’s Palm Beach estate, Mar-a-Lago.

Regardless of what ends up happening to Florida’s coastal regions, many predict that the publicity surrounding sea-level rise may very well cause property values in those areas to take a plunge.

Even now, Florida’s housing market is already starting to feel the impact of sea-level rise. Compared with a 2.6 percent increase nationally, home sales in high-risk flood zones in Miami-Dade County dropped about 7.6 percent this past year. In the past few years, areas most prone to flooding have had significantly slower sales than other parts of the county. This correlation is in keeping with a nationwide trend: throughout the country, median home prices in areas at high risk of flooding are 4.4 percent below what they were 10 years ago. This is due, in large part, to the astronomical cost of flood insurance. As flood insurance premiums rise, property values fall.

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In addition to the increased publicity about the likely repercussions of sea-level rise in coastal Florida, people are also discouraged from purchasing homes in those regions due to the state’s lax disclosure laws. In some states, such as California, Pennsylvania, and Washington, state and local real estate agents are required by law to provide thorough and accurate disclosure of a property’s past history of flooding, as well as its risk for future flooding. In Florida, however, laws requiring real estate agents to notify purchasers about a property’s likelihood of experiencing natural hazards only apply to a limited stretch of the state’s coast. On top of that, there are no penalties for a real estate agent’s failure to comply. Potential buyers are given no guarantee, and no sense of assurance, that their new property won’t soon be underwater.

Localities across coastal Florida worry that if property values continue to fall, they won’t be able to fund the upgrades needed to protect their towns against rising sea-level. This is because much of their revenue is generated through property and sales taxes, and thus relies on having a large population of homeowners to tax. As concerns about coastal flooding continue to grow, and demand for coastal property continues to decline, these towns will fail to attract new homeowners and their current residents will relocate, causing their populations to shrink. Without sufficient tax revenue, they won’t be able to afford the projects necessary to combat the rising seas, and will thus be forced to flea to higher grounds.

florida-coast-sea-levelhttp://www.environmental-watch.com/2014/05/30/south-florida-at-high-sea-level-rise/

Some owners will decide to unload their coastal property before rising seas render it unlivable or unsellable, and while its value is still relatively high. Others will stay put, and continue to enjoy the wonders of coastal Florida living. Whether dubious of the precipitously rising sea and the dangers it portends, or simply willing to take the risk and live with the consequences, they will keep on living the Florida waterfront dream, one day at a time.

Florida’s Sinking Coast – Part 1

The earth’s ice is melting at an unprecedented rate, and sea levels are rising just as rapidly. According to a recent study, ice melt has caused sea water levels to rise nearly 7.8 inches in the last 150 years alone. With 2016 slated to become the hottest year on record, ice melt and sea level rise show no signs of slowing down.

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Many low-lying coastal areas throughout the world are routinely flooded, and many in the past century have become completely and irreversibly submerged. If global sea level continues to rise at this rate, coastal communities all across the globe may soon meet with a similar fate.

Coastal Florida is one such area. Parts of Miami, as well as other low-lying parts of the state, routinely experience flooding during high tides, and local governments throughout South Florida have already begun spending money on drainage improvements and pumping equipment. But how much will sea levels continue to rise? How quickly? How will this affect a Florida economy so dependent on coastal tourism? And what, if anything, can be done to prevent it?

Many scientists estimate that sea levels will rise somewhere between 3 and 6 feet by the end of the century. In certain low-lying parts of Florida, the shoreline is expected to move about 300 feet inland with each foot of sea level rise. Some worry that such low-elevation Florida cities as Sarasota, Venice, North Port, Bradenton, Punta Gorda, Naples, and Holmes Beach will either turn into islands or become completely submerged within the next 100 years. The following image is a projection, generated by the National Oceanic and Atmospheric Administration’s Office for Coastal Management, of how Miami-Dade County would likely be affected by a 3-foot rise in sea levels.

slr-seflorida1

In addition to permanently inundating low-lying coastal lands, rising sea levels are also expected to cause a huge increase in storm surge and tidal floods along Florida coastland. Of the 10 urban centers in the United States that are most vulnerable to storm surge – temporary rise in sea level that is caused by storms – Florida is home to over half. Tidal flooding resulting from storm surge typically drains from the land in a matter of days, but the damage it causes is often substantial. Southeast Florida currently experiences an average of 10 tidal floods annually, but within the next 30 years, scientists estimate that the region will be forced to endure a staggering 240 floods annually.

In Florida, sea-level rise is not merely a science issue, says Boca Raton-based oceanographer John Englander, but “a real estate, finance and built-environment issue” as well. Should sea levels rise significantly within the next century, measures currently being taken to prevent coastal flooding – such as elevating infrastructure and buildings, building detention ponds, installing pumps, digging runoff tunnels, and improving storm sewers – will not be enough to keep the coasts above water, and people will be forced to evacuate many South Florida areas. This would inevitably lead to a spike in property value in higher-elevation, inland regions just north of the southern coast, like Highlands, Polk, and Lake counties.

gw-impacts-graphic-coastal-states-at-risk-from-global-sea-level-risehttp://www.ucsusa.org/global_warming/science_and_impacts/impacts/causes-of-sea-level-rise.html#.WD0gh6IrInU

So what does this mean for property owners along the Florida coast? Well, at this point much remains unclear. Those living in Florida – citizens and government officials alike – can’t seem to agree on the merits of the scientific evidence indicating that sea level rise is real, or if the threat it poses to their coasts is legitimate. As a result, little has been done to prepare the state’s coastal communities for what potentially lies ahead.

Some folks – including builders, architects, realtors, and developers – are skeptical of the supposed dangers posed by rising sea levels, and view the whole thing as overblown. They point out that sea levels naturally fluctuate over time, and view the recent increase as just the current swing of a pendulum that will inevitably head back in the opposite direction.

Others very much believe the warning calls from scientists, and insist that we take heed. They worry that unless action is taken now, taxpayers will end up having to spend a fortune trying to reverse the problem later on down the road. But by then, some fear, it will be too late; much of low-lying Florida will have drowned, tourism revenue will have plummeted, and the state economy will have taken a nosedive.

So who’s right? And what does all of this speculation mean for Florida’s coastal real estate market? Stay tuned for Part 2, as we discuss how sea-level rise is already beginning to affect Florida’s coastal homeowners.

Coastline Sustainability

coast-erosion

Public beach along the coasts of the United States has become increasingly privatized and developed over the past half-century. Accompanying this development has been a massive influx of fences, barricades, jetties, and other barriers intended to keep the public away from these privately owned beaches. According to a growing number of recent reports by scientists and environmentalists, these types of barriers play an enormous role in the destruction of our coasts.

The 1960s marked the beginning of the rampant development of shoreline property along our coasts. The efforts of oceanfront property owners, private homeowners’ associations, and coastal municipalities to restrict public access to beaches – and thereby ensure the exclusivity and marketability of their properties – have led to the increasing privatization of America’s sandy shores. As once-public stretches of beach became privately owned, a number of unsustainable development practices proliferated.

Tidal lands, instrumental in soaking up floodwaters, were drained and developed. Sand dunes, which play a crucial role in blocking rising tides, were bulldozed to the ground to maximize ocean views. Jetties, sea walls, and bulkheads were constructed to defend against the assault of incoming tides, but ended up accelerating erosion. Landowners went to great lengths to wall off their stretches of beach from the public, and to delineate their oceanfront property from that of their neighbors. Dikes, fences, and other physical barriers were thrown up by the heap.

According to a New York Times article published in the wake of Hurricane Sandy, these measures contribute significantly to the damage inflicted on coastal lands by hurricanes. The development of tidal lands and the removal of sand dunes have left the Eastern and Southern Seaboards increasingly vulnerable to the assault of hurricanes and other storms. Without tidal lands to soak up floodwaters, or sand dunes to serve as buffers between the ocean and the coast, coastal lands have been subjected to vicious damage at the hands of coastal storms. Jetties, sea walls, bulkheads, fences, and all other sorts of barricades erected by developers to lessen the effects of tidal waters are no match against the powerful winds and tides of such storms, and they are invariably washed ashore at tremendous speeds, and at great costs.

Even without the added impact of hurricanes and storms, these measures – particularly the development of tidal lands and the removal of sand dunes – have made much of our coastline far more susceptible to the effects of erosion and rising sea levels. Without these natural buffers, coastal lands all across the nation are at far greater risk of being eroded, and of being battered by storms.

According to a growing number of scientists, our best defense against the destruction of our coasts would be to declare our coasts public again. An “open beaches” act would put a stop to the harmful – and futile – efforts by private property owners to hold back the sea. It would put an end to the fencing off of public beaches as private domain. And it would better ensure the future of America’s increasingly threatened coasts.