Tag Archives: Water Front Properties value

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.

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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.”

 

 

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.

Why Do We Spent 30% More For A Water View?

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“Why is it we’ll pay 30 percent more for a water view? It’s where you want to spend your vacation: on the beach. It’s what you want your home to face,” said marine biologist Wallace J. Nichols during a recent interview with Amanda FitzSimons from Elle Magazine.

Blue Mind: The Surprising Science That Shows How Being Near, In , On, or Under Water Can Make You Happier, Healthier, More Connected, and Better at What You Do (Little, Brown and Company), marine biologist Wallace J. Nichols asserts that regular interaction with water is as integral to one’s well-being as sunlight, exercise, and diet.

Hot springs and bathing was already use by the Romans and Greeks to heal and to relax.  Nichols uses a combination of of anecdotes and hard data, he makes a persuasive case for water’s healing power.

Among the book’s evidence: a study of college students that concluded spa bathing signifacntly reduced levels of the stress hormone cortisol. And in a social experiment at train stations in Japan (where the suicide rate is high), the incidence of jumping onto tracks was completely curbed once aqua-blue lights were installed. One of the book’s most convincing tidbits is a 2006 Irish study that concluded people living within five kilometers of the coast enjoyed higher life satisfaction.

Up for debate is whether this is due to their proximity to water or because people living near water tend to eat more fish and thus have diets higher in omega-3 acids, which have also been shown to reduce depression. Or, to Nichols’ point about waterfront vistas, whether they simply have more disposable income with which to secure a good view.