Recent Cases Explore Public Beach Easements on Dynamic Beaches

SandBar Printer-Friendly Article
SandBar 10.2, April, 2011 Recommended citation: Jan Sznurkowski, Recent Cases Explore Public Beach Easements on Dynamic Beaches , 10:2 SandBar 4 (2011). Recent Cases Explore Public Beach Easements on Dynamic Beaches Jan Sznurkowski, 2011 J.D. Candidate, University of Florida Levin College of Law Recent court cases in Florida and Texas have confronted thorny issues surrounding beachfront access on dynamic beaches. Namely, when public beaches disappear is the public’s right to access the beach extinguished? The loss of public lateral beach access can threaten the tourism industry as well as cause quality of life issues for coastal residents. Predicted rates of sea-level rise and of increased intensity for tropical cyclones affecting the southeastern United States highlight the importance of these issues. Below is a discussion of two recent cases affecting public beach access on dynamic beaches in Texas and Florida. *Trepanier v. County of Volusia* In September 2007, a Florida appeals court considered whether Volusia County had caused a taking of property by allowing regulated driving lanes and parking areas on several property owners’ beachfront lots.1 Initially, the driving lanes were seaward of the affected properties and led to a parking area, also seaward of the properties, where beachgoers parked their vehicles before walking to the recreational beach area located seaward of the driving lanes. However, hurricanes in 1999 and 2004 caused the shoreline to move landward, jeopardizing the driving and parking areas. After the hurricanes, the county shifted the driving lanes and parking areas landward, causing them to now be situated on the property owners’ lots. The property owners sought monetary compensation for an inverse condemnation—an action alleging a government taking of property without compensation. They claimed that the county had affected a regulatory taking by administering the driving and parking areas on their properties; while they did not claim the county took the land, they believed the county was unreasonably interfering with their use of it. The property owners further claimed that even if the property had not been effectively taken, its value had diminished dramatically and they were due compensation for that diminution in value. The court stated that under Florida law, erosion does change property boundaries. There was no doubt, according to the court, that in the case of erosion the public’s right to the use of the land up to the mean high water mark migrated with that demarcation. However, in the case of avulsion — defined as a sudden, perceptible change — property boundaries do not change. The court noted that whether the public’s customary right to the use of the sandy beach landward of that line was migratory was unclear. In Florida, easements for the public use and enjoyment of beachfront land can be gained through custom. The court noted that “if it can be shown that, by custom, use of the beach by the public as a thoroughfare has moved seaward and landward” onto private property, the right of the public remains. To satisfy the test for customary use, it must be proved that the public uses the area and that the use is ancient, reasonable, and uninterrupted. The biggest sticking point is often whether the use is considered ancient, which is a fact specific inquiry to be undertaken on a case-by-case basis. The court noted that “it is not evident, if customary use of a beach is made impossible by the landward shift of the mean high water line, that the areas subject to the public right by custom would move landward with it to preserve public use on private property that previously was not subject to the public’s customary right of use.”2 This language is unclear and subject to varying interpretations. If the dry sand beach, in response to current erosion, moves onto a private parcel where it was not previously located, has the public’s customary right moved onto that private property as well? In this case, the court intimated that, like in Severance v. Patterson,3 discussed below, an easement for public use based on custom does not necessarily move with the dry sand beach. The court remanded the case for evidentiary findings on whether the public held the right to the use and enjoyment of the sandy beach area, including the activities of parking and driving, under the test established in City of Daytona Beach v. Tona-Rama,4 namely, whether the use was ancient, reasonable, and without interruption. Trepanier Remand On remand from the appellate court, the trial court denied all inverse condemnation and takings claims of the property owners.5 The trial court held that evidence proved that the public held a customary right to the use and enjoyment of the dry sand area landward of the mean high water mark. The court further held that evidence showed that parking and driving on the beach was an ancient and reasonable use and was included in the public’s customary right. Much of the opinion was dedicated to findings concerning proof that the use of motor vehicles should be considered ancient and reasonable under the requirements for an easement for customary use. The court found that vehicles were driven and parked on the area in question before the time of motor vehicles and that such use was continuous and without substantial interruption for nearly a century. The court further found that the dynamics of the beach area caused the property owners’ lots to be intermittently situated in an area customarily used by the public for driving and parking. The trial court adduced that the evidence demonstrated that this occasional use of the plaintiffs’ property had been “continual and without dispute.” This led the trial court to find that use of the plaintiffs’ property by the public was clearly based on the evidence necessary to establish a public easement. This manner of framing and addressing the issue avoided issues touched upon by the appellate court: Does a public easement by custom migrate or “roll” landward with the dry-sand beach onto previously-unaffected private property? How does the distinction between erosion and avulsion affect the analysis? The case was not appealed. While the defendants prevailed in this case, it falls to future cases to answer many important and difficult questions of how coastal dynamics affect the future of public easements based on custom on Florida beaches. *Severance v. Patterson* The issue of public easements for the use of private beach property have also been a hot legal issue in Texas. Recently, the Texas Supreme Court had to decide if the public’s easement moved with the dry-sand beach. Texas and its Open Beaches Act (OBA) have often been held up as the model for protecting the public’s right to utilize beaches based on historic usage. The OBA guarantees the public a free and unrestricted right to use state-owned beaches from the mean low-tide mark to the vegetation line. A Texas property owner, Carol Severance originally sued Texas for a taking of her property when the state sought to enforce provisions the OBA.6 In 2005, Hurricane Rita caused a severe landward shift of the vegetation line, causing a house on the Severance’s property to be entirely situated on a public beachfront easement, interfering with the public’s right to the use and enjoyment of the beach. The State of Texas sought to enforce the easement, attempting to force the movement of the house off of the disputed area. Severance sued, claiming it was an unconstitutional taking because the easement was extinguished when the ocean engulfed the land previously encumbered and that the state could not enforce an easement on a previously unencumbered property without first proving its existence independent of the extinguished easement. The federal district court found that the easement did “roll” onto Severance’s property and ruled against her. Severance appealed. On appeal, the Fifth Circuit Court of Appeals certified three questions of state law to the Texas Supreme Court: 1) Are rolling public beachfront access easements recognized in Texas? 2) If they are, is the source in Texas common law or the Texas Open Beaches Act? 3) What compensation would be due to property owners for the limitations on property caused by such easements? The Texas Supreme Court held that while changes by erosion can expand or shrink the land subject to an easement, in the case of avulsion such as occurred in the Severance case, the public’s easement is lost to the ocean. The court attaches the easement to the physical location of the original easement, not to the physical feature, the mean high water mark. The dissent contended that in a unique and dynamic area such as ocean shoreline it defies logic to enforce easements in the manner of the majority, citing Texas case law to support its contention that rolling easements are recognized under Texas common law. While the majority answered the first certified question in the negative, and therefore did not reach the latter two, the dissent would have answered the first affirmatively, finding the basis for the recognition of rolling easements in the common law and that there would be no taking and thus no additional compensation due to property owners. Conclusions What ultimately links both the Texas Supreme Court ruling in Severance and the Trepanier cases in Florida is the proposition that the public easement is attached to a geographic location (i.e. — specific coordinates on the land) instead of a geographic feature (i.e. — the dry-sand beach seaward of the natural vegetation line). The law of lateral public beach access in Texas and Florida seemed worlds apart in 2007. At that time a Florida appeals court had stated that it was not clear that an established public easement on the beach based on custom would move landward with the dry-sand beach. Texas, meanwhile, had well-established case law supporting the Texas Open Beaches Act and its famous “rolling easement” for public access on the beach seaward of the vegetation line. In 2010 the situation substantially changed. The 2007 remand of Trepanier in Florida resulted in a trial court decision that might still leave some hope alive that courts in Florida will not use the dynamism of the beach environment to undermine existing, historical use of the dry sand beach. Meanwhile, the Texas Supreme Court did exactly this in Severance when confronted with questions about the OBA. The Severance holding has already caused the cancellation of a large scale beach renourishment program that was to be undertaken on Galveston Island. The effect of the Trepanier decision is less clear since the decisions emphasized that the property in question had been affected by the easement in the past. Furthermore, the decision in Florida, while positive for the public’s property right to use the dry-sand beach, came only from a trial court while the Texas decision came from the Texas Supreme Court, binding all other courts in the state. As this issue went to press, the Texas Supreme Court agreed to rehear the suit. Endnotes 1 . Trepanier v. County of Volusia, 965 So.2d 276 (Fla. 2007). See also Lynda Lancaster, Landowners Prevail in Beach Access Case, 7:1 SandBar, 9 (2008). 2. Trepanier, 965 So. 2d at 293. 3. Severance v. Patterson, 54 Tex. Sup. Ct. J. 172 (2010). 4. City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 79 (Fla. 1997). 5. Trepanier v. County of Volusia, 17 Fla. L. Weekly Supp. 782a (Fla.Cir.Ct. March 30, 2010). 6. Joseph Rosenblum, Rolling Beach Easement Not a Taking, 7:1 SandBar, 5 (2008).
Phone (662) 915-7775 • Fax (662) 915-5267 • 256 Kinard Hall, Wing E, University, MS 38677-1848

SandBar 10.2, April, 2011
Recommended citation: Jan Sznurkowski, Recent Cases Explore Public Beach Easements on Dynamic Beaches , 10:2 SandBar 4 (2011).

Jan Sznurkowski, 2011 J.D. Candidate, University of Florida Levin College of Law

Recent court cases in Florida and Texas have confronted thorny issues surrounding beachfront access on dynamic beaches. Namely, when public beaches disappear is the public’s right to access the beach extinguished? The loss of public lateral beach access can threaten the tourism industry as well as cause quality of life issues for coastal residents. Predicted rates of sea-level rise and of increased intensity for tropical cyclones affecting the southeastern United States highlight the importance of these issues. Below is a discussion of two recent cases affecting public beach access on dynamic beaches in Texas and Florida.

Trepanier v. County of Volusia
In September 2007, a Florida appeals court considered whether Volusia County had caused a taking of property by allowing regulated driving lanes and parking areas on several property owners’ beachfront lots.1 Initially, the driving lanes were seaward of the affected properties and led to a parking area, also seaward of the properties, where beachgoers parked their vehicles before walking to the recreational beach area located seaward of the driving lanes. However, hurricanes in 1999 and 2004 caused the shoreline to move landward, jeopardizing the driving and parking areas. After the hurricanes, the county shifted the driving lanes and parking areas landward, causing them to now be situated on the property owners’ lots.
      The property owners sought monetary compensation for an inverse condemnation—an action alleging a government taking of property without compensation. They claimed that the county had affected a regulatory taking by administering the driving and parking areas on their properties; while they did not claim the county took the land, they believed the county was unreasonably interfering with their use of it. The property owners further claimed that even if the property had not been effectively taken, its value had diminished dramatically and they were due compensation for that diminution in value.
      The court stated that under Florida law, erosion does change property boundaries. There was no doubt, according to the court, that in the case of erosion the public’s right to the use of the land up to the mean high water mark migrated with that demarcation. However, in the case of avulsion — defined as a sudden, perceptible change — property boundaries do not change. The court noted that whether the public’s customary right to the use of the sandy beach landward of that line was migratory was unclear.
      In Florida, easements for the public use and enjoyment of beachfront land can be gained through custom. The court noted that “if it can be shown that, by custom, use of the beach by the public as a thoroughfare has moved seaward and landward” onto private property, the right of the public remains. To satisfy the test for customary use, it must be proved that the public uses the area and that the use is ancient, reasonable, and uninterrupted. The biggest sticking point is often whether the use is considered ancient, which is a fact specific inquiry to be undertaken on a case-by-case basis. The court noted that “it is not evident, if customary use of a beach is made impossible by the landward shift of the mean high water line, that the areas subject to the public right by custom would move landward with it to preserve public use on private property that previously was not subject to the public’s customary right of use.”2
      This language is unclear and subject to varying interpretations. If the dry sand beach, in response to current erosion, moves onto a private parcel where it was not previously located, has the public’s customary right moved onto that private property as well? In this case, the court intimated that, like in Severance v. Patterson,3 discussed below, an easement for public use based on custom does not necessarily move with the dry sand beach. The court remanded the case for evidentiary findings on whether the public held the right to the use and enjoyment of the sandy beach area, including the activities of parking and driving, under the test established in City of Daytona Beach v. Tona-Rama,4 namely, whether the use was ancient, reasonable, and without interruption.

Trepanier Remand
On remand from the appellate court, the trial court denied all inverse condemnation and takings claims of the property owners.5 The trial court held that evidence proved that the public held a customary right to the use and enjoyment of the dry sand area landward of the mean high water mark. The court further held that evidence showed that parking and driving on the beach was an ancient and reasonable use and was included in the public’s customary right. Much of the opinion was dedicated to findings concerning proof that the use of motor vehicles should be considered ancient and reasonable under the requirements for an easement for customary use. The court found that vehicles were driven and parked on the area in question before the time of motor vehicles and that such use was continuous and without substantial interruption for nearly a century. The court further found that the dynamics of the beach area caused the property owners’ lots to be intermittently situated in an area customarily used by the public for driving and parking. The trial court adduced that the evidence demonstrated that this occasional use of the plaintiffs’ property had been “continual and without dispute.” This led the trial court to find that use of the plaintiffs’ property by the public was clearly based on the evidence necessary to establish a public easement.
This manner of framing and addressing the issue avoided issues touched upon by the appellate court: Does a public easement by custom migrate or “roll” landward with the dry-sand beach onto previously-unaffected private property? How does the distinction between erosion and avulsion affect the analysis? The case was not appealed. While the defendants prevailed in this case, it falls to future cases to answer many important and difficult questions of how coastal dynamics affect the future of public easements based on custom on Florida beaches.

Severance v. Patterson
The issue of public easements for the use of private beach property have also been a hot legal issue in Texas. Recently, the Texas Supreme Court had to decide if the public’s easement moved with the dry-sand beach. Texas and its Open Beaches Act (OBA) have often been held up as the model for protecting the public’s right to utilize beaches based on historic usage. The OBA guarantees the public a free and unrestricted right to use state-owned beaches from the mean low-tide mark to the vegetation line. A Texas property owner, Carol Severance originally sued Texas for a taking of her property when the state sought to enforce provisions the OBA.6
      In 2005, Hurricane Rita caused a severe landward shift of the vegetation line, causing a house on the Severance’s property to be entirely situated on a public beachfront easement, interfering with the public’s right to the use and enjoyment of the beach. The State of Texas sought to enforce the easement, attempting to force the movement of the house off of the disputed area. Severance sued, claiming it was an unconstitutional taking because the easement was extinguished when the ocean engulfed the land previously encumbered and that the state could not enforce an easement on a previously unencumbered property without first proving its existence independent of the extinguished easement. The federal district court found that the easement did “roll” onto Severance’s property and ruled against her. Severance appealed.
      On appeal, the Fifth Circuit Court of Appeals certified three questions of state law to the Texas Supreme Court: 1) Are rolling public beachfront access easements recognized in Texas? 2) If they are, is the source in Texas common law or the Texas Open Beaches Act? 3) What compensation would be due to property owners for the limitations on property caused by such easements?
      The Texas Supreme Court held that while changes by erosion can expand or shrink the land subject to an easement, in the case of avulsion such as occurred in the Severance case, the public’s easement is lost to the ocean. The court attaches the easement to the physical location of the original easement, not to the physical feature, the mean high water mark. The dissent contended that in a unique and dynamic area such as ocean shoreline it defies logic to enforce easements in the manner of the majority, citing Texas case law to support its contention that rolling easements are recognized under Texas common law. While the majority answered the first certified question in the negative, and therefore did not reach the latter two, the dissent would have answered the first affirmatively, finding the basis for the recognition of rolling easements in the common law and that there would be no taking and thus no additional compensation due to property owners.

Conclusions
What ultimately links both the Texas Supreme Court ruling in Severance and the Trepanier cases in Florida is the proposition that the public easement is attached to a geographic location (i.e. — specific coordinates on the land) instead of a geographic feature (i.e. — the dry-sand beach seaward of the natural vegetation line). The law of lateral public beach access in Texas and Florida seemed worlds apart in 2007. At that time a Florida appeals court had stated that it was not clear that an established public easement on the beach based on custom would move landward with the dry-sand beach. Texas, meanwhile, had well-established case law supporting the Texas Open Beaches Act and its famous “rolling easement” for public access on the beach seaward of the vegetation line.
In 2010 the situation substantially changed. The 2007 remand of Trepanier in Florida resulted in a trial court decision that might still leave some hope alive that courts in Florida will not use the dynamism of the beach environment to undermine existing, historical use of the dry sand beach. Meanwhile, the Texas Supreme Court did exactly this in Severance when confronted with questions about the OBA. The Severance holding has already caused the cancellation of a large scale beach renourishment program that was to be undertaken on Galveston Island. The effect of the Trepanier decision is less clear since the decisions emphasized that the property in question had been affected by the easement in the past. Furthermore, the decision in Florida, while positive for the public’s property right to use the dry-sand beach, came only from a trial court while the Texas decision came from the Texas Supreme Court, binding all other courts in the state. As this issue went to press, the Texas Supreme Court agreed to rehear the suit.

Endnotes
1 . Trepanier v. County of Volusia, 965 So.2d 276 (Fla. 2007). See also Lynda Lancaster, Landowners Prevail in Beach Access Case, 7:1 SandBar, 9 (2008).
2.   Trepanier, 965 So. 2d at 293.
3.   Severance v. Patterson, 54 Tex. Sup. Ct. J. 172 (2010).
4.   City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 79 (Fla. 1997).
5.   Trepanier v. County of Volusia, 17 Fla. L. Weekly Supp. 782a (Fla.Cir.Ct. March 30, 2010).
6.   Joseph Rosenblum, Rolling Beach Easement Not a Taking, 7:1 SandBar, 5 (2008).