SandBar 7:1, Regulatory Takings Issue, April, 2008

Landowners Prevail in Beach Access Case

Trepanier v. County of Volusia, 965 So. 2d 276 (Fla. 2007).

Lynda Lancaster, J.D.

The beachside communities of Volusia County, Florida, including Daytona Beach, are famous for sands hard enough to drive on. In fact, at one time, the beaches were used to set automobile land speed records. However, after several hurricanes shifted the public portion of the beach closer to private property, the landowners objected to the county allowing beach goers to drive and park on the beach.

Backgrounds
Endangered sea turtle and nesting shore birds share the beaches of Volusia County with all the other sun seekers. The county protects these species by setting aside a thirty-foot Habitat Conservation Zone (HCZ) in which vehicles are prohibited. Prior to Hurricanes Floyd and Irene in 1999, the HCZ area was outside of private property. The hurricanes caused substantial erosion, which resulted in the county moving the HCZ farther landward onto private lots. After the HCZ was moved, vehicles began driving up to and parking on the edge of the HCZ, which was on the private lots. Hurricanes in 2004 resulted in further erosion and encroachment onto the private property.
            Several beachfront homeowners, Alfred Trepanier, Louis Celenza, and Zsuzsanna Celenza, filed suit against Volusia County. The homeowners alleged the county had appropriated their property for parking and driving lanes. The homeowners also alleged trespass based on the maintenance of the parking and driving lanes. Finally, the plaintiffs filed an inverse condemnation claim based on the county’s installation of HCZ posts on their property.
            In response, the county alleged that the public had a right to use the property based on the theories of dedication, prescription, and custom. The county sought an injunction to stop the plaintiffs’ interference with the public’s rights of access. The county also asked the court to declare that the county held a strip of beach in front of the Celenzas’ lot in trust for the public. The trial court denied the homeowners’ request for summary judgment on those claims and granted summary judgment to the county.
            On appeal to the Fifth District Court of Appeals, the plaintiffs claimed that the entry of summary judgment was in error because it was not clear whether the elements of dedication, prescription, and custom had been satisfied. Citing City of Daytona Beach v. Tony-Rama,1 the county argued that the public has the right to access and use the beach, including the right to drive and park on the beach. The county also argued that the public use right moves with the changing coastline.
 
Prescription, Dedication, Custom
On appeal, the court looked at whether the elements of dedication, prescription, and custom had been satisfied. To gain a prescriptive easement in land, the access must be continuous for the statutory period of twenty years, actual, adverse under a claim of right, and either known to the owner or so open, notorious, and visible that knowledge may be imputed to the owner.2 Additionally, the access must be inconsistent with the rights of the landowner, otherwise it would be presumed that the use was by the permission of the landowner. Finally, the occupation must be a defined area with a definite end. The court determined that it was not clear from the record whether the public was continuously driving on the area of the beach at issue or that the public’s use was adverse; therefore, there were genuine issues that precluded the trial court’s grant of summary judgment.
            Dedication is another way that the public could obtain a right to use private property. To show that there has been a dedication, the landowner must have expressed a present intention to appropriate his lands to public use. In this case, the beachfront homeowners argued that there was no clear indication that that was ever done on their beachfront. While the trial court found that the developers had established roads, streets, and drives for public use, the appellate court determined that the developers’  maps and descriptions did not indicate a dedication, and thus there was no right of access by dedication. If people were accessing the beach, it was without the homeowners’ permission.
            Custom is the third way to gain public beach access. Custom is a practice that has the force of law due to a common adoption of a long-unvarying habit.3
            First, the court noted that the Florida Supreme Court’s decision in Tona-Rama held that the public may acquire a right to use the sandy area adjacent to the mean high tide line by custom when the use of the sandy area has been ancient, reasonable, without interruption and free from dispute. The appellate court held that the intent of the court in Tona-Rama was to establish a public-use right only for the beach in question in that case.
            Next, the court looked at how a customary right is established. The court agreed with the plaintiffs that the elements of whether the use was ancient, reasonable, without interruption and free from dispute required a fact specific examination, which the trial court did not perform before granting summary judgment. Furthermore, the court found that although driving and parking were a customary use of some of the beaches, this did not include all of Volusia County beaches and should be decided on a case by case basis.
            Finally, the court had to decide whether the public’s use shifted with the changing shoreline. Erosion is a fact of coastal living, which the Florida Constitution and common law rules acknowledge. The Florida courts have determined that the slow seaward shift of sand, causes the mean high tide line to shift, resulting in a loss of land to the landowner. The court agreed with the county’s argument that if the change in the mean high water mark was the result of erosion, then the public’s right of access would be preserved under the public trust doctrine. In this case, however, it appeared as if the change in the beach was the result of avulsion rather than erosion. Avulsion is the sudden removal of land through a storm or some other event.  The court found that when the land is avulsed, or so changed that there is a difference in the landscape after one storm event, the boundaries are not subject to change, and private landowners would not lose their beach.4 It was not certain whether the areas subject to the public right by custom would move as a result of avulsion. The court reversed the summary judgment in favor of the county and sent the question back to the trial court to determine if the public’s right to access the beach migrates with avulsion as it does with erosion.

Conclusion
The court reversed the trial court’s grant of summary judgment, finding that the general issues of material fact had not been resolved. The appellate court did agree with the trial court that if the public has a right to access the beach by custom, there is no taking and the land owners are not entitled to money for the public’s access of the beach.

Endnotes
1.  294 So. 2d 79 (Fla. 1997).
2.  Trepanier v. County of Volusia,965 So. 2d 276, 284 (Fla. 2007).
3.  Black’s Law Dictionary 169 (2d Pocket ed. 2001)
4.  In re City of Buffalo, 99 N.E. 850, 852 (NY 1912).