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Coastal Zone Information Center COASTAL ZONE INFORMArTION CENTER AE / .4 4 -~~~ ~Planning for Beach Access: .5627 KA Manual for Florida Local Governments 5627 B762 1979 Joint Center for Environmental and Urban Problems Florida Atlantic University and Florida International University /3/?? COASTAL ZONE INFORMATION CENTER PLANNING FOR BEACH ACCESS: A MANUAL FOR FLORIDA LOCAL GOVERNMENTS Prepared by William W. Dreyfoos FAU-FIU Joint Center for Environmental and Urban Probiems 1515 West Commercial Boulevard Ft. Lauderdale, Florida 33309 (305) 776-1430 June 1979 Funded in part by a grant from the Chastain Foundation lD. S. DEPARTMENT Of COMMERCE NOAA COASTAL SERVICES CENTER 2234 SOUTH HOBSON AVENUE CMARLESTON, SC 29405-2413 7- Property of CSC Library ACKNOWLEDGEMENT Much of this manual is freely excerpted from the North Carolina Sea Grant publication Access to the Nation's Beaches: Legal and Planning Perspectives (I 978) by David Brower et al., U N C-SG-77-1 18. This book is by far the most comprehensive treatment of beach access made to date, and is highly recommended as reference material for any government embarking upon a beach access planning or acquisition program. This manual culminates a yearlong study of beach access in southeast Florida, funded by the Chastain Foundation. The following individuals made valuable contributions to the project: Gay Moore, a graduate student in FAU's Master of Public Administration program, who guided the early phases of the project; John Wilkes, a law student at Nova Law School, and Professor James Brown, Nova Law School, for background legal research; Donald Bosich, a graduate student in FAU's Master of Public Administration program, for field research; and the Joint Center Staff. ii0.2) t CONTENTS CHAPTER ONE: OVERVIEW .............................I CHAPTER TWO: PLANNING METHODOLOGY ..............4 CHAPTER THREE: ISSUES TO BE CONSIDERED ............9 CHAPTER FOUR: LEGAL TOOLS FOR ACCESS ACQUISITION IN FLORIDA ...............11 CHAPTER FIVE: MODEL BEACH ACCESS ORDINANCE ......15 SELECTED BIBLIOGRAPHY .............................18 CHAPTER ONE: OVERVIEW What is beach access? Simply put, beach access is the way people get to the beach. Refer to the following diagram of beachfront property: PUBLIC 1,PRIVA'F PRIVAT[l: PUBLIC PRIVATE OceanWet :Dry : Upland Road Sand\ San~ Brower, Access to the Nation's Beaches, p. 61. In Florida as in most states, the public owns the wet sand. Beach access planning is a governmental response to this under a recent decision by the Florida Supreme Court, the decline in the quality and availability of beach recreation public also may have the right to use the dry sand for recrea- opportunities. It is based upon the willingness of government tional purposes. In other words, the public has the legal right to take active steps to preserve and enhance the public's enjoy- to use what people normally call the beach. But using the ment of beach recreation. This manual focuses on ways that beach and getting to it in the first place are two different local governments can preserve and enhance the beach recrea- things. tion opportunities available to the public. In most beach areas, the upland consists of a public road and one lot. This lot is usually called beachfront property. It Wa sbahacs lnig is usually privately owned. When Joe Public crosses this private Wa isBeach access planningfcsso h ubi' ea po property to get from the public road to the public beach, he is pretarycihtst across uplannin propuert tongtt the pbli' egach.ro trespassing. But for Joe Public to reach the water, he has to pIetay rihas to crssuplnbpoert tof diferet comonethebech cross the-upland someplace. How Joe Public manages to make It Preseratinume of existirng acomoenss this physical ingress and egress across the upland is the subject Prsvainoextngces of this manual. ~~~~~~~~~~2. Making better use of existing access of this manual. ~~~~~~~~~3. Acquisition of new accessways 4. Acquisition of parking areas proximate to accessways Why should we plan for beach access? 5. Development and maintenance of support services (e.g., Joe Public has the right to use the beach. But if he is unable police and lifeguards) and facilities (e.g., restrooms) to cross the privately owned upland, he has no way to get 6. Improving public transportation systems to make beach there. Increasingly in Florida, the development of beachfront access more accessible to more people, such as those property has eliminated ways Joe Public has traditionally used lacking automobile transportation to get to the beach. As a result, public recreation has effec- The exact focus of any particular beach access planning tively been barred from many expanses of public beach. More- program will depend on the local situation: what the local over, public beach recreation has increasingly been concen- access problems are, and how these can best be addressed with- trated in smaller areas, such as state or municipal beach parks. in the available financial resources. Each of these components As the public demand for beach recreation increases and the may be relevant to a given access problem. The following amount of access decreases, these areas become crowded, simplified examples illustrate these six components, and the parking becomes a problem, and the quality of beach recrea- ways that a number of governments in southeast Florida have tion available to the public declines. chosen to address their access problems. 1. Preservation of existing access: Sabal Point 3. Acquisition of new accessways: Boca Raton, Sabal Point is the tract of land abutting the Boca Raton Martin County, Broward County inlet on the north. For years, beach users customarily used the Acquisition has traditionally been the mainstay in the property for parking and beach access purposes. The decision beach access planner's arsenal. Through a variety of techniques, of the landowner to construct a hotel on the site engendered outlined in later chapters, this approach is to acquire public local response in the form of a lawsuit. Litigation is one tool easements or clear title to strips of upland property running that the public/local government can use to preserve existing from the beachfront road to the beach. public rights. In the Sabal Point case, there was a good case Acquisition can be used in a number of different ways. In for a prescriptive easement in favor of the public; in other the early 1970's, the Boca Raton beachfront was facing devel- words, there was a good chance that the public had acquired opment in the form of condominiums. The city residents acted rights to the Sabal Point property through years of continued to preserve beach recreation opportunities by passing bond public use (see Chapter 4, Tool :# 5). However, in this case, issues for the acquisition of beach parks. The result is a series the dispute continued for a number of years, and the resolu- of improved parks, adequate parking facilities, and high qual- tion seems to be of ambiguous benefit to the public: some ity beach recreation. public rights are recognized, but access may be transferred to In the early 1970's Martin County residents also reacted to other properties; the hotel will be built; and the continuation the anticipated development of the beachfront. Through of the prior public use on the Sabal Point property seems county and private efforts, money was raised to purchase 100 doubtful. foot wide strips of upland at half mile intervals. This acquisi- Preservation and perfection techniques can be important tion strategy was chosen to open up the greatest expanse of beach access tools. In North Carolina, for example, public beach for the least amount of money, and to ensure that the easements to the beach have been preserved by such simple county would qualify for beach renourishment subsidies from acts as the placing of signs and garbage receptacles. However, the U.S. Army Corps of Engineers. Currently, the access strips the Sabal Point example demonstrates that use of preservation are mostly unimproved, but do provide pedestrain access and techniques can also result in lengthy and costly disputes which space for automobile parking. drain governmental time and manpower that could be used Broward County has recently acquired some 10 foot wide in more productive ways. Still, the applicability of preser- strips of upland to provide pedestrian access to those who vation strategies provides a starting place for access planning: live or vacation several blocks away from the beach. These try to keep what you've got accessways are not served by parking facilities, and as a result function almost solely for the benefit of these near- beach residents/tourists. While these acquisitions have been criticized because they serve a limited public, it is important to realize that near-beach residents/tourists can become locked 2. Making better use of existing access: Hollywood out of the beach by private beachfront development. The The city of Hollywood illustrates one of the classic beach Broward County purchases recognize that there are different access problems: access exits, but the access is inaccessible. beach-using publics, with different user patterns and access The beach in Hollywood consists of one north-south road needs. (A-1-A) and a large number of intersecting roads that dead-end at beachfront property. The rights-of-way for these streets continue down to the mean high tide line, meaning that there is public access at every block. However, this situation is de- 4. Acquisition of parking areas proximate to ceptive, because there is almost no public parking along these accessways: Ft. Lauderdale streets. As a result, there is a lot of pedestrain access for those Given present beach user patterns, and the absence of a who live or vacation on the beach. But there is very little shuttle bus system, most resident day visitors and many access for the 100,000 residents of the city who live across the tourists rely on automobile transportation to get to the beach. bridges on the mainland, or for the tourists who stay on the Their ability to use the beach accordingly depends on the mainland. Hollywood's problem is that it makes very poor use availability of parking areas proximate to access areas. Four of its existing access, and can't afford to buy up beach land to of Ft. Lauderdale's six miles of beachfront is public beach, build parking facilities. served by diagonal parking along route A-1-A. Additional park- An emerging solution to the problem in Hollywood is a ing lots and metered facilities provide a large parking capacity. shuttle bus system. Parking facilities are planned for the However, there still is not enough parking. On busy weekends, mainland, and shuttle buses will run from these terminals to existing spaces are generally full by 10 a.m. After that time, the beach. This system should increase public beach recrea- cars of would-be beach goers cruise up and down A-1-A trying tional opportunities by making it easier for people to use to find a place to park and adding to the congestion. Hollywood's existing accessways. The beach at Ft. Lauderdale is readily accessible in terms of 2 ingress and egress. But there are insufficient parking spaces to large segments of the population from satisfying their recrea- meet the demand. A number of proposals, from both govern- tion needs. mental and interest group sources, have been made regarding Transportation-related improvements to facilitate beach re-routing the beach highway and increasing the parking sup- recreation need not be prohibitively expensive. The shuttle ply. This focus demonstrates that providing recreation oppor- bus system being proposed in Hollywood will be supported by tunities can involve a variety of governmental functions not user fees, and equipment costs can be amortized or shared normally associated with recreation: in this case, trans- with other units of government, such as a transit authority. portation. On the other hand, major transportation changes may be needed in some areas to reduce congestion and increase the availability and quality of beach recreation. In Ft. Lauderdale 5. Developing and maintaining support facilities: a combination of civic and governmental interests are at- Ft. Lauderdale tempting to plan the revitalization of the beach. Their pre- Ft. Lauderdale's expansive public beach, and the large liminary proposals include the re-routing of the beach high- numbers of users it attracts, generates considerable costs for way, doubling the parking capacity, and construction of a such services as police, lifeguards, and cleaning up the beach. people mover system to transport people from the mainland While few communities will approach the magnitude of Ft. to the beach. These improvements in the transportation Lauderdale's service costs, local beach access planning should system are major and costly ones. However, much of Ft. recognize that increased beach use also means increased Lauderdale's economic vitality is tied to beach recreation. service demands on local government. Ft. Lauderdale's civic and governmental interests may decide Ft. Lauderdale's beachfront is instructive in terms of the that the cost of these improvements is justified given the availability of support facilities. The restroom and picnic fa- economic importance of quality beach recreation. cilities in Ft. Lauderdale are concentrated at the two beach- front parks, where an entrance (parking) fee is charged. Aside How does beach access planning get started? from these facilities, there are only two public restrooms The six components of beach access planning show that serving almost four miles of beach. Obviously this supply is there are a number of different approaches that local corn- insufficient, but it does provide a lesson for local access plan- munities can take to address their access problems. But how ning. Restrooms, picnic facilities, playground equipment, and does beach access planning get started in the first place? The other support facilities can be located so that the users of communities described thus far started their beach access these facilities help pay for their development and mainte- planning in many different ways. Interested citizens started nance. In Ft. Lauderdale, the daily parking rate at Bahia Mar the acquisition efforts in Martin County. Citizens and local park is only $1.00/day--even small amounts can help defray officials began the acquisition push in Boca Raton. Civic operating expenses. Support facilities do enhance the quality associations are spearheading the move to revitalize the Ft. of beach recreation experiences, and Ft. Lauderdale has Lauderdale beach. The city government in Hollywood is demonstrated that user fees can help with the cost of provid- taking the lead in developing the shuttle bus system. ing them. All of these efforts began because someone recognized a beach access problem--either an existing one, such as con- gestion; or an anticipated one, like the advent of beachfront 6. Improving transportation systems: Hollywood, condominiums. Local governments in Florida currently have Ft. Lauderdale an opportunity to address their beach recreation needs The earlier examples have shown that transportation through the recreation element of the Local Government Con- systems can be the unexpected impediment to effective beach prehensive Plan, required in Section 163.3177(6)(d), Florida access. The heavy reliance on automobile transportation for Statutes. And, as many governments in southeast Florida have beach recreation means that there have to be roads and demonstrated, special plans for beach access and beach recrea- parking areas available for beach users. Stated conversely, tion can be developed to supplement local recreation planning. traffic congestion and inadequate parking facilities decrease Once a local government has decided to begin planning for the quality and availability of beach recreation. its beach recreation needs, what does it do? The following In addition, a beach recreation system that relies totally on chapters set forth a suggested procedure for planning for beach automobile transportation leaves those without automobile access. This procedure is intended to be a general guide to transportation out of the beach recreation picture. Particularly Florida governments, and should reflect how any government in Florida, with its large concentrations of elderly residents, in any jurisdiction might go about planning for beach access the lack of public transportation to the beach can prevent and quality beach recreation. 3 CHAPTER TWO: PLANNING METHODOLOGY How does a local government go about addressing beach how they might be corrected. Joe Public must gear his ad- recreation concerns? Beach access planning can be done either vocacy to the local context. Once he has succeeded in get- as a discrete beach access planning effort, or as an element in a ting the local officials interested in access, he has completed local government's comprehensive plan (e.g., the recreation Step One. Step Two begins local government's involvement in element). The methodology outlined below will enable local beach access planning. governments to ascertain local access needs and to develop If Joe Public is an elected official or a member of the plan- strategies for meeting these needs. It should be adaptable to ning or recreation department, he has an opportunity to direct the circumstances of any local government that chooses to the activities of his office toward access concerns. In a beach address beach access issues. community, access issues should be addressed in the daily ac- The beach access planning process involves a number of tivities of local government. In addition, the comprehensive simple and straightforward steps: plan must address access issues. Joe Public Employee may thus 1. Getting your local government interested in beach access have the opportunity to research recreation problems and in- planning ventory available access as part of his job. And given his posi- 2. Selecting a planning focus tion within the government, Joe Public Employee may be in a 3. Determining the scope of governmental commitment particularly good position to influence local officials to begin 4. Inventory . beach access planning. a. Inventory of existing access b. Inventory of potential new access sites Step Two: Selecting a Planning Focus 5. Problem identification A local government that decides to plan for beach access is 6. Establishing priorities starting from the premise that currently available access is now 7. Evaluating alternative access strategies insufficient, or will become so in the future unless actions are 8. Selection of beach access acquisition and enhancement taken to supplement existing access. To meet existing and strategies future recreation needs, beach access planning must at the 9. Development of local beach access program outset identify those problems that the planning effort is 10. Implementation of local beach access program designed to solve. Each of these steps will be discussed in detail below. Several South Florida examples illustrate the type of initial effort needed for effective beach access planning. Broward Step One: Getting Your Local Government County's beachfront is highly developed, and intensively used Interested in Beach Access Planning for residential, tourist and public recreation purposes. Very A beach access planning program represents a local govern- little vacant land is left for public acquisition for beach access mental commitment to increasing public recreation opportu- purposes. As a result, property acquisition for access purposes nities. This commitment involves the investment of manpower is likely to be expensive, perhaps prohibitively so. This does and time by many persons associated with the governmental not mean, however, that beach access planning is futile for unit. If Joe Public wants his government to begin beach access Broward County municipalities. An examination of existing planning, how does he get the city or county commission, the public access and patterns of beach use indicates that there is planning department and the recreation department to make a major transportation problem for many people attempting these commitments? to use the existing access. Beach access planning in Broward If Joe Public is an interested citizen, the standard array of County can focus on the transportation problem, and can also citizen participation tools is available. Joe Public can talk to attempt to upgrade the quality of recreation associated with his elected officials, speak at public meetings, and let people existing accessways. know he thinks access planning should have high priority. He A second focus for beach access planning is illustrated in can go a step further and do some research on his own, to Martin County. In the early 1970's much of the Martin discover the exact nature of local access problems and the way County beachfront was undeveloped, but facing imminent these problems might be solved. He can share his ideas with development pressures. In deciding how to proceed with access civic and interest groups, and might consider forming a new acquisition, the county was guided by the U.S. Army Corps interest group to promote beach access concerns. of Engineers' requirements for beach renourishment projects. All of these efforts involve salesmanship. The product being Consistant with these requirements, the county acquired sold is beach access activism: that we have a beach access access strips at half-mile intervals along the beach. By so doing, problem in our community, and we want to try to solve it. the county both acquired accessways and insured eligibility Some local officials may accept this message readily. Others for future renourishment projects. may want to be shown in detail what the problems are, and These two examples illustrate the point that beach access 4 planning does not occur in a vacuum. Each local government upon both land use and traffic circulation. An implementable planning for beach access does so within the context of exist- beach access plan must take cognizance of this context, as ing land use, road networks, present and projected resident well as the cost of maintaining the access acquired. In other population characteristics, tourist demands, and existing words, there are realistic limits on how ambitious a commu- public access. Each local government's approach to beach nity's access planning effort should be. These limits should be access planning will depend upon its own community charac- ascertained early in the planning process, and should be ad- teristics. Local governments should begin beach access plan- hered to, for access planning to be effective. ning by articulating this approach as explicitly as possible- e.g., our planning focus is to develop beach parks, or to im- Step Four: Inventory Step Four: Inventory prove the parking situation, or to make beach recreation more A In accessible to tourists. The selection of this planning focus A iventory of Existing Access should be made with the maximum possible public input. An inventory of existing beaches and their potential for hubl be madt wthis iitise max ssib l i nmt. public use is a necessary step in planning for better access. Public input at this initial stage can assist local government The inventory can determine (1) who owns the land, (2) what both in issue identification and in assessment of political access rights exist or may e shown to exist, and (3) how suit- access rights exist or may be shown to exist, and (3) how suit- feasibility. able the beach is for recreational use. This section proposes an In terms of issue identification, public input can reveal un- inventory methodology to make these determinations. anticipated problems, or may show that access problems are T eno methodol to ss eernt The proposed method involves two steps: (1) reference to only minor. For example, perceived access problems may not t ros o n es t s ( n t county/city records for ownership and land use data, and (2) be actual ones. If some access areas are currently underutilized, on-site surveys to confirm and expand recorded information public perception of overcrowded beaches may merely in- and to assess recreational suitability and public use potential. dicate insufficient knowledge of existing accessways. In this and to assess recreational suitability and public use potential. Inventory information can be recorded on an Inventory- case, the community's beach access plan could emphasize low- Inventory information can be recorded on an Inventory- Assessment Form such as the one included in this section. cost strategies such as information dissemination and signs e entor s ase on i cudd its sc t The inventory is based on city/county records such as tax to mark public accessways. A supposedly major problem gt tk publ ae suolsedlvy emaj oly maps, land deeds, subdivision plats, and land use maps. Tax might thus be solved very easily. maps give general ownership and locational information about In terms of political feasibility, early public input can reveal lands, and are a useful first step in the research. The maps public preferences, indicate the level of public support for show the location of any land parcels that might give access to access expenditures, and generate political support for the access expenditures, and generate political support for the the beach or be used for public recreation. Each parcel of land implementation of the planning effort. Beacuse each step of delineated on the tax map is identified by its owner. The map the protcess further locks the local government into one ap- will also give clues as to existing or possible future uses of the proach to meet access needs, this type of public input is most land. For example, large land holdings have a potential for usefl asearl in he pannng poces as ossile.land. For example, large land holdings have a potential for useful as early in the planning process as possible. future subdivision and thus suggest the use of subdivision At the end of Step Two, local planners should have a focus regulations requiring accessway dedication. The map may dis- for development of the beach access plan. This focus will pro- close public lands that are not now used for recreation, but close public lands that are not now used for recreation, but vide a framework for the planning process. The details of the which might be incorporated into an access program. Lands in plan wll be eveloed witin ths framwork.which might be incorporated into an access program. Lands in plan will be developed within this framework unknown ownership may have possibilities of becoming public land through legal proceedings. Lands within flood zones or Step Three: Determining the Scope of Govern- near inlets or washovers have potential for public use even if mental Commitment they are in private ownership. Another preliminary step in the beach access planning pro- Ownership information indicated by tax maps must be con- cess involves estimating the levels of funding and manpower firmed by deeds or maps located in the County Registry of that will be available to develop and implement the access Deeds. Deeds are indexed according to the owner's name. plan. Deed descriptions give locational information as well as in- An effective beach access plan must be realistic. A plan may formation about use. The researcher can review a deed de- focus on an ambitious land acquisition program if it seems scription to determine the exact boundaries of the land parcel, likely that bonds can be floated to pay for these purchases. On and particularly to see how far the land extends to the ocean. the other hand, if the funding sources appear limited, a gran- The deeds should also be read for any description of a public diose planning effort may be useless in actually increasing the right in the property, such as the public dedication of an alley- availability and quality of beach recreation opportunities. Sim- way, or the purchase of an easement by the public. The ilar attention should be paid to the maintenance costs of dif- Registry will also have recorded subdivision maps. These can ferent access strategies, and to the capacity of local govern- be very helpful for clarifying deed descriptions of lot bound- ment to implement alternative access plans. aries, and should also mark subdivision lands such as roads These initial steps reflect the fact that beach access plan- and alleyways that have been dedicated to the public. ning is a specialized form of recreation planning, impacting Land use information may be available at the county or 5 municipal planning office. Information on public lands may be criteria. Some criteria, such as tenure, will have been deter- available in the form of maps of existing public parks, and mined from the first step in the inventory methodology. highway and street maps. Existing facilities such as boat Others, such as shoreline vegetation, beach material and geo- ramps, public beaches and marinas are sometimes mapped. morphic characteristics may be determined from the on-site Additionally, information on neighboring uses to an existing survey. The survey may also indicate adjacent land uses, for or potential public beach area will be helpful in assessing which private commercial recreational facilities might partic- recreational suitability. ularly be noted. Such facilities include, for example, piers, At the conclusion of this phase of the inventory, a great motels, or marinas. Environmental damage potential and po- deal of information about existing ownership and access rights tential maintenance problems may also be assessed on site. will be amassed. The second step is an on-site survey to vali- Additional information collected in the on-site survey date this information, and assess suitability for recreational should include distance from parking facilities and the nature use. of the parking facilities (off-the-road parking, parking lots- Recreational suitability is in some measures a subjective fees, size). Apparent uses of land such as pathways extending assessment as well as an objective one. For this reason, a from streets to the beach should be noted as indicating possi- standard set of criteria to judge suitability is needed. The ble implied dedications or prescriptive easement. "No tres- criteria must be consistent with the objectives of the beach passing" signs, gates, and fences restricting access should also access program. For example, if the objective is to provide be included. more areas for boating activities, the assessment may include The methodology proposed here may be expanded or a great number of criteria to determine suitability for boating, simplified according to the needs of the beach access program. and fewer criteria for scenic qualities or surfing potential. This framework provides a way to assess ownership, access The assessment form included at the end of this section lists rights, and recreational suitability. a number of factors that cover a representative range of Inventory Assessment Form Beach: Island: Inventory Factors Ranking/Description Beach Material Sand (Coral, Algal) Gravel, Cobble, Rock, Pebble Beach Texture Fine Granular Rocky Length Width Recreational Use Swimming, Snorkeling, Scuba, Picnicking, Fishing, Boating Shoreline Vegetation Geomorphic Characteristics Embayed, Peninsular, Ridge Seasonality/Stability Tenure Private/Public/Disputed Access Tenure Pub I ic/Private-O pen/Private- Restricted Adjacent Land Use Parking Availability Development Intensity High-Medium-Light-Natural Development Type Hotel-Condominium-Single-Industrial Boat Ramp Potential Yes No Public Facilities Toilets, Showers, Food, Recreational Rentals (Skindiving, Sailboats) Waves/Currents Anchorage Potential Traditional Land Use Comments Other From: "The Virgin Islands Coastal Management Program and Draft Environmental Impact Statement," U.S. Department of Commerce (1977). 6 B. Inventory of Potential New Access Sites increase public awareness of these areas (e.g., by signs). Simi- The inventory of existing access gives a full picture of the larly, if considerable state and/or local monies are available, current state of public access. However, this picture needs to this step might include detailed analysis of alternative strat- be supplemented with information on the sites that may be- egies (e.g., outright purchase as opposed to easements), and come available for expanding public access. might assign priorities among specific sites utilizing a cost/ A number of criteria can be used in collecting information benefit type of approach. The more specific the priorities are, on potential access sites. The new site inventory can con- the easier the final plan probably will be to implement. Public centrate on vacant land, or parcels of beachfront land likely hearings may be appropriate at this stage of the planning to be subdivided. Or, if the access plan is focused on meeting process, either to help establish the priorities or to obtain the Corps' beach renourishment requirements, active explora- feedback once the planning staff has done this. tion of new access sites might be limited to properties roughly Step Seven: Evaluating Alternative Access Strategies one half mile apart. Or, the inventory might catalog all existing The previous step determined which problems to address. municipal property as a prelude to developing strategies to This step explores the ways to address them. trade municipal inland property for private beachfront Chapter Four outlines a number of different access property. Or, if the plan focus is to avoid new acquisitions, acquisition strategies. The planning staff will want to examine this part of the inventory might be omitted. these tools, options for improving the transportation system The inventory process is designed to determine where ac- and improving maintenance, and any other reasonable-looking cess exists, and where it might most easily and inexpensively approach in addressing the priority problems. This analysis be acquired. The focus chosen for the planning program will should be as detailed and as parcel-specific as possible. If allow local planners to determine the kinds, locations and acquisition is appropriate, the willingness of landowners to numbers of properties that need to be investigated for access sell and the probable cost should both be estimated. potential. The inventory method is the same one outlined in This is the step that tests the planners' skill: figuring out the preceding section. how best to accomplish the specific goals that have been set. Step Five: Problem Identification Many alternatives should be considered, and in as much detail The inventory and the input used to establish a planning as posible. The most promising ones should be developed in a focus will produce a large amount of information concerning presentation format, to give elected officials and the public the the present and anticipated future state of local access. Draw- clearest possible picture of what the access options really are. ing upon this information, the planning staff must determine Step Eight: Selection of Beach Access Acquisition the exact nature of the community's existing and projected and Enhancement Strategies access problems. This is an evaluative step. Its product should This is the step where decisions are made about what to do. be a list enumerating local access problems, and an analysis of sTe hl cisios the mpanide aboutt a to do. how the problems arose and what specific steps might be taken In some localities, the planning department may customarily take the information generated in the preceeding steps and to solve them. There are no cookbook guides to help planners et rmneat reced se d determine what course of conduct should be followed. How- make this analysis-this is the step in which information is ever, especially when the planning focus involves acquisitions, sifted and professional judgements are made. However, it is it is recommended that these decisions be made by the local always advisable to detail the basis for the conclusions drawn. governing authority. Once the planning staff has identified the local access prob- The planning staff should present its findings and the aler- The planning staff should present its findings and the alter- lems, it is wise to refer back to Step Two, establishing the plan- natives available in as informative a context as possible. Beach ning focus. Is this focus appropriate given the community's access workshops for the public and local officials might be access workshops for the public and local officials might be access problems? Should the planning process continue un- an effective way of disseminating information prior to the an effective way of disseminating information prior to the interrupted, or should the local government re-examine what selection of strategies. The meetings at which strategies are it wants to accomplish in the beach access plan? These will selected should receive maxium publicity, and of course will questions should be addressed at this point in the planning be advertised and open to the public, as required by state law. process, and mid-course corrections should be made before If successfully implemented, this step will result in two proceeding to the next step. ~proceeding to the next step. products. The first is a decision about what options the local Step Six: Establishing Priorities government will pursue to increase and enhance beach access Once access problems have been identified and potential and beach recreation opportunities. The second is a broad- new access areas have been investigated, priorities must be based local commitment to implementing these decisions. If established among access sites and strategies. Because this the planning process has been conducted intelligently and well, procedure essentially involves an allocation of scarce resources, the strategies selected for implementation will be reasonably the priorities selected will depend upon the amounts of money easy to accomplish, affordable, and popular. In other words, and manpower available. For example, if there is virtually no the need for implementing these strategies will be apparent, available money for beach access, the highest priorities might and there will be citizen support and enthusiasm for carrying well go to strategies that preserve existing areas of access and out the access program. 7 Step Nine: Development of the Local Beach Step Ten: Implementation of the Beach Access Program Access Program Once the access strategies have been selected, the planning This step involves doing those things neccessary to accomp- staff must determine exactly how implementation is to occur. lish the directives established through the planning program. Much of this work should already have been done in the pre- At this point, the access program may shift departments: from vious planning effort. However, at this point, the beach access the planning department to the parks and recreation depart- planning program must be fully integrated into the functioning ment, for example. of the local government. Who will do what, when, and how It is important to realize that situations change, and the must all be decided. This is an administrative step. access program should be flexible enough to react to changed This step also involves an aspect of public affairs. Once the circumstances. One way of fostering flexibility is to make the strategies have been chosen, it is useful to develop a program planning process a continuing one. As the plan is implemented, document that spells out what the problems are, how these the planning staff can monitor the effectiveness of current will be solved and in what priority, and how the decisions efforts. Periodically, the staff can report its findings, and make about what to do were made. This document does not need to suggestions for ways to improve or expand the activities of the be lengthy, but should be of high quality. Its purpose is to de- access program. Periodic citizen review may also be a work- fine for elected officials and the public exactly what is in- able idea, to ensure that the program is still supported by the volved in the beach access program. As program implementa- public and to determine if the program should be expanded. tion proceeds, it may be a useful reference tool to help keep If expansion is warranted, the process begins all over again, the implementation process on track. but this time with a more specific focus and with a better base of information. CHAPTER THREE: ISSUES TO BE CONSIDERED This manual focuses upon the perfection, preservation, and a crucial question arises: Where does the responsibility for acquisition of access from public roads to the publicly owned maintenance lie? areas of the beach. However, beach access planning must Local governments are often reluctant to accept the main- also address a number of closely related issues: How will tenance burden, especially when many beach users live or the public be involved in beach access planning? What user- vacation outside of the jurisdiction. It is important not to groups will be considered in the local access planning process? overlook alternatives to local financing of beach access pro- Once access has been obtained, what steps must be taken to grams such as agencies of the federal, state or county govern- maintain the accessways and the beach? What environmental ments, regional governing bodies, and private park or recre- impacts will result from increased beach use and what restric- ation associations (to whom the responsibility might be con- tions should be placed upon that use? Should highways or tracted). other means of transportation be provided or improved to Beach access planning is primarily concerned with the encourage a larger portion of the public to use the beaches? access rights of the general public. However, the rights of How will parking requirements be satisfied? Should attempts owners of land adjacent to public beaches and accessways be made to provide beach recreation to groups which have must be recognized and respected. Access planning should traditionally failed or been unable to utilize beach resources? emphasize the containment of public uses and their incidental The local planning effort should realize that these questions effects within the legal boundaries of accessways. Examples of are implicit in the planning process. A number of these issues measures which might be taken toward containment are the are discussed below. A successful program will need to deal provisions of flexible wooden walkways over which the public with these problems in a forthright manner. is required to cross and the use of fences or vegetation to mark boundaries of public access. Such measures will require initial Public Participation in the Planning Process capital outlays and periodic maintenance. The chapter on planning methodology contains a number of steps in which decisions must be made. This is particularly Environmental Considerations true of the first governmental step in the process: selecting a Beach access presupposes the existence of a beach. How- planning focus, and hence deciding which user groups will be ever, because the beach is inherently unstable, careless coastal emphasized in the access plan. It is important to solicit public management practices can destroy a beach and wreak havoc on input early, and frequently, in the beach access planning pro- inland areas. Governmental programs to increase beach use cess. Public workshops and hearings can help local planners have a responsibility to act with sensitivity to the impacts of identify local access needs and deficiencies in the quality of program activities. Beach access programs might thus prohibit beach recreation. If the public is led to believe that their in- off-road vehicles on the beach, proscribe use of groins, jetties, put will actually be used in shaping and developing the local and other beach "stabilization" techniques, monitor the access plan, public participation early in the planning process number of beach users to ensure that beach "carrying capaci- can produce an enthusiastic constituency for plan develop- ties" are not exceeded, and so forth. ment. The beach is suprisingly tolerant of picnickers, sunbathers, The converse also holds true: a beach access plan prepared and fisherman, but the primary dune system (the first line of in a vacuum may end up being a waste of time. Beach access dunes along the coastline) cannot tolerate such users. When planning must take into account the different needs of dif- people walk on the dunes, they disturb the sea oats and other ferent user groups: tourists, resident day-visitors, residents grasses and thereby destroy the plants which trapped the sand lacking automobile transportation, economic interests related and created the dunes in the first place. The resultant dune to'beach use, etc. Efforts to discern existing and anticipated destruction eliminates a natural barrier against the ocean and beach recreation problems for all such groups, and to keep the opens a pathway through which the waves of the next storm public informed of the progress of planning activities, can will crash. The sensitivity of the dunes is of particular import- make the planning process easier and increase the chances for ance to beach access planning because access to the beach can- effective implementation. not be obtained without crossing the primary dune (unless the dune has already been destroyed). Plans must include: meas- Maintenance ures forbidding the disturbance of dune grasses and designating After public rights in beach resources have been established, points where flexible walkways or other dune preservation it is necessary to maintain the resources in a usable and walks will be laid (the goal being zero alternation of the attractive condition. Maintenance includes the provision of natural dune surface); monitoring of water usage to ensure the litter containers and "No Littering" signs, notification of health of the dune vegetation; and careful design and construc- beach use restrictions, enforcement and supervisory personnel, tion of roads and public service lines to follow natural con- ground crews, lifeguards, first-aid attendants, and so on. Thus, tours. Transportation and Parking Parking facilities, like highways, encourage automobile traffic Most beach access plans will encourage increased use. How- and the associated losses in environmental and social amen- ever, greater numbers of users place greater demands on the ities. A second alternative to highway improvement is the use local transportation system. One obvious, though expensive, of shuttles or jitneys in conjunction with parking lots located solution is to increase road capacity to reflect increased user adjacent to inland highway interchanges. demand. However, road expansion may not be the best solu- tion. The reasons include parking limitations, air quality and Equity noise implications, and the fact that new highways inevitably When we talk about providing more beach access along our bring new development and may merely complicate existing coastlines, we are speaking implicitly about changing the problems. equities of ownership patterns. A beach access program can be One alternative is public transportation between beach a method of distributing what has become a scarce resource to areas and the orgins of beach user trips. Responsibility for the a greater portion and a greater diversity of the population. funding of public transit might be placed upon the major traf- Perhaps the most inequitable situation exists where low and fic generators (tourist attractions, hotels, etc.) or on public moderate income people live near the beach but are unable to transit authorities. Park and recreation agencies could share enjoy beach recreation because private uses effectively fence costs, and subsidies might be provided through gasoline taxes, the beach from public use. Opening up the beaches where per- license fees, and parking charges. sons live and work will ameliorate this situation. Beachfront In the absence of public transportation, beach users are parks in urban areas can provide the opportunity for a seaside forced to compete for parking spaces. In some places parking experience for greater numbers and classes of persons. Pro- space has become the limiting factor with respect to beach viding parking facilities and public walkways to the beach will capacity: once a parking lot has been filled, the beach is increase the beach clientele. An access program planned with "closed". Accordingly, increasing beach recreation opportuni- all income groups in mind can distribute the benefits of the ties often means increasing the parking supply. However, pro- beach to a very broad group of users. In the absence of such vision of additional parking facilities to meet existing or an- a program, parts of the public may be foreclosed from enjoy- ticipated demand may not always be a satisfactory solution. ing beach recreation. 10 CHAPTER FOUR: LEGAL TOOLS FOR ACCESS ACQUISITION IN FLORIDA Local governments have at their disposal a wide variety of with ownership patterns of beachfront property. techniques for acquiring beach access. By and large,these tech The diagram below illustrates the prevalent pattern of niques are general property law tools applied to a beach access beachfront ownership in Florida. context. Accordingly, the consideration of these tools begins PUBLIC :PRIVATEI PRIVATE 'PUBILIC PRIVATE I I I Ocean Wet Dry I Upland Rad Ocean Sand [ Sand R Patterns of Beach Ownership Access acquisition efforts can be defined with reference ives. In other words, acquisition tools should be used to to this ownership pattern. The public has the right to use the carry out the provisions of the beach access plan. road and the wet sand, and by judicial decision may have a Most of the tools described below can be used by all right to use the dry sand for recreation purposes. But the pub- Florida governments under the powers granted by Chapters lic has no right to cross uplands to reach the public beach 95, 125, 163, 166 and 177, Florida Statutes. Some of these until this right is specifically acquired. Beach access acquisition tools are available only within certain limits, as established by involves gaining this right to cross the upland. statute or judicial decision. The list below only briefly des- cribes the array of acquisition techniques available. Any governmental entity attempting to use these tools should con- Acquisition Tools duct sufficient legal research to ensure that the specific appli- Access to beaches can be acquired in a number of ways, in- cation of the tool being contemplated is permissible under cluding purchase, donation, establishment via litigation and state law. application of land use control mechanisms. The various tools and techniques local governments can use to acquire access are 1. Perfection and Protection of Existing Title presented in the following section. The descriptions and and and Access analyses quote heavily from the recent publication by Brower The first tool involves making the best use of existing access. et al., Access to the Nation's Beaches: Legal and Planning In many communities, there may currently exist a number of Perspectives, UNC Sea Grant Publication UNC-SG-77-18, 1978. access routes in which the public has or can easily acquire pro- There are a number of characteristics that inhere to all ac- prietary rights. Examples of such areas include rights-of-way quisition activities: leading down to the foreshore, which have been offered for * Access acquisition is generally expensive. As a result, dedication to the public but not yet accepted by the appro- governments should seek to acquire only the degree of priate governmental body. A check of the titles of beachfront ownership necessary for the type and quality of access property may reveal similar instances in which the public can desired. In many cases, this will mean acquiring less than perfect title to accessways, or prevent public title from being fee simple simp le ownership. abandoned. * Acquisition of property is often a slow process for Public access rights may often be preserved through ade- governmental agencies; and conversely, property suitable quate maintenance and management of the beach itself and the for access may be on the market for only a short period pathway which provides access. In some communities, access of time. Historically, private sector organizations (e.g., problems may be substantially alleviated by pursuing protec- The Nature Conservancy) have assisted governments in tion rather than acquisition policies. Measures such as govern- making land acquisitions. These organizations can and mental maintenance or placing signs generally will be less cost- should be used to help facilitate beach ac quisition. ly than outright acquisition, and easier to implement. Where * Governmental access acquisition efforts will be most ef- this tool can be applied, it can quickly bring about increased fective if they are based upon clearly established object- public access to beach and ocean recreational resources. 11 2. Purchase of Fee Simple Title will be considered in any appraisal of the land. Purchase of fee simple title is the most direct, and probably One such restriction is commonly referred to as a "re- the most expensive, tool for acquiring access and beachfront verter" clause. By including a reverter clause in the instru- public recreation areas. This tool involves the outright pur- ment of transfer, the donor can specify that title to the chase of property in the open market. The acquisition strategy land revert back to private ownership if the land ceases to should define and limit configurations of property to be pur- be used for the purpose defined in the instrument. chased. For example, small strips of land ten to fifteen feet Bargain Sale b. Bargain Sale wide, running from a public road down to the foreshore, can If a landowner cannot simply give his land to an organi- be purchased to provide pedestrian access. Larger tracts are zation or government agency for protection, the alternative necessary for beachfront parks, or parking facilities adjacent of purchasing the property at a bargain sale price should be to accessways. explored. A bargain sale is a purchase price at less than the The fee simple purchase technique has the important at- appraised estimate of fair market value. tribute of flexibility. Its disadvantage, and often the fatal one, A bargain sale is often a very attractive alternative to is that it is expensive. Several communities such as Boca Raton the landowner because of the potential tax savings involved. and Palm Beach County have financed beach and uplands From government's perspective, a bargain sale provides the acquisitions by means of public bond issues. In addition, opportunity to acquire land it might otherwise not be able funding for access acquisitions may be available from a variety to afford. This tool gives both parties a good deal, and is of state and federal governmental sources, such as the Land highly recommended where large parcels are involved-for and Water Conservation Fund (administered through the example, the State of Georgia recently purchased a barrier Florida Department of Natural Resources) and the federal island using a bargain sale. Office of Coastal Zone Management. However, in the absence of bond-financing or outside funding, most local governments will need to employ techniques other than direct purchase in order to expand public access to any great extent. 4. Purchase of Easements Access does not require control of all proprietary rights in a parcel of land. Purchase of the right to pass over the proper- ty along a defined route in order to reach or leave the beach 3. Acquisition in Fee by Gift may often be enough. Such a route of ingress and egress is ~a. Outrigh~t ~ Donation called an easement. Easements may be acquired in the same Outright donations of land for public purposes have long manner that property is acquired in fee. Depending upon the played an important role in public resource development. location, access easement may cost considerably less than fee Outright donation is a highly desirable method of convey- simple title. ing property because of its relative simplicity and because The tecnique of accumulating access easements is likely to it gives the enity entrusted with the land the flexibility to be the best use of a locality's acquisition funds. However, most vary uses of the property to meet future needs and con- easements must be coupled with adequate parking facilities to ditions. In addition, this tool is attractive because the donor provide true public access. may realize substantial tax savings from a donation of land. In addition, as with purchase of fee simple title, purchase of The major conservation organizations-both national and The major conservation organizations-both national and access easements requires a willing seller. In the case of access regional-have 'historically given assistance to governments easements, owners of beachfront property may be induced to acquiring land by donations. All local governments are per- sell easements if their property can be revalued for taxation mited o rceie cariabl doatins f lnd rompubic-sell easements if their property can be revalued for taxation mitted to receive charitable donations of land from public- spirited ciiens. Possibly the main reason charitable do purposes. However, the difficulties involved in finding willing spirited citiiens. Possibly the main reason charitable do- elr a k f sme ucs o nti oe ta- sellers may make fee simple purchase or donation more attrac- nations of land are not more common across the nation is tire acquisition tools. that it does not occur to public officials to ask. When a landowner decides to donate his property to an organization or governmental agency, it is the landowner's prerogative to include restrictions in the deed of transfer. 5. Prescriptive Easement Such restrictions can ensure that the land will be managed Prescription refers to the process by which one person, or and used according to the donor's wishes. The government group of people, obtains the right to use another's land in must accept the conditions attached to the grant. some specific manner. Title remains with the original land- Donors who place restrictive language in the deed should holder, but is encumbered by the easement, or right to use, be aware that the restrictions will most likely have an effect that has accrued to the party asserting the easement. on the fair market value of the property. Through restric- In many beachfront communities, the public has regularly tions, the donor is effectively retaining some rights, and used certain paths to reach the beach. If such public use satis- these rights have value; thus, the value of the restrictions fies the requirements for prescription, then the public has 12 acquired a right to use that particular accessway. ADVANTAGES DISADVANTAGES In Florida, the requirements for a prescriptive easement *Flexible as to duration and *Lessor and lessee may not were set forth in Downing v. Bird, 100 So.2d 57 (Fla. 1958). terms. always be able to agree on To establish a prescriptive easement, the claimant's use must be: *Usually less expensive than duration of lease or interests purchase of fee interest. to be included therein. (1) Actual, continuous and uninterrupted *Basic owner-'ip remains *Leasing rates are adversely (2) For the prescribed period of time (20 years) with property owner. affected by development (3) Adverse under claim of right pressures. (4) With knowledge of the owner or so open, notorious *Lessor may be exculpated and adverse that knowledge could be imputed to the from personal and property *Lease may not necessarily re- owner losses to those using the du the owner's tax a- (5) Inconsistent with the owner's use and enjoyment of land for recreation. bility. his lands, such that the owner has a right to legal Lease is generally accepted *Responsibility for personal action, such as trespass or ejectment, to stop the un- and understood by the and property damage liabil- permitted use by the claimant. ity may be unclear. The leading Florida case regarding prescription in a beach *Lessor retains future rightun ac- *ess problems. access context is City of Daytona Beach v. Tona-Rama, Inc., to full use of property. 294 So. 2d 73 (Fla. 1974). Local governments contemplating *Public entry and use can be *Lessor retains future right litigation to establish a prescriptive easement should pay close limited to specified months to full use of property. attention to this opinion. and purposes-permits some *Might unfairly raise public While many accessways may be legally obtainable for public continued use by lessor expectations if leasing is use by means of prescription, most such routes have not been during other times. used to the exclusion of legally established. To be legally recognized, easement by pre- other acquisition strategies. scription must generally be established through litigation. on ractua nacure o agree- Litigation does involve some cost. As a result, de facto access ment helps to identify more may be preferable to the expense of securing legally recog- mnizd access. y forcement roles. nized access. *Might be a partial solution where no other solution is possible. 6. Leaseholds Many owners of beachfront property are unwilling to sell their land, but may be amenable to leasing all or part of the property. Local governments can use leases to provide for 7. Eminent Domain immediate access needs while long-range plans are being im- Eminent domain is the process by which governmental enti- plemented. In addition, two variations on the standard lease ties use condemnation to acquire proprietary interests in pri- can give local government time to decide whether to purchase vately held land in exchange for compensation. Local govern- a particular parcel and to accumulate enough money to do so. ments are authorized to condemn whatever land they choose, The first, a renewal clause in the lease contract, can give the so long as their actions are consistent with a public use or local government the option to renew the lease at the time it benefit involving the land in question. Compensation is fixed expires. The second variation, known as the option to pur- at fair market value, though there may be some evidentiary chase clause, allows the government to purchase the property problems in establishing exactly what this is. When govern- in fee prior to or at the expiration of the lease. This mechan. ment has the money to purchase property, eminent domain is ism was used by the City of Boca Raton to acquire a portion the method of forcing the landowner to sell. of Spanish River Park. A related clause can give the local Eminent domain is expensive. In addition, the forced sale government the right of first refusal if the landowner decides character of eminent domain can create political problems. to sell. This tool may not be a realistic approach to acquiring public An important characteristic of leases is duration. One rights in scarce beach land. However, this tool may be useful Martin County access lease runs for 99 years, thereby pro- in acquiring accessways the public currently uses but does not viding all the short- and mid-term advantages of a bargain sale. own. Although some litigation may be expected contesting Most access leases will be of shorter duration, e.g., while land both valuation and the location of accessways chosen, this use is being held for investment purposes. Other characteristics of of eminent domain presents a comparatively effective method leases include: of securing access if the financial resources are available. 13 8. Dedication easiest method of requiring access is through a city or Many recent coastal real estate developments have included county zoning or subdivision control ordinance such as roads or rights-of-way which run perpendicular to the ocean. the one presented in Chapter Five. Beachfront property Frequently, these roads are expressly dedicated to the appro- can be zoned as recreational/residential or recreational/ priate local government. In other instances an offer of public commercial, with the access provision being one of the dedication is implied. Where dedication is express, the local requirements of the zone. Required access may also be government and hence the public has acquired the right to use achieved through use of subdivision control ordinances. the road or right-of-way. Where there has been only an offer to dedicate, the local government must accept the dedication B. Required Dedication of Roads Providing Access. This either by an express acceptance or by an activity such as main- requirement provides that roads or rights-of-way be ex- taining the road. tended to the foreshore and that these roads or rights- Where roads or rights-of-way continue down to the fore- of-way be dedicated to the public. Three distinct re- shore, as they do in many areas, a large number of accessways quirements are usually a part of any application of this can be and may have already been obtained without public tool: cost through dedication. (1) The extension of all roads and rights-of-way down to Dedication is most effective as a requirement for subdivi- the foreshore sion platting. This technique is included in the discussion of (2) Public dedication of all such roads and rights-of-way land use tools. (3) Required public dedication of all other roadways in beachfront subdivisions 9. Trades The purpose of this tool is to provide vehicular access There are two principal means by which trading can be used either to the foreshore itself or to a point very near the to acquire access. The first involves the exchange of access foreshore, with pedestrain access across the dedicated rights for something of value to the landowner-e.g., easing right-of-way down to the foreshore. Although this tool zoning or building permit restrictions, or assuming mainten- is most applicable to new subdivision contexts, it might is most applicable to new subdivision contexts, it might ance responsibilities for beachfront property. ance othresponsibilitives for beachfrant propertyf. also be appropriate in commercial situations where roads The other use of trading involves the exchange of land. If or rights-of-way can be extended down to the foreshore. a local government owns non-beachfront property for which it Implementation can be approached either through Implementation can be approached either through has no immediate or foreseeable need, such property could be zoning ordinances or subdivision control ordinances, exchanged for beachfront property having similar value. but zoning ordinances will provide a stronger legal basis The federal government has often traded land in order to for requiring particular road patterns and their dedica- obtain a larger, unified parcel where it had previously held tion to the public. title to scattered pieces of land. This has enabled the govern- ment to establish parks and parkways which it could not C. Required Dedication of Access Lots. As a general rule, otherwise have done as effectively or efficiently. This strategy a governmental body cannot require the dedication of a may also be applicable at the local level. subdivision lot to public use without paying for it. How- ever, in beachfront developments there is an approach 10. Land Use Controls that would require the dedication of lots for access Land use controls, principally zoning ordinances and sub- purposes with nominal or no governmental expenditure division control ordinances, can be used in the development required. The subdivision control ordinance can require process to provide public access. A large number of land use that any beachfront subdivision containing interior lots control techniques could be, but have never been, used in (without beach frontage) include platted lots to be used beach access acquisition. Some litigation may arise as these for access to the beach by the interior lot owners. This techniques are applied to the beach context. Aside from the device, called water access lots, has been used in North cost of potential litigation, however, land use controls con- Carolina. In the North Carolina application, the access stitute an array of tools which do not require the expenditure lots may either be dedicated to the public or transferred of money by local governments. Accordingly, they are among in fee jointly to all interior lot owners. Lots dedicated to the primary implementation mechanisms for a beach access the public obviously provide the desired public access- planning program. way to the beach. If the access lots are instead transfer- A. Required Access. This simply requires that public access red in fee to the interior lot owners the local government be provided as part of any beachfront development. The may use eminent domain to acquire public access. 14 CHAPTER FIVE: MODEL BEACH ACCESS ORDINANCE The following ordinance is intended to serve as a guide to ordinance to provide for the planned and orderly local governments that wish to operationalize their beach development of coastal lands so as to ensure the pro- access planning efforts. It was developed from an ordinance vision and maintainance of public beaches and public proposed by Dean Frank Maloney and associates,* with the accessways and the preservation and use of public assistance of Dean Maloney, the Eastern Water Law Center, beach rights which have arisen through prescription, and students at the Holland Law Center, University of Florida. custom, dedication or otherwise. Any local ordinance should be reworked and tailored to the particular needs of the local community. This model ordinance Section Three: Definitions follows a program approach that heavily stresses mandatory Unless specifically defined below, words or phrases shall be land dedication as part of the development process. Corn- interpreted so as to give them the meaning they have in munities using this model ordinance should recognize that the common usage and to give this ordinance its most reasonable constitutionality of dedication requirements will vary from application. state to state. As a result, legal counsel should be sought prior (a)"Beaches" are all coastal sandy areas along the Gulf of to the adoption of any local ordinance following this model. Mexico or Atlantic Ocean, including wet sand, dry sand and immediate upland areas. Model Public Beach Access Ordinance (b) "Coastal Lands" as used in this ordinance shall mean those lands adjacent to the Gulf of Mexico or Atlantic Section One: Short Title Ocean, including beaches and their immediate uplands, This ordinance shall be known as the Public Beach Access and designated in the Beach Access Plan as subject to Ordinance, regulation under this ordinance. (c) "Public Accessways" are lands over which the public Section Two: Findings of Fact and Objectives has a right of traverse to reach public beaches. 2.1 Findings of Fact (d) "Public Beach" shall mean any beach which has been (a)The public beaches are lands held in trust for the dedicated to the public or in which the public has acquired a right of use by easement, prescription, people. (b) The citizens of the state have the rightful use of custom, government ownership, or any other act, law such public beaches. or instrument. {c) The citizens of [,oa , unit] maintain and support (e) "Subdivision" shall mean the division of a parcel of ( c)Thesitizensof [local uniti maintain and support land, whether improved or unimproved, into three or the public beaches. (d) The [governing body] deems it essential for more lots or parcels of land for the purpose, immediate or future, of transfer of ownership. For purposes of this the promotion, protection and improvement of ordinance, the term "subdivision" shall include condo- convenience and general welfare that all citizens minium development. l have reasonable access to and use of such public (f) "Support Facilities" shall mean shelters, equipment, beaches. restrooms, parking areas and other facilities necessary (e) Development of coastal areas by private land- for the safe, healthful and convenient use and enjoy- owners frequently increases demand for recrea- ment of public beaches. tional areas, restricts access to public beaches, and (g) "Uplands" as used in this ordinance shall mean those adds to the cost of acquiring public accessways. lands lying between the vegetation line or other land- � 2.2 Objectives ward demarcation of the dry sand, and la public road In order to secure for the public access to and en- or highway] joyment of the natural resource amenities of the beaches of [local unit] , and to protect and develop Section Four: Public Beach Planning and beach resources for the greatest benefit of all citizens, Administration it is hereby declared to be the legislative intent of this The [governing body] shall have primary responsibility for administration of this ordinance. 4.1 Powers and Duties. Maloney, Fernandez, Parrish and Reinders, "Public Beach The [local planning agency] shall prepare and Access: A Guaranteed Place To Spread Your Towel," 29 make recommendations to the [governing body] University of Florida Law Review 853 (1977). regarding the adoption of a Beach Access Plan which 15 will provide regular and frequent public beaches and participation in the preparation, adoption and im- public accessways capable of meeting present and plementation of the Beach Access Plan. The pro- foreseeable public recreational needs. In developing cedures shall provide for broad dissemination of the Beach Access Plan, the [local planning agency] proposals and alternatives, opportunity for written should consider, among other factors: comments, public hearings, information services, (a) The location and extent of areas to which the and consideration of and response to public public has acquired rights of use or traverse comments. through prescription, custom, dedication or other- (c) Assessment and Evaluation of the Beach Access wise, and the possibilities for regulation, relocation, Plan expansion and improvement of such areas where The planning program shall be a continuous pro- desirable. cess. The [planning agency] shall prepare periodic (b) The types and location of lands to be acquired reports at least once every five years and at lesser through mandatory dedication under Section Five intervals as required by the [governing body] of this ordinance. The report shall compare plan objectives and ac- (c) Areas appropriate for acquisition through pur- tual results, evaluate social and economic effects, chase and exercise of eminent domain. assess unforeseen problems and opportunities, and (d) Methods for increasing public use of existing may suggest changes in the Beach Access Plan. public access ways. In some jurisdictions the following alternative provisions (e) The location of environmentally sensitive areas re- for a beach access advisory commission may be utilized: quiring special protection. 4.4 Establishment of a Beach Access Advisory Commis- (f) The availablility of and optimal location for park- sion. (Alternative) ing facilities. (a) The [governing body] shall establish a Public Beach (g) The desirability and cost of providing support Access Commission and appoint members thereto. services and facilities, such as lifeguards and rest- (b) Terms of Office; Removal from Office; Vacancies room facilities. Members of the commission shall be appointed for (h) Improvements in the local transportation system staggered terms of such length as may be determined that might increase the availability or quality of by the [governing body] and shall serve until their beach recreation. successors are appointed. Original appointment may (i) Methods for obtaining funding for implementing be made for a lesser number of years so that the elements of the Beach Access Plan (from federal, terms of the said members shall be staggered. The state, regional, local and private sources), in- [governing body] may remove any member of cluding the desirability and availability of user the commission for cause after written notice and fees. public hearing. Any vacancy occuring during the un- 4.2 Beach Access Map expired term of office of any member shall be filled To the extent feasible or practical, the [local plan. by the [governing body] for the remainder of the term. ning agency] shall present its findings, conclusions and Such vacancy shall be filled within thirty (30) days proposals in the form of a Beach Access Map available after the vacancy occurs. to the general public. The map should designate, (c) Officers, Rules of Procedure, Consultants and along with other relevant data, the location and ex- Advisors tent of public beaches, public accessways, environ- (1) The commission shall elect a chairman and a vice- mentally sensitive areas, coastal lands subject to chairman from among its members. future development under the mandatory dedication (2) The commission shall meet at regular intervals and requirements of this ordinance, areas of contem- at such other times as the chairman or commission plated public purchase, and the nature and location may determine. It shall adopt rules for the trans- of support facilities. action of its business and keep a properly indexed 4.3 Procedures record of its resolutions, transactions, findings, (a) General Rules and determinations, which record shall be a public The [local planning agency] and [governing body] record. shall follow all applicable rules of procedure re- (3) The commission may, subject to the approval of quired by state and local law. the [governing body] , employ such experts, (b) Public Participation technicians, and staff as may be deemed proper In addition to the requirements of state and local and pay their salaries, contractual charges and fees, law, the [local planning agency] shall establish pro- and such other expenses as are necessary to con- cedures for providing maximum, effective public duct the work of the commission. 16 Section Five: Dedication of Land Section Six: Operation of Public Beaches and Public 5.1 Dedication Requirements for Plat and Building Permit Accessways Approval * 6.1 Maintenance As a condition for obtaining approval for subdivision The I recreation dept.] shall have the duty and respon- platting or the issuance of a building permit on sibility to maintain and promote the condition of all coastal lands, as defined in this ordinance, the sub- public beaches, public accessways and support facil- divider or applicant shall dedicate land, or a fee in ities affected by the provisions of this ordinance. lieu thereof, to the public to provide for public 6.2 Signs beaches, public accessways and support facilities. The recreation dept.] shall provide signs or other The amount of the dedication shall be a foot markings to indicate the location and extent of public wide strip of land, running the breadth of the prop- beaches, public accessways and support facilities. erty and abutting a public road, for each . feet 6.3 Charging of Fees of beach frontage. In lieu payments shall be in the The | recreation dept.] may impose reasonable fees amount of the value of such a strip on the property for the use of public beaches or parking facilities ac- in question. In lieu payments will be expended in a quired through application of this ordinance. manner designed as much as practicable to benefit the general area of the subdivision or building in question Section Seven: Obstruction of Public Beaches and 5.2 Method of Providing Land Public Accessways Land for public beaches and public accessways may No person, firm, corporation, association, or other legal be provided by deed, easement, dedication or any entity shall create, erect, or construct any obstruction, barrier other method which guarantees public use in perpet- or restraint which is inconsistent with or interferes with the uity. An offer to dedicate that meets the require- exercise of any public rights, except as otherwise authorized ments of this section shall be accepted by the [gov - by the [governing body! . Violation of this provision shall erning body] constitute a misdemeanor punishable by fine of not more than 5.3 Waiver of Requirements $ , and removal of the obstruction. The [local planning agency] may develop standards for determining situations in which the dedication re- Section Eight: Interpretation quirement of this section may be waived or amended. This ordinance is intended to increase the availability of The [governing body] must approve thesestandards public beaches and public accessways, and nothing in this before they become effective. Once these standards ordinance shall be construed so as to diminish or restrict have been approved, any person attempting to secure public beach rights and privileges which exist or may come plat or building permit approval may request the into existence in any other manner. [local planning agency] to issue an opinion as to whether the application in question meets the waiver Section Nine: Severability standards. Final determination of waiver, amend- It is the intention of the [governing body] that each ment or compliance with this section shall be made separate provision of this ordinance shall be deemed independ- by the [governing body] ent of all other provisions herein, and it is further the inten- tion of the [governing body] that if any provisions of this ordinance be declared to be invalid, all other provisions there- *Again, note the caveat that the constitutionality of dedica- of shall remain valid and enforceable tion requirements will vary from state to state. See the dis- cussion in Maloney et al., 29 U. Fla. L. Rev. 853, 867 et seq. regarding the validity of different kinds of dedication require- This ordinance shall become effective ,19_. ments. 17 SELECTED BIBLIOGRAPHY 1. Books and Manuals Brower et al., Access to the Nation's Beaches: Legal and Planning Perspectives, UNC Sea Grant Publication UNC Sea Grant Publication UNC-SG-77-18, 1978. State of California, Office of the Attorney General, Implied Dedication and Prescriptive Rights Manual Relating to California Coastal Commission Matters, 1978. The Coastal Society, Coping with the Coast (proceedings of the fourth annual conference), Arlington, Va., 1978. Ditton & Stephens, Coastal Recreation: A Handbook for Planners and Managers, Office of Coastal Zone Management, 1976. Ducsik, Dennis W., Shoreline for the Public, Cambridge, Mass., 1974. Hartzog, Lader & Richards, Public Beach Access and Recreation in South Carolina, South Carolina Depart- ment of Parks, Recreation and Tourism, 1976. *Juergensmeyer & Wadley, Florida Land Use Restrictions (Ch. 9), 1976. Office of Coastal Zone Management, Barrier Islands and Beaches: Technical Proceedings of the 1976 Barrier Islands Workshop, Washington, D. C. 1976. Office of Coastal Zone Management, Shorefront Access and Island Preservation Study, Washington, D. C. 1978. Owens & Brower, Public Use of Coastal Beaches, UNC Sea Grant Publication UNC-SG-76-08, 1976. Pacific Area Sea Grant Advisory Programs, Recreational Access to the Coastal Zone (proceedings), 1979, publication pending. San Francisco Bay Conservation and Development Commission, San Francisco Bay Public Access and Recreation Areas, 1976. Texas Law Institute of Coastal and Marine Resources, The Beaches: Public Rights and Private Use (pro- ceedings), 1972. 2. General Periodicals Anderson, "The Cost of Public Access," Coastal Zone '78 (proceedings), pp. 402-12, 1978. Brower & Dreyfoos, "Public Access to Ocean Beaches: If You Find a Parking Space, How Do You Get to the Beach?" Coastal Zone Management Journal, Vol. 5, No.1/2, 1979. Brower & Stroud "Ocean Beaches for Whom?" Coastal Zone '78 (proceedings), pp. 373-79, 1978. *Curtis-Koehnemann, "Public Access to Florida's Beaches," Coastal Zone '78 (proceedings), pp. 380-85, 1978. Dickert & Sorensen, "Social Equity in Coastal Zone Planning," Coastal Zone Management Journal, Vol. 1, No. 1, 1974. *Dreyfoos, "Increasing Beach Access in Urban Areas: The South Florida Experience," Florida Environ- mental and Urban Issues, Vol. VI, No. 2, December, 1978. Flachsbart, "Social Groups Impacted by Reduced Beach Access," CoastalZone '78 (proceedings), pp.149- 63, 1978. Roeseler, "Corpus Christi, Texas: An Urban Beach Access Study," Coastal Zone '78 (proceedings), pp. 386-401, 1978. Wolff, "We Shall Fight Them on the Beaches," Harpers Magazine, August, 1973. *Material focuses on Florida. 18 3. Legal Periodicals Agnello, "Non-Resident Restrictions in Municipally Owned Beaches: Approaches to the Problem," 10 Columbia Journal of Law and Social Problems 177 (1974). Black, "Constitutionality of the Eckhardt Open Beaches Bill," 74 Columbia Law Review 439 (1974). *Boyer, Jamerson & Surlas, "Real Property," 31 University of Miami Law Review 1183 (1977). *Boyer & Shapiro, "Real Property," 30 University of Miami Law Review 517 (1976). *Comment, "Customary Use of Florida Beaches," 29 University of Miami Law Review 149 (1974). *Comment "Doctrine of Customary Rights - Customary Public Use of Privately Owned Beach Preludes Activity of Owner Inconsistent with Public Interest," 2 Florida State University Law Review 806 (1974). *Comment, "Environmental Land-Use Control: Common Law and Statutory Approaches," 28 University of Miami Law Review 135 (1973). Comment, "Hawaiian Beach Access: A Customary Right," 26 Hastings Law Journal 823 (1975). *Commentary, "Easements: Judicial and Legislative Protection of the Public's Rights in Florida's Beaches," 25 University of Florida Law Review 586 (1973). Corker, "Where Does the Beach Begin, and To What Extent is This a Federal Question," 42 Washington Law Review 43 (1966). Degnan, "Public Rights in Ocean Beaches: A Theory of Prescription," 24 Syracuse Law Review 935 (1973). Eckhardt, "A Rational National Policy on Public Use of the Beaches," 24 Syracuse Law Review 967 (1973). *Gay, "High Water Mark: Boundary Between Public and Private Lands," 18 University of Florida Law Re- view 553 (1966). Maloney & Ausness, "The Use and Legal Significance of the Mean High Water Line in Coastal Boundary Mapping," 53 North Carolina Law Review 185 (1974). *Maloney, Fernandez, Parrish & Reinders, "Public Beach Access: A Guaranteed Place to Spread Your Towel," 29 University of Florida Law Review 853 (1977). McLennan, "Public Patrimony: An Appraisal of Legislation and Common Law Protecting Recreational Values in Oregon's State-Owned Lands and Waters," 4 Environmental Law 317 (1974). Moore, "The Acquisition and Preservation of Public Lands," (1966) William & Mary Law Review 23. Note, "Access to Public Municipal Beaches: The Formulation of a Comprehensive Legal Approach," 7 Suffolk University Law Review 936 (1973). Note, "The English Doctrine of Custom in Oregon Property Law: State ex rel. Thornton v. Hay," 4 Envi- ronmental Law 383 (1974). *Note, "Mandatory Dedication of Land Developers," 26 University of Florida Law Review 41 (1973). Note, "Public Access to Beaches," 22 Stanford Law Review 564 (1970). Note, "Public Access to Beaches: Common Law Doctrines and Constitutional Challenges," 48 New York University Law Review 369 (1973). Note, "Public or Private Ownership of Beaches: An Alternative to Implied Dedication," 18 U.C.L.A. Law Review 795 (1971). Note, "This Land is My Land: The Doctrine of Implied Dedication and Its Application to California Beaches," 44 Southern California Law Review 1092 (1971). Note, "Water Law--Public Trust Doctrine Bars Discriminatory Fees to Nonresidents for Use of Municipal Beaches," 26 Rutgers Law Review 179 (1972). *Ravikoff, "Land Use Planning," 31 University of Miami Law Review 1119 (1977). *Rhodes, Haigler & Brown, "Land Use Controls," 31 University of Miami Law Review 1083 (1977). Town & Yuen, "Public Access to Beaches in Hawaii: A Social Necessity," 10 Hawaii Bar Journal 3 (1973). *Material focuses on Florida 19 4. CASES The following cases illustrate various judicial treatments of beach access and access-related issues. The user should note that a large number of additional land use and property law opinions will be relevant to any particular access acquisition strategy. The user is thus cautioned that the following cases illustrate judicial thought on only some of the issues involved in access acquisition, and should in no way be con- strued as a complete or definitive listing of relevant judicial material for any particular access problem. Given this caveat, the following cases may provide useful guidance for communities embarking on a beach access acquisition program. FLORIDA Admiral Development Corp. v. City of Maitland, 267 So. 2d 860 (Fla. 4th D.C.A. 1972). Required dedi- cation of land. Broward County v. Janis Development Corp. 311 So. 2d 371 (Fla. 4th D.C.A. 1975). Conditioning building permit approval on dedication. City of Daytona Beach v. Tona-Roma, Inc., 294 So. 2d 73 (Fla. 1974). Prescription and public rights in a beach access context. This is the leading Florida case on beach access. Downing v. Bird, 100 So. 2d 57 (Fla. 1958). Rules for prescription. Miami Beach v. Miami Development Co., 14 So. 2d 172 (Fla. 1943). Implied intent in dedication. Miller v. Bay-to-Gulf, Inc., 193 So. 425 (Fla. 1940). Requisites for dedication. Trustees of the Internal Improvement Fund v. Ocean Hotels, Inc., 40 Fla. Supp. 26 (15th Cir. Ct. 1974). Private rights re: beach construction. Wald Corp. v. Metropolitian Dade County, 338 So. 2d 863 (Fla. 3d D.C.A. 1976). Scope of the police power re: subdivision dedications. White v. Hughes, 190 So. 446 (Fla. 1939). Scope of public trust doctrine. OTHER JURISDICTIONS Associated Home Builders v. City of Walnut Creek, 4 Cal. 3d 633,484 P. 2d 606 (1971), appeal dismissed 404 U. S. 878 (1972). Scope of mandatory dedication (California). Borax Consolidated Ltd. v. City of Los Angeles, 296 U. S. 10 (1935). Established the mean high tide line as the landward boundary of the wet sand. Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N. J. 296, 294 A.2d 24 (1972). Higher non- resident fees for use of public beach invalidated under the public trust doctrine. Gerwirtz v. City of Long Beach, 69 Misc. 2d 763, 330 N. Y. S. 2d 495 (Sup. Ct. 1972), aff'd mem. 358 N. Y. S. 2d 957 (App. Div. 1974). Invalidates restricted use of municipal beach to municipal residents. Gion v. City of Santa Cruz, Dietz v. King, 2 Cal. 3d 29, 84 Cal. Rptr. 162, 465 P. 2d 50 (1970) (en banc). Established new rules for implied dedication/prescription, applicable in California. Hughes v. Washington, 389 U. S. 290 (1967), reversing Hughes v. State, 410 P.2d 20 (1966). Re: seaward boundary of private property. Illinois Central R.R. v. Illinois, 146 U. S. 387 (1892). U. S. Supreme Court definition of the public trust doctrine. Just v. Marinette County, 201 N. W. 2d 761 (Wis. 1972). Scope of public and private rights in natural resources. Marks v. Whitney, 6 Cal. 3d 251, 491 P.2d 374 (1971). Expansive interpretation of the public trust doctrine. Martin v. Waddell, 41 U. S. 367 (1842). Initial U. S. Supreme Court statement of the public trust doctrine. Seaway Co. v. Attorney General, 375 S. W. 2d 923 (Tex. Civ. App. 1964). Dry sand subject to a public use easement, pursuant to Texas Open Beaches statute. State ex rel. Thornton v. Hay, 254 Ore. 584, 462 P.2d 671 ('1969). Public rights in the dry sand established through customary use. 20