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Beach Access and Property Rights

Opportunity for compromise or recipe for conflict?

  • Jonathan Wood
  • Summertime means longer days and, for many families, a trip to a little slice of paradise: the beach. Most flock to popular, public beaches. But others want a more secluded experience. That poses a problem for both beach strollers and coastal property owners. Much of the beach is privately owned and most people don’t know where the line is.

    Most states set the boundary between public and private beaches at the mean high tide line. In other words, the dry sandy beach is private; the wet intertidal area is public and open to anyone. But without dotting the coastline with unsightly “no trespassing” signs, most people have little reason to know the line.

    This conflict is coming to a head in Florida. The state recently enacted a law protecting the rights of coastal property owners. The law was in response to a county ordinance that declared a public right to “customary use” of all privately owned beaches and forbade the owners from posting signs. The state law voids this and similar local ordinances, allowing property owners to prevent trespass unless the public can prove an existing easement.

    Both the initial local ordinance and the state law voiding it have generated conflict. Several lawsuits were filed against the county ordinance. Beach access proponents have sharply criticized the new state law as privatizing the state’s most valuable resource and undermining the tourism-based economy.

    To county residents like Dave Rauschkolb, a surfer and restaurant owner, that’s just wrong. “Beach access should be sacrosanct for all. The notion of a private beach is an oxymoron,” he said. “After this goes into effect, people can be physically removed from specific beaches, like bouncers at a bar, and to me that’s despicable.”

    The conflict between private property rights and public access is not unique to the beach. The same issues arise for stream access, trail access, and other forms of public access on private property. Unfortunately, in each of these cases, the conflict often harms both the interests of property owners and the public access experience.

    From the property owners’ perspective, there are several risks of unlimited public access to their private land. Someone might get hurt and try to hold the property owner responsible. People may not take good care of the property, leaving trash for the owner to pick up. And they might cause a nuisance that disturbs the owner’s ability to enjoy the area herself.

    This conflict can also undermine public access as well. Unfortunately, regulations can discourage property owners from accommodating public access on their land. If they do and a problem arises, they may find it difficult or impossible to cut off or regulate access in the future. In Florida, for instance, the city tried to justify its ordinance on the theory that property owners have typically allowed public access to the beach and, therefore, the public had a right to continue doing so forever. California has similarly protected public access—or penalized property owners that formerly accommodated the public, depending on your perspective—by taking away their right to change their mind in the future, a conflict which has reached the Supreme Court of the United States.

    Respecting private property rights is the best way to avoid conflict and promote both the interests of private property owners and the public’s interest in access. Many property owners will continue to allow public access, so long as the public behaves itself. Others can be incentivized to provide access, through the use of sharing-economy technology. Already, companies are developing apps to facilitate access to camp sites and fishing spots. And where property owners value their privacy so highly that they won’t allow access, the best outcome may be no-access. If the public highly values access to a particular beach, it can acquire it through eminent domain by fully compensating the owner.

    So long as public access is sought at the expense of property owners—rather than through mutual benefit—conflict is inevitable. And, in the long run, both property rights and public access will suffer.

    Written By
    • Jonathan Wood
      • Vice President of Law & Policy

      Jonathan Wood is vice president of law and policy at PERC, leading PERC’s Conservation Law and Policy Center.

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