Agenda 06/26/2018 Item #9B06/26/2018
EXECUTIVE SUMMARY
Recommendation to adopt an Ordinance intended to protect the public’s right to access and
recreate along Vanderbilt Beach while at the same time protecting the local tourism industry and
the private property rights of those owners with lands adjacent to the Gulf.
OBJECTIVE: To protect the public’s long-established customary use of all of Vanderbilt Beach.
CONSIDERATION: The following is a brief outline of the primary legal issues concerning ownership
of and access to the beach.
The Public Trust Doctrine: The public has a right of access along the beaches and shorelines of
Florida situated below the “mean high tide line” (see diagram below). Article X, Section 11 of the Florida
Constitution clarifies that the state holds the land seaward of the mean high-tide line in trust for the
public. This is commonly known as the “Public Trust Doctrine.”
The Customary Use Doctrine. The FL Supreme Court has recognized, in a limited way, the
“customary use doctrine” in City of Daytona Beach v. Tona-Rama Inc., 294 So. 2d 73 (Fla. 1974), which
held:
“If the recreational use of the sandy area adjacent to mean high tide has been ancient,
reasonable, without interruption and free from dispute, such use, as a matter of custom,
should not be interfered with by the owner. However, the owner may make any use of his
property which is consistent with such public use and not calculated to interfere with the
exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the
wet sand or foreshore area.
This right of customary use of the dry sand area of the beaches by the public does not create
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any interest in the land itself. Although this right of use cannot be revoked by the land owner,
it is subject to appropriate governmental regulation and may be abandoned by the public.”
The Fifth District Court of Appeal in Reynolds v. County of Volusia, 659 So. 2d 1186 (Fla. 5th
DCA 1995) clarified the scope of the Supreme Court’s opinion in Tona-Rama. The court stated that the
doctrine of custom requires “courts to ascertain in each case the degree of customary and ancient use the
beach has been subjected to and, in addition, to balance whether the proposed use of the land by the fee
owners will interfere with such use enjoyed by the public in the past.”
At its last session, the State Legislature enacted HB 631. HB 631 prohibits local governments
from adopting or keeping an ordinance or rule establishing the customary use of privately owned dry-sand
areas - those areas about the mean high-tide levels - without complying with the procedures of the new
law. Local governments seeking to set up the customary use of privately owned lands must first adopt,
through a public hearing, a formal notice of intent, provide notice to owners, and file a complaint with a
circuit court. The court would then have to decide if the land is subject to the customary use doctrine.
The bill does not apply to existing ordinances or rules adopted and in effect before Jan. 1, 2016, and any
governmental body can use this affirmative defense based on laws or regulation enacted before July 1,
2018.
As an aside, the new law does not affect current beach management, nourishment and erosion
control programs.
On June 13th, the City of Naples enacted an Ordinance relating to the customary use of beaches.
The ordinance as then proposed was discussed at the Board’s meeting of June 12th. The Board directed
the County Attorney to draft and advertise a similar ordinance for the Board’s consideration. It is the
County Attorney and staff’s opinion that the only beach within unincorporated Collier County not already
owned by the County that falls within the Customary Use Doctrine is Vanderbilt Beach.
The proposed ordinance is premised on the fact that Collier County residents and visitors alike
have long enjoyed access to Vanderbilt Beach. The public’s use of Vanderbilt Beach has been ancient,
reasonable, without interruption, and free from dispute. The Board has also from time to time approved
the expenditure of public monies to renourish and enhance Vanderbilt Beach to protect this customary
access and use.
FISCAL IMPACT: The cost of advertising was $383.77.
GROWTH MANAGEMENT IMPACT: There is no Growth Management impact associated with this
Executive Summary.
RECOMMENDATION: That the Board of County Commissioners adopts the proposed ordinance, to
be known as the Vanderbilt Beach Customary Use Ordinance.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
ATTACHMENT(S)
1. Proposed Ordinance - Vanderbilt Beach Customary Use (PDF)
2. City of Naples - 6-13-18 Agenda Memorandum and Proposed Ordinance (PDF)
3. CS-HB631 - Section 163.035 Florida Statutes (PDF)
4. Legal ad - Agenda ID 5942 (PDF)
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06/26/2018
COLLIER COUNTY
Board of County Commissioners
Item Number: 9.B
Doc ID: 5942
Item Summary: Recommendation to adopt an Ordinance intended to protect the public’s right to
access and recreate along Vanderbilt Beach while at the same time protecting the local tourism industry
and the private property rights of those owners with lands adjacent to the Gulf.
Meeting Date: 06/26/2018
Prepared by:
Title: Legal Assistant/Paralegal – County Attorney's Office
Name: Virginia Neet
06/13/2018 11:10 AM
Submitted by:
Title: County Attorney – County Attorney's Office
Name: Jeffrey A. Klatzkow
06/13/2018 11:10 AM
Approved By:
Review:
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 06/13/2018 11:23 AM
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 06/14/2018 8:40 AM
Budget and Management Office Mark Isackson Additional Reviewer Completed 06/15/2018 10:28 AM
County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 06/15/2018 3:40 PM
Board of County Commissioners MaryJo Brock Meeting Pending 06/26/2018 9:00 AM
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9.B.1
Packet Pg. 49 Attachment: Proposed Ordinance - Vanderbilt Beach Customary Use (5942 : Vanderbilt Beach Customary Use Ordinance)
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Packet Pg. 50 Attachment: Proposed Ordinance - Vanderbilt Beach Customary Use (5942 : Vanderbilt Beach Customary Use Ordinance)
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Packet Pg. 51 Attachment: Proposed Ordinance - Vanderbilt Beach Customary Use (5942 : Vanderbilt Beach Customary Use Ordinance)
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Packet Pg. 52 Attachment: Proposed Ordinance - Vanderbilt Beach Customary Use (5942 : Vanderbilt Beach Customary Use Ordinance)
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Packet Pg. 53 Attachment: City of Naples - 6-13-18 Agenda Memorandum and Proposed Ordinance (5942 : Vanderbilt Beach Customary Use Ordinance)
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Packet Pg. 54 Attachment: City of Naples - 6-13-18 Agenda Memorandum and Proposed Ordinance (5942 : Vanderbilt Beach Customary Use Ordinance)
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Packet Pg. 55 Attachment: City of Naples - 6-13-18 Agenda Memorandum and Proposed Ordinance (5942 : Vanderbilt Beach Customary Use Ordinance)
9.B.2
Packet Pg. 56 Attachment: City of Naples - 6-13-18 Agenda Memorandum and Proposed Ordinance (5942 : Vanderbilt Beach Customary Use Ordinance)
9.B.3
Packet Pg. 57 Attachment: CS-HB631 - Section 163.035 Florida Statutes (5942 : Vanderbilt Beach Customary Use Ordinance)
9.B.3
Packet Pg. 58 Attachment: CS-HB631 - Section 163.035 Florida Statutes (5942 : Vanderbilt Beach Customary Use Ordinance)
9.B.3
Packet Pg. 59 Attachment: CS-HB631 - Section 163.035 Florida Statutes (5942 : Vanderbilt Beach Customary Use Ordinance)
9.B.3
Packet Pg. 60 Attachment: CS-HB631 - Section 163.035 Florida Statutes (5942 : Vanderbilt Beach Customary Use Ordinance)
9.B.4
Packet Pg. 61 Attachment: Legal ad - Agenda ID 5942 (5942 : Vanderbilt Beach Customary Use Ordinance)