Trepanier v. County of Volusia, Florida, No. 5D05-3892 (Fla. Dist. App. Sept. 14, 2007)

Andrew Miller1

Background
Alfred Trepanier, Louis Celenza, and Zsuzsanna Celenza (plaintiffs) hold record title to platted lots of beachfront property that run adjacent to the Atlantic Ocean in New Smyrna Beach, Florida, which is located in Volusia County. A portion of the plaintiffs’ lots extends seaward of the established seawall and onto the sandy beach. As a result of hurricanes occurring in 1999 and 2004, the part of the shore adjoining the plaintiffs’ property suffered erosion. Due to this erosion, public use of the beach, and Volusia County’s regulation of that public use, shifted inland and onto the portion of the plaintiffs’ lots lying seaward of their seawall.

To ensure that endangered sea turtles are not harmed by vehicular traffic, which has been allowed on many beaches throughout Florida, the county has created a thirty-foot Habitat Conservation Zone (HCZ) within which vehicles are prohibited. The county demarcates the eastern boundary of the HCZ with a line of posts. These posts are realigned annually to take into account erosion and accretion. Since cars are prohibited from driving in the HCZ, the county’s location of traffic lanes and parking areas on the beach varies from year to year depending on conditions.

According to the plaintiffs, before 1999 the HCZ posts were just seaward of their platted lots and vehicle traffic and parking were, correspondingly, outside their lots. In 1999 hurricanes Floyd and Irene hit Florida’s east coast, causing severe erosion to the part of the beach where the plaintiffs’ property is located. The county subsequently reinstalled the HCZ posts substantially landward onto the plaintiffs’ lots. Once this was done, vehicles began driving and parking on the plaintiffs’ property up to the posts marking the HCZ. The hurricanes of 2004 resulted in substantial further erosion, which caused the posts and the traffic to shift even farther landward. On the Celenzas’ property, for example, the posts were 120 feet from the seawall in 1997 but only sixty feet from the seawall in 2004.

History
At trial, the plaintiffs alleged that the county improperly used their property for traffic and parking. Based on these allegations, they made three claims and one request for declaratory relief: (1) they brought an inverse condemnation action against the county based on the county’s appropriation of their property for parking and driving lanes; (2) they brought an action for trespass against the county, based on its maintenance of the parking and driving lanes, in which they sought an injunction to prevent such future activity, and monetary damages; and (3) they brought an inverse condemnation claim based on the county’s installation of the HCZ posts on their property.

The plaintiffs requested declaratory relief establishing their right to exclude the public from using their property for vehicular traffic and parking, and injunctive relief prohibiting the public from using their property for those purposes.

In its answer, the county asserted two counterclaims. First, it asked the court to recognize a public right of use based on the theories of dedication, prescription, and custom on the plaintiffs’ land, up to the seawall or line of permanent vegetation, for ingress, egress, recreational and other customary uses. The county sought an injunction from the plaintiffs’ purpresture2 which would interfere with, impair or impede the public’s exercise and enjoyment of its rights of access. Second, the county asked the court to declare that it held, in trust for the public, title to the thirty-foot strip of beach (known as the “Boardwalk”) in front of the Celenzas’ platted lot and that the Celenzas had no interest in this property.

The trial court denied the plaintiffs’ motion for partial summary judgment on the county’s counterclaims and entered an order of summary final judgment in favor of the county. The plaintiffs appealed.

The Plaintiffs’ Challenge
On appeal the plaintiffs contended that material issues of fact precluded the entry of summary final judgment because it was in dispute whether all of the elements of dedication, prescription, and custom were satisfied with respect to the plaintiffs’ lots, or, as to custom, the location of the permissive use, if any.

The county, relying primarily on City of Daytona Beach v. Tona-Rama, 294 So.2d 73 (Fla. 1974), asserted that the public has a superior right of access to and use of the dry sand beach, regardless of ownership of the underlying fee. The county further argued that the public’s right to use the beach necessarily includes driving and parking. Finally, the county argued that this public right migrates with the change in the coastline. In other words, if the public has a right of use seaward of beachfront property and the beach migrates landward, the right of public use migrates landward onto private property.

Sources of the Public’s Right of Use of the Beach
The District Court of Appeals began its discussion of the merits of the parties’ claims with an explanation of the sources of the public’s right of use of the beach. Florida courts have recognized that the public may acquire rights to the dry sand areas of privately owned portions of the beach through the doctrines of prescription, dedication, and custom.

Prescriptive Easement
For the public to gain a prescriptive easement in land, its use of private land must be: (1) continuous for the statutory period of twenty years, (2) actual, (3) adverse under a claim of right, and (4) either known to the owner or so open, notorious, and visible that knowledge of the adverse use by the public can be imputed to the owner.3 Moreover

the limits, location, and extent of [the] occupation must be definitely and clearly established by affirmative proof, and cannot be established or extended by presumption… And the pleadings, as well as the proof, particularly where a prescriptive way is claimed, must show a reasonably certain line, by definite route and termini.

Acquisition of rights by one in the lands of another, based on possession or use, is not favored in the law and the acquisition of such rights will be restricted in favor of the owner.4

The appeals court noted that from the record it was disputed, indeed appeared unlikely, that the public was continuously driving on the part of the beach at issue prior to 1999, or that the public’s use was adverse. The court thus concluded that genuine issues of material fact precluded the trial court’s judgment in favor of the county on the theory of prescription.

Dedication
The public may acquire a right to use upland property by implied dedication, and the dispositive issue in determining whether or not property has been dedicated appears to be whether the private property owner has expressed “a present intention to appropriate his lands to public use.”5 Furthermore,

mere uses by the public although long continued, should be regarded as a license only, recoverable at the pleasure of the owner, where it does not appear that any public or private interests have been acquired upon the faith of the supposed dedication, which would be materially impaired if the dedication were revoked.6

The burden is on the government to prove dedication. Further compounding the issue, this court added that in an earlier case the “proof required of the intention to dedicate is ‘clear and unequivocal,’ and the burden of proof is on the party asserting the existence of the dedication.”7

The plaintiffs contended that a review of the plat by which they gained title to their properties showed that there was no such dedication. In support of their argument they cited an affidavit from an attorney, William E. Loucks, which stated that he found no evidence that any owner of any portion of the lands had dedicated those lands to the public for use as a roadway or parking area.

The county argued that the intent to dedicate the sandy portion of the beach was clear because in two of the plats the sandy beach is separated from the upland lots by a boardwalk. In addition, the county pointed out that the sand is dedicated as “Atlantic Ocean Beach.”

The court ultimately agreed with the plaintiffs that there was no indication in the plats that the developer had intended a dedication of any portion of the owner’s platted lots or the Boardwalk. Thus, the court found that the trial court erred in finding that the public had a right to use the plaintiffs’ private property on the grounds that their platted lots were dedicated.

Custom
The Florida Supreme Court first recognized the public’s customary right to the use of privately-owned dry sand beach in the Tona-Rama decision. The Tona-Rama court recognized that the public may acquire a right to use the sandy area adjacent to the mean high tide line by custom when “the recreational use of the sandy area . . . has been ancient, reasonable, without interruption and free from dispute.”8 The recognition of a right through custom means that the owner cannot use his property in a way that is inconsistent with the public’s customary use or “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.”9

The appeal required the court to confront several questions relating to the law of custom that had not been directly confronted before. Among these were: did Tona-Rama announce, as a matter of law, a right by custom for the public to use the entire dry sand beach of the entire coast of Florida? Moreover, if Tona-Rama did not establish such a universal right, how is the right established in an individual case? Finally, what is the effect of the inland migration of the beach on the public’s right of customary use?

In Tona-Rama the Florida Supreme Court wrote: “[t]he general public may continue to use the dry sandy area for their usual recreational activities . . . because of a right gained through custom to use this particular area of the beach as they have without dispute and without interruption for many years.”10 The appeals court in this case concluded that the intent of the higher court was to declare the right of customary use in the public only for the area of beach at issue in that case. The appeals court further concluded that the higher court did not intend to announce a right by custom for public use of the entire sandy beach area of the entire state of Florida.

The plaintiffs asserted that under Tona-Rama several issues of fact had to be resolved before a determination could be made as to whether or not the public has a customary right to drive and park on the plaintiffs’ property. Among these questions are whether such use is ancient, reasonable, without interruption and free from dispute. The plaintiffs urged that each of the test’s components requires facts specific to a given use and to a given property.

The court ultimately agreed, stating that the acquisition of a right to use private property by custom is “intensely local.” The court went on to find that the specific customary use of the beach in any particular area may vary, but proof is required to establish the elements of a customary right. The court then restated the Tona-Rama test for establishing a right under custom: does evidence establish the existence of the public’s right to access and use a particular area of privately owned beach?

The plaintiffs had urged that driving and parking on the beach are not properly a customary right because the practice of driving and parking on the beach was not ancient or reasonable and because there was no evidence that driving or parking was ever a public use made of the area of the beach where the plaintiffs’ property was located. The court agreed that it was not enough to show that driving and parking were a customary use of some of the county’s beaches; the county had to show that driving and parking were a customary use of this part of this area of this beach. The county failed to do this. The record showed that there were parts of the beach in Volusia County where driving and parking were not allowed at all or during certain periods. Thus, the appeals court found that driving and parking on the plaintiffs’ part of the beach had not been established through custom.

Additional Issues
The appeals court also had to decide whether the public’s right of use (if it existed) moved with the rise and fall of ocean levels. In Siesta Props. Inc. v. Hart the court explained how title was affected by accretion, erosion, and avulsion:

[t]he rule we think should govern in such a situation is set forth in In re City of Buffalo, 206 N.Y. 319, 99 N.E. 850, 852, wherein it is stated: ‘When land bordering a body of water is increased by accretion . . . the new land thus formed belongs to the upland to which it attaches. By the same reason the rule is that, when the sea, lake, or navigable stream gradually and imperceptibly encroaches upon the land, the loss falls upon the owner, and the land thus lost by erosion returns to the ownership of the state. This is not the rule where the loss of the land occurs by avulsion, defined as the sudden or violent action of the elements, the effect and extent of which is perceptible while it is in progress. In such cases the boundaries do not change.’11

The county’s position was that not only can title change because of the movements of the tide lines, but also the location and extent of easements or right of use along waterways moves with these changes. According to the county, if the daily ebb and flow of the sea affect ownership, the public’s right of use must move with it, otherwise the public would be cut off from its right to access navigable water.

The appeals court found that there was no doubt that if the mean high water line moves onto private property, the right of the public up to the mean high water line does migrate because of the public trust doctrine. However, the court stated that the right to use privately-owned land based on custom is on an entirely different footing. If the county could show that, by custom, actual use of the beach by the public as a thoroughfare has moved landward onto the plaintiffs’ property with the movement of the mean high water line, then that public right is inviolate. However, the court stated that it is not evident that if customary use of a beach is made impossible by the landward shift of the mean high water line, then the areas subject to the public right by custom would move landward with it to preserve public use on private property that previously was not subject to the public’s customary right of use.

The court recognized that a question as important as the meaning and scope of Tona-Rama and the migration of the public’s customary right to use of the beach will ultimately have to be determined by the Florida Supreme Court, but that such a case should not go to the high court until the evidentiary issues have been developed in the trial court. In the appeals court’s view, the migration of the public’s customary use of the beach must be proven. Accordingly, the court concluded that genuine issues of material fact do remain to be determined with regard to the theory of custom and thus reversed the summary judgment in favor of the county.

The plaintiffs also raised a takings issue at trial. The appeals court agreed with the trial court’s analysis of the takings issue. If the law recognizes that the public has a customary right to drive and park on the plaintiffs’ property as an adjunct of its right to other recreational uses of that property, as recognized in Tona-Rama, then no takings claim can be made.

Holding
The appeals court affirmed in part, agreeing with the trial court’s analysis of the takings issue.
The appeals court also reversed in part, concluding that genuine issues of material fact precluded the trial court’s judgment in favor of the county on the theory of prescription; finding that the trial court erred in finding that the public had a right to use the plaintiffs’ private property on the grounds that their platted lots were dedicated; and concluding that genuine issues of material fact remained to be determined with regard to the theory of custom. The court thus reversed the summary judgment in favor of the county and remanded the case to the trial court for further proceedings consistent with their opinion.

Endnotes
1. Mr. Miller is a J.D. candidate and participant in the Conservation Clinic at the University of Florida’s Levin College of Law.
2. A purpresture is “an encroachment upon public rights and easements by appropriation to private use of that which belongs to the public.” Black’s Law Dictionary (8th ed. 2004).
3. Downing v. Bird, 100 So.2d 57, 64 (Fla. 1958).
4. Id at 64-65 (internal quotes and citations omitted).
5. City of Palmetto v. Katsch, 98 So. 352 (1923).
6. Hollywood, Inc. v. Zinkil, 403 So.2d 528, 533 (Fla. Dist. App. 1981).
7. Brevard County v. Blasky, 875 So.2d 6, 11 (Fla. Dist. App. 2004).
8. 294 So.2d at 78.
9. Id.
10. Id. (emphasis added).
11. 122 So.2d 218, 223-24 (Fla. Dist. App. 1960).