Florida's Gulf coast beaches host one of the most contested legal disputes in American coastal property law: whether the public has a common law right of customary use over the dry-sand portions of privately owned beachfront property, and whether the governmental and judicial enforcement of that right constitutes a taking of private property without just compensation. The doctrinal battle runs through the Florida Supreme Court, a Supreme Court plurality opinion that raised more questions than it answered, and a fractious recent history of state legislation.
I. The Florida Customary Use Doctrine: Tona-Rama
The starting point is City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974). The Florida Supreme Court held that the public may acquire a right of customary use over privately owned beach property — including the dry sand above the mean high-water line — through a common law doctrine rooted in English common law and the historical practice of public beach recreation. Under Tona-Rama, customary use may be established where the recreational use has been:
- Ancient — established from time immemorial or at least from a very remote period;
- Reasonable — not repugnant to or inconsistent with other law;
- Without interruption — exercised as a matter of right without effective challenge; and
- Free from dispute — generally recognized and accepted as a matter of settled custom.
The court explained that the customary right is not a governmental taking of private property but rather an inherent limitation on the private property right that existed at the time of acquisition — the property was conveyed subject to the public's customary claim. This framing is conceptually important for the takings analysis: if the customary right predates private ownership and limits title from inception, there is no "taking" because the property owner never held the right that the public now exercises.
The Tona-Rama doctrine applies to the dry sand, not to the wet sand or submerged lands already held by the state in trust. Beachfront property owners in Florida hold title to the dry-sand area above the mean high-water line, while the state owns the foreshore (wet sand between mean high and mean low water). Customary use claims principally concern this dry-sand buffer, which is the portion landowners attempt to fence, post, or otherwise exclude from public recreational use.
II. The Legislative Attempt to Codify and Constrain: Fla. Stat. § 163.035
For decades following Tona-Rama, municipalities and counties asserted customary use rights through ordinances without judicial proceedings. Walton County on Florida's Emerald Coast became a particular flashpoint: the County enacted a customary-use ordinance asserting public access to all dry-sand beaches in the county, affecting thousands of beachfront property owners who had purchased with the expectation of private beach exclusivity.
The Florida Legislature responded in 2018 by enacting Fla. Stat. § 163.035, effective July 1, 2018. The statute imposed a mandatory judicial process for governmental assertion of customary use rights. Under § 163.035:
- A governmental entity may not adopt or maintain an ordinance based on customary use unless that ordinance is grounded in a judicial declaration affirming recreational customary use on the specific beach.
- To obtain a judicial declaration, the governmental entity must (a) adopt a notice of intent at a public hearing identifying the parcels subject to the claimed customary use, and (b) within 60 days of the notice of intent, file a Complaint for Declaration of Recreational Customary Use in the circuit court for the county in which the properties are located.
- All proceedings are de novo; there is no presumption of customary use, and the governmental entity bears the burden of proving by a preponderance that the use has been ancient, reasonable, without interruption, and free from dispute.
- The statute grandfathered ordinances adopted and in effect on or before January 1, 2016, and preserved the right to raise customary use as an affirmative defense in challenges to pre-July 1, 2018 ordinances.
The practical effect of § 163.035 was to void Walton County's blanket customary-use ordinance without eliminating the county's ability to assert customary use — but requiring it to do so parcel-by-parcel through a judicial process with a proof burden. The statute did not answer the constitutional question; it proceduralized it.
Note: The Florida Legislature enacted SB 1622 in 2025, effective June 24, 2025, which made further changes to the beach access and customary use framework. Practitioners should verify current statutory language as of the date of representation.
III. Stop the Beach Renourishment, Inc. v. Florida DEP, 560 U.S. 702 (2010)
The federal constitutional backdrop for Florida beach takings claims was set — but not resolved — by Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010). The case arose from the Florida Beach and Shore Preservation Act (BSPA), which permits DEP to restore eroded beaches by adding sand (renourishment) and establishing a fixed erosion control line (ECL) that becomes the permanent boundary between public and private land. The renourishment project at issue extended the dry sand seaward of the ECL, placing new publicly owned dry sand between the littoral owners' property and the water.
Beachfront property owners argued that the BSPA, as interpreted by the Florida Supreme Court, deprived them of established littoral rights — specifically, the right to contact with the water and the right to accretions — without compensation, and that the Florida Supreme Court's decision itself constituted a "judicial taking."
All eight participating Justices agreed that the Florida Supreme Court's decision did not unconstitutionally take the property owners' rights, affirming the Florida Supreme Court. But the plurality opinion by Justice Scalia (joined by Chief Justice Roberts, Justice Thomas, and Justice Alito) broke new ground by addressing whether a state court decision can itself constitute a taking under the Fifth Amendment — the "judicial takings" doctrine. The plurality held that if a court declares that what was once an established right of private property no longer exists, "it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation." 560 U.S. at 715. The Takings Clause applies to courts as well as legislatures.
Justices Kennedy and Sotomayor concurred in the judgment only, declining to reach the judicial takings question and arguing that due process principles suffice to address judicial overreaching in property determinations. Justices Breyer and Ginsburg concurred in the result but expressed concern that the plurality's analysis would require lower federal courts to second-guess state court property law decisions on a broad scale.
*The practical import of Stop the Beach** is thus uncertain. It produced no majority on the judicial takings doctrine, leaving the question formally open. The plurality's reasoning provides persuasive authority that a state court's expansion of public rights at the expense of established private property rights — beyond what the state's prior case law recognized — may itself require just compensation. In the customary-use context: if a Florida court were to declare, in a § 163.035 proceeding, that customary use applies to a parcel where no such use historically existed, the property owner has a Stop the Beach* plurality-supported argument that the judicial declaration itself constitutes a taking.
IV. Practice Notes for Plaintiffs' Counsel
Which theory? Plaintiffs challenging customary use assertions by Florida governmental entities may proceed on multiple theories:
- Declaratory judgment under Fla. Stat. § 163.035, contesting the governmental entity's proof that the Tona-Rama elements are satisfied for the specific parcel at issue.
- Inverse condemnation under Art. X, § 6 of the Florida Constitution, arguing that the governmental assertion of customary use — or the judicial declaration confirming it — constitutes a taking of the private property right to exclude.
- Federal constitutional takings under the Fifth and Fourteenth Amendments, pursuing a § 1983 claim for an uncompensated taking or a Tucker Act claim against the state if immunity barriers can be overcome.
- Due process under the Fourteenth Amendment, arguing that a categorical legislative or judicial expansion of customary use without individualized proof fails the due process framework Justice Kennedy identified in Stop the Beach as the appropriate analytical vehicle.
Burden of proof. Under § 163.035, the governmental entity bears the burden of proving all four Tona-Rama elements by a preponderance. This is a meaningful litigation burden: the government must produce historical evidence of public recreational use on the specific parcel going back sufficiently far to satisfy the "ancient" requirement, with documentation that the use was without interruption and free from dispute. For recently developed parcels, or parcels that were historically fenced or restricted, this burden may be difficult to meet.
Historical evidence. Defenses in customary use proceedings turn on whether the property owner or predecessors ever effectively disputed the public's access — fence installations, posting notices, calling law enforcement on trespassers, or physically restricting use all bear on the "free from dispute" and "without interruption" elements. Property owners contemplating beach development should document any restrictions placed on access to preserve these defenses.
Survey and title analysis. The location of the mean high-water line — which determines where state-owned foreshore ends and private dry sand begins — is critical to the scope of any customary use claim and to inverse condemnation damages. Licensed surveyors applying the methodology from Florida's Board of Trustees v. Medeira Beach Nominee, Inc. line of cases should be engaged early.
Timing under § 163.035. The statute requires the governmental entity to file its declaratory action within 60 days of its notice of intent. A governmental entity that fails this deadline lacks authority to enforce the ordinance. Monitor notice-of-intent filings and assert the deadline in any challenge to an ordinance filed after the 60-day window closes.
V. The Takings Analysis: Does the Customary Use Doctrine Itself Constitute a Taking?
The core constitutional question unresolved by Stop the Beach is whether judicially recognized customary use, applied to a specific parcel, constitutes a taking requiring compensation. Florida courts applying Tona-Rama have consistently said no — the customary right is a pre-existing limitation on title, not a new government restriction — but this logic is difficult to reconcile with the property owner's expectation at purchase.
The strongest plaintiffs' argument runs as follows: if a property owner purchased beachfront land with a title unencumbered by any recorded customary use easement, paid full market value for property that included exclusive dry-sand access, and then a court or governmental entity declares the dry sand subject to public use, the owner has suffered an interference with reasonable investment-backed expectations and a diminution in value attributable to government action — the Penn Central elements of a compensable regulatory taking. The government's response — that customary use predated the purchase — requires the court to find that the historical use was sufficiently established to have been a known limitation on title at the time of purchase, a highly fact-specific inquiry.
VI. Open Questions
Does § 163.035 adequately protect property owners? The statute's procedural requirements have been praised as a significant property rights protection, but critics note that the judicial process for declaring customary use — once completed — would provide the governmental entity with an indefinitely applicable judicial order binding all future owners of the parcel, potentially without compensation.
What is the scope of the judicial takings plurality? Stop the Beach's plurality opinion addressed a specific set of Florida littoral property rights. Whether the judicial takings doctrine it articulates applies to customary use declarations, public trust doctrine expansions, or other judicial property law developments remains to be resolved in a case that produces a majority opinion.
2025 legislation. SB 1622 (enacted June 2025) amended the beach access framework in ways that may affect current proceedings. Practitioners should obtain and read the current version of § 163.035 and related statutes before advising clients on any pending beach access dispute.
VII. Closing
Florida beach access law sits at the intersection of common law customary use doctrine, statutory procedural reform, and federal constitutional takings theory that the Supreme Court has addressed without resolving. For plaintiffs' counsel challenging customary use assertions, the § 163.035 judicial process is both the primary battlefield and a potential source of constitutional claims if the process results in a declaration that extinguishes established private property rights without compensation. The Stop the Beach plurality's judicial takings reasoning provides a federal constitutional backstop that, while not yet a majority rule, supplies compelling argument for compensation when a court declaration eliminates what the property owner reasonably expected to own.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.