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* Juris Doctor candidate, May 2003, The Florida State University College of Law; B.A.The Florida State University, 2000. The author would like to express gratitude to herinfinitely wise advisors Professor Harold P. Sutherland and Peter A. Lagonowicz. 1. Duval v. Thomas, 114 So.2d 791.795 (Fla. 1959). 331LAYING OUT AN “UNWELCOME MAT” TO PUBLICBEACH ACCESSJENNIFER A. SULLIVAN *Table of ContentsI. INTRODUCTION ................................. 332II. DEFINING THE BATTLEGROUND ..................... 332III. DRAWING THE LINE IN THE SAND ................... 333IV. TRADITIONAL TOOLS TO PRESERVE PUBLIC BEAC H ACCESS ........................... 334A. The Public Trust Doctrine ..................... 334B. Prescriptive Easement ........................ 335C. Implied Dedication ........................... 336V. MODERN TOOL BASED ON TRADITIONALCUSTOM: THE DOCTRINE OF CUSTOM ................ 336VI. UNCONQUERED ISSUES: THE FLORIDA PANHANDLE BATTLEGROUND ........... 340A. Destin, Florida — The World’s Luckiest Fishing “Village” ............................. 340B. No Disturbances, No Harm ..................... 343VII. THE EFFECT OF PINCREST LAKES, INC. V. SHIDEL ON THE PRESERVATION OF PUBLIC BEACH A CCESS ........................... 346VIII. CONSISTENCY AND ENFORCEMENT OF COMPREHENSIVE PLANS .......................... 349IX. PROBLEMS ASSOCIATED WITH PUBLIC BEACH ACCESS ................................. 350A. Overcrowding and Adjacent Landowners ......... 350B. Locating Public Beach Access Points ............. 351C. Parking .................................... 352D. Blocked Accessways .......................... 353X. CONCLUSION ................................... 354“Florida is advertised as a playground, a retreat from thehurryscurry of the modern world and from the rigors of northernclimes. Fishing and swimming are prominent if not principal itemsof the entertainment the stranger expects to find here.”1332 JOURNAL OF LAND USE [Vol. 18:22. See FLA. COASTAL MGMT. P ROGRAM, DEP’T OF ENVTL. PROT., B EACH ACCESS SIGNS,available at http://www.dep.state.fl.us/secretary/legislative/coastal/programs/access_signs.htm (last visited Nov. 24, 2002) [hereinafter BEACH ACCESS SIGNS].3. Referring to "the [1991] storm of the century, boasting waves over one hundred feethigh[,] a tempest created by so rare a combination of factors that meteorologists deemed it 'theperfect storm'." The Perfect Storm, available at http://www.wwnorton.com/catalog/fall00/005032.htm (last visited Nov. 24, 2002) (phrase coined by NOAA meteorologistBob Case); see also SEBASTIAN JUNGER, THE PERFECT STORM (Harper Collins 1997) (depictingthe story of the perfect storm and its victim, the swordfishing boat Andrea Gail).4. JOSEPH J. KALO ET AL., COASTAL AND OCEAN LAW CASES AND MATERIALS 89 (2d ed. WestGroup 2002).5. See id.I. INTRODUCTIONThere is no doubt that public beach access is a hotly disputedissue in the State of Florida. Ninety-nine percent of coastalresidents, as well as tourists, depend upon public access points toreach the beach; while less than one percent of Florida’s coastalresidents own beachfront property.2 To some, the beach offers avacation from their everyday life; to others, the beach offers a wayof life. Amidst this sun, sand, and surf, however, lies an ongoingbattle between beachfront property owners and the public. To somethe beach is a playground; while to others the beach is a backyard.This beach turf war may lead Florida courts to dip their judicial toesin the rough surf, as they have time and time again. This Commentrevisits the issue of public beach access and the doctrine ofcustomary usage. Additionally, this Comment will visit theremaining issues that surround the battleground of the over-development of Florida Panhandle beaches, while discussingproblems associated with public beach access. Finally, thisComment illustrates how four individual elements in Florida'shistory have created "the perfect storm" for Florida to test thestrength of its policy on preserving public beach access.3 II. DEFINING THE BATTLEGROUNDTo the average tourist who comes to visit a town on the beach,it may seem like the beach is their playground. However, to coastalresidents, there are limitations and lines drawn on that tropicalplayground.The battle over beach access concerns two rights — the rightof the public to use the beach, and the right of the privatelandowner to exclude.4 The concept of private land ownership isdeeply embedded in U.S. property law. However, the importance ofprotecting the public interest in the beaches and oceans weighsstrongly against this concept.5 The increasing development ofcondominiums and mega-resorts in small beach towns is eroding theSpring, 2003] AN “UNWELCOME MAT” 3336. The "Emerald Coast" is the name for the coastal area along the Northwest FloridaPanhandle between Pensacola and Panama City Beach. It includes the communities andtowns of Navarre, Fort Walton Beach, and Destin. The Emerald Coast is characterized bysugar-white, sandy beaches and emerald green, crystal-clear waters. See EMERALD COAST,available at http://www.see-emeraldcoast.com (last visited Nov. 24, 2002).7. City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 81 (Fla. 1974) (Ervin, J.,dissenting). 8. KALO, supra note 4, at 83; DONNA R. CHRISTIE, PUBLIC ACCESS TO BEACHES AND SHORES1 (citing unpublished supplemental materials to COASTAL AND OCEAN LAW CASES ANDMATERIALS, Florida State University College of Law, Fall 2002, on file with author). 9. KALO, supra note 4, at 83.10. Id. (addressing incidental access issues that concern parking, concessionaires, anddispersal).11. KALO, supra note 4, at 43.12. FLA. CONST. art. X, § 11 (emphasis added). 13. KALO, supra note 4, at 43. See generally Borax Consolidated Ltd. v. Los Angeles, 296U.S. 10, 26-27 (1935).character for which tourists seek out Florida’s beaches, especiallythe quiet and undeveloped character of the Emerald Coast.6 “WithFlorida’s population burgeoning and its recreational needsmultiplying by leaps and bounds, the State’s courts can ill affordany longer to be profligate with its public areas and allow them tobe frittered away upon outmoded pretexts for commercialexploitation.”7 There are two important beach access issues: horizontal accessand perpendicular access.8 Horizontal, or lateral, access en-compasses the public’s right


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