• TABLE OF CONTENTS
HIDE
 Title Page
 Table of Contents
 Introduction
 Part I: Publice beach access: A...
 Public rights in the seashore
 Custom
 Dedication
 Prescription
 Beach access legislation
 Federal efforts
 State efforts
 The role of local governments
 Eminent domain and the police...
 Mandatory dedication
 Subdivision exactions and public...
 Conclusion
 Model beach access ordinance
 Footnotes to Part I
 Part II: Drawing the line at the...
 The model ordinance - Preliminary...
 The coastal environment
 Coastal wetlands
 Legal problems in implementing...
 State and federal regulations
 Problems of non-conforming use,...
 Legal challenges to the model...
 Variance procedures and proble...
 The taking issue
 Conclusion
 Model coastal construction and...
 Footnotes to Part II






Group Title: Florida Sea Grant technical paper.
Title: Development of county and local ordinances designed to protect the public interest in Florida's coastal beaches
CITATION PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00072273/00001
 Material Information
Title: Development of county and local ordinances designed to protect the public interest in Florida's coastal beaches
Series Title: Florida Sea Grant technical paper
Physical Description: iii, 100 p. : ; 28 cm.
Language: English
Creator: Maloney, Frank Edward
Florida Sea Grant College
Publisher: College of Law, University of Florida
Place of Publication: Gainesville
Publication Date: 1977
 Subjects
Subject: Beaches -- Law and legislation -- Florida   ( lcsh )
Coastal zone management -- Law and legislation -- Florida   ( lcsh )
Genre: government publication (state, provincial, terriorial, dependent)   ( marcgt )
bibliography   ( marcgt )
non-fiction   ( marcgt )
 Notes
Bibliography: Includes bibliographical references.
Statement of Responsibility: Frank E. Maloney ... et al.
General Note: "Developed under the auspices of the Florida Sea Grant College Program...Grant no. 04-6-158-44055."
Funding: This collection includes items related to Florida’s environments, ecosystems, and species. It includes the subcollections of Florida Cooperative Fish and Wildlife Research Unit project documents, the Florida Sea Grant technical series, the Florida Geological Survey series, the Howard T. Odum Center for Wetland technical reports, and other entities devoted to the study and preservation of Florida's natural resources.
 Record Information
Bibliographic ID: UF00072273
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved, Board of Trustees of the University of Florida
Resource Identifier: aleph - 000363205
oclc - 04686333
notis - ACA1763

Table of Contents
    Title Page
        Title Page
    Table of Contents
        Table of Contents 1
        Table of Contents 2
    Introduction
        Page i
        Page ii
        Page iii
    Part I: Publice beach access: A guaranteed place to spread your towel
        Page 1
    Public rights in the seashore
        Page 2
    Custom
        Page 3
        Page 4
    Dedication
        Page 5
        Page 6
    Prescription
        Page 7 (MULTIPLE)
        Page 8
    Beach access legislation
        Page 9
    Federal efforts
        Page 10
        Page 11
    State efforts
        Page 12
    The role of local governments
        Page 13
    Eminent domain and the police power
        Page 14
        Page 15
    Mandatory dedication
        Page 16
        Page 17
        Page 18
        Page 19
    Subdivision exactions and public beach access
        Page 20
    Conclusion
        Page 21
    Model beach access ordinance
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
    Footnotes to Part I
        Page 36
        Page 37
        Page 38
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
        Page 46
    Part II: Drawing the line at the oceanfront: The role of coastal construction set-back lines in regulating development of the coastal zone
        Page 47
    The model ordinance - Preliminary problems
        Page 48
        Page 49
        Page 50
        Page 51
    The coastal environment
        Page 52 (MULTIPLE)
        Page 53
    Coastal wetlands
        Page 54
    Legal problems in implementing the model ordinance
        Page 55 (MULTIPLE)
    State and federal regulations
        Page 56
    Problems of non-conforming use, equitable estoppel, exceptions, and nuisance
        Page 57
        Page 58
        Page 59
        Page 60
    Legal challenges to the model ordinance
        Page 61
    Variance procedures and problems
        Page 62
    The taking issue
        Page 63
        Page 64
        Page 65
        Page 66
    Conclusion
        Page 67
        Page 68
    Model coastal construction and excavation setback and permit ordinance
        Page 69
        Page 70
        Page 71
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
        Page 78
        Page 79
        Page 80
        Page 81
        Page 82
        Page 83
        Page 84
        Page 85
        Page 86
        Page 87
        Page 88
        Page 89
    Footnotes to Part II
        Page 90
        Page 91
        Page 92
        Page 93
        Page 94
        Page 95
        Page 96
        Page 97
        Page 98
        Page 99
        Page 100
Full Text













DEVELOPMENT OF COUNTY AND LOCAL ORDINANCES
DESIGNED TO PROTECT THE PUBLIC INTEREST
IN FLORIDA'S COASTAL BEACHES


Frank E. Maloney Dan Fernandez
with

Anthony J. O'Donnell
Anthony R. Parrish
James M. Reinders


College of
University of
Gainesville


Law
Florida
32611


The information contained in this paper was developed under the
auspices of the Florida Sea Grant College Program, with support from the
NOAA Office of Sea Grant, U. S. Department of Commerce, grant number 04-
6-158-44055. This document is a Technical Paper of the State University
System of Florida Sea Grant College Program, 2001 McCarty Hall, University
of Florida, Gainesville, FL 32611. Technical Papers are duplicated in
limited quantities for specialized audiences requiring rapid access to
information, which may be unedited.

TECHNICAL PAPER ri. 11
Originally Published July 1977












TABLE OF CONTENTS


Page


INTRODUCTION


PART 1. PUBLIC BEACH ACCESS: A GUARANTEED PLACE TO
SPREAD YOUR TOWEL


1. Pub

A.

B.

C.

D.


ic Rights in the Seashore

Custom

Dedication

Prescription

Public Trust Doctrine


II. Beach Access Legislation

A. Federal Efforts

B. State Efforts


III. The

A.

B.

C.


Role of Local Governments

Eminent Domain and the Police Power

Mandatory Dedication

Subdivision Exactions and Public Beach Access


IV. Conclusion



MODEL BEACH ACCESS ORDINANCE


Footnotes to PART I.









Page


PA T II. DRAWING THE LINE AT THE OCEANFRONT: THE ROLE
OF COASTAL CONSTRUCTION SET-BACK LINES IN
REGULATING DEVELOPMENT OF THE COASTAL ZONE. 47


1. The Model Ordinance Preliminary Problems 48


I I. The Coastal Environment 52

A. Natural Dynamics of a High-Energy Beach 52

B. Coastal Wetlands 54


III. Legal Problems in Implementing the Model Ordinance 55

A. Special Features of a Coastal Setback 55

B. State and Federal Regulations 56

C. Problems of Non-Conforming Use, Equitable Estoppel,
Exceptions, and Nuisance 57

D. Legal Challenges to the Model Ordinance 61

E. Variance Procedures and Problems ,62

F. The Taking Issue 63


IV. Conclusion 67



MODEL COASTAL CONSTRUCTION AND EXCAVATION SETBACK AND PERMIT ORDINANCE. 69


Footnotes to PART II.











INTRODUCTION


Coastal areas traditionally have played a vital role in this nation's develop-

ment. Small colonies which clustered around natural harbors have blossomed into

huge metropolitan cities. Throughout our history the coastal shoreline has been

considered an unlimited resource. Only recently an awareness has evolved that

a great deal of the natural, historic, scenic, cultural, aesthetic, and recrea-

tional value of our coastal environment is lost forever as a result of private

development. Beaches, that is, those which remain public, have become as crowded

and confused as the cities from which the public seeks weekend sanctuary.

Although in many coastal areas the public has the right to use the shore be-

tween the mean high and mean low water lines, and in some cases the right to use

the adjacent soft sand areas, there is frequently no ready means of access to

these areas. Moreover, coastal dune, wetland, and estuarine beaches are not al-

ways adequately protected by present legislation. In short, our nation's coastal

beaches are disappearing rapidly.

In addition to the need for effective beach access legislation, it would be

extremely advantageous for individual counties to establish appropriate construc-

tion setback lines to prevent destruction of dunes, wetlands, and coastal beaches

and estuarine beaches between this line and the water's edge. In order to assist

local, coastal communities in dealing with these problems, a one year study was

undertaken at the University of Florida, College of Law, by Frank E. Maloney,

Dean Emeritus and Professor of Law, Principal Investigator on the project, and

Dan Fernandez, Director of the Center of Competence for Eastern U. S. Water Law,

Associate Investigator. The purpose of this'project was to develop model public

beach access and coastal construction setback and permitting ordinances. The







study was suggested by the Florida Coastal Coordinating Council--now the Depart-

ment of Natural Resources, Bureau of Coastal Zone Planning--and was funded by

the Sea Grant Program of the National Oceanic and Atmospheric Administration,

Department of Commerce (Grant No. R/L-2), and the University of Florida. Re-

search for and development of the model ordinances was undertaken with the assist-

ance of Anthony J. O'Donnell, Anthony R. Parrish, and James M. Reinders, University

of Florida, College of Law. It was through their diligent work that this study

was accomplished, and their assistance is gratefully acknowledged.

All of the coastal states were surveyed to determine what types of coastal

beach, estuarine beach, coastal wetlands, and coastal dune protection have been

attempted. In addition, numerous coastal communities throughout Floridawere

contacted. They supplied copies of ordinances that proved very helpful in

developing the model ordinances which incorporate and expand upon the best elements

of existing laws. Furthermore, valuable input was received from officials of

various Florida counties, as well as from representatives of the Florida Department

of Natural Resources, the Southwest Florida Regional Planning Council, and other

state and federal agencies.

This report is divided into two parts. Part One addresses the public beach

access issue. Generally, this part discusses public rights in the seashore,

current beach access legislation, and the role of local governments. Part Two

treats the problem of coastal construction. It begins with a discussion of the

coastal environment and expands upon the role of local legislation and the legal

problems involved in implementing local regulations. Each part includes a model

ordinance designed to aid local, coastal communities in providing for public

beach access and establishing restrictions on coastal construction to protect

coastal dunes, wetland, and estuarine beaches.

The model ordinances are not designed to completely inhibit all coastal







development. Such an endeavor would be extremely unreasonable. Obviously,

the rights of private landowners and developers must be respected. What is sought

is simply that the natural beauty of our beaches be respected and preserved as

well. In sum, the ordinances aim at sound land use planning whereby local govern-

ments can evaluate environmental consequences in advance of development so that

a reasonable balance can be reached between public and private interests.











PART I. PUBLIC BEACH ACCESS:

A GUARANTEED PLACE TO SPREAD YOUR TOWEL


As the nation's shoreline undergoes continuing development, and as public

demand for access to beach recreational areas increases, the age-old problem of

guaranteeing public beach access becomes ever more critical. Our beaches are

disappearing, both literally, through the processes of'erosion, and figuratively,

behind rows of fences and "No Trespassing, Private Beach" signs. In 1971, the

Corps of Engineers estimated that approximately one-fourth of the total national
2
shoreline was undergoing "serious erosion". More detrimental to public beach

recreation is the growth of private control over sand beaches. While the public

has the right to use the tidelands in most coastal areas, this right encompasses

only the area between the mean high and low tide lines.5 In many cases there is

neither a guaranteed right of access to the tidelands nor a right to use the

dry-sand area above the high tide line. Private ownership of dry'sand and up-

land areas can, consequently, foreclose any meaningful recreational use of beach

areas by the public, turning publically owned tidelands into de facto private

beaches.

Only two states, Texas and Oregon, have passed strong state legislation to
6
protect public beach rights. In the absence of such legislation, the burden of

providing adequate public beach access inevitably falls upon local governments.

This article offers a model ordinance designed to provide a means for coastal

communities to insure the provision of adequate public beach areas. As back-

ground for the model ordinance, discussion will focus on common law theories

supporting public beach rights, state and federal legislation, and the "taking"

issue, which is particularly relevant in the area of mandatory dedication of

land by developers prior to subdivision plat approval.








1. Public Rights in the Seashore

Public rights in the foreshore or wet sand area (the area between the mean

high tide and mean low tide lines) date back to the Roman civil law. Great

flowing waters, the sea and its shores were res communes -- things open to

common use by all citizens. The law protected public rights in unhindered

navigation and fishing, and guaranteed free access to navigable waters and the
8
foreshore. The concept that navigable waters and tidelands were.stamped with

a public trust waned somewhat during the Middle Ages. After the Norman Conquest

of England, the Crown's sovereign authority over land, the jus privatum, was

extended to the sea and the lands beneath it. The King could thus convey title

or rights to private citizens in any portion of the shore, a practice which grew

to such extent that by the time of the Magna Carta commercial activities in

England's waterways were being severely restricted by private landowners. This

prompted a growing awareness of the public value of the shorefront and its in-

compatability with private ownership. The end result was that after the signing

of the Magna Carta in 1215, the tidelands and navigable waters were stamped with

a public trust, the jus publicum, and were thereafter generally regarded as held
10
for the benefit of the public even where title was granted to private individuals.

By the time of the American Revolution this doctrine, while well established,
11
was still beset by inconsistencies. The thirteen original colonies succeeded

to all the rights held by the Crown, subject only to those ceded by the Constitu-
12
tion to the federal government.2 Thus ownership of all lands covered by tidal

waters was vested in the sovereign states.13 State ownership of the tidelands

and of submerged lands beneath navigable waters was confirmed by the United

States Supreme Court; however, the state's title was

title held in trust for the people of the State that
they may enjoy the navigation of the waters, carry on
commerce over them, and have liberty of fishing therein...





freed from the obstruction or interference of private
parties...and the idea that (a state's) legislature can
deprive the State of control over its bed and waters and
place the same in the hands of a private corporation...
is a proposition that cannot be defended.n

A state, therefore, could only dispose of lands held in trust for the public

when the rights of the public would not be infringed. It is to be noted that,

as regards beaches, only the wet sand areas were directly impressed with this

trust.15 Other doctrines are required to protect the public's interest in

dry-sand areas and to procure access over private lands.


A. Custom

One traditional common law concept widely used to acquire and protect

public beach rights is that of custom.16 Custom has been defined as a "usage

or practice of the people which, by common adoption and acquiescence, and by

long and unvarying habit, has become compulsory, and has acquired the force
-,17
of law with respect to the place or subject matter to which it relates.

The English common law noted several requirements for a right to be designated

as customary; to be enforceable, a custom had to be (1) ancient, (2) reasonable

and peaceable, (3) exercised without interruption, (4) of certain boundaries,

(5) obligatory, or compulsory, and (6) not inconsistent with other customs or
18
law. The theory underlying the doctrine is that any usage ancient enough to

go back beyond the memory of man must have been based on a legal right and

therefore should be given the force of law.

Until very recently, American acceptance of custom was confined to a few
19
early New Hampshire cases,9 the reason being that America was not an old

enough country for a usage to stem from "time immemorial".20 In 1969, however,

the Oregon supreme court in State ex rel Thornton v. Hay21 met this objection

by noting that "European settlers were not the first people to use the dry-sand

area as public land."22 Having thus resolved the antiquity requirement, the

court preferred custom over prescription or implied dedication in order to avoid

the prolonged tract-by-tract litigation required by the latter two theories.23







There has been debate as to just how broadly the decision in Thornton
24
should be read.4 If the decision is applicable to the entire Oregon coast-

line, it may be criticized on due process grounds since littoral owners of

other beach areas were not heard as to whether their particular beaches were

subject to usage by the public.2 A narrower reading of the decision would

make it binding only on the littoral owner before the court. While this would

avoid constitutional and evidentiary problems, it would deprive custom of its

greatest practical advantage -- the avoidance of tract-by-tract litigation.

The Thornton decision is also open to criticism on several other grounds.

First, the requirements for custom were not so clearly satisfied as the Oregon
26
court implied. 26Second, the court's statement that the decision "takes from

no man anything which he has had a legitimate reason to regard as exclusively

his"27 seems to conflict with the United States Supreme Court's holding in

Borax Consolidated, LTD. v. Los Angeles28 which held that a federal patent con-

veys title to the mean high tide line.

To date, only Hawaii has followed Oregon's lead and used custom to secure

public rights in beaches.29 The Florida judiciary has recognized the doctrine
30
of custom in dictum only. In City of Daytona Beach v. Tona-Rama, Inc. the

Florida supreme court acknowledged that where the public's use of the sandy

area adjacent to mean high tide has been ancient, reasonable, without interrup-

tion and free from dispute, then custom exists and public use cannot be denied

by a beachfront owner.31 However, the court stated that the public has no

interest in the land itself and cannot use the doctrine to prohibit the land-

owner from making reasonable use of his land.32 Two strong dissenting opinions

argued that the majority's approach would lead to continuing development of

Daytona's beaches to the detriment of the public.3

A narrow interpretation of the custom doctrine as applying only to in-

dividually litigated beach areas, while free of constitutional and evidentiary







problems, is of limited use in establishing public rights in beach areas.

Since the state can only claim an easement by public use on particular beaches,

the customary-right approach is less productive than other theories which re-

quire shorter periods of public use. Barring strong legislative support, the

doctrine of custom is of limited use in securing public rights in beach areas.

However, it may be helpful in conjunction with a claim of public easement in

private beachfront property to prevent the owners from claiming as a defense
34
that they had granted the public permission for past use.3


B. Dedication

Dedication is another doctrine that can be used to secure the public's

interest in dry-sand areas, even if it is only the right of passage to the

tideland. The doctrine is applicable to specific areas, so that single tract

litigation is required.35 Dedication is defined as "the devotion of property

to a public use by an unequivocal act of the owner, manifesting an intention

,36
that it shall be accepted and used presently or in the future.' Two elements

are involved: the intention of an owner to offer land or some interest therein,
37
and the acceptance of such an offer by the public. The most interesting

aspect of dedication is that both the owner's intent to dedicate and acceptance

by the public may be implied.8 Furthermore, once a dedication is deemed to

have occurred, it is not revocable by the owner or his successors and the public
39
cannot lose rights thus obtained through non-use or adverse possession.

Originally the courts applied dedication most often in connection with
40
wildlands,40 apparently feeling that other methods were more appropriate for

obtaining public beaches. In Seaway Co. v. Attorney General,41 the Texas

Court of Civil Appeals ruled that evidence showing a 60 year continuous use of

a specific stretch of privately owned beach by the public for recreational

purposes was sufficient to show the dedication of a prescriptive easement in







42
the beach. Subsequent California cases followed this Texas lead in finding

intent to dedicate from private owners' and their predecessors' failure to

take early and definite action to curtail public use of their property.

The aspect of dedication that has provoked the most discussion is that

the intent to dedicate, or animus dedicandi, may be implied. In Gion v. City
43
of Santa Cruz and Dietz v. King the California supreme court held that the public

had acquired a recreational easement in privately owned dry-sand and upland areas.

Since the private owners had made no significant objection to the public usage

for a period of five years, they were presumed to have intended to dedicate the
44
to public use. In order to negate the presumption, a private owner would

have to show either that he actually granted the public permission to use the
45
land or that he made bona fide attempts to prevent public use.

The Gion-Dietz approach shortened the "waiting period" for vesting of

rights in the public from twenty or more years, which may be required by

prescription or adverse possession, to a mere five years. The legal fiction

of a presumed intent to dedicate by which this shortening was accomplished,

however, has been severely criticized.47

Florida apparently has not relaxed the "intent to dedicate" requirement,

even though there is some early precedent for allowing implied dedication of

easements through acquiescence. As shown in Tona-Rama, if the court decides

to protect private over public interests, a finding of an implied dedication

can easily be avoided by holding that the use by the public was permissive.49

Florida seems to agree with Maryland50 that the distinction between dedication

and prescription should not be lost, and that implying a dedication solely

through long public use by loosely construing the requirement of intent to

dedicate is but a form of prescription for which all of the prerequisites for
prescriptive rights should be me51
prescriptive rights should be met.






C. Prescription

Most courts agree that in either prescription or adverse possession, a

right is acquired only through actual, continuous and uninterrupted use by

the claimant of the lands of another for a prescribed period.52 Most impor-

tantly, the use must be adverse and inconsistent with the owner's use, and be

so open or notorious that knowledge of it can be imputed to the owner.5 The

use cannot be permissive, since a permissive use never ripens into a prescrip-

tive right.54 Adverse possession has the additional requirement of "possession"
55
rather than mere use.

Despite all these requirements, prescription can be an effective means for

obtaining an easement across private property, especially where there is no

presumption that the public's use of land is by implied license.56 Since the

public and beachfront owners often share the use of a stretch of beach, the

degree of adversity required by a given jurisdiction is a critical factor in

determining the effective scope of the doctrine. The supreme court of Florida

took a restrictive view in Tona-Rama, indicating that something close to ad-

verse possession by the public, rather than mere adverse use of the property,

is required.57 A more liberal approach was adopted by the Texas court in Seaway,

which held that

use by the owners and others at the same time raises the
presumption that user by others is permissive only but
there may be present in a given case sufficient evidence
to show user by the others under a claim of right. Mere
joint use is not determinative. If the nature of the
use is such as to show to the owner that the users are
claiming under a right independent of an permission from
him, there is the requisite adverseness.

If prescription is to be of value in acquiring beach access, other courts will

have to follow the Texas approach.


D. Public Trust Doctrine

The public trust doctrine states that certain lands to which title is







vested in the state are held in trust for the use of all the people of the

state.59 Consequently, any alienation of such lands by the state must be in
60
the public interest. This doctrine encompasses many areas besides beaches
61
and has been used in the past to protect parklands. Its applicability in

the beach area is generally limited to the tidelands or wet sand area. Al-
62
though public rights in tidelands were once limited to fishing and navigation,

the clear trend is towards protection of all recreational activities appropriate
63
to the beach environment. Such activities may be regulated by t.he state even

to the extent of allowing motor vehicles to drive upon the tidelands.64 Upland

owners whose property extends to.the high water line share all the rights held

by the public with one important difference: they are guaranteed access to
65
the water by virtue of their ownership.65 Since an upland owner is under no

obligation to provide the public with an avenue by which to reach the lands

held in trust for them, the construction of a fence and the posting of "No

Trespassing" signs may have the effect of turning .public tidelands into pri-

vate beaches. As a result, long stretches of private property and solid blocks

of apartments and condominiums have effectively removed hundreds of beaches,
66
including many of the finest, from the public's reach. Of course, once an

access way is provided, private owners may not lawfully restrict lateral tra-
67
verse of the tidelands; but even here upland owners have sometimes success-

fully discouraged public usage by the erection of high "sea walls" and "groins".6

A New Jersey decision, Borough of Neptune City v. Borough of Avon-by-the-
69
Sea, recently breathed new vitality into the public trust doctrine as applied

to beach access. In that case, non-residents of Avon-by-the-Sea were charged

higher usage fees than residents for using a municipally owned beach. The New

Jersey supreme court held that while municipalities may validly charge reason-

able beach usage fees they may not discriminate in any respect between residents

and non-residents.70 The court stated in rather significant dictum that:












The observation to be made is that the statements in our
cases of an unlimited power in the legislature to convey
such trust lands to private persons may well be too broad.
It may be that some such prior conveyances constituted an
improper alienation of trust property or at least that they
are impliedly impressed with certain obligations on the
grantee to use the conveyed lands only consistently with
the public rights therein. For example, the conveyance
of tide-flowed lands bordered by an ocean dry sand area in
private ownership to the owner thereof may well be sub-
ject to the right of the public to use the ocean waters.
And, whether or not there was any such conveyance of tidal
land, the problem of a means of public access to that land
and the ocean exists.

The Avon decision, at least as far as New Jersey is concerned, has altered

the public trust doctrine considerably.72 The decision implies that courts can

protect the public's rights in trust property, or what was once trust property,

by denying inconsistent use of such property or of other property adjoining :
73
it. The "obligations" the court referred to certainly include allowing the

public free access to tidelands. What is unclear is whether the decision also

means that the public should have the right to use the dry-sand area which may

be privately owned. Two justices on the Avon court were concerned that it did.

In dissenting, they said that a municipality should have the right to fence in

its entire property to the high water mark and to restrict the use thereof
74
to its own residents. By implication, private beachfront owners should be

able to do the same, and, if public beach access is desired, eminent domain is

the proper method for obtaining it.7 The majority suggested that while eminent

domain might be the preferred solution given unlimited funds, there may be

other viable solutions, such as a public trust doctrine flexible enough "to

meet changing conditions and needs of the public it was created to benefit."


II. Beach Access Legislation

SLegislation in the beach access area, both at federal and state levels,

has been understandably slow in developing. No matter how strongly an elected

lawmaker feels about the public's rights in coastal areas, he must hesitate







before confronting one of America's most cherished institutions--the right of

an individual to own and freely use or control property. The issue,-as recently

stated, is: "How can a broader range of policy considerations be incorporated

into decision processes, at the local level, when the impacts of the decisions
77
transcend jurisdictional lines?" This question has been receiving some ten-

tative answers which will be briefly examined here.


A. Federal Efforts

The Coastal Zone Management Act of 1972 (CZMA)78 represents the federal

government's strongest statement concerning use of coastal areas. The Act

recognizes that increasing development and demands upon coastal resources have

generated an urgent need for protective legislation,79 and that present state

and local land and water regulating arrangements are inadequate for this pur-
80
pose. However, rather than preempt state and local efforts, the Act recognizes

that

The key to more effective protection and use of the land
and water resources of the coastal zone is to encourage
the states to exercise their full authority...by-assisting
the states in cooperation with federal and local govern-
ments...in developing land and water use programs for the
coastal zone.81

In short, the preservation of beach resources is a local responsibility.

Congress has merely advanced the incentive by increasing the availability of

funds for this purpose.

Despite the fact that local governments have often shown themselves sus-

ceptible to pressure from developers this may be the best approach. After all,

"a town government is charged with protecting the interests of the town resid-

ents, not the public at large. Clearly there is a need for a broader perspec-

tive, but this perspective should not be allowed to arbitrarily preempt the

legitimate concerns of the coastal municipalities."82

The problem is to convince local governments of the need for comprehensive







coastal zone management, including the provision of public beach access. To

do this, the CZMA employs a traditional carrot and stick approach. First, at

the state level, the Act authorizes an initial federal grant paying up to two

thirds of the cost of developing a statewide coastal zone management program,8

an expensive job coastal states must eventually assume anyway. Subsequent

grants, however, are dependent upon the satisfactory development of such a
84
program. After a program has been approved, annual grants of up to two-

thirds of state implementation costs are authorized. While the requirements

for a satisfactory program are necessarily vague, the Act does specify that any

state program shall include the power

to acquire fee simple and less than fee simple interests
in lands, waters and other property through condemnation
or other means when necessary to achieve conformance with
the management program.85

Furthermore, a state program must also provide criteria and standards for

local implementation in the absence of direct state land and water use regula-
86
tion. Incentive for local government action is provided through allocation

87
of a portion of the state grant for local implementation of the state program.

Federal oversight control is assured by a provision for funding termination if
88
a state fails to adhere to an approved program.

Congress' continuing interest in the problem of public beach access is re-
89
flected in the recent enactment of comprehensive amendments to the CZMA. A

new provision requires state coastal planning programs to include "A definition

of the term 'beach' and a planning process for the protection of, and access to,

public beaches and other public coastal areas of environmental, historical,

esthetic, ecological, or cultural value."90 The amendments provide for an over-

all allocation of $25,000,000 per year, for five years, to cover up to 50 per-

cent of the cost of acquiring lands needed for "access to public beaches and

other public coastal areas...."91
other public coastal areas....







Other than the CZMA, federal beach access legislation has been limited
92
to several proposed versions of a National Open Beaches Bill.92 The compromise

but still controversial flavor of these proposals is readily apparent:

"(T)he beaches of the United States are impressed with a
national interest and the public shall have free and un-
restricted right to use them as a common to the full ex-
tent that such public right may be extended consistent
with such property rights of littoral landowners as may
be protected absolutely by the Constitution."93

If an Open Beach Bill is ever enacted, such general language would be of only

limited benefit in procuring beach access unless coupled with stronger and

more specific provisions.


B. State Efforts

The leading state legislation on beach access has come from Texas and

Oregon. The Oregon statute,95 which was relied upon heavily in the Thornton

decision, declares that the entire Oregon coastline, except those portions

disposed of by the state before July 5,- 1947, belongs to the state to be
97
administered as a state recreation area. Furthermore, where public use of

beach areas "has been sufficient to create easements in the public through

dedication, prescription, grant or otherwise, it is in the public interest

to protect and preserve such public easements as a permanent part of Oregon's
1,98
recreational resources." This does not mean that private individuals can

be divested of their rights in land which, under the Borax decision, may ex-
99
tend to the mean high tide line. It does, however, provide Oregon courts

with a strong legislative statement supporting preference of public over

private rights in beach areas in doubtful cases.
100
The Texas legislature has enacted even stronger statutes. The public

access provision, however, is limited to areas to which the public has already

acquired a right of use or easement through one of the common law theories.101

A major improvement over Oregon's statute is that







In any action brought or defended under this Act...a showing
that the area in question is embraced within the area from
mean low tide to the line of vegetation shall be prima facie
evidence that:
(1) the title of the littoral owner does not include the
right to prevent the public from using the area for ingress
and egress to the sea;
(2) there has been imposed upon the area subject to proof
of easement a prescriptive right or easement in favor of
the public for ingress and egress to the sea.102

There are criminal penalties and fines for the display of any communication at

any public beach which states that the public does not have the right of access

to such public beach.103

Except for Oregon and Texas, state legislation has largely been piecemeal.

Florida's beach access legislation affords a good example. A statement of the

public's interest in beach areas is noticeably absent from the Florida Beach
104
and Shore Preservation Act. There is, however, a provision for the purchase

of public access easements.105 Also, under the Outdoor Recreation and Conserva-
106
tion Act, the Division of Recreation and Parks of Florida's Department of

Natural Resources may exercise the power of eminent domain to acquire any and

all rights which may be necessary for the use and enjoyment of public water-
107
ways. The Department is also authorized to assist local governments finan-

cially in the acquisition of local beach properties, and is urged by the legis-

lature to give priority to applications relating to the acquisition of public

beaches in urban areas.0


III. The Role of Local Governments

There do not appear to be any simple answers to the beach access problem.

It is unlikely that the United States Supreme Court will soon declare the right
109
of public access to the beach a fundamental right.9 It is equally unlikely,

with all the other demands on state treasuries, that state governments will

allocate adequate funds to solve the problem through the exercise of eminent

domain. Local governments are thus faced with the problem of how to go about

procuring public beach access without alienating beachfront property owners and

13







without bankrupting local treasuries.


A. Eminent Domain and the Police Power

The federal government, the states, and authorized counties and municipalities

are clearly impowered to purchase or condemn land for park and recreational purposes.C

Beaches have been recognized as suitable for the creation of public parks.l

Therefore, as the dissenters in Borough of Neptune City v. Borough of Avon-by-the-
112
Sea pointed out, eminent domain at first glance appears to be the cure-all for

the beach access problem. This is not the case. The federal and most state

constitutions prohibit the taking of private property for public use without

just compensation.113 Just compensation for beach property, especially after

development, is extremely expensive. There are other problems as well. For

example, it is also generally required that there be a necessity for the taking
114
of private property. The necessity requirement builds in a "Catch 22".

Beaches in relatively non-populated areas are exempt from forced acquisition

by the state until there is adequate population within a reasonable distance

to justify it. By the time the area is sufficiently populous, the property is
115
prohibitively expensive. For this reason there is more and more interest

in the acquisition of easements, rather than fee simple interests in beach
116 117
lands. Such easements can be either positive or negative in nature.

Since the owner's interests may overlap with the public's, and since all the

public requires is access to the publicly owned wet sand area and, in some

cases, the right to use the dry-sand area for recreational purposes, it seems

reasonable that some upland owners might consent to sell easements in their

properties. Furthermore, with such compatible usage, the courts would be

less likely to hold an exercise of the state's eminent domain power, or even

the police power, to be unlawful since the upland owner would still be able
119
to make beneficial use of his property.9 Nevertheless, the purchase of ease-

ments would still be expensive, and might be resisted by taxpayers who object to-







purchasing what they tend to regard as theirs anyway.

A further possibility to be explored is a potential residual effect of

exercising the state police power to protect beach areas. Obviously, a

direct exercise of the police power to obtain beach access would probably

constitute an unconstitutional deprivation of private property. However,

each state has the power to reasonably regulate the use of private property

in the interest of public safety and welfare.120 With over 25 percent of the
121
nation's shoreline suffering serious erosion, with many beach lands being

irreparably destroyed, and with the availability of federal help to control

such erosion tied to the existence of sufficient public access,122 regulation

designed to stop uncontrolled development which is unreasonable and injurious

to the public shores would appear to be a legitimate exercise of the police
123
power. Furthermore, if the reasoning of the Wisconsin supreme court in
124
the recent decision of Just v. Marinette County is followed, local govern-

ments may be able to prevent construction in dry-sand areas as well. In Just

the court sustained a prohibition on the filling of wetlands by reasoning

that the property owner's interest in his property should be based only upon

the uses for which it is suited in its "natural state".125 Since the land

was unfit for development without artificial fill, the regulation precluding

such use did not deprive the landowner of a real interest in his property.126

Therefore, no compensable taking has occurred. Arguably, the same reasoning

could be applied to beach areas which are unsuited for development without
127
artificial means for stabilizing the sand.127 This is not to suggest that the

police power should be used to obtain beach access under the guise of protect-

ing public safety. Clearly such action would be invalid. However, it should

be a valuable side-effect of valid beach and shore protection measures, and

should be considered in the planning process.








B. Mandatory Dedication

As public need for recreation increases with rapidly expanding urbaniza-
128
tion, there is evident an ever-increasing conflict between public beach

use and the rights of private landowners. This conflict must inevitably lead

to some reevaluation of private littoral owners' property rights.129 The goal

is to provide for the development of coastal lands in a manner that both in-

creases their value and allows public recreational use. This goal can be

achieved through land-use planning administered by local government regulatory

authority. This section details operation of a traditional land-use mechanism--

subdivision exaction--as an effective means of ensuring public beach access.

State and local legislation throughout the nation has sought to condition

approval of subdivision development upon the developer's consent to some exac-
130
tion. The required dedication of essential community services such as streets,

sidewalks,131 water and sewer lines32 is now a well accepted aspect of sub-
133
division regulation. Required dedications classified as exactions typically

go beyond these normal public services,134 requiring donation of land for schools,135
136
parks, or recreational purposes.
137
Most subdivision litigation has involved exactions. Developers have

most frequently challenged exactions as an unconstitutional taking of private
138
property without just compensation. No settled doctrine has evolved in

response to these challenges; a reading of the cases discloses only generally

applicable, broad principles rather than definitive answers.

One rationale that has been used to validate mandatory dedication require-

ments is that the attempt to secure'plat approval is voluntary. In Billings
139
Properties, Inc. v. Yellowstone County, this rationale was used to uphold

a statute requiring dedication of land as a precondition to plat approval.
140
The court reasoned that the developer was not required to sell by plat, and

therefore the owner voluntarily dedicated some land to the public in exchange









for the advantage and privilege of having his plat recorded. The court con-
141
cluded that this was a reasonable exercise of the police power.4

A second theory, employed by some courts, is the economic benefit test
142
enunciated in Jordan v. Menomonee Falls. In that case, the court reasoned

that by approving a plat the municipality enabled a developer to subdivide his
143
land, thereby increasing its economic value. In return for the benefit de-

rived, a developer should dedicate land to meet the demands created by his
144
activities and the resulting influx of new residents. The difficulty with

this approach is that it assumes subdivision of property is a privilege rather

than a right and consequently fails to address the basic question of the right
145
to use property subject to reasonable regulation under the police power.1

A third approach was articulated in Pioneer Trust and Savings Bank v. Village
146
of Mount Prospect, in which the Illinois supreme court stated:

(1)f the burden cast upon the subdivider is specifically and
uniquely attributable to his activity, then the regulation is
permissible; if not, it is forbidden and amounts to a confis-
cation of property in contravention of constitutional prohibi- 147
tions rather than reasonable regulation under the police power.

Applying this "specifically and uniquely attributable" test, the court found the

required dedication for recreational facilities unlawful and confiscatory. Al-

though the strict approach of Pioneer Trust is not frequently followed, the

majority of courts still accept the premise upon which the theory was predicated;

that is, that a need for parks and recreational facilities must be created by
148
increased subdivision growth in order to justify mandatory dedication. In

almost every instance where the strict approach has been taken, dedicatory re-
149
quirements have been held unconstitutional.

Realizing the difficult burden imposed upon a municipality to demonstrate

that a required dedication for a park or school site is to meet a demand solely
150
attributable to the creation of new subdivision, some courts have allowed

exactions if evidence establishes a rational nexus between the exactions and the








151
public needs created by a new subdivision.5 Other courts, while purportedly

applying the "specifically and uniquely attributable" test, have found the test

satisfied on the basis of legislative enactments enabling local governments to

require exactions. The test is satisfied by a presumption of legislative validity.152

A modern and progressive approach to the exactions question may be found in

the leading case of Associated Home Builders, Inc. v. City of Walnut Creek.153
154
In that case, a state statute authorized the governing body of a city or county

to require that a subdivider dedicate land or pay fees in lieu thereof for park

or recreational purposes. The municipality enacted an ordinance requiring a

subdivider to provide one-half acre of parkland for each 1,000 new residents,
155
or a fee equal in value to such land. The developer challenged the state

statute contending that it amounted to a deprivation of private property without

just compensation. The court upheld the constitutionality of the act based upon
156 157
the economic benefit theory and the state police power,1 finding that the

statute could be justified on the basis of a general public need for recreational

facilities caused by present and future subdivisions.158

Courts customarily consider the reasonableness of the police power under

general rubrics, including arbitrariness, confiscation and discrimination.159

Dedicatory statutes and regulations have been declared invalid as confiscatory
160
if they require an excessive dedication of property and as arbitrary when
161
they bear no relation to the need created by the developers' activities.

An alternative to required dedication of land which has found increasing
162
acceptance in recent years is the concept of "in-lieu" payments.62 The pur-

pose of in-lieu payments in a subdivision regulation scheme is to permit or

require a developer to make monetary payment to public authorities to contribute

to the cost of land for public services such as parks and schools. Such pay-

ments are typically required when the size or location of a subdivision make

actual dedications economically burdensome or inappropriate from a public use








standpoint.

While statutes in a number of states provide for payment of a fee in

lieu of land dedication,64 this approach has been criticized when use of the
165
money is not limited solely to the subdivision generating the fees. In
166
Gulest Associates, Inc. v. Town of Newburgh66 an ordinance which provided that

the funds collected were to be used for the benefit of the entire town was
167
held unconstitutional. Courts have held that failure to limit expenditure

of fees to benefit the subdivision from which they were collected constitutes
168
an illegal tax. The Gulest decision was later overruled in Jenad, Inc. v.
169
Village of Scarsdale, in which the court took note of the fact that.although

some subdivisions may be too small to allow for open space to be set aside within

them, they still increase the need for open space and parkland; therefore, it

is reasonable to assess developers as long as the funds are earmarked for use in
170
the town or village. This line of reasoning was further extended in Walnut

Creek, which suggested that the fee collected from one developer may be used in

another part of the city to maintain proper balance between the number of persons
171
in the community and the amount of parkland available. Indeed, the court

noted that it would be patently unfair and perhaps discriminatory to require one

property owner to dedicate land while exacting no contribution from another

simply because of fortuitous circumstances of size or location of the subject
172
property.

The court in Walnut Creek also held that assessing an in-lieu fee on the

basis of market value of land which would otherwise be dedicated was a sufficient-

ly definite standard. "The question of fair market value is litigated frequently

in the courts and no authority cited requires a more precise definition."74

The court further stated the criteria for determining when a fee should be re-

quired in lieu of dedication may be as broad as whether "the slope, topography

and geology of the site as well as its surroundings are suitable for the intended







175
use of the park." Finally, fees may be used for acquisition of land or

for improvement of recreational lands already acquired, but not for unrelated
176
purposes.


C. Subdivision Exactions and Public Beach Access

Subdivision exactions are increasingly viewed by the courts as a valid

regulatory mechanism to overcome the problem of the rapid disappearance of

park and recreational space in urbanized areas. As such they constitute a

means of land-use planning capable of allowing reasonable coastal land develop-

ment while preserving adequate public beach access. While most of the demand

for public beach access comes from areas outside coastal subdivisions, the

existence of such subdivisions aggravates the access problem by cutting off

existing access, raising land values and creating a pattern 'of land use that

makes future purchase of beach access more difficult and expensive.177 Moreover,

dedication requirements generally involve only a small percentage of a subdivi-

sion tract or its value, and this cost is ultimately borne by the new residents
178
rather than a particular developer.

Requiring mandatory dedication of land or in-lieu fees for beach access as

a precondition to plat approval has several advantages. Subdivision exactions

can be utilized on a local level where the affected public wields its greatest

influence. Local boards can implement an exactions requirement with relative

ease and minimum expense. The expense of litigation and evidentiary problems
179
associated with establishing a common law easement are avoided. Finally,

exactions affect areas about to undergo extensive development and force developers

to pay the costs otherwise borne by the public.

Despite these advantages, subdivision exactions are not the final solution

to the problem of adequate public beach access. The major problem lies in the

fact that such exactions apply only to new areas facing development. A developer

must seek plat approval before dedication is required. Consequently, older








developments and even new developments on previously approved plats are not

affected.180 This problem is exacerbated in states like Florida where the

cyclical nature of land speculation has left vast numbers of vacant platted
181
lots. Moreover, it is often unclear whether a developer who seeks to build
182
or convert to a condominium development must comply with subdivision regulations.182

Nevertheless, while subdivision exaction is only one of several available means

of preserving public beach access, it does have potential for assuring substan-

tial beach areas for public use.


IV. Conclusion

This part of the report has discussed the legal principles which are current-

ly used to secure public beach access. However, much more is needed. The public's

right to the foreshore is diminishing, in effect, as upland and dry-sand areas

undergo extensive development. While the need to reverse this trend grows with

our increasing population, so does the cost of such an undertaking. Until state

and federal governments allocate sufficient funds to purchase an adequate supply

of public beaches, the burden rests largely with municipal and county governments.

The Model Beach Access Ordinance presented in'this report is offered to assist

local communities in alleviating their burden.












MODEL BEACH ACCESS ORDINANCE


The basic objective of this model ordinance is the provision of public beaches

and public access ways needed to meet increasing public demands for beach recrea-

tion areas in a time of expanding coastal development by private owners. In order

to deal with diverse factual patterns of prior public use and present or future

development, the ordinance incorporates a broad range of approaches, including

common law theories, purchase, eminent domain, and mandatory dedication of land

by developers.

Alterations of the following model will no doubt be necessary to meet the

particular needs of any given community. Thi-s is especially true regarding adop-

tion in states other than Florida, which has served as the legal focus of the

ordinance. For example, Section Four, which deals with formation of a Comprehen-

sive Beach Access Plan, places responsibility for this plan with the local plan-

ning agency mandated by the Local Government Comprehensive Planning Act of 1975

(Fla. Stat. 163.3161 et. seq.). A required element of the Comprehensive Plan

envisioned by this act is provision for public beach access. In other jurisdic-

tions, a local government might designate any other existing planning body to

fulfill this role and to avoid any overlapping of functions, make maximum use of

available personnel and expertise and coordinate beach access planning with

broader land use programs.

The primary function of the planning agency is formulation of a comprehensive

plan which will guide regulation of pre-existing public rights, dedicatory require-

ments, purchase, the exercise of eminent domain and provisions for support facili-

ties. Considerable initial investigation will be required to assess present and








future public needs and to integrate the different sources of public beach

ownership, use and access rights into an overall plan.

Local ordinances cannot, of course, achieve the sweeping impact and

effectiveness of state-level legislation. More states must follow the lead of

Texas and Oregon if we are to preserve beach resources for future generations.

Each passing day of governmental inaction, however, makes the problem more

acute and solutions more difficult. Therefore, local governments must act

quickly in the areas of coastal zone management and the preservation of public

beaches. The goal is to create a comprehensive plan which is both responsive

to public needs and fair to private landowners. Careful planning and vigorous

implementation of a public beach program within the framework of this model

ordinance offers a viable means of attaining this goal.












MODEL PUBLIC BEACH ACCESS ORDINANCE


SECTION ONE: SHORT TITLE

This ordinance shall be known as the Public Beach Access Ordinance.



SECTION TWO: FINDINGS OF FACT AND OBJECTIVES


2.1 Findings of Fact.

(a) The public beaches are lands held in trust for the people;

(b) The citizens of the state have the rightful use of such public beaches;

Commentary. The rights of the public in coastal areas are dis-
cussed at notes 3-10 and 54-72 supra. For a more detailed history
and discussion, see R. Clark, Water & Water Rights 36.4(b)(196,7);
H. Farnham, Water & Water Rights (1904); F. Maloney, Water Law and
Administration 353-57 (1968); Owens & Brower, Public Use of Coastal
Beaches 16-83 (1976); Dunscombe, Riparian and Littoral Rights (1970);
Maloney & Ausness, The Use and Legal Significance of the Mean High
Water Line in Coastal Boundary Mapping, 53 N.C.L. Rev. 186, J89-193
(1974); Note, Public Rights in Georgia's Tidelands, 9 Ga. L. Rev. 79
(1974). The operative language is drawn from Ore. Rev. Stat.
390.610-.690 (1968) and Vernon's Ann. Civ. Stat. 5 5415d (1975).

(c) The citizens of ___ maintain and support the public beaches;
(local unit)

Commentary. This support may take several forms, such as federal
and state erosion control expenditures, as well as expenses for
cleaning, lifeguards and other peripheral local services.

(d) The deems it essential for the promotion, protection
(governing body)

and improvement of the public health, safety, comfort, good order, convenience

and general welfare that all citizens have reasonable access to and use of such

public beaches;

Commentary. The foregoing language is modeled after that found
in Ore. Rev. Stat. 390.610 (1968); Vernon's Ann. Civ. Stat.
Art. 5415d 1 1 (1975); Proposition 20, Cal. Coastal Zone Con-
servation Act of 1972; Cal. Public Resources Code 10002.








(e) Development of coastal areas by private landowners frequently in-

creases demand for recreational areas, restricts access to public beaches, and

adds to the cost of acquiring public access ways.


2.2 Objectives.

In order to secure for the public access to and enjoyment of the natural

resource amenities of the beaches of _____, and to protect and develop
(local unit)

beach resources for the greatest benefit of all citizens, it is hereby declared

to be the legislative intent of this ordinance to provide for the planned and

orderly development of coastal lands so as to ensure the provision and maintenance

of public beaches and public access ways and the preservation and use of public

beach rights which have arisen through prescription, custom, dedication or other-

wise.



SECTION THREE: DEFINITIONS


Unless specifically defined below, words or phrases shall be interpreted so

as to give them the meaning they have in common usage, and to give this ordinance

its most reasonable application.

(a) "Beaches" are all coastal sandy areas along the Gulf of Mexico

or Atlantic Ocean, including wet sand, dry sand and immediate upland areas.

(b) "Coastal lands" as used in this ordinance shall mean those lands adja-

cent to the Gulf of Mexico or Atlantic Ocean, including beaches and their immediate

uplands, and designated in the Comprehensive Beach Access Plan as subject to re-

gulation under this ordinance.

(c) "Public Access Ways" are'lands over which the public has a right of

traverse to reach public beaches.

(d) "Public beach" shall mean any beach which has been dedicated to the pub-

lic or in which the public has acquired a right of use by easement, prescription,

25








custom, government ownership, or any other act, law or instrument.

(e) "Support facilities" shall mean shelters, equipment, restrooms, parking

areas and other facilities necessary for the safe, healthful and convenient use

and enjoyment of public beaches.

(f) "Subdivision" shall mean the division of a parcel of land, whether im-

proved or unimproved, into three or more lots or parcels of land for the purpose,

immediate or future, of transfer of ownership. For purposes of this ordinance,

the term "subdivision" shall include condominium development.

Commentary. The definition of beaches is limited to coastal sandy areas
since the ordinance is aimed at acquisition and preservation of recrea-
tional areas rather than broader aspects of coastal zone management or
land usei planning.
The definition of public beach takes into account the fact that
as a result of common law theories of dedication, prescription and
custom the public may acquire rights to uplands and dry sand areas
in addition to the publically owned foreshore. These same theories
are a source of public rights of traverse or public access ways.
Additional public beaches and public access ways will be created
through the mandatory dedication requirements of 5 of the ordin-
ance.
The definition of "subdivision" varies among jurisdictions,
with the number of lots involved being generally from three to six.
In order to achieve a maximum regulatory impact the smaller of
these common numbers was chosen for purposes of triggering the man-
datory dedication requirements of Section Five of the model brdin-
ance. The particular definition employed is based on that found
in Fla. Stat. 163.170(7).



SECTION FOUR: PUBLIC BEACH PLANNING AND ADMINISTRATION


The mandated by the Local Government Comprehensive
(local planning agency)

planning Act of 1975 shall have primary responsibility for administration of this

ordinance.


4.1 Powers and Duties.


The shall prepare and make recommendations to the
(local planning agency)

regarding the adoption of a Comprehensive Beach Access Plan
(governing body)








which will provide regular and frequent public beaches and public access ways

capable of meeting present and foreseeable public recreational needs. In develop-

ing the Comprehensive Beach Access Plan, the _______ should con-
(local planning agency)

sider, among other factors:


(a) the location and extent of areas to which the public has acquired

rights of use or traverse through prescription, custom, dedication or otherwise,

and the possibilities for regulation, relocation, expansion and improvement of

such areas where desirable;

(b) the location of lands to be acquired through mandatory dedication under

Section Five of this ordinance;

(c) areas appropriate for acquisition through purchase and exercise of

eminent domain;

(d) methods for obtaining federal, state, local and private funding;

(e) the location of environmentally sensitive areas requiring special pro-

tection; and

(f) the availability of and optimal location for support facilities.


4.2 Beach Access Map.

To the extent feasible or practical, the shall pre-
(local planning agency)

sent its findings, conclusions and proposals in the form of a Beach Access Map

available to the general public. The map should designate, along with other re-

levant data, the location and extent of public beaches, public access ways, en-

vironmentally sensitive areas, coastal lands subject to future development under

the mandatory dedication requirements of this ordinance, areas of contemplated

public purchase, and the nature and location of support facilities.








4.3 Procedures.

(A) General Rules.

The _______ shall establish general rules of procedure and
(local planning agency)

select its officers.

(B) Public Participation.

The shall establish procedures for providing effec-
(local planning agency)

tive public participation in the comprehensive planning process and preparation

of the comprehensive plan. The procedures shall provide for broad dissemination

of proposals and alternatives, opportunity for written comments, public hearings,

information services, and consideration of and response to public comments.

(C) Public Hearings.

Public hearings shall be conducted after due public notice consisting of

publication of notice of the time, place, and purpose of such hearing at least

twice in a newspaper of general circulation in the area.

(D) Public Meetings and Records.

All meetings of the agency shall be public meetings and all records public

records.

(E) Adoption of the Comprehensive Plan.

After preparation of the comprehensive plan and compliance with the provisions

of Fla. Stat. 163.3184 on intergovernmental comment procedures, the
(governing

may in a manner prescribed by law and by vote of a majority of its
body)

total membership, adopt the proposed plan in whole or part, and may adopt it with

changes or amendments.

(F) Amendment of the Comprehensive Plan.

Amendment of the comprehensive plan shall be in the manner provided for









original adoption of the plan, except that the


(governing body)

majority vote and after public notice and a public hearing, adopt specific amend-

ments affecting less than 5 percent of the land of the jurisdiction.

(G) Assessment and Evaluation of the Comprehensive Plan.

The planning program shall be a continuous process. The
(planning agency)

shall prepare periodic reports at least once every five years and at lesser in-

tervals as required by the The report shall compare plan
(governing body)

objectives and actual results, evaluate social and economic effects, assess un-

forseen problems and opportunities, and may suggest changes in the comprehensive

plan. Any:action on the report will constitute an amendment of the comprehensive

plan.


4.4 Implementation of the Comprehensive Plan.

(A) Intent.

It is the intent of this ordinance that an adopted comprehensive plan shall

be implemented, in part, by the adoption and enforcement of appropriate local

regulations controlling zoning, subdivision, building and construction, and other

land development. Where relevant, the enactment, amendment and enforcement of

these regulations shall be based on, consistent with, and a means of implementation

for the adopted comprehensive plan. Land development regulations proposed subse-

quent to adoption of a comprehensive plan shall be referred to the
(planning

for review and recommendation regarding the relationship of such pro-
agency)

posals to the comprehensive plan. If a recommendation is not forthcoming within

2 months of the referral, the _______ may proceed without it.
(governing body)

Commentary. As noted earlier, the provision of the ordinance
are tailored to the laws of Florida. Thus the utilization of


I


may by








the planning agency mandated by the Local Government Comprehensive
Planning Act of 1975, Fla. Stat. 163.3161 et. seq. This act re-
quires that all local governments within the State of Florida pre-
pare a comprehensive plan by July 1, 1979 to guide and control fu-
ture land development. A required element of this plan is a recrea-
tion and open space provision for a comprehensive system of public
sites for recreation, including beaches and public access to beaches.
Fla. Stat. 163.3177 (6)(e). In addition to home rule powers,
municipalities and counties are given the power and responsibility
to plan for future development and to adopt and implement compre-
hensive plans through adoption of appropriate land development
regulations. The procedural requirements of this Section are
derived from and are consistent with those of the above Act.


In other jurisdictions the following alternative provisions for a planning

agency may be utilized:

4.1 Establishment of a Public Beach Access Commission. (Alternative)

The shall establish a Public Beach Access Commission
(governing body)

and appoint members thereto, or the commission may consist of the
(governing

or any other existing planning commission or board.
body)


4.2 Terms of Office; Removal from Office; Vacancies. (Alternative)

Members of the commission shall be appointed for staggered terms of such

length as may be determined by the (governing body) and shall serve until
(governing body)

their successors are appointed. Original appointment may be made for a lesser

number of years so that the terms of the said members shall be staggered. The

may remove any member of the commission for cause after written
(governing body)

notice and public hearing. Any vacancy occurring during the unexpired term of

office of any member shall be filled by the ___ for the remainder
(governing body)

of the term. Such vacancy shall be filled within thirty (30) days after the va-

cancy occurs.








4.3 Officers, Rules of Procedure, Consultants and Advisors. (Alternative)

(a) The commission shall elect a chairman and a vice-chairman from among

its members.

(b) The commission shall meet at regular intervals and at such other times

as the chairman or commission may determine. It shall adopt rules for the trans-

action of its business and keep a properly indexed record of its resolutions,

transactions, findings and determinations, which record shall be a public record.

(c) The commission may, subject to the approval of the
(governing body)
employ such experts, technicians, and staff as may be deemed proper and pay their

salaries, contractual charges and fees, and such other expenses as are necessary

to conduct the work of the commission.



SECTION FIVE: DEDICATION OF LAND


5.1 Approval of Development Plans and Issuance of Building Permits.

As a condition for obtaining approval for a subdivisionior the issuance of

a permit for building]on coastal lands, the subdivider[or applicant]shall contract

to dedicate land, or a fee in lieu thereof to the public. The amount of the dedi-

cation shall be % of the land .or its value prior to development. Lands

dedicated will be used to provide public beaches, public access ways and support

facilities. In lieu payments will be expended for the same purposes and in a

manner designed to benefit the general area of a subdivider[or applicant]making

the payment.


5.2 Location and Physical Requirements.

The location and physical requirements of land dedicated for public beaches

and public access ways shall be determined by the based
(local planning agency)
on the Comprehensive Beach Access Plan.








5.3 Method of Providing Land.

Land for public beaches and public access ways may be provided by deed,

easement, dedication or any other method which guarantees public use in per-

petuity and is approved by the
(local planning agency)


5.4 Waiver of Requirements.

To the extent that enforcement of this Section will create an unduly severe

hardship, the may waive the requirements of this Section.
(governing body)


5.5 Transfer of Development Rights.

Where a subdivider[or applicant] has conveyed lands for public beaches or

public access ways, the may authorize the transfer of develop-
(governing body)

ment rights to lands adjacent to the lands so conveyed. The number of develop-

ment rights which may be transferred and the method by which such transfer is

accomplished shall be determined by the
(governing body)


5.6 Procedures.

The shall have preliminary responsibility for deter-
(local planning agency)

mining the form of dedications, the location and physical requirements of lands

dedicated, methods of dedication, waiver of requirements and transfer of develop-

ment rights in a manner consistent with the purposes and provisions of an adopted

comprehensive plan. Within a reasonable time, not to exceed two (2) months of an

offer to dedicate pursuant to this ordinance and after public notice and hearing,

the shall make its recommendations to the
(local planning agency) (governing body)

The may,by a majority vote and in a manner provided by law,
(governing body)

accept or modify in whole or part the recommendations of the
(local planning agency)






5.6 Procedures. (Con't)

Commentary. Ihe authority of local governments to require mandatory
dedication of land as a precondition to plat approval is discussed
at notes 125 to 180 supra.
Attention is drawn to the fact that dedication may be condi-
tioned on approval of building permits. At least one jurisdiction
has upheld a similar requirement--Southern Pacific Co. v. City of
Los Angeles, 51 Cal. Reptr. 197 (Dist. Ct. App. 1966), appeal dis-
missed per curiam, 87 S. Ct. 767 (1967). Other courts, particularly
in Florida, take the position that such a requirement constitutes an
unauthorized tax. See, e.g., Broward County v. Janis Development
Corp.. 311 So.2d 37174th D.C.A. Fla. 1975).
The actual percentage of land required to be dedicated should be
based on a careful study of projected population and development
trends and beach recreation needs. Percentage requirements ranging
from 4% to 11% have been held valid. (Billings Properties, Inc.
v. Yellowstone County, 144 Mont. 25 394 P.2d 182 (1964) and Aunt
Hack Ridge Estates, Inc. v. Planning Commission of Danbury, 27
Conn. Supp. 74, 230 A.2d 45 (1967).). Flat percentage requirements
have, however, been held to be arbitrary on their face. Frank
Ansuini, Inc. v. Cranston, 264 A.2d 910 (R.I., 1970); Admiral
Development Corp. v. City of Maitland, 267 So.2d 860 (4th D.C.A.
Fla. 1972).
Expenditures of in-lieu payments has been limited to the
immediate area of the developer making the.payment to comply
with the limitations of the more conservative line of cases
(see Aunt Hack Ridge, supra). However, progressive cases such
as Walnut Creek require no such limitation.



SECTION SIX: OPERATION OF PUBLIC BEACHES AND PUBLIC ACCESS WAYS


6.1 Maintenance.

The shall have the duty and responsibility to
(local recreation dept.)

maintain and promote the condition of all public beaches, public access

ways and support facilities affected by the provisions of this ordinance.

Commentary. See Brickell v. Town of Fort Lauderdale,
78 So. 681 (Fla. 1918) stating that there is a duty
on a city as trustee of the public rights in dedicated
lands to maintain public uses in those lands.
A similar responsibility is imposed on areas affect-
ed by a public interest or right, however acquired, to
assure safe, healthful and attractive beach recreation
areas. For a similar provision, see Vernon's Ann. Civ.
Stat., Art. 5415d-l(c) and 5 (1975).








6.2 Signs.

The _(ocal recreation dep) may provide signs or other markings to in-
(local recreation dept.)

dicate the location and extent of public beaches, public access ways and support

facilities.

Commentary. Since public beach areas will invariably adjoin
private property, signs designating the extent of available
public areas and services are desirable to avoid encroachment
upon and abuse of privately owned areas.


6.3 Charging of Fees.

The may impose reasonable and nondiscriminatory
(local recreation dept.)

fees for the use of public beaches and public access ways acquired through pur-

chase by or dedication to the
(local government)

Commentary. Reasonable and nondiscriminatory fees provide a
legitimate and readily available means of offsetting the cost
of acquiring and maintaining beach recreational areas and facili-
ties. See Borough of Neptune City v. Borough of Avon-By-The-Sea,
294 A.2d 47 (N.J. 1972)(allowing reasonable and nondiscriminatory
fees); Vernon's Ann. Civ. Stat., Art. 5415d-1, 3(d) and 8 ,
(authorizing fees for the use of beach parking and other facilities).
See also, City of Daytona Beach'v. Tona-Rama, Inc., 294 So.2d 73, 78
(Fla. 1974), stating that rights of customary use of the dry sand.
area of beaches is subject to appropriate governmental regulation.



SECTION SEVEN: OBSTRUCTION OF PUBLIC BEACHES AND PUBLIC ACCESS WAYS


No person, firm, corporation, association, or other legal entity shall create,

erect, or construct any obstruction, barrier or restraint which is inconsistent

with or interferes with the exercise of any public rights, except as otherwise

authorized by the ________ Violation of this provision shall con-
(governing body)

stitute a misdemeanor punishable by fine or imprisonment of not more than $

or greater days.










SECTION SEVEN: (Con't)

Commentary. Language derived from Vernon's Ann. Civ. Stat., Art.
5415d, 1. See City of Daytona Beach v. Tona-Rama, Inc., 294
So.2d 73, 78 (FTa. 1974), stating that an owner of land cannot
make any inconsistent use of that land which interferes with
public rights acquired through custom or prescription.



SECTION EIGHT: INTERPRETATION


This ordinance is intended to increase the availability of public beaches

and public access ways, and nothing in this ordinance shall be construed so as

to diminish or restrict public beach rights and privileges which exist or may

come into existence in any other manner.



SECTION NINE: SEVERABILITY


It is the intention of the __ __ that each separate pro-
(governing body)

vision of this ordinance shall be deemed independent of all other provisions

herein, and it is further the intention of the that if
(governing body)

any provisions of this ordinance be declared to be invalid, all other provisions

thereof shall remain valid and enforceable.


SECTION TEN: EFFECTIVE DATE








11. See Note, Public Rights in Georgia's Tidelands, 9 Ga. L. Rev. 79, 89 (1974).

12. See Martin v. Waddell's Lessee, 41 U. S. 367 (1842).

13. Farnham, supra note 7 at 167.

14. Illinois Central Railroad Co. v. Illinois, 146 U. S. 387, 452-54 (1892).

15. See Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10 (1935). While
most coastal states hold that the wet sand area between mean high water and
mean low water is held in trust for its citizens, Delaware, Maine, Massachu-
setts, New Hampshire, Pennsylvania and Virginia hold that private ownership
of uplands extends to the low water mark. Maloney and Ausness, The Use and
Legal Significance of the Mean High Water Line in Coastal Boundary Mapping,
53 N.C. L. Rev. 185, 200-203 (1974).

16. See 26 U. Fla. L. Rev. 586 (1973); 29 U. Miami L. Rev. 149 (1974); 2 Fla.
St. L. Rev. 80b.(1974).

17. Black's Law Dictionary 461 (4th ed. rev. 1968).

18. For an extended discussion of the requisites of customary rights, see
Note, The English Doctrine of Custom in Oregon Property Law: State
ex. rel. Thornton v. Hay, 4 Envir. Law 383, 395-410 (1974). According to
Blackstone, "To make a particular custom good, the following are necessary
requisites.
I. That it have been used so long, that the memory of man runneth not to
the contrary...
2. It must have been continued...
3. It must have been peaceable, and acquiesced in; not subject to conten-
tion and dispute...
4. Customs must be reasonable...
5. Customs ought to be certain...
6. Customs, though established by consent, must be (when established)
compulsory...
7. Lastly, customs must be consistent with each other..."
I Blackstone, Laws of England 76-78 (1758).

19. See, e.g., Perley v. Langley, 7 N.H. 233 (1834); Knowles v. Dow, 22 N.H. 387
(1851), Nudd v. Hobbs, 17 N.H. 524 (1845).

20., Delaplane v. Crenshaw, 56 Va. (15 Gratt.) 457, 470-75 (1860). Further
reliance is placed on the fact that recording systems have been in effect
since the formation of this county. Gillies v. Orienta Beach Club, 159
Misc. 675, 681 289 N.Y.S. 733, 739-40 (Sup. Ct. 1935).

21. 254 Ore. 584, 462 P.2d 671 (1969).

22. 462 P.2d at 678.

23. Id. at 676.

24. See Note, The English Doctrine of Custom in Oregon Property Law, 4 Envir.
Law 383, 395-410 (1974); Note, Public Access to Beaches, 22 Stan. L-7e-v.
564, 584-85 (1970); Comment, Judicial and Legislative Protection of the








Public's Rights in Florida Beaches, 25 U. Fla. L. Rev. 586, 590-92 (1973).

25. Note, Public Access to Beaches, 22 Stan. L. Rev. 564, 584-85 (1970).

26. See Dept. of Natural Resources v. Ocean City, 274 Md. 1, 13, 332 A.2d 630,
38 (1975).

27. 462 P.2d 671, 78 (1969).

28. 296 U.S. 10 (1935).

29. In re Ashford, 50 Hawaii 314, 440 P.2d 76 (1968).

30. 294 So.2d 73 (Fla. 1974).

31. Id. at 78.

32. Id.

33. Id. at 79, 81.

34. Id.

35. See Dietz v. King, 2 Cal. 3d 29, 465 P.2d 50 (1970).

36. 11 McQuillin, The Law of Municipal Corporations 33.02 at 627-30
(3d ed. rev. 1968).

37. See/Note, Public Access to Beaches, 22 Stan. L. Rev. 564, 572-75 (1970);
See also Miller v. Bay-to-Gulf, Inc., 141 Fla. 452, 193 So. 425 (1940).

38. Id.; Miami Beach v. Miami Beach Development Co., 153 Fla. 107, 14 So.2d 172
-T943). The United States Supreme Court recognized implied dedication almost
150 years ago. Barclay v. Howell's Lessee, 31 U.S. (5 Pet.) 498 (1832).

39. See Note, Public Access to Beaches, 22 Stan L. Rev. 564, 572-75 (1970).

40. See, e.g., South Park v. Montgomery Ward & Co. 248 Ill. 299, 93 N.E. 910
(9lO)-T park); Codman v. Crocker, 203 Mass. 146, 89 N.E. 177 (1909),
(common).

41. 375 S.W.2d 923 (Tex. Civ. App. 1964).

42. Gion v. City of Santa Cruz, Dietz v. King, 2 Cal. 3d 29, 465 P.2d 50,
84 Cal. Rptr. 162 (1970).

43. Id.

44. 465 P.2d at 58.

45. Id. at 57. This a departure from the rulings of earlier courts which held
that long, unobstructed public use of beaches was presumed to be under a
revocable license from the owner. See, e.g., F.A. Hihn Co. v. City of
Santa Cruz, 170 Cal. 436, 150 P. 62 T915); City of Manhattan Beach v.
Cortelyou, 10 Cal. 2d 653, 76 P.2d 483 (1938).







46. See Degnan, Public Rights in Ocean Beaches: A Theory of Prescription,
24 Syracuse L. Rev. 935 (1973)(hereinafter cited as Degnan); 3 Am.Jur. 2d
Adverse Possession 5 9-11. The actual period required is generally set
by statute.

47. See, e.g. Note, Californians Need Beaches--Maybe Yours!, 7 San Diego L. Rev.
605 (1970); Note, Public Access to Beaches: Common Law Doctrines and Con-
stitutional Challenges, 48 N.Y.U. L. Rev. 369 (1973); Comment, This Land Is
My Land, 44 So. Cal. L. Rev. 1092 (1971).

48. City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352, 353 (1923).

49. City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73, 77 (Fla. 1974).

50. See Dept. of Natural Resources v. Ocean City, 332 A.2d 630, 635 (Md. 1975).

51. City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73, 77-78 (Fla. 1974).

52. See, e.g., Downing v. Bird, 100 So.2d 57, 64-65 (Fla. 1958); City of Daytona
Beach v. Tona-Rama, Inc., 294 So.2d.73 (Fla. 1974); Degnan, supra note 46.

53. Downing v. Bird, 100 So.2d 57, 64-65 (Fla. 1958); Seaway Co. v. Attorney
General, 375 S.W.2d 923, 936 (Tex. Civ. App. 1964).

54. Downing v. Bird, 100 So.2d 57, 65 (Fla. 1958).

55. "The real practical difference between adverse possession and prescription
is that the former relates to and results in full and complete title to
property, whereas prescription relates to incorporeal heriditaments, or
rights such as easements." 3 Am. Jur. 2d Adverse Possession 4.

56. The majority position is that once a claimant has shown an open, notorious
and continuous use for the prescribed period, his use is presumed to be
adverse. See Annot., 170 A.L.R. 776, 778-89 (1947). The case for acquisi-
tion of recreational easements in appropriate dry-sand areas through public
prescription is made in Note, Public Rights in Ocean Beaches: A Theory of
Prescription, 24 Syr. L. Rev. 935 (1973).

57. City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73, 77 (Fla. 1974).

58. Seaway Co. v. Attorney General, 375 S.W.2d 923, 938 (Tex. Civ. App. 1964).

59. White v. Hughes, 190 So. 446, 49 (Fla. 1939). See Sax, The Public Trust in
Natural Resources Law: Effective Judicial Intervention, 68 Mich. L. Rev.
473, 484-85 (1970).

60. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 453 (1892);
Borough of Neptune City v. Borough of Avon-By-The-Sea, 294 A.2d 47, 54
(N.J. 1972).

61. See Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971).

62. Farnham, supra Note 7 at 172-174; Illinois Central Railroad Co. v. Illinois,
146 U. S. 387, 452 (1892).







63. White v. Hughes, 190 S. 446, 450 (Fla. 1939); Borough of Neptune City
v. Borough of Avon-By-The-Sea, 294 A.2d 47, 54 (N. J. 1972).

64. White v. Hughes, 190 S. 446, 450 (Fla. 1939).

65. "A littoral owner has a right in the foreshore adjacent to his pro-
perty separate and distinct from that of the general public...(it) is a
property right and is valuable, and although it must be enjoyed in due
subjection to rights of the public, it cannot be arbitrarily or capri-
ciously destroyed. A littoral owner can enjoin as a nuisance interference
by a private person with this right. A littoral owner has been held to
have the right to build a pier out to the line of navigability; a right to
accretion; a right to navigation... and a right of access from every part
of his frontage across the foreshore." Marks v. Whitney, 98 Cal. Rptr.
790, 491 P.2d 374 (1971).

66. Private property accounts for about 70 percent or 28,500 miles of the
U. S. shoreline, excluding Alaska. GAO, National Efforts to Preserve
The Nations Beaches and Shorelines--A Continuing Problem at 40 (1975).

67. Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So. 841 (1927); Adams
v. Elliott, 128 Fla. 79, 174 So. 731 (1937).

68. The State of Texas, recognizing that illegal fences and signs of all
description are constantly erected by those wishing to discourage public
use of beaches, has provided criminal penalties for so doing. Vernon's
Ann. Civ. Stat., art. 5415 d-2 (1975).

69. 294 A.2d 47 (N.J. 1972).

70. Id. at 55.

71. Id. at 54.

72. See Note, Water Law--Public Trust Doctrine Bars Discriminatory Fees to
Nonresidents for Use of Municipal Beaches, 26 Rut. L. P.ev. 179, 180-88 (1972).

73. 294 A.2d 47, 54 (N.J. 1972).

74. Id. at 57.

75. Id. at 56.

76. Id. at 54.

77. Ducsik, supra Note 1 at 212.

78. 16 U.S.C.A. 1451 et. seq. (1972).

79. Id. 1451 (c).

80. Id. 1451(g).

81. Id. 1451(h).

82. Ducsik, supra Note I at 213 (1974).






83. 16 U.S.C.A. 1454 (1972).


84. Id. 1454(c).
85. 16 U.S.C.A. 1455(d)(2)(1972).

86. id. 1455(e)(1)(A),(B).

87. id. 1455().

88. 16 U.S.C.A. 1458(b)(1972).

89. Pub. L. No. 94-370 (July 26, 1976).

90. Id. 305(b)(7).

91. Id. 315(2).

92. See H.R. 10394, 93d Cong., Ist Sess. (1973); H.R. 1676, 94th Cong., Ist
Sess. (1975).

93. H.R. 10394 202, 93d Cong., 1st Sess. (1973).
94. The 1975 version of the Bill contains the following presumptions, similar
to those of the Texas Open Beaches Act (note 100 infra):
"(1) a showing that the area is a beach shall be prima facie evidence
that the title of the littoral owner does not include the right to
prevent the public from using the area as a common.
(2) a showing that the area is a beach shall be prima facie evidence
that there has been imposed upon the beach a prescriptive right to use
it as a common." H.R. 1676 315(e)(1)-(2), 94th Cong., Ist Sess. (1975).

95. Ore. Rev. Stat. 390.610-.690 (1968).
96. 254 Ore. 584, 462 P.2d 671 (1969).

97. Ore. Rev. Stat. 390.720 (1968).
98. Id. 390.610(2).
99. Supra note 96, at 675.
100. Vernon's Ann. Civ. Stat., art. 5415 d et. seq. (1975).

101. Id. 5415 d(l).

102. Id. 5415 d(2).
103. Id. 5415 d-2(1).

104. Fla. Stat. 161.011 et. seq. (1975). The stated purposes of the Act is to
"...make provision for publicly financed beach nourishment and restoration
programs and establish and clarify the property rights of the state and pri-
vate upland owners arising from or created by such programs." Fla. Stat.
161.141 (1975).








105. Id. 161.091 (a).

106. Fla. Stat. 375.011 et. seq. (1975).

107. Id. 375.031 (6).

108. Id. 375.065 (l),(2).

109. See Note, Access to Municipal Beaches: The Formulation of a Comprehensive
Legal Approach, 7 Suffolk L. Rev. 936, 957 (1973).

110. Ducsik, supra note I at 137-152.

11l. See Yosemite Park and Curry Co. v. Collins, 20 F. Supp. 1009 (N.D. Cal. 1937);
Borough of Neptune City v. Borough of Avon-By-The-Sea, 294 A.2d 47, 56 (N.J.
1972).

112. 294 A.2d 47, 56 (N.J. 1972).

113. U. S. Const. amend. V; Fla. Const. art. 10, 6 (1975).

114. See, e.., Shedd v. Northern Indiana Pub. Serv. Co., 206 Ind. 35, 188 N.E.
322 (193"); State ex.rel. Mitchell v. State Highway Comm. 163 Kan. 187,
182 P.2d 127 (Kan. 1947); Baxter v. Louisville, 224 Ky. 604, 6 S.W.2d
1074 (1928).

115. Speculation may drive the price of beach land up even without dramatic
population increases. Dennis Ducsik cites the Point Reyes National Seashore
in California as an example. Originally estimated in 1962 to cost $14
million, by 1968 the cost had risen to $58 million. Ducsik, supra note I at
82.

116. See, Note, Public Rights in Ocean Beaches: A Theory of Prescription, 24
Syr. L. Rev. 935 (1973); Comment, Easements: Judicial and Legislative
Protection of the Public's Rights in Florida's Beaches 25 U. Fla. L. Rev.
586 (1973).

117. Affirmative (positive) easements entitle the easement owner to do affirmative
acts on the land in the possession of another. Negative easements take from
the owner of the servient tenement the right to do some things which, were
it not for the easement, he. would have a right to do on his own land.
C. Smith & R. Boyer, Survey of the Law of Property 383 (2d ed. 1971).

118. See Hartzog, Lader,& Richards, Public Beach Access & Recreation in South
Carolina (1976).

119. The "taking" issue will come increasingly to the fore as more and more
communities attempt to protect public rights in coastal areas. A thorough
discussion of the subject is beyond the scope of this paper but may be found
in D. Rice, "Taking" By Regulation and the North Carolina Coastal Management
Act (Univ. of N. Car. Sea Grant July 1976).








120. See generally, Ducsik, supra note 1 at 152-71; and Bosselman et al, The
Taking Issue (1973. It is generally accepted that land use regulations
for recreational purposes are a valid exercise of the police power. See
Broesche, Land Use Regulation for the Protection of Public Parks and
Recreation Areas, 45 Tex. L. Rev. 110 (1966). For cases upholding muni-
cipally required dedications tor recreational purposes, see Associated
Home Builders v. Walnut Creek, 484 P.2d 606 (1971); Aunt Hack Ridge
Estates, Inc. v. Planning Comm. of Danbury, 230 A.2d 45 (1967); and
Jenad, Inc. v. Scarsdale, 218 N.E.2d 673 (1966).

121. GAO, National Efforts to Preserve the Nations Beaches and Shorelines--A
Continuing Problem, at I, (1975).

122. For a discussion of federal..par.ticipation in state and local erosion control
projects, see H. Marshall, Cost Sharing as an Incentive to Attain the Ob-
jectives of Shoreline Protection (193).

123. See D. Rice, "Taking" By Regulation and the North Carolina Coastal Manage-
ment Act at 62-71 (Univ. of N. Car. Sea Grant, July 1976).

124. 56 Wise. 2d 7, 201 N.W.2d 761 (1972).

125. 201 N.W.2d at 771.

126. Id. at 770-71. Recently, in Sibson v.State, 336 A.2d 239 (N.H. 1975), the
New Hampshire Supreme Court upheld a similar wetlands statute using the
Just rationale.

127. Seawalls, groins, pilings, etc., are all evident in beach construction pro-
jects, often with adverse impact on the beach itself. See Trustees of In-
ternal Improvement Fund v. Ocean Hotels, Inc. 40 Fla. Supp. 26 (Palm Beach
County Ct. 1974).

128. Comment, Subdivision Regulation: Requiring Dedication of Park Land or Pay-
ment of Fees as a Condition Precedent to Plat Approval, 1961 Wis. L. Rev..
310 n.2.

129. See generally, Note, Public Access to Beaches, 22 Stan. L. Rev. 564 (1969);
Commentary, Easements: Ju.dicial and Legislative Protection of the Public's
Rights in Florida's Beaches, 25 U. Fla. L. Rev. 586 (1973); H.R. 6656, 91st
Cong., Ist Sess. (1969), (seeking to extend the public area of the beach
landward from the mean high water line to the vegetation line).

130. Coronado Development Co. v. McPherson, 189 Kan. 174, 368 P.2d 51 (1962).

131. Jenad, Inc. v. Scarsdale, 18 N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673
(1966).

132. Jordon v. Menomonee Falls, 28 Wisc.2d 608, 137 N.W.2d 442 (1965), appeal
dismissed, 385 U.S. 4 (1966).

133. D. Hagman, Urban Planning and Land Development Control Law 138 at 253
(1971) (hereinafter cited as Hagma); "Juergensmeyer and Wadley, Florida
Subdivision Control Law 9.02 (1976) (hereinafter cited as Juergensmeyer).








134. Juergensmeyer, supra note 133 at 9.02.

135. Jordon v. Village of Menomonee Falls, 28 Wis. 2d 608, 137 N.W. 442 (1965),
appeal dismissed, 385 U.S. 4 (1966).

136. E.g., Associated Home Builders v. City of Walnut Creek, 4 Cal.3d 633, 484
P.2d 606, 94 Cal. Rptr. 630 (1971), appeal dismissed, 404 U.S. 878 (1972);
Jenad, Inc. v. Village of Scarsdale, 18 N.Y.2d 78, 218 N.E.2d 673, 271
N.Y.S.2d 955 (1966).

137. Hagman, supra note 133 at 253.

138. Cases dealing with attacks on statutes and ordinances requiring dedication
of land or in lieu payments are collected in Annot., 43 A.L.R.3d 862 (1972).

139. 144 Mont. 25, 394 P.2d 182 (1964).

140. Id. at 32, 394 P.2d at 186.

141. Id. The voluntariness theory has been criticized, however, as merely con-
stituting a means of avoiding the constitutional issues. R. Anderson,
American Law of Zoning 19.39. at 481 (1968), cited in Note, Mandatory
Dedication of Land by Developers, 26 U. Fla. L. Rev. 41, 45 (1973)(herein-
after cited as Mandatory Dedication).

142. 28 Wis.2d 608, 137 N.W.2d 442 (1965).

143. Id. at 613, 137 N.W.2d at 448.

144. Id.

145. See Mandatory Dedication, supra note 141 at 46, citing, for a criticism of
this theory on constitutional grounds, Landau, Urban Concentration and Land
Exactions for Recreational Use: Some Constitutional Problems in Mandatory
Dedication Ordinances In Iowa, 22 Drake L. Rev. 71, 81-82 (1972).

146. 22 11l.2d 375, 176 N.E.2d 799 (1961).

147. Id. at 380, 176 N.E.2d at 802.

148. See, Jordon v. Village of Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442
(1965), appeal dismissed, 385 U.S. 4 (1966); Mandatory Dedication, supra
note 141 at 47.

149. E.g., Aunt Hack Ridge Estates, Inc. v. Planning Commission of Dansbury,
27 Conn. Supp. 74, 230 A.2d 45 (1967); See generally Mandatory Dedication,
supra note 141.

150. Jordon v. Village of Menomonee Falls, 28 Wis. 2d 608, 617, 137 N.W.2d 442,
447 (1965), appeal dismissed, 385 U.S. 4 (1966).

151. Id. at 618, 137 N.W.2d at 448; Jenad, Inc. v. Scarsdale, 18 N.Y.2d 78,
271 N.Y.S.2d 955, 218 N.E.2d 673 (1966).









152. E.q., Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 35,
394 P.2d 182, 188 (1964), stating "(t)he question of whether or not the
subdivision created the need for a park or parks is one that already has
been answered by our legislature." Id. The problem with this approach
is that it allows a legislative body to answer the question upon which
the validity of a statute depends.. See, Johnson, Constitutionality of
Subdivision Control Exactions: The Quest for a Rationale, 52 Cornell L. Q.
871, 914 (1967).

153. 4 Cal. 3d 633, 484 P.2d 606, 94 Cal. Rptr. 630 (1971), appeal dismissed,
404 U.S. 878 (1972).

154. Cal. Bus. & Prof. Code 11546 (West Supp. 1973).

155. Section 10-1.516 Walnut Creek Municipal Code.

156. 4 Cal.2d 633, 644, 484 P.2d 606, 615, 94 Cal. Rptr. 630, 639.

157. Id.

158. 4 Cal.3d at 638, 484 P.2d at 610, 94 Cal. Rptr. at 634.

159. Mandatory Dedication, supra note 141 at 48-49.

160. East Neck Estates, Ltd. v. Luchsinger, 61 Misc. 2d 619, 305 N.Y.S.2d 922
(Sup. Ct. 1969). (Effect of dedication was to diminish value of property
by approximately one-third its value---over $90,000).

161. See, e.., Frank Ansuini, Inc. v. City of Cranston, 107 R.I. 63, 71, 264
A.2d 910, 914 (1970) (statute requiring dedication of at least 7% of the
area to be subdivided is arbitrary on its face); accord, Admiral Dev. Corp.
v. City of Maitland, 267 So.2d 860 (4th D.C.A. Fla. 1972).

162. Juergensmeyer, supra note 133 9.02.

163. Id., 9.04.

164. E.., Cal. Bus. & Prof. Code 11546 (West Supp. 1973); Mont. Rev. Codes
11-602 (Supp. 1971); N.Y. Town Law 277(1) (McKinney Supp. 1972).

165. E.g., Carlann Shores, Inc. v. City of Gulf Breeze, 26 Fla. Supp. 94 (Cir.
Ct. 1966); Aunt Hack Ridge Estates, Inc. v. Planning Comm'n of Dansbury,
27 Conn. Supp. 74, 230 A.2d 45 (Super. Ct.:1967).

166. 25 Misc. 2d 1004, 209 N.Y.S.2d 729 (Sup. Ct. 1960), aff'd, 15 App. Div. 2d
815, 225 N.Y.S. 538 (2d Dep't. 1962).

167. Id. at 1007, 209 N.Y.S.2d at 732.

168. E.g., Aunt Hack Ridge Estates, Inc. v. Planning Comm'n of Dansbury, 27 Conn.
Supp. 74, 78, 230 A.2d 45, 47 (Super. Ct. 1967).
169. 18 N.Y.2d 78, 218 N.E.2d 673, 271 N.Y.S. 955 (1966).








170. Id. at 84, 218 N.E.2d at 675, 271 N.Y.S. at 957.

171. 4 Cal. 3d 633, 484 P.2d 606, 94 Cal. Rptr. 630 (1971).

172. Id. at 638, 484 P.2d at 610, 94 Cal. Rptr. at 634.

173. Id. at 646, 484 P.2d at 616, 94 Cal. Rptr. 640.

174. Id.

175. Id.

176. Id. at 647, 484 P.2d at 617, 94 Cal. Rptr. at 641.

177. Note, Public Access to Beaches, 22 Stan. L. Rev. 564, 567-72 (1970).

178. Mandatory Dedication, supra note 141 at 51.

179. See text accompanying notes 16 to 58 supra.

180. Juergensmeyer, supra note 133 at 17.01.

181. Id.

182. See I Rohan, Condominium Law & Practice 3.07 (1975).











PART II. DRAWING THE LINE AT THE OCEANFRONT

The Role of Coastal Construction Set-Back Lines
in Regulating Development of the Coastal Zone


Recent years have witnessed a surge of public concern over the adverse envir-

onmental impact of rapid and unrestrained real estate development. Nowhere has

this public awareness been more evident than in Florida. Within a span of five

years, the state's legislature has enacted measures to regulate developments of
2 3
regional impact, protect ecologically critical areas, and promote comprehensive

and environmentally sound land use planning throughout the state. From the out-

set, Florida's coastal zone has received special attention as an area of crucial

economic importance to the state5 which poses unique problems of land use regula-

tion and planning. In 1970, the legislature created the Coastal Coordinating

Council to direct research and coordinate planning for sound management of the

coastal zone. Subsequently, with the passage of the Coastal Zone Management
8
Act of 1972 federal resources and encouragement have served to intensify the

state's efforts in developing a comprehensive program for managing the resources
9
of the coastal zone.

Florida has not, however, relied solely on long-range programs to ensure

preservation of oceanfront and coastal property. Recognizing the pressing pro-

blems of coastal flooding and beach erosion, the legislature enacted two successive

measures in 1970 and 1971 that mandated the imposition of coastal construction set-

back lines for all of the state's high-energy beaches.10 As an interim measure,

the legislature imposed a setback line fifty feet upland of mean high water and
12
required all construction begun after July 27, 1970 to be landward of this line.2

The following year the legislature authorized establishment of an engineered set-

back lie for the high-energy beaches of each coastal couty.13
back line for the high-energy beaches of each coastal county.







Florida's legislature has not, however, enacted comparable measures for re-

stricting land use on the state's vast vegetated, estuarine, and wetlands shores.14

Nevertheless, the state's Department of Environmental Regulation has become in-

volved in regulating construction, excavation, and filling on tidal wetlands as

part of its overall efforts to control water pollution.15

In addition to these state-level operations, several local communities in

Florida have developed various regulatory measures for their coastal areas. A

number of local governments have enacted coastal construction and excavation set-

back ordinances to protect the dunes,16 bluffs, and vegetation of their high-

energy beaches.19 At least one county has adopted measures to protect shoreline
20
mangroves and other coastal wetlands vegetation. Still other communities have
21 22
developed special land use programs and site-specific building codes22 to ensure
23
reasonable use of coastal property within their respective jurisdictions.2


I. The Model Ordinance. Preliminary Problems.

The extensive experience of Florida's state and local governments in regulating

coastal development has provided the primary background for the model ordinance pro-

posed by this study.24 The ordinance attempts to incorporate the best features of
25 26 27
relevant state legislation, administrative regulations, local ordinances,

building codes,28 and land-use plans29 to present a comprehensive and workable

scheme of local regulation.30

The model ordinance combines two types of land use regulation designed to

minimize the adverse environmental impact of coastal development: (1) a coastal
31 32
setback line31 and (2) a coastal permitting system.32 The ordinance contemplates

the division of coastal property into two zones. First, a Preservation Zone would

extend from the established setback line seaward.33 No construction34 or excava-

tion35 would be allowed in this zone without first meeting the requirements for
36 37
a variance or an exception under the ordinance. Second, a Conservation Zone

would extend from the setback line landward a distance sufficient to protect








coastal dunes, bluffs, wetlands, and vegetation currently unprotected by existing
38
setback lines. Construction in this area would be subject to design restric-

tions such as elevation on pilings, and excavation would be regulated so as to

minimize its adverse effects on the coastal environment. Any construction or

excavation undertaken in either the Preservation Zone or the Conservation Zone

would require a special permit under the ordinance.3

The objectives and scope of the model ordinance reflect its comprehensive

approach toward regulating coastal development on all types of shores--not only

the oceanfront high-energy beaches but along vegetated, estuarine, and wetland
40
shores as well. 'Such comprehensive coverage of coastal property in a single

local ordinance presents some difficulties. First, there is a question as to

whether local governments should be engaged in regulating coastal land use when

the environmental problems and many of the developmental projects in the coastal

zone extend beyond both the borders and the capabilities of individual communi-

ties. Under such circumstances, it is argued, a regional, state, or national
41
program would be more effective than a local regulatory scheme.

Without discounting this objection, it would seem that local regulation of

coastal construction and excavation can prove valuable. Traditionally, land use

controls have been within the province of local governments. Furthermore, it is

clear from the legislative history of the Coastal Zone Management Act that Congress

did not intend to discourage local action in coastal zone management. As the Re-

port of the Senate Commerce Committee states, "local plans and programs should be
42
allowed to continue to function under the state management program." This posi-

tion is consistent with other national environmental legislation which recognizes
43
the authority of local governments to adopt their own anti-pollution programs.

Similarly in Florida, local communities have been allowed, and indeed encouraged,
44
to provide their own land use controls and not simply to rely on the minimal

standards and remote enforcement mechanisms of federal and state authorities.45
standards and remote enforcement mechanisms of federal and state authorities.







A second difficulty with implementing a comprehensive coastal ordinance is

that land use regulation serves different purposes in different coastal settings.

On oceanfront beaches the primary purpose is to minimize damage from flooding and
46
erosion by protecting sand dunes, bluffs, and beachfront vegetation. In contrast,

the major purpose of regulatory measures along vegetated, estuarine, and wetlands

shores is to minimize the adverse effects of upland development on the marine-
47
related ecology of tidal lands and waters.

A proper handling of these differing coastal settings and regulatory pur-

poses requires different kinds of scientific and technical expertise on the part

of local authorities. Whereas a botanist might be needed to determine the precise

location of coastal wetlands vegetation, an engineer familiar with the dynamics

and physical features of high-energy beaches would be required to establish the

proper setback lines along beachfront dunes, bluffs, and storm berms. Providing

such expertise and implementing the ordinance in all coastal areas may well
48
prove burdensome for a local government.

It should be emphasized, however, that the comprehensive coverage of various

coastal locations within a single ordinance has its merits. The coastal environ-

ment is a delicately balanced and interdependent ecological system which demands

comprehensive protection if its economic, recreational, and aesthetic values are
49
to be preserved. Little is achieved by prohibiting destruction of dunes and

vegetation on high-energy beaches if continued disruption and despoilation of

adjacent estuaries and wetlands are allowed. Coastal frontage is both highly

attractive for residential and commercial development and of limited availability,

so that restrictions on land development in one type of coastal setting can only

increase pressure for development in other, less protected coastal areas.5

A final objection to the use of a model ordinance is that it might not prove

the most effective and flexible way for a local community to regulate coastal

land use. The distinct and often unique features of each coastal location would








in some instances seem to require a site-specific building code51 or special land

use plan52 rather than an all-encompassing model local ordinance. The development

of such codes or plans for each separate coastal area, however, requires expendi-

ture of time and money that many communities are unable or unwilling to bear.53

Preparation of such regulations, moreover, would entail lengthy delays, leaving

the local government with the alternative of imposing a moratorium on coastal
54
development or allowing coastal property to remain unregulated during the interim.5

The proposed model ordinance, on the other hand, attempts to incorporate many

of the features of a site-specific approach while minimizing both the burdens on

local government and the delays in implementation. Each regulatory provision of

the ordinance is linked to the characteristics of the specific property being re-

gulated. Both the setback regulations and the permitting restrictions are based

upon the extent to which such features as dunes, bluffs, beachfront vegetation,

and wetlands vegetation are present and in need of protection.56 In addition, the

ordinance provides for considerable flexibility in its implementation. Where the

requirements of the setback prove overly stringent, the local authorities may grant

a variance, and where the-setback proves too permissive local authorities may still
57
deny a permit for construction or excavation upland of the line. Furthermore,

the major expense of establishing the setback and providing the necessary surveys

for purposes of a permit would be borne by the applicant rather than the local
58
government. Finally, adoption of the model ordinance would in no way preclude

the implementation of more detailed site-specific building codes and land-use re-

gulations. It would, however, serve as a necessary restraint on coastal develop-
59
ment pending completion of such additional local controls.5

In summary, the model ordinance calls for a major commitment by a local govern-

ment to undertake a comprehensive regulatory program. The ordinance is drafted so

that it can be amended to provide for only setback regulations or only a permitting
60
system. Likewise, its provisions can be amended to cover only certain types of









coastal property such as high-energy beaches or coastal wetlands.6 Insofar as

various types of coastal property are located within a single community, however,

the comprehensive approach provided in this ordinance should be maintained intact.


II. The Coastal Environment

A. Natural Dynamics of a High-Energy Beach.

Sand beaches and dunes comprise a very small and unstable part of Florida's
62
coastal zone. Forming a narrow band along the shores of the Atlantic Ocean and

the Gulf of Mexico, they offer some of the state's most attractive and most hazard-

ous locations for real estate development. Without adequate controls on construc-

tion and excavation, oceanfront development portends destruction not only of man-
63
made structures but of beach and dunes as well.

Flood and erosion are natural occurrences in the life of a sand beach. A

single great storm can eradicate an entire beach and dunal system leaving upland

property directly exposed to the forces of ocean winds and waves. Normally,

the high-energy beach provides its own natural defenses. The slope of the shore

as it emerges from the water serves.to dissipate wave energy; coastal vegetation

stabilizes the sand beach and absorbs the direct forces of wind and water; and

wind-borne sand accumulates in dunes that not only buffer the impact of high

winds and waves but also provide important sand supplies for restoring flood-eroded
65
beaches.

The survival of a sand beach depends primarily upon its ability to regenerate.

Unable to prevent losses of sand to the action of waves and longshore currents,

a beach must maintain a balance between erosion and accretion. Under natural

conditions, the mechanism of littoral drift will ensure this balance. The same

forces of waves and currents that remove sand will also transport it along the

shore and deposit it at some other point on the beach. In addition, the

dynamics of littoral drift will transport sand brought from the ocean bottom to









restore or enlarge the beach.6

The intrusion of stable, artificial structures into the natural setting of

a high-energy beach can easily destroy its defenses and disrupt its natural

regeneration. For example, a bulkhead or other vertical, impermeable structure

interrupts the shore's natural slope and blocks the full force of waves directly.

The result is a turbulent, scouring action at the base of the structure that

accelerates the removal of sand and undermines not only the beach but the struc-
68
ture itself. Further upland, excavation and construction can destroy vegeta-

tion and dunes vital to the stability and safety of the beachfront. Equally

important, the-development of shorefront property can interfere with the process

of littoral drift, upsetting the balance of erosion and accretion necessary for

the survival of a high-energy beach.70

The major purpose of a coastal setback, then, is to keep developmental activi-

ties from encroaching upon the shore and interfering with the natural defenses

and regeneration of a beach. Natural beach contours provide a good indication

as to where such a setback should be located. The presence of dune formations

dictate that any excavation or construction be kept upland so as to preserve the
72
dunes' protective and restorative functions.72 Another physical feature that

73
requires protection is the beachfront bluff or storm berm. The presence of

beachfront bluffs normally indicates that the seaward beach area is subject to

periodic flooding and erosion. Indeed, the vertical seaward face of the bluff
74
itself is a product of erosion. The storm berm, on the other hand, is an ele-

vated sand formation created by severe wave action depositing sand in a clearly

marked ridge; and even where such berms support diverse vegetation, they would

likely be overtopped by severe storm flooding.75 Thus, construction and excava-

tion should be set back well landward of the seaward edge of bluffs or berms and

whatever stabilizing vegetation is present should be preserved as much as possible.6








Beachfront vegetation exerts an important stabilizing influence on a high-

energy beach, and the presence of certain species can also be used to determine

the proper siting of construction and excavation on a particular property.7 The

species most in need of protection are those characterized as pioneer vegetation

comprising the seaward fringe of vegetation. The major function of such vegeta-
78
tion is the stabilization of fragile.dune formations. Normally no developmental

activities should be allowed in areas where pioneer vegetation constitutes the
79
dominant species. Immediately landward of pioneer vegetation, scrub vegetation
80
predominates and protects areas behind it from storm tides, winds, and erosion.

Although not as crucial as pioneer vegetation, these species should also be pro-

tected either by prohibiting construction and excavation or by ensuring that
81
development will not result in their destruction.


B. Coastal Wetlands

To a far greater degree than oceanfront beaches, coastal wetlands are essen-

tial to marine ecology. It is estimated that from 68% to 98% of all commercially

harvested fish and shellfish spend part of their life cycle in the tidal waters
82
of coastal wetlands. In addition, the wetlands provide a wildlife habitat,
83
especially for waterfowl and wading birds.8

The vegetation and soils of wetlands areas perform an important function

in protecting the quality of adjacent coastal waters by filtering out the sedi-
84
ments and nutrients of upland runoff. Indiscriminate development, particularly
85
dredge and fill activities, can disrupt this natural filtration system in two

ways. First, it increases the amount of upland pollution entering the wetlands

and adjacent coastal waters. Secondly, development can simultaneously reduce

the filtering capacity of the wetlands by interfering with the flushing action of

tidal ebb and flow, removing wetlands vegetation, and altering land elevations in

such a way as to destroy the natural storage and dispersal of upland runoff by the








wetlands area.

The major functions of setback restrictions and permit requirements in wet-

lands would be to preserve coastal vegetation, protect the ecological interaction

between shorelands and water, and minimize the adverse effects of upland runoff

and other pollution on shore and marine life. Rather than emphasizing engineering

considerations so important for flood and erosion control on high-energy beaches,

establishment of setback restrictions would be based on ecological criteria that

would ensure minimal intrusion of construction and excavation into the shore's

fragile eco-system.

The most appropriate basis for regulating land use in coastal wetlands is
87
the pattern of vegetation growing in a particular area. Typically coastal wet-

lands vegetation types occupy distinct zones depending on the degree of salinity

and length of tidal inundation that particular species can tolerate.8 Submerged

wetlands vegetation occupies the outer or seaward zone and include various species

of mangrove and salt marsh plants. The area beyond the submerged vegetation is

usually characterized as a transition zone where salt and freshwater influences

merge and wetlands vegetation is gradually superseded by plants characteristic

of upland growth.90

Generally, submerged wetlands vegetation should be maintained as a buffer

between upland development and the shore. Consequently all construction and

excavation should be set back from the landward boundaries of such vegetation.

The wetlands vegetation of the transitional zone also requires protection, and

development here should be permitted only if alteration of ground elevations and

damage to indigenous vegetation are minimized.9


III. Legal Problems in Implementing the Model Ordinance

A. Special Features of a Coastal Setback

A coastal setback line should be contrasted with traditional setback pro-

visions that regulate land use in a stable, man-made environment of streets,

55








buildings, and platted lots. The coastal setback operates in the dynamic natural

environment of high-energy beaches and coastal wetlands. Consequently, its loca-

tion, purposes, and permanency may differ markedly from its traditional counter-

part. While raising many of the same legal problems associated with urban set-

back restrictions, the coastal setback does so in a highly unstable setting that

adds an element of uncertainty to the resolution of these problems.

For example, a decision that a setback line has been properly established

on one section of a beach would not preclude a nearby property owner from chal-

lenging its application to his parcel. The natural contours and dynamics of the

shore can vary dramatically in a given area, and what might be necessary to pro-

tect beach and upland property in one area might not be necessary a short distance
92
down the coast. Whether the location of the line is arbitrary or raises pro-

blems of equal protection presents complicated issues of fact based upon the
93
precise environmental conditions existing on a specific property. Likewise,

even though a line has been properly determined for a given property does not

mean it cannot be challenged or altered at some future date if changing shore

conditions render it overly stringent or permissive.4 Thus, the variable and

changing features of the beachfront and the wetlands tend to make any setback line

a provisional regulatory measure as susceptible to change as the environment it

seeks to protect.


B. State and Federal Regulations

The setback and permitting provisions of the model ordinance should be dis-

tinguished from other regulatory measures affecting the development of coastal

property. The ordinance operates independently of the mean high water line

which normally determines the boundary between state and private ownership of
95
coastal lands. The mean high water line does, however, provide the baseline

for setting the State of Florida's interim setback line on high-energy beaches.6








Any proposed development should be in compliance with this interim line or with

the state's engineered setback requirements administered by the Department of
97
Natural Resources.97

Another important regulatory line is the 100-year flood line which designates

the boundary of high-hazard areas for coastal construction and sets the required

elevation for new structures under the National Flood Insurance Program. Al-

though the model ordinance itself does not specify any elevation standards, its

permit provisions require that a proposed structure meet the standards of the
99
national program.

Any development of coastal wetlands is likely to encounter both state and

federal authorities. In Florida, for example, the Department of Environmental

Regulation would require a permit for excavation or filling in areas of submerged
100
or transitional wetlands vegetation. Additionally, the Corps of Engineers

under its recently expanded jurisdiction over tidal wetlands would have regula-
101
tory authority over such developmental activity.0

Adoption of a local ordinance to regulate coastal development would not

necessarily duplicate state and federal programs. For example, at least two

counties in Florida have received approval by the Department of Natural Resources

to administer their own local controls over beachfront development rather than
102
relying upon the DNR's coastal setback regulations. Assuming that local re-

gulation meets or exceeds minimal standards established by state and federal

authorities, local governments can play a major role in regulating coastal

development within their jurisdictions.


C. Problems of Non-Conforming Use, Equitable Estoppel, Exceptions and Nuisance.

The initial problem facing an owner of coastal property is to determine which,

if any, of the provisions of the local ordinance are controlling. This is essential-

ly a question of timing. Under the ordinance, if a non-conforming structure is








"existing or under construction at the effective date," then the setback regula-

tions would normally not apply to the modification, maintenance or repair of the
103
structure. Such construction, however, must meet three requirements. First,

it may only occur within the existing foundations and above the 'first dwelling

floor or lowest deck of the existing structure so that the size and elevation of

the structure is maintained. In addition, any such construction must meet the

requirements for a permit under the ordinance so that its adverse impact on the

coastal environment will be minimized. Finally, the ordinance prohibits restora-

tion of any non-conforming structure whose damage or destruction has been caused
104
by coastal flooding or erosion. This last provision stems from the fact that

the entire purpose of the model ordinance would be defeated if structures in vio-

lation of the setback and proven to have an adverse impact on the beach or to be

vulnerable to flood damage are allowed to be maintained and reconstructed.105

Should a project not meet the ordinance's deadline, the common law doctrine

of equitable estoppel might still prevent imposition of setback and permit require-

ments on a particular property. By contrast to the ordinance's "grandfather" pro-

vision, the common law doctrine does not require an owner to show the existence or

actual construction of a structure. To interpose equitable estoppel, an owner

need only demonstrate that he has relied on prior official approval to make sub-
106
stantial investments in his project. If such detrimental reliance can be shown,
107
the doctrine protects the owner from changes in land use regulation.0

Both the ordinance's "grandfather" provision and common law equitable estoppel,

however, might be unavailable in cases where an owner has knowledge of a pending

change in land use restrictions that will affect his property. Florida courts

have often applied the "red flag doctrine" in instances where an owner has adequate

warning that his planned use of land will be prohibited by pending changes in local
108 109
ordinances. In Shanow v. Dania this "red flag" approach was applied to impose

a setback line enacted after an owner had received a building permit for his property.









The court argued that the owner had full knowledge of the pending setback restric-

tions when he received his permit and therefore would have to develop his property
110
in compliance with them. The "red flag doctrine" could arguably be invoked where

the owner of coastal property undertakes development that would violate the pending

model ordinance. The central question in such cases would be whether the owner

had sufficient knowledge of the pending change to realize his project would be

subject to its restrictions. Once the ordinance has been proposed in a particular

locality and public hearings have been held, it would seem that sufficient "red

flag" warnings would exist. An owner would then be prevented from avoiding the.

new setback requirements simply by beginning construction or by making substantial

investments in his project.

A mistake in issuing an official permit for construction that actually vio-

lates the local ordinance would not allow an owner to invoke equitable estoppel..
112
In Godson v. Town of Surfside the Supreme Court of Florida held that an owner

could be forced to remove a completed addition to his beachfront dwelling despite

the fact that the city had earlier approved his permit application.113 The permit

had failed to show that the proposed addition would violate local setback restric-

tions on the beach, but the mistake did not allow the owner to invoke the protec-
114
tions of equitable estoppel.

The setback regulations of the ordinance do not apply to certain excepted

structures. Generally, these exceptions include improvements that enhance the

coastal property owner's access to and use of adjacent coastal waters. 5Cat-

walks, foot-bridges, docks and boat shelters would be allowed seaward of the

setback as non-commercial appurtenances to the littoral property. Such structures,

however, would nonetheless be subject to the permit requirements of the ordinance

which would restrict their location, size and design so as to minimize any adverse
116
environmental effects.

A structure in full compliance with the model ordinance might still constitute









a public or private nuisance. Although the ordinance is designed to prevent

environmental degradation, it is possible that an approved development would

result in destruction of dunes and coastal vegetation as well as create or

aggravate flooding, erosion, and pollution problems. Arguably, the adverse im-

pact of such development on public areas below the mean high water line should be

sufficient grounds for a public nuisance claim. Yet, one major roadblock to

public nuisance actions has been the claim that the state, either by legislative

action or by constitutional amendment, has legalized a type of pollution, thereby

lifting it out of the category of a public nuisance.117 The same reasoning might

be applied successfully against a local government. During the laissez-faire

period, courts tended to overprotect the right to own and use private property

and failed to recognize the ecological consequences of pollution. This led them,
118
for the most part, either to deny the existence of the nuisance altogether, or

to refuse an injunction because the economic importance of the polluter's opera-
119
tions caused the equities to be balanced in favor of the polluter.

In a recent Florida decision, the First District Court of Appeal rejected a

public nuisance suit where a beachfront project both complied with the state's
120
setback line and had been approved by the Department of Natural Resources. In

its opinion, however, the court simply upheld the findings of the trial court and
121
did not rule out such claims as a matter of law. It would seem then that, in

light of today's environmental consciousness, perhaps neither compliance with the

model ordinance nor express approval by local authorities would automatically pre-
122
clude the bringing of a public nuisance action. Of course, only after this

issue has been tested in light of current public policy will the answer become

clearer. In any event, a private nuisance claim might be available to riparian

owners adversely affected by improper siting or design of coastal development re-
gardl of compliance with the ordinance.23
gardless of compliance with the ordinance.








D. Legal Challenges to the Model Ordinance

An individual owner may directly challenge the proposed ordinance in a

number of ways. First, the local government's decision as to the location of the

setback line may be challenged on procedural grounds. The ordinance expressly re-

quires the steps of prior scientific surveys, public notice, and public hearings,

and failure to adhere to these formal guidelines could well jeopardize the validity
124
of any setback regulation.24 Indeed, Florida's courts would undoubtedly insist

not only that formal procedures be followed but also that such procedures adequate-

ly insured consideration of all issues and views relevant to establishing a setback

line under the ordinance. In Heeb v. Trustees of the Internal Improvement Fund,125

the Circuit Court of Dade County overturned a local bulkhead line on procedural

grounds despite the fact that formal public notice and hearings had been provided.

Scrutinizing the record of the proceedings, the court determined that local offi-

cials had dominated the proceedings in such a way as to prevent presentation of
126
adverse views and consideration of all relevant issues. Mere formal adher-

ence to the ordinance's procedural provisions, then, would not be sufficient to

sustain the validity of a setback line.

The substantive validity of a setback could also be subject to attack. Ini-

tially, an owner could apply to the local governing body for review and revision
127
of the established line. As previously noted, changing natural conditions at

the shore could undermine the substantive validity of a setback by altering the
128
physical features or vegetation upon which the line was established. Not only

could such changes warrant a review by the local government, there is clear pre-

cedent in Florida to the effect that a change of conditions enables an owner to
129
challenge an existing land use restriction in the courts as well.

It should be recognized, however, that Florida's courts accord a presumption

of validity to any official determination as to what land use regulations are

needed for the public welfare. Local government need only show that its regulation







130
can be supported on grounds that are "fairly debatable."30 The existence of

evidence against a disputed setback line, even evidence which might well have

sustained establishing a different line, is not determinative. Local government
131
need only demonstrate that substantial evidence supports its decision. Con-

sideration of comprehensive surveys and the provision of adequate public hearings,

moreover, would undoubtedly lend further support to the local government's posi-
132
tion. Nonetheless, it is possible that sufficient technical evidence and ex-

pert testimony could be marshalled against a proposed setback line to overcome

this presumption of validity.


E. Variance Procedures and Problems.

An owner wishing to undertake construction at variance to established set-

back restrictions must apply directly to the local governing body.133 The ordin-

ance authorizes discretionary variances and attempts to provide sufficient guide-

lines for such governmental action. A threshold requirement for obtaining a vari-
134
ance is a showing of hardship on the part of an affected landowner. An owner

would not, however, be able to meet this requirement if the hardship proves to

be self-induced. For example, a developer might plat his subdivision so that a

series of small-sized lots straddle the setback line. Without a variance no con-

struction would be feasible on these seaward lots. Nevertheless, the hardship

imposed by the setback could be avoided by alternative platting that would enlarge

the seaward lots at the expense of upland parcels. By choosing to locate his

small lots on the seaward boundary of the subdivision the developer has created

the complained of hardship. Such hardship should not be considered legitimate
135
grounds for granting a discretionary variance.

In addition to a showing of hardship, an applicant for a variance must also

meet the requirements for a permit under the ordinance.36 The list of permit

conditions ought to be sufficiently clear to obviate any challenge on the grounds








of inadequate criteria for granting or denying a variance. Both public officials

and private individuals must have such guidelines lest the entire variance pro-

cedure he subject to attack.7

The validity of variance procedures under the ordinance may be undermined

if a local governing body grants an excessive number of variances. There is

clear precedent in Florida that setback restrictions can become unenforceable

against an individual who is denied a variance when several other property owners
138
in the area have been successful in obtaining one. Essentially, the courts

argue that a refusal to grant a variance after several have been allowed in

similar circumstances is arbitrary and capricious on the part of the administra-
139
tive authority and will not be sustained. Furthermore, the presumption of

validity accorded to the initial establishment of a setback line probably would

not be applied to variances. Whereas most courts defer to local government's

decisions on the location of a setback as being "quasi-legislative", these courts

generally consider decisions on individual variances to be "quasi-judicial" or

"administrative" in nature and thereby subject to closer judicial scrutiny.140


F. The Taking Issue
141
Since the Supreme Court's decision in Gorieb v. Fox, courts have generally

sustained setback lines as legitimate regulatory measures not requiring public
142
compensation. A setback usually has a minimal adverse impact on the use of a

particular property; although prohibiting construction and excavation'on one seg-

ment, the setback allows other uses of that segment and permits all uses of the

remainder. Thus, the value of property as a whole often remains unimpaired.143

In addition, an individual owner derives certain benefits from setback restrictions;

the value of property is directly enhanced by proper siting of structures and in-

directly enhanced by the imposition of the same restrictions on neighboring property.

Finally, when the effects of setback restrictions are assessed in the aggregate,









they clearly serve a legitimate public purpose by promoting the safety, health,
144
and aesthetic appeal of a community.

Various approaches have been proposed by courts and commentators alike for

determining when land use regulation becomes a compensable taking.145 American
146
courts generally follow two approaches: the "dimunition in value" test and
147
the "residual beneficial use" test. To a large extent, the difference between

the two approaches is a matter of judicial perception one court might view the

glass as being half-empty, another half-full. The "dimunition in value" approach

looks to the potential value of property and measures the loss incurred as a re-

sult of regulation. Adoption of this approach usually indicates a restrictive

judicial attitude toward land use control and will often result in a determination
148
that a taking has occurred. When the dimunition in value "reaches a certain

magnitude, in most if not all the cases there must be an exercise of eminent do-
,,149
main and compensation to sustain the act." There exists no clear standard,

however, for determining how great the dimunition must be. Indeed, courts adopt-

ing the dimunition test have upheld regulations resulting in extensive losses
150
without requiring public compensation.5

Other jurisdictions, including Florida, emphasize the beneficial uses re-

maining to a landowner under a given regulation. If there exists some beneficial

use to which the property may be reasonably adapted, then these courts will normal-

ly reject a taking claim. In recent years the "residual beneficial use" approach

has tended toexpand considerably the permissible scope of land use regulation.

This tendency is especially pronounced where disputed regulations have been imposed

for purposes of flood control and environmental protection.152 Indeed, a number

of flood plain zoning cases have allowed complete prohibition of development with-

out requiring the state to compensate the affected landowner. Emphasizing the

magnitude of public harm prevented by these restrictions, courts have been content

to regard such beneficial uses as agriculture or recreation as sufficient remaining









benefit to avoid a compensable taking.153

The residual beneficial uses relied upon in the flood plain zoning decisions

might well prove difficult to establish where the regulated areas are coastal

wetlands or beaches. Unlike inland flood plains that are often suitable for

agriculture, wetlands and oceanfront property normally require filling, construc-

tion, or some other improvement to have any economic value for a private owner.

To prohibit all development, then, would be to eliminate all potentially beneficial

uses. Even under the most liberal interpretation of the "remaining beneficial

use" test, such a prohibition might well constitute a compensable taking.

It should be recognized, however, that any such "taking" decision would

proceed from the proposition that the regulated property could, if left unregulated,

be devoted to some use of economic benefit to its owner. For where property has

no economic potential, regulation of its use would deprive the owner of no real

interest. The assumption that land can support an economically beneficial use,

though rarely questioned by the courts, is not always valid especially for

wetlands and beachfront property. Here the natural features of the land often

prove so inhospitable or hazardous as to destroy its potential for profitable

development. Under such circumstances, it is difficult to see how even the

severest of restrictions could result in a compensable taking.

The New Jersey courts have addressed this issue directly in the companion

cases of Spiegle v. Borough of Beach Haven.154 The initial decision by the

state's supreme court upheld an ordinance establishing a setback line for coastal

areas subject to severe storm damage. Considering both the potential public harm

and the probable private losses that would result from any construction oceanward

of the building line, the court concluded the "regulation prescribed only such

conduct as good husbandry would dictate that plaintiffs should themselves impose
155
on their own lands." The mere fact that the setback line migh prohibit all

construction on a given property was insufficient to sustain a "taking" claim.








An owner must also show "the existence of some present or potential beneficial
156
use of which he has been deprived." From the court's perspective, the erec-

tion of a building in a hazardous area where it is almost certain to be severely

damaged or destroyed could not be regarded as a project bringing any real economic

benefit to the landowner. By prohibiting such construction, then, the regulation

merely affirmed what natural conditions alone would dictate to a reasonable per-
157
son.

That the ordinance was valid on its face, however, did not prevent the plain-

tiff from asserting his "taking" claim altogether. Indeed, in subsequent litiga-

tion Spiegle convinced the state's Appellate Division that at least one of his

proposed projects could meet the threshold requirement laid down by the supreme

court. He first demonstrated that technically his planned dwelling could be

constructed seaward of the setback line in such a way as to withstand predicted

storm forces. He further showed that it would be economically feasible for him
158
to undertake such a project. He thereby established to the satisfaction of the

court that his proposed use of his land would in fact be to his benefit.159 Having

recognized Spiegle's real beneficial interest in developing the property, the

court then found little difficulty in holding the imposition of the setback, which

effectively precluded all construction on Spiegle's property, "to constitute a
160
taking."

Significantly, a recent decision by Wisconsin's supreme court concerning the

regulation of wetlands adopted a rationale similar to that developed in Spiegle
161
for resolving the "taking" question. In Just v. Marinette County, the court

sustained a prohibition on the filling of wetlands as a valid exercise of the

police power. More importantly, the court dismissed plaintiff's taking claim by

invoking a rather novel "natural state" standard for assessing the value of his

interest in the affected property. As the court stated:









"The Justs argue their property has been severely depreciated in
value. But this depreciation of value is not based on the use of
the land in its natural state but on what the land would be worth
if it could be filled and used for the location of a dwelling.'"62

The court argued that the value of plaintiff's interest in his property

should instead be based only upon the uses for which it was suited in its natural

state. As the wetlands area was clearly unfit for residential development in the

absence of artificial fill, the court concluded that a regulation which effectively

precluded such use deprived plaintiff of no real interest in his property and

163
thus did not constitute a compensable taking.

In summary, adoption of the modern "remaining beneficial use" test has allowed

considerable dimunition of property values through zoning regulation. This trend

is especially pronounced in flood zoning cases. Recognition of the hazards to the

landowner and the potential harm to the public posed by homes and other structures

in flood-prone areas has prompted some courts to uphold prohibition of all con-

struction without compensating the affected landowner.164 Moreover, where natural

conditions themselves prove so hazardous or inhospitable as to obviate any profit-

able use of a property, the reasoning advanced by both Spiegle and Just affords

yet another basis for severely regulating land use without compensation. Indeed,

these latter cases might well provide the most persuasive arguments for sustaining

coastal restrictions. Construction and excavation in areas subject to flooding,

erosion, and ecological degradation do not represent reasonable beneficial uses

of land, and therefore the denial of such uses should simply not be regarded as

a compensable taking.


IV. Conclusion

Rapid and largely unrestrained real estate development along the coastal

zone poses unique problems of land use regulation and planning. Two dichotomics

permeate this theme. First, there is the ubiquitous conflict between the right








of a landowner to the free use of his land and the power of the state to re-

gulate unreasonable use of property. Secondly, there is the desire for growth

and development which historically almost by definition disregarded ecological

and environmental consequences. Fortunately, our coastal environment is in-

creasingly being considered a valuable treasure rather than an exploitable one.

Obviously, resolution of the competing interests will involue a delicate balancing

process. Comprehensive local regulation of coastal construction and excavation

can serve a vital and necessary function in resolving coastal zone problems. The

model ordinance which follows is designed to assist local, coastal communities in

implementing their planning programs.












MODEL COASTAL CONSTRUCTION AND
EXCAVATION SETBACK AND PERMIT ORDINANCE


This model ordinance combines two types of land use regulation designed to

minimize the adverse environmental impact of coastal development: (1) a coastal

setback line and (2) a coastal permitting system. The ordinance contemplates the

division of coastal property into two zones. First, a Preservation-Setback Zone

would extend from the established setback line seaward. No construction or ex-

cavation would be allowed in this zone without first meeting the requirements for

a variance or an exception under the ordinance. A second zone, the Conservation-

Permitting Zone, would extend from the setback line landward a distance sufficient

to protect coastal dunes, bluffs, wetlands, and vegetation left unprotected by the

setbacks. Construction in this area would be subject to design requirements such

as elevation on pilings, and excavation.would be regulated so as to minimize its

adverse effects on the coastal environment. Any construction or excavation under-

taken in either the Preservation-Setback Zone or the Conservation-Permitting Zone

would require a special permit under the ordinance.

The .objectives of the model ordinance reflect its comprehensive approach to-

ward regulating coastal development on all types of shores--not only on ocean-

front high-energy beaches but along vegetated, estuarine, and wetlands shores as

well. Such comprehensive coverage of coastal property in a single ordinance pre-

sents some difficulties. First, land use regulation serves different purposes in

different coastal settings. On oceanfront beaches the primary purpose is to mini-

mize damage from flooding and erosion by protecting sand dunes, bluffs and beach-

front vegetation. By contrast, the major purpose of regulatory measures along

vegetated, estuarine, and wetlands shores is to minimize the adverse effects of

upland development on the marine-related ecology of tidal lands and waters.









To ensure that these differing coastal settings and regulatory purposes

are properly handled in turn requires different kinds of scientific and tech-

nical expertise on the part of local authorities. Whereas a botonist might be

needed to determine the precise location of coastal wetlands vegetation, an

engineer familiar with the dynamics and physical features of high-energy beaches

would be required to establish the proper setback lines along beachfront dunes,

bluffs, and storm berms. Providing such expertise is likely to prove expensive

for a local government attempting to regulate land use in coastal areas.

In sum, the model ordinance calls for a major commitment by a local govern-

ment to undertake a comprehensive regulatory program. The ordinance, however,

is drafted so that it can be amended to provide for only setback regulations or

only a permitting system. Likewise, its provisions can be amended to cover only

certain types of coastal property such as high-energy beaches or coastal wetlands.

Insofar as various types of coastal property are located within a single community,

however, the comprehensive approach provided in this ordinance should be maintained

intact.








COASTAL CONSTRUCTION AND EXCAVATION
SETBACK AND PERMIT ORDINANCE


SECTION ONE: STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSES AND
OBJECTIVES.


1.1 Statutory Authorization.

The Legislature of the State of has authorized the
(state)

of to provide and maintain for the
(governing body) (local unit)

citizens of standards which insure their health, safety and
(local unit)

welfare including regulations on land use designed to minimize damage from coastal

flooding, shore erosion, and ecological degradation of coastal property and coastal.

waters. Pursuant thereto, the _______________ of ___________,_______
(governing body) (local unit) (state)

does ordain as follows:

Commentary. The language of this provision as well as of Sections
1.2 and 1.3 is modeled after provisions contained in the United
States Water Resources Council's 1972 publication, Regulation of
Flood Hazard Areas to Reduce Flood Losses, Vol. 1, p..521 9S1.0-
1.3. Despite the recent enactment of several state and federal
coastal management programs, local governments continue to serve
an important function in regulating coastal development. See
Proceedings of the Wetlands Symposium, State Univ. of N.Y., Stony
Brook, p. 20 (1972). In fact, many state programs contemplate an
active role for local authorities in implementing coastal regula-
tions. See e.g., Wash. Rev. Code 90.58.010 .930 (1975);
Fla. Stat. 163.1361, et. seq. (1975). Moreover, many localities
have been active in developing their own special controls on coast-
al construction and excavation. See, e.g., Coastal Construction
Codes For Estero Island, Lee County, Fla. Ord. No. 76-3, -7 (1976);
Chatham County Shore Protection Ordinance, Savannah, Georgia
Metropolitan Planning Commission (1976);'and Palm Beach County
Coastal Construction and Excavation Setback Ordinance, Palm Beach
County, Fla. Ord. No. 72-12 (1972).
In Florida a local community adopting the model ordinance
should attempt to coordinate its program with state level efforts
to regulate lend use in coastal areas. First, the ordinance should
be adopted as part of the community's overall land use plan con-
templated by the "Local Government Comprehensive Planning Act of
1975". Fla. Stat. 163.1361, et. seq. (1975). In addition, the
local community should attempt to coordinate its regulation of








construction and excavation with the Department of Natural Resources
which currently administers the statewide coastal setback line for
high-energy beaches under Florida Statue 161.053. See, e.g.,
No. St. Johns County Management Plan, Florida Coastal Engineers, Inc.,
Jacksonville, Florida (April 1974); and Benton, Coastal Construction
Setback Lines, 50 Fla. Bar. J. 627, 628-9 (Dec. 1976). Finally, the
local government's regulation of coastal wetlands should be carried
out in conjunction with the state's Department of Environmental
Regulation which regulates development of wetlands areas under Chapter
403 of the Florida Statutes. See especially, Rules of the Department
of Environmental Regulation, Florida Administrative Code Ch. 17-4.01-.31
(1976).


1.2 Findings of Fact.

(a) The coastal areas of are subject to flooding, erosion,
(local unit)

and ecological degradation which result in loss of property, health and safety

hazards, destruction of marine life, and despoilation of coastal wetlands and

coastal waters, all of which adversely affect the public welfare;

(b) Losses associated with coastal flooding, beach and shore erosion, and

ecological degradation of coastal property and coastal waters are caused in part

by construction and excavation undertaken on coastal property which destroy or

alter beachfront dunes and bluffs, beachfront vegetation, and coastal wetlands

vegetation.


1.3 Statement of Purpose.

It is the purpose of this ordinance to protect coastal property and coastal

waters of from flooding, erosion, and ecological degradation by
(local unit)

the establishment of construction and excavation setback regulations and permit

requirements to further the objectives stated below:


1.4 Objectives.

The objectives of this ordinance are:

(a) To protect human health, safety, and welfare;

(b) To minimize public expenditures for flood, erosion, and pollution








control and restoration projects;

(c) To protect beachfront dunes, bluffs, and vegetation necessary for

maintaining the stability and protective features of high-energy beaches;

(d) To preserve coastal wetlands vegetation necessary for providing a

natural habitat for marine organisms and other wildlife, for protecting upland

property from flood and erosion damage, and for minimizing the adverse effects

of upland pollution on the quality of coastal waters;

(e) To insure that coastal property and coastal waters retain their economic,

recreational, and aesthetic value for littoral property owners and the general pub-

lic.

Commentary. The format of the above provisions follows that suggested
by the model regulations of the United States Water Resources Council,
Regulation of Flood Hazard Areas, supra. Both the purpose and objectives
of the ordinance were drawn from the provisions of several different
state and local enactments as well as from secondary works dealing with
coastal zone regulation. See especially, State of Florida House Bill
No. 4014, "Florida Coastal Wetlands Act of 1976" (Introduced in 1976);
Environmental Land Management Study Committee, Recommendations on the
Coastal Zone and Wetlands of Florida, Environmental Land Management
(Dec., 1973); California Coastal Zone Conservation Commission, Califor-
nia Coastal Plan pp. 38-42 (Dec., 1975); Dept. of Land Conservation
and Development, Draft Coastal Goals pp. IV-29 et. seq. (Salem, Oregon,
1976); and Ausness, Land Use Controls in Coastal Areas, 9 Calif. West.
L. Rev. 391 (Spring, 1973).



SECTION TWO: DEFINITIONS.


Unless specifically defined below, words or phrases used in this ordinance

shall be interpreted so as to give them the meaning they have in common usage

and to give this ordinance its most reasonable application.


2.1 Beachfront Bluff or Storm Berm Line.

The line determined by those points located on the seaward-most edge of the

elevated, vegetated banks or ridges found adjacent to high-energy beaches front-

ing the Atlantic Ocean or Gulf of Mexico. In any area where there is no clearly







marked bluff or storm berm line, recourse shall be had to the nearest clearly

marked bluff or storm berm line on each side of such area; and the bluff or

storm berm line for the unmarked area shall be the line of average or constant

elevation connecting the two adjacent, clearly marked bluff or storm berm lines.

Commentary. The language of this definition is drawn from two local
ordinances in Brevard County, Florida. See Cape Canaveral Code Ch.
XII, 2, 651.05; and Satellite Beach Ordinance No. 130, Amend. 1.
See also, Model Zoning Ordinance for High Risk Erosion Areas, Depart-
ment of Natural Resources, State of Michigan (July, 1975). At the
suggestion of Mr. William Sensabaugh, coastal engineer for the State
of Florida's Department of Natural Resources, both bluffs and storm
berms are included. The presence of beachfront bluffs normally in-
dicates that beaches seaward of the bluff are subject to periodic
flooding and erosion. The storm berm is itself created by severe
wave action depositing sand in a clearly marked ridge, and would
likely be overtopped by storm flooding. In either case, construction
should be undertaken well landward of bluffs or berms despite the fact
that dunes or beachfront vegetation exist seaward.


2.2 Beachfront Dune Line.

The line determined by the crests or the highest points in elevation of

existing, vegetated sand dunes along the high-energy beaches fronting the Atlantic

Ocean or Gulf of Mexico. In any area where there is no clearly defined dune

line, recourse shall be had to the nearest clearly marked dune lines on each side

of such area; and the dune line for the unmarked area shall be the line of average

or constant elevation connecting the two adjacent dune lines. The location of

such line shall not be based upon occasional, un-vegetated sand dunes nor upon the

artificial addition to or removal of sand dunes along the beach.

Commentary. The operative language of this definition is drawn
primarily from local ordinances in Palm Beach County, Florida.
See Palm Beach County Ordinance No. 72-12 (1972); Riviera Beach
Ordinance No. 310 (1973). Although no dunal system is stable,
the highest dunes would normally be those farthest upland and
would also be the ones with the heaviest cover of stabilizing vege-
tation. See Davis, Stabilization of Beaches and Dunes by Vegetation
in Florida, Report No. 7, Florida Sea Grant Program, Fig. 33, p. 31
(1975); and Savannah, Georgia Metropolitan Planning Commission, Chat-
ham County Shore Protection Ordinance, 2-3 (E) (1976).








2.4 Beachfront Pioneer Vegetation.


Any or the following vcqctational species or combination of such species ex-

isting on coastal property:


Coastal Beardgrass
Beach Orachs
Sea Rockets
Sand-spurs
Golden Asters
Small Croton
Bermuda Grass
Pennyworts
Beach Morning Glories
Evening Primrose
Prickly Pear Cactus
Panic Grass
Small Cordgrass
Rush Grass
St. Augustine Grass
Sea-blite
Sea Oats
Finger Grass


Andropogon spp.
Atriplex spp.
Cakile spp.
Cenchrus spp.
Chrysopsis spp.
Croton linearis
Cynodon dactylon
Hydrocotyle spp.
Ipomoea spp.
Oenothera spp.
Opuntia austrina
Panicum amarum
Spartina patens
Sporobolus virginicus
Stenophorum secundatum
Sueda linearis
Uniola paniculata
Digitaria adscendens


Commentary. The species included as pioneer vegetation are based
upon a listing in Davis, Stabilization supra at 18. Although pioneer
vegetation exerts an important stabilizing influence on beachfront
dunes and bluffs, such vegetation, as its name suggests, occurs pri-
marily on the seawardmost areas of the-beach. Where pioneer plants
are the dominant species no construction or excavation should nor-
mally be allowed. (See 2.11 below for definition of "Domi'nant
Plant Species".)


2.5 Beachfront Transitional Vegetation.

Any of the following vegetational species or combination of such species

existing on coastal property:


Groundsel Bushes
Buckthorns
Australian Pines
Sea Grape
Gopher Apple
Hollies
Marsh Elder
Magnolia
Wax Myrtle
Cactus
Wild Olive
Bay Leaves
Live Oak
Cabbage Palm


Baccharis spp.
Bumelia spp.
Casuarina spp.
Coccoloba unifera
Geobalanus oblongifolius
flex spp.
Iva frutescens
Magnolia grandiflora
Myrica cerifera
Opuntia spp.
Osmanthus americanus
Persea spp.
Quercus Virginiana
Sabal palmetto







2.5 Beachfront Transitional Vegetation (Cont.)


Beach Berry Scaevola plumieri
Brazilian Pepper Schinus terebinthifolius
Saw Palmetto Serenoa repens
Greenbriar Vines Smilax spp.
Spanish Bayonets Yucca spp.

Commentary. The species included as transitional vegetation are
based upon a listing of "Northeast Scrub Plants" in Davis, Stabili-
zation, supra at 23. The species would vary considerably in differ-
ent regions, and the above list should be regarded as appropriate
only for the coasts of Northeast Florida. Vegetation that might be
considered transitional often occurs in seaward areas dominated by
pioneer vegetation. Each locality, therefore, should adopt its own
vegetational species. For discussion of the various regions in
Florida see Davis, Stabilization, supra, 14-29. For a discussion
of the use of vegetation in establishing a coastal setback line,
see Purpura and Sensabaugh, Coastal Contruction Setback Line,
Marine Advisory Program, Univ. of Florida, SUSF-SG-74-002 (1974).


2.6 Beachfront Vegetation Line.

The line determined on coastal property by the seaward boundary of natural

terrestrial vegetation (but excluding vegetation where either Submerged Wetlands

Vegetation or Beachfront Pioneer Vegetation constitutes the dominant plant species).

In any area where there is no clearly marked line of terrestrial vegetation, re-

course shall be had to the nearest clearly marked vegetation lines on each side

of such area; and the vegetation line for the .unmarked area shall be the line of

average or constant elevation connecting the two adjacent lines of vegetation.

The location of such line shall not be based upon occasional vegetation on the

shore nor upon the artificial addition or removal of land or vegetation.

Commentary. The language of this provision is based primarily on
local ordinances of Manatee and Broward Counties, Florida. See
Holmes Beach Ordinance No. 150.3; Hallandale Code 8 32-223. Ex-
cluded from the species of vegetation to be used in determinating
this line are both Submerged Wetlands Vegetation and Beachfront
Pioneer Vegetation where such vegetation constitutes the dominant
plant species of an area. The predominance of these two types of
vegetation indicates that the area of coastal property is likely
to be regularly innundated by tidal ebb and flow or subject to
periodic erosion by wave action. See Rules of the Department of
Environmental Regulation, Florida Administrative Code Ch. 17 -
4.02 (17) (1976); and Davis, Stabilization, supra at 7-8.








2.7 Coastal Property.

Any land contiguous or adjacent to the coastal waters of
(local unit)

Commentary. The language of this definition is drawn primarily
from the definition of "submerged lands" in the Rules of the
Department of Environmental Regulation, Fla. Adm. Code, Ch. 17-4.02
(17) (1976). The purpose of this definition is to distinguish
coastal property from riparian property adjacent to inland fresh
water bodies.


2.8 Coastal Waters.

The waters of the Atlantic Ocean or the Gulf of Mexico, and of bays, inlets,

estuaries, rivers, tidal creeks, bayous, lagoons, or other surface water bodies

[with a measurable chloride content of [ ] and] subject to tidal ebb and

flow under normal weather conditions.

Commentary. The language of this provision is based primarily upon
Louisiana House Bill No. 1315 S 2002 (2) (1976), Appendix B (1-b);
and State of Washington Shoreline Management Act, EC1105-2-11 (July
30, 1974). See also, Laws of Massachusetts Annot., Ch. 131, 40
(1974); Monroe County, Florida Ordinance No. 7608 (1975). Coastal
waters include both natural and artificial water bodies subject to
tidal ebb and flow regardless of navigability or ownership. It
should be emphasized that this definition based upon ebb and flow is
used solely for purposes of regulation and does not affect existing
local law with respect to title held by either public or private
owners or to the boundaries of coastal property. See generally,
Maloney, Plager, Baldwin, Water Law and Administration, Chapter 2 (1968).


2.9 Conservation-Pcrmitting Zone.

The area of coastal property extending [150]feet landward of the coastal

setback line or lines established pursuant to Section Four of this ordinance,

or the area landward of the coastal setback line or lines on which any species

or combination of species designated by this ordinance as Submerged Wetlands

Vegetation, Transitional Wetlands Vegetation, Beachfront Pioneer Vegetation, or

Beachfront Transitional Vegetation constitutes the dominant plant species, which-

ever distance landward is greater.

Commentary. This provision follows the approach of Florida's
Department of Environmental Regulation in ascertaining the area








of wetlands subject to dredge and fill regulations. See Rules,
supra, Fla. Adm. Code, Ch. 17-4.02 (19)(1976). Rather than rely-
ing solely upon a fixed distance, the ordinance attempts to link
regulatory authority to the natural environment of a specific
coastal property. For comparable site specific ordinances that
follow a zonal approach in regulating coastal development, see
North St. Johns County Management Plan, Florida Coastal Engineers,
Inc., Jacksonville, Florida (April, 1974); and "Coastal Construc-
tion Codes for Estero Island", Lee County, Fla. Ord. No. 76-3, -7,
(1976).


2.10 Construction.

The placing, building, erection, extension, or material alteration of any

structure the use of which requires permanent or temporary location on the ground

or attachment to a structure having a permanent or temporary location on the ground.

Commentary. The language of this definition is drawn primarily
from Palm Beach County Ord. No. 72-12 l(c)(1972). Both permanent
and temporary structures are included. See, e.g., Proposed Ordin-
ance for regulating land use in an "Area of Critical Environmental
Concern", Dade County Department of Planning, Miami, Florida 5jZ).
The definitions of "construction" as well as of "excavation" at 2.12
include a narrower scope of developmental activities than covered by
the definition of "development" in "The Florida Environmental Land
and Water Management Act of 1972". See Fla. Stat. 380.04 (1975).
Thus, such activities as. sub-dividing or zoning changes would not be
within the regulatory scope of this ordinance.


2.11 Dominant Plant Species.

Vegetational species or combination of species which comprise greater than

fifty percent (50%) of the vegetation indigenous to a specific area of coastal

property.

Commentary. This definition follows the operational interpretation
used by Florida's Department of Environmental Regulation in locating
"submerged" and "transitional" wetlands areas. See Rules, supra,
Fla. Adm. Code, Ch. 17-4.02 (17), (18), and (19)(1976). Determina-
tion of the dominant plant species is required to establish the
Conservation-Permitting and Preservation-Setback Zones as w 11 as
the Beachfront Vegetation Line under this ordinance. (See S 2.6,
-.9, -.15.). Compare the definition of "dominant plant community"
used by ecologists, E. Odum, Fundamentals of Ecology at 251-52 (1959).


2.12 Excavation.

The removal, addition, or alteration of soil, sand or vegetation by digging,







dredging, filling, drilling, cutting, scooping, or hollowing out.

Commentary. This definition is based on provisions in the "Palm
Beach County Coastal Construction and Excavation Setback Ordinance",
Palm Beach County Ordinance No. 72-12 (1972); and the Virginia Beach
City Code Ch. 31, 31-1.


2.13 Landward.

In a direction upland or away from the coastal waters contiguous to a

specific parcel of coastal property.

Commentary. For a similar definition, see "Coastal Construction
Codes for Estero Island", Lee County Ordinance No. 76-3, 8-254
(1976).


2.14 Person.

Any individual, corporation, governmental agency, business trust, estate,

trust, partnership, association, two or more persons having a joint or common in-

terest, or any other legal entity.

Commentary. This definition is taken from A Model Land Development
Code (Proposed Official Draft) The American Law Institute, 1-201
(1T6(1975).


2.15 Preservation-Setback Zone.

The area of coastal property seaward of the coastal setback line or lines

established pursuant to Section Four of this ordinance.

Commentary. The preservation-setback zone established by this
ordinance should be distinguished from the more expansive
"preservation zone" used for state-wide coastal planning under
the Coastal Zone Management Act. See "Coastal Zone Management:
An Overview", 20 Environmental Comment 1 (April, 1975). Under
the model ordinance, the preservation-setback zone would generally
include the seaward fringe of coastal property so as to protect
dunes, bluffs, pioneer vegetation, and submerged wetlands vegeta-
tion from all construction or excavation. For comparable local
regulations, see North St. Johns County Management Plan, supra;
and Lee County Ordinance No. 76-3,-7 (1976).


2.16 Seaward.

In a direction toward the coastal waters contiguous to a specific parcel of

coastal property.







2.16 Seaward (Cont.)

Commentary. This definition is based on that found in the
"Coastal Construction Codes for Estero Island", Lee County
Ordinance No. 76-3, 8-254 (1976).


2.17 Submerged Wetlands Vegetation.

Any of the following vegetational species or combination of such species

existing along the shore of coastal property:

Batis Batis maritima
Big Cordgrass Spartina cynosuroides
Black Mangrove Avicennia germinans
Black Rush Juncus roemerianus
Cuban Shoalweed Diplanthera wrightii
Leather Fern Acrostichum aureum
Manatee Grass Syringodium filiformis
Red Mangrove Rhizophora mangle
Rubber Vine Rhabdadenia biflora
Smooth Cordgrass Spartina alterniflora
Turtle Grass Thalassia testudinum
Widglon Grass Ruppia maritima
White Mangrove Laguncularia racemosa
Spartina bakeri

Commentary. The above species of wetlands vegetation are those
.generally found in Florida immediately adjacent to the shore and
are regularly inundated by the tides. The species are drawn from
those listed as indigenous to "submerged lands" in Rules of the
Department of Environmental Regulation, Fla. Adm. Code, Ch. 17-4.02
(17) (1976). At the suggestion of Dr. Landon Ross of Florida's
Department of Environmental Regulation, one additional species,
Spartina bakeri, has been included. It should be noted that not
all species associated with coastal wetlands come under the defini-
tion of submerged vegetation, but only those generally found at
the seaward fringe of a wetlands area. The species, moreover,
would vary from region to region, with different and less diverse
species appearing in northern areas. See e.g., Code of Virginia,
62.1-13.2 (f)(1972).


2.18 Submerged Wetlands Vegetation Line.

The line determined by the landward limits of submerged wetlands vegetation

which constitutes the dominant plant species and spreads naturally and continuously

inland from the shore.

Commentary. The language of this provision is drawn primarily from
Monroe County, Florida Ord. No. 75-17 (1975). It should be noted








that the wetlands vegetation must meet three basic tests to be used
in establishing the vegetation line. First, the species or combina-
tion of species must comprise the dominant species of the area. (See
2.11 for definition of dominant plant species.) Second, the species
must spread naturally inland. Where indigenous coastal wetlands vegeta-
tion has been induced to grow well inland of its natural location by
artificial means such as mosquito ditches or drainage canals, the land-
ward limits should be based solely upon the natural growth. (Interview
with Mr. Robert Usherson, Dade County, Fla. Dept. of Planning; telephone
conversation with Dr. Ronald Gaby, Gaby and Gaby, Inc., Miami, Fla.)
Finally, the vegetation must spread in a reasonably continuous fashion
from the shore. Isolated areas of such vegetation could exist well in-
land but would not be included in determining the vegetation line. See
Monroe County Ord. No. 75-17 (1975).


2.19 Transitional Wetlands Vegetation.

Any of the following vegetational species or combination of such species

existing on coastal property:


Aster
Beach Carpet
Button Wood
Glasswort (annual)
Glasswort (perennial)
Key Grass
Salt Grass
Sea Blite
Sea Daisy

Sea Grape
Sea Lavender
Sea Purslane
Switch Grass
Railroad Vine


Aster tenuifolius
Philoxerus vermicularis
Concarpus erecta
Salicornia bigelovii
Salicornia virginica
Monanthochloe littoralis
Distichlis spicata
Suaeda linearis
Borrichia frutescens
Borrichia arborescens
Coccoloba uvifera
Limonium carolinianum
Sesuvium portulacastrum
Spartina patens
Ipomoea pes-caprae


Commentary. The above species of wetlands vegetation are those
generally found in Florida immediately landward of Submerged Wet-
lands Vegetation. (See 2.17 above). The species are based on
those listed as indigenous to the "transitional zone of a sub-
merged land" in Rules of the Department of Environmental Regula-
tion, Fla. Adm. Code, Ch. 17-4.02 (19)(1976). The species in-
cluded in transitional wetlands vegetation would vary from region
to region.



SECTION THREE: GENERAL PROVISIONS.


3.1 Lands to Which This Ordinance Applies.

This ordinance shall apply to all coastal property within the jurisdiction of








(local unit)

Commentary. The provision is modeled after United States Water
Resources Council, Regulation, supra, Vol. 1, p. 522, 2.1, but
substitutes the two zones for the three flood districts used in
flood plain zoning. See Maloney and Dambly, Model Flood Plain
Management Ordinance 16 Natural Resources Journal at 714 (July,
1976).


3.2 Compliance.

No construction or excavation shall hereafter be undertaken within the

Preservation-Setback or Conservation-Permitting Zones of coastal property without

full compliance with the setback regulations and permit requirements of this

ordinance.


3.3 Interpretation.

(a) In the interpretation and application of this ordinance, all provisions

shall be considered minimal requirements and construed liberally to effectuate

the purposes and objectives of this ordinance.

(b) This ordinance is not intended to repeal, abrogate, or impair any ex-

isting easements, covenants, or deed restrictions which impose mord stringent re-

strictions on coastal construction or excavation. Where more than one provision

of this ordinance applies to a given coastal property, whichever provision imposes

the more stringent restrictions shall prevail. Where this ordinance conflicts with

or overlaps another ordinance or statute pertaining to the protection of the coastal

environment, whichever imposes the more stringent restrictions on construction and

excavation shall prevail.

Commentary. The general provisions of this section are modeled
after U. S. Water Resources Council, Regulations, supra, Vol. 1,
pp. 522-23, 2.4-2.6.








SECTION FOUR: COASTAL SETBACK LINES.


4.1 Establishment ofl Coastal Setback Lines. (Alternative I)

No person may undertake any construction or excavation within the Preserva-

tion-Setback or Conservation-Permitting Zones of coastal property until the setback

line or lines required by this ordinance for such property have been established

by the An application for the establishment of a coastal


(local authority)

setback line shall be filed with the


in the manner and form and


(local authority)

with such information (including biological, hydrographic, and topographic sur-

veys) as the deems necessary. Within sixty (60) days of receiving
(local authority)

such application and after public hearing of which at least thirty (30) days prior

notice has been given by publication for three consecutive weeks in a newspaper of

general circulation in ___, the _____ shall establish the
(local unit) (local authority)

coastal setback line or lines fifty (50) feet landward of whichever of the follow-

ing lines is the greatest distance landward from coastal waters:

(a) the beachfront bluff or storm berm line

(b) the beachfront dune line.

(c) the beachfront vegetation line

(d) the submerged wetlands vegetation line.

Commentary. This first alternative places the burden upon the
individual owner to request that the local authority locate the
setback line on his property and to provide adequate information
for establishing the line pursuant to the ordinance. The advan-
tages of this individualized approach are twofold. First, the
local authority would not be required to survey all coastal pro-
perty at one time but instead would establish setbacks only on
those parcels which an owner plans to develop. Second, the ex-
pense of topographic and other appropriate surveys would be borne
by the individual owner. The application for establishment of a
setback would in most instances be coupled with a permit applica-
tion pursuant to Section Six of the ordinance so as to avoid both
unnecessary delays and duplication of expense in providing scienti-
fic and technical information on the physical and biological features
of a particular parcel of coastal property.








4.1 Establishment of Coastal Setback Lines.


The _______ of _________, after having obtained what-
(governing body) (local unit)

ever biological, hydrographic, and topographic surveys of coastal property is

deemed necessary, and after public hearing of which at least thirty (30) days

prior notice has been given by publication for three consecutive weeks in a

newspaper of general circulation in ___ shall establish the coastal
(local unit)

setback line or lines fifty (50) feet landward of whichever of the following

lines is the greatest distance landward from coastal waters:

(a) the beachfront bluff or storm berm line

(b) the beachfront dune line

(c) the beachfront vegetation line

(d) the submerged wetlands vegetation line.

Commentary. The language of this provision is drawn primarily from
Fla. Stat. 253.122 (1971) repealed Fla. Stat. 253.1221 (1973),
which empowered local governments to establish the bulkhead lines
within their respective jurisdictions. There are a number of pro-
blems with attempting to establish setback lines on a community-
wide basis. First, the expense in time and money for a local
government is likely to be great. In addition, such an approach
would result in lengthy delays that would require general moratoria
on coastal development pending the establishment of the setbacks.
Finally, a good deal of confusion, inefficiency, and procedural
difficulties are likely to result. See, e.g., Heeb v. Trustees
of Internal Improvement Fund, 37 Fla. Supp. 1 (C. C. Dade Cty.,
1971).
It should be noted that there are four possible base lines
for establishing a coastal setback line under the ordinance. Any
single parcel of coastal property might be subject to all four
depending on which one imposes the greatest setback at any given
location. Each setback line is linked to the environmental char-
acteristics of the specific property being regulated and is based
upon the extent to which such features as dunes, bluffs, storm
berms, and vegetation are present and in need of protection. This
approach is considered better suited for environmental protection
of each coastal area than would a regulatory scheme based solely
upon horizontal distances from the mean high water line or the
elevations of the property being regulated. See, e.g., Coastal
Marshlands Protection Act, Ga. Code Ann. 137 (b); Fla. Stat.
161.052 (1975); and Cal. Gov't Code Ann., 66610 (West Supp.
1973).


(Alternative II)








4.2 Recordation.

Upon establishment of the coastal setback line or lines as herein provided,

a drawing or map showing the location of the line or lines shall be promptly

filed in the public records of and shall be adopted, filed,
(local unit)

and enforced as part of any existing coastal or other land use plan of
(local unit)

4.3 Review.

Upon application by the owner of the affected coastal property, the

of shall review the establishment of the coastal
(governing body) (local unit)

setback line or lines and may, after public notice and hearing as provided in

4.1, approve or alter such line or lines in accordance with the setback pro-

visions of this ordinance.

Commentary. The language of these provisions is drawn primarily
from Fla. Stat. 253.122 (1971). Recordation of the setback
affords notice to subsequent purchasers as to the restrictions
imposed upon the property. Review by the governing body insures
that decisions by the local authority would be subject to legis-
lative scrutiny and revision.



SECTION FIVE: COASTAL SETBACK REGULATION, EXCEPTIONS, VARIANCES, AND
NON-CONFORMING USES.

5.1 Setback Regulation.

No person may undertake any construction or excavation on coastal property

seaward of any coastal setback line established for such property pursuant to

Section Four of this ordinance.


5.2 Exceptions.

The setback regulations of this ordinance shall not apply to the construc-

tion of catwalks, docks, piers, boat shelters, footbridges, observation decks

and other similar structures, provided that such structures are elevated on pil-

ings or in such other manner as to permit the unobstructed flow of tidal waters








and upland runoff and to preserve the natural contours and vegetation of coastal

property, and further provided that such structures meet the requirements for a

Coastal Construction and Excavation Permit ennumerated in Section Six of this

ordinance.

Commentary. The exceptions listed in this provision are drawn
primarily from those listed in Florida House Bill No. 4014,
"Florida Coastal Wetlands Act of 1976" (Introduced in 1976); and
Wetlands Zoning Ordinance, Code of Virginia 62.1-13.5 (Supp.
1972). It should be noted that these exceptions apply only to
the setback regulations of the ordinance. Such construction is
still subject to the permit restrictions of Section Six.


5.3 Variances.

A variance to the setback regulations of this ordinance may be authorized

by the upon receipt of an application from an owner of coastal
(governing body)

property which demonstrates an undue hardship from imposition of such regulations

and which also meets the requirements for a Coastal Construction and Excavation

Permit ennumerated in Section Six of this ordinance.


5.4 Non-Conforming Uses.

The setback regulations of this ordinance shall not apply to any modifica-

tion, maintenance, or repair of any non-conforming structure existing or under

construction at the effective date of this ordinance, provided that such modifi-

cation, maintenance, or repair: (1) is undertaken within the limits of the

existing foundation and above the first dwelling floor or lowest deck of such

structure, (2) meets the requirements for a Coastal Construction and Excavation

Permit ennumerated in Section Six of this ordinance, and (3) had not been necessi-

tated by damage due to flood or erosion.

Commentary. The provisions for variances and non-conforming uses
are modeled after Fla. Stat. 161.053 (2)(a), (8) (1976) and Fla.
Adm. Code, Vol. Ill, Ch. 168-25.04 (1976). The model ordinance,
however, adopts the approach recommended by Florida's Environmental
Land Management Study Committee by prohibiting restoration of any
non-conforming structure whose damage or destruction has been caused








by coastal flooding or erosion. See Recommendations on the
Coastal Zone and Wetlands of Florida, Environmental Land
Management, 99 (Dec., 1973). It should also be noted that
variances require a showing of hardship on the part of an
applicant and may only be granted by the local governing
body.



SECTION SIX: COASTAL CONSTRUCTION AND EXCAVATION PERMITS.


6.1 Required Permit.

No person shall undertake any construction or excavation within the Pre-

servation-Setback Zone or the Conservation-Permitting Zone of coastal property

as defined in this ordinance without having first obtained a Coastal Construc-

tion and Excavation Permit from the
(local authority)


6.2 Permit Application.

An application for a Coastal Construction and Excavation Permit shall be

filed in the manner and form and with such information (including appropriate

biological, hydrographic, hydrological, topographic, and water quality studies)

as the may require. Such requirements may be varied according
(local authority)

to the type, location, or size of the proposed construction or excavation.

Commentary. The above provisions are modeled after the pro-
posed "Florida Coastal Wetlands Act", Fla. House Bill 4014
(Introduced in 1976).


6.3 Permit Requirements.

A Coastal Construction and Excavation Permit shall be issued upon demonstra-

tion by the applicant that the proposed construction or excavation:

(a) will not be contrary to the objectives of this ordinance;

(b) will be in compliance with the standards of the National Flood

Insurance Program;








(c) will be in compliance with the Coastal Setback Regulations of

Section Four and Five of this ordinance;

(d) will not cause or contribute to erosion, reliction, avulsion,

accretion, shoaling, or scouring of coastal property;

(e) will not have significant adverse effects upon coastal property or

coastal waters in any of the following ways:

(1) through destruction of Beachfront Pioneer Vegetation, Beach-

front Transitional Vegetation, Submerged Wetlands Vegetation,

or Transitional Wetlands Vegetation;

(2) through destruction or alteration of beachfront dunes, bluffs,

storm berms, or vegetation that contribute to maintaining the

stability and protective features of high-energy beaches;

(3) through interference with or alteration of the normal tidal

ebb and flow of coastal waters;

(4) through lowering of existing ground elevations;

(5) through interference with or alteration of the normal drainage

of coastal property;

(6) through degradation of the quality of coastal waters.

Commentary. The permit requirements are based on a number of
different state and local provisions. See especially, Fla.
House Bill 4014 (Introduced in 1976); Coastal Marshlands Pro-
tection Act of 1970, Ga. Laws No. 1332, 45-140 (1970); Shore
Protection Ordinance, City of Savannah Beach Ord. 103 (B)(1)
(1976); Lee County Ord. No. 76-3 (1976); and Shoreline Manage-
ment Act of 1971, Wash. Rev. Code 90.58.140 (1975).



SECTION SEVEN: PENALTIES.


7.1 Restoration.

Any construction or excavation undertaken in violation of this ordinance

shall forthwith be corrected after written notice by the
(local authority)









In the event that corrective action is not taken as directed within a reason-

able time, the m________ay, at its own expense, take corrective action
(governing body)

to restore the coastal property. The cost thereof shall become a lien upon the

coastal property upon which such illegal activity occurred.


7.2 Fines.

Any person undertaking construction or excavation in violation of this ordin-

ance is guilty of a misdemeanor, punishable by a fine of not less than [$100], nor

more than [$1,000]. Such person shall be deemed guilty of a separate offense for

each day during which a violation of this ordinance is committed or continues.

Commentary. The penalties are modeled after provisions of Fla.
House Bill 4014 (Introduced in 1976).



SECTION EIGHT: SEVERABILITY.


Each separate provision of this ordinance is deemed independent of all other

provisions herein so that if any provision or provisions of this ordinance be de-

clared invalid, all other provisions thereof shall remain valid and enforceable.



SECTION NINE: EFFECTIVE DATE.












Footnotes to Part II


1. See generally, Veri, Jenna, & Bergamaschi, Environmental Quality by Design:
South Florida, 165-182 (U. of Miami Press, 1975), (hereinafter cited as
Veri).

2. See Fla. Stat. 380.06 (1975). The regulation of "Developments of Regional
Impact" is part of the Florida Environmental Land and Water Management Act
of 1972.

3. See Fla. Stat. 380.05 (1975), regulating "Areas of Critical State Concern."

4. See Fla. Stat. 163.1361 et. seq. (1975), enacted as the "Local Government
Comprehensive Planning Act" of 1975.

5. See Veri, supra at note I, p. 71: "The earliest pioneers in South Florida
wisely chose the ridge of the coastal strip for their settlements. Here
they found refuge from flooding, relief from mosquitoes, and a view of the
sea. The trend continues, as 75% of the residents of Florida live and work
in coastal counties."

6. See Environmental Land Management Study Committee, Recommendations on the
Coastal Zone and Wetlands of Florida, Environmental Land Management, 76-10
(December, 1973); and Florida Department of Natural Resources, Recommenda-
tions for Development Activities in Florida's Coastal Zone (1973).

7.' Laws of Florida, ch. 70-259 (1970). The Council's functions are presently
under the Bureau of Beaches and Shores, Division of Marine Resources within
the Department of Natural Resources.

8. Coastal Zone Management Act of 1972, 16 U.S.C. 1451-64 (1972).

9. See generally, Ausness, Land Use Controls in Coastal Areas, 9 Calif. West
L. Rev. 391 (Spring 1973). Under the direction of the Department of
Natural Resources, the state is preparing its preliminary plans for approval
by the Office of Coastal Zone Management of the National Oceanic and Atmospheric
-Administration.

10. It is estimated that 25% of the state's beaches are subject to "critical
erosion", another 70% face "non-critical erosion", with the remaining beaches
neither growing nor eroding. See Recommendations on the Coastal Zone and
Wetlands of Florida, supra at note 6, p. 98.

11. The Mean-High Water Line is established under the Coastal Mapping Act adminis-
tered by the Department of Natural Resources. Fla. Stat. 177.25-.40 (1975).
It is defined as the intersection of the plane of mean-high water with the
land. See generally, Maloney & Ausness, The Use and Legal Significance of the
Mean High Water Line in Coastal Boundary Mapping, 53 N. C. L. Rev. 185 (Dec. 1974).







12. Fla. Stat. 161.052 (1975).

13. Fla. Stat. 161.053 (1975).

14. The state's House of Representatives failed to approve a bill to regulate
coastal wetlands in 1976. See House Bill No. 4014, "Florida Coastal Wetlands
Act of 1976" (1976). Other states, however, have adopted wetlands legisla-
tion. See, e.g., "Coastal Wetlands Control Act", Ga. Code Ann. 45-136 to
147 (1974); "Wetlands Control Act", Me. Rev. Stat. Ann., Title 38, 471-478
(1974); "Coastal Wetlands Protection Act", Mass. Gen. Laws Ann. Ch. 130 105
(1965).

15. See Fla. Stat. Ch. 403 (1975); Rules of the Department of Environmental Regula-
tion, Fla. Adm. Code, Ch. 17-4.01 et. seq. (1976).

16. See, e.g., "Palm Beach County Coastal Construction and Excavation Setback
Ordinance", Palm Beach County Ordinance No. 72-12 (1972).

17. See, e.g., Cape Canaveral Code, Ch. XII, 2, 651.05; and Satellite Beach
Ordinance No. 130, Amend. 1.

18. See, e.g;, Holmes Beach Ordinance No. 150.3; and Hallandale Code, 32-223.

19. The "high-energy beach" is a shore fronting the open ocean and dominated by
sand and dunal features. See Riedl & McMahan, High Energy Beaches Coastal
Ecological Systems of the United States, Vol. 1 (The Conservation Foundation,
1974).

20. See, e.g., Monroe County Ordinance No. 75-17 (1975) which is designed primarily
to preserve shoreline mangrove communities.

21. See, e.g., No. St. Johns County Management Plan, Florida Coastal Engineers, Inc.,
Jacksonville, Florida (April 1974).

22. See, e.g., "Coastal Construction Codes for Estero Island", Lee County Ordinance
No. 76-3, 76-7 (1976).

23. Both the Northern St. Johns County plan and the Codes for Estero Island were
developed ip response to the State of Florida's coastal setback program under
Fla. Stat. 161.053 as an alternative to the setback line proposed by the
Department of Natural Resources.

24. State statutes and local ordinances from other jurisdictions were also used
in developing the ordinance. The primary focus, however, has been on the
Florida experience.

25. See especially, Fla. Stat. 161.053 (1975); and House Bill No. 4014, "Florida
Coastal Wetlands Act of 1976"(1976).

26. See especially, Rules of the Department of Environmental Regulation, Fla. Adm.
Code, Ch. 17-4.01 et. seq. (1976).








27. See especially, "Palm Beach County Coastal Construction and Excavation Set-
back Ordinance" Palm Beach County Ordinance No. 72-12 (1972); Cape Canaveral
Code, Ch. XII, 4 2, 651.05; Holmes Beach Ordinance No. 75-17 (1975), and
Wetlands Zoning Ordinance, Code of Virginia S 62.1-13.5 (supp. 1972).

28. See "Coastal Construction Codes for Estero Island", Lee County Ordinance No.
76-3, 76-7 (1976).

29. See North St. Johns County Management Plan, Fla. Coastal Engineers, Inc.,
Jacksonville, Florida (April 1974).

30. Other useful reference materials in preparing this ordinance include Veri,
supra at note 1; Environmental Land Management Study Committee, Recommendations
on the Coastal Zone and Wetlands of Florida, Environmental Land Management,
(December, 1973); Ausness, Land Use Controls in Coastal Areas, 9 Calif. West
L. Rev. 391 (Spring 1973); Purpura & Sensabaugh, Coastal Contruction Setback
Line, Marine Advisory Program, U. of Florida, SUSF-SG-74-002; and Davis,
Stabilization of Beaches and Dunes by Vegetation in Florida, Report No. 7,
Florida Sea Grant Program (1975).

31. See Sections Four and Five of the model ordinance.

32. See Section Six of the model ordinance.

33. See the definition of "Preservation Zone" at Section 2.15 of the model ordinance.

34. See Section 2.10 for the definition of "Construction" under the model ordinance.

35. See Section 2.12 for the definition of "Excavation" under the model ordinance.

36. The variance provision is Section 5.3 of the model ordinance.,

37. The exceptions under the ordinance are provided in Section 5.2.

38. See Section 2.9 for the definition of "Conservation Zone" under the model ordinance.

39. See Section 6.1 of the model ordinance.

40. See Section 1.4 for a summary of the objectives of the model ordinance.

41. Mr. Arthur Harper, Legal Counsel for General Development Corporation, raised
this problem in a discussion of an early draft of the model ordinance. The
State of Florida's Local Government Comprehensive Planning Act of 1975, Fla.
Stat. 163.3161 et. seq. (1975) also encourages a regional approach to land
use planning rather than relying upon individual local communities.

42. S. Rep. No. 92-753, 92nd Cong., 2nd Sess. at p. 5 (1972).

43. See, e.g., Clean Air Act, 42 U.S.C. 1857d-l (1970).

44. See, e.g., Local Government Comprehensive Planning Act of 1975, Fla. Stat.
163.3161 et. seq. (1975).







45. The recent extension of the Corps of Engineers' jurisdiction over wetlands,
for example, has given regulatory authority to the Corps that it might not
be able to exercise effectively. See generally, Schneider, Federal Control
Over Wetlands Areas: The Corps of Engineers Expands Its Jurisdiction, 28
U. Fla. L. Rev. 787 (Spring 1976).

46. See generally, Veri, supra at note 30, pp. 71-78; Purpura and Sensabaugh,
supra at note 30.

47. See generally Veri, supra at note 30, pp. 116-127; Ausness, supra at note 30,
pp. 408-410.

48. Mr. William Sensabaugh, Coastal Engineer for Florida's Department of Natural
Resources, raised this problem with respect to early drafts of the model
ordinance. In addition to the problems of expertise and expense, Mr. Sensa-
baugh also pointed out that such an all-encompassing regulatory scheme might
prove more difficult politically than would a less ambitious ordinance. In
general, Mr. Sensabaugh favored a site-specific approach to regulating coastal
development as being the best method for ensuring a professional and effective
program.

49. See generally, Ausness, supra .at note 30, pp. 391-394; Teclaff & Teclaff,
Saving the Land-Water Edge from Recreation, for Recreation, 14 Ariz. L. Rev.
39 (1972).

50. See Schaefer, Conservation of Biologi.cal Resources of the Coastal Zone,
Coastal Zone Management: Multiple Use With Conservation 39 (J. Bahtz ed.
1972); Environmental Land Management Study Committee, supra at note 30.

51. See, e.g., "Coastal Construction Codes for Estero Island", Lee County Ordinance
No. 76-3, 76-7 (1976).

52. See, e.g., North St. Johns County Management Plan, Florida Coastal Engineers,
Inc., Jacksonville, Florida (April 1974).

53. Preparation of the Estero Island building codes cost approximately $60,000.
Interview with Mr. William Sensabaugh.

54. Without a moratorium, many coastal projects could be started prior to imple-
mentation of local regulations,, thus precluding enforcement by the local
government. See discussion infra at notes 121-126.

55. For an example of a major coastal development begun during the interim between
passage and implementation of Florida's engineered coastal setback line legis-
lation, see State ex. rel. Shevin v. Inidico Corp., 319 So.2d 173 (Ist D.C.A.
1975).

56. See especially, Sections 2.1, 2.2, 2.6, 2.9 and 2.18 of the model ordinance.

57. See Section 5.3 of the model ordinance for variances and Section 6.3 for per-
mit requirements.

58. See Sections 4.1 (Alternative I) and 6.2 of the model ordinance.








59. For example, a site-specific building code could be prepared for each specific
area. As each code is completed it would supersede the model ordinance in re-
gulating development in that area. This approach has been followed in Florida
under Fla. Stat. 161.052 and .053 (1975) where an interim setback established
statewide has been progressively superseded by engineered setbacks for each
coastal county. See generally, Purpura & Sensabaugh, supra at note 30.

60. The appropriate deletion of definitions under Section Two should accompany any
such amendment.

61. In Florida a local wetlands land use ordinance would seem to be of great value
given the minimal state level regulation in the area.

62. See Purpura & Sensabaugh, supra at note 30; Veri, supra at note 30, p. 74.

63. Florida's statewide coastal construction setback is designed to serve both
as a protection of upland property against flood damage and as a means of
controlling beach erosion. Fla. Stat. 161.053(1) (1975).

64. See Collier, Eshagi, & Cooper, "Interaction of Waves, Beaches and Dunes",
in Engineering Criteria for Evaluating Proposals for Design and Location
of Structures in Variance to Florida's Coastal Construction Set-Back Line,
Ch. IV (1-9) (Unpublished draft, Dept. of Coastal Engineering, U. of Fla.,
January, 1976).

65. See U. S. Army Coastal Engineering Research Center, Shore Protection Manual,
Dept. of the Army, Corps of Engineers, Vol. 1-11 (1973); Veri, supra at note
30, pp. 74-79; Collier et. al., supra at note 64, Ch. V, 17-.

66. "The pattern of movement in the Gulf of Mexico is not well defined, but along
the Atlantic shore the longshore current is the dominant sand transport
mechanism. Although there is some seasonal variation in the direction of
this littoral drift, the net effect is southward with as much as 500,000
cubic yards of sand moving past some points in a year." Veri, supra at note
30, p. 74.

67. The major sources of sand supply have been from sands carried out to sea by
upland runoff and streams as well as marine fossil shells and eroded coral.
Waves and currents will bring these sources into shore from a depth of 30 feet.
Unfortunately, the damming of major rivers and the destruction of marine life
through pollution and dredge and fill activities have sharply reduced these
important sources of beach sand. Veri, supra at note 30, pp. 74-75.

68. See Figure 36 in Veri, supra at note 30, p. 78.

69. Id. at 77-78.

70. See Id., Figures 34 and 35, p. 77.

71. For example, the function of the setback line established by Florida's Depart-
ment of Natural Resources is to move construction sufficiently landward to en-
sure "the protection of upland properties (from flooding) and the control of
beach erosion." Fla. Stat. 161.053(1) (1975).




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