Report to County Commission explains facets of Walton County case, which set judicial precedent for such regulations
During the March 23 Sarasota County Commission meeting, Commissioner Christian Ziegler won his colleagues’ support to direct staff to research issues that have arisen — especially on Siesta Key — in regard to what constitutes the public part of the beach and what shoreline areas are considered to be private property.
Signs that have gone up in front of condominium complexes, warning the public away, prompted his request, Ziegler noted.
The resulting April 15 report cites the 2017 case Alford v. Walton County, decided by the U.S. District Court for the Northern District of Florida, in Pensacola.
The Office of the County Attorney (OCA) pointed out in the report, “[P]rohibiting signs does not appear to be an option [on county beaches],”
However, the report continues, “[T]he County could amend the UDC [Unified Development Code] to regulate ‘incidental signs’ without a County permit that would be applicable county-wide, including the beaches.”
The UDC contains all of the county’s land-use and zoning regulations.
Provisions regarding such incidental signage could include the following, the report noted:
- Specific requirements based on the zoning district.
- The temporary nature of the signs.
- The number of signs.
- The size of the signs.
- The height of the signs.
- The distance between signs.
- The length of time the signs could stay in place.
- The portability of the signs.
- The removal of signs from dusk to dawn during sea turtle nesting and hatchling season.
For example, the report continued, “[T]he number of signs could be limited to four, with one additional sign allowed for every 500 feet of property boundary.”
The Office of the County Attorney and other county staff members collaborated on a draft ordinance for the County Commission’s consideration that includes such requirements, the report said. That draft was attached to the document provided to the board members.
Among the proposed changes, that draft ordinance would allow temporary freestanding signs “without a footer or electrical components primarily constructed of biodegradable materials” on any parcel, without a permit.
The maximum height of such a sign in open use or residential zoning districts would be 6 feet; for non-residential districts, 15 feet.
Further, the total area of all signs on a specific piece of property would be 16 square feet in residential districts, 32 square feet in open use districts, and 80 square feet in non-residential districts, the draft says. For example, the draft explains, “[A] parcel within a Residential District may have one sign up to 16 square feet, two signs which are 8 square feet, or four signs which are four square feet.”
“Additionally,” the draft ordinance points out, “a post-and-rope, post-and-chain, or similar type system is considered to be a fence. Therefore, any post-and-rope, post-and-chain, or similar type system, whether anchored on a temporary or permanent basis, located seaward of [the Gulf Beach Setback Line and the Barrier Island Pass Twenty-Year Hazard Line] shall not be erected without obtaining a coastal setback variance.”
The County Commission conducts public hearings on applications for coastal setback variances, after which it acts on the petitions.
“Staff will be scheduling this item on a future agenda,” the report added of the proposal for the changes in the ordinance. Then commission approval would be sought to advertise the draft ordinance for a public hearing.
The County Commission will conduct its next regular meeting on May 4 at the County Administration Center in downtown Sarasota, which is located at 1660 Ringling Blvd. The agenda was not available prior to The Sarasota News Leader’s publication deadline for this issue.
Facets of the March 23 board discussion left unaddressed
During the March 23 County Commission discussion that led to the request for the board report, Commissioners Ziegler, Nancy Detert and Alan Maio all referenced the issue of what constitutes “private beach” versus “public beach.”
“We’re getting down to the question of who owns the beach, and I think we need clarification on that,” Detert said.
Maio talked about the difficulties Sarasota County Sheriff’s Office personnel have had on Siesta Key, adding that the situation had reached the point where “we almost have to arm deputies with surveyors.”
Referencing the board report assignment as he looked at County Attorney Frederick “Rick” Elbrecht, Maio said, “Analyze this, I would say, with all that in consideration.”
“I know that’s a major pain point for the Sheriff’s Office,” Ziegler responded after Maio also looked at him, referring to members of the public wondering where they legally can be on a beach. “I welcome that to be part of this, as well,” Ziegler added of the direction for the report.
Ziegler also said he would like for staff to reach out to the Sheriff’s Office during its research. “I think that’s very important …”
The official minutes of the meeting, which the commissioners have approved, put the board report assignment this way: “Commr. Ziegler commented on public beach access and the ownership of beach access properties on Siesta Key.
“10:11 a.m. Board Action: Noted Consensus by the Board that the County Administrator, as a Board Assignment, work with the Sheriff’s Department on developing solutions for issues regarding public beach access and ownership of beach access properties on Siesta Key.” The emphasis is in the minutes.
Yet, the April 15 report says nothing about Sarasota County staff contact with the Sheriff’s Office in preparing the document, nor does it address the “ownership of beach access properties on Siesta Key.”
As of the News Leader’s publication deadline this week, it had received no responses from county staff or the Sheriff’s Office about the lack of any comments in the report regarding the Sheriff’s Office.
Nonetheless, the board report does highlight one section of the U.S. District Court ruling in the Alford case. That says that property owners “also complained [to the Walton County Commission] that the Sheriff’s Office had implemented a Standard Operating Procedure (‘SOP’) memorandum indicating that state trespassing laws would only be enforced if a beachfront property owner’s property line had been surveyed and marked …” The court opinion added, “[A] number of individuals stated they had erected signs and fences on their property in order to comply with the SOP …”
The Walton County judicial precedent
In explaining the Walton County case, the April 15 report said that in June 2016, that county enacted an ordinance prohibiting obstructions on the beach, “including ropes, chains, signs, and fences, [effectively] prohibiting owners from conveying messages to public beachgoers regarding the boundary of their property …
“Property owners complained that they could be exposed to liability if they could not use signs to prevent the public from accessing their property,” the report pointed out.
As a result of the county action, the report continued, the Alfords “argued that the restriction on speech was overbroad,” instead of making an attempt “to narrowly tailor the restrictions to a legitimate public purpose.”
The U.S. District Court for the Northern District of Florida, in Pensacola, agreed with the Alfords’ argument, the report continued. It found the obstruction ordinance “to be unconstitutional as a violation of the First Amendment.”
The report explained, “The court reasoned that an ordinance which bans protected speech will be upheld so long as the restriction is (1) narrowly tailored to serve a significant government interest, and (2) leaves open ample alternative channels for communication. The court agreed that aesthetics and protection of endangered species are significant government interests but found that the ordinance was not narrowly tailored to achieve that end. An ordinance cannot be said to be narrowly tailored if obvious, less-burdensome alternatives are disregarded.”
The report added that the court found that, in the Alford case, “Walton County did not consider any less-restrictive alternatives, such as limiting the number or size of signs. Walton County also eliminated alternative channels of communication by means of symbolic expression by forbidding ropes, chains, and fences.”
Further, the court found nothing to support Walton County’s contention that the customary use doctrine regarding beaches “supports a total sign ban,” the report pointed out.
A Nov. 29, 2018 article written by Gregory S. DeMeuse, an attorney who specializes in real estate law for the Blalock Walters firm of Bradenton and Sarasota, explains, “In layman’s terms, customary use is what allows the public to enjoy Florida’s beaches without interference from the neighboring beachfront property owners. If you’ve traveled to beaches around the state, you have probably seen cordoned off sections of the beach — attempts by private property owners to stake their claim to a patch of prime coastal property. However, these attempts by private property owners to assert dominion over their land are often in direct opposition to the public’s ability to fully utilize Florida’s treasured and world famous beaches. Meanwhile, most citizens and tourists alike frolic along the sandy coastlines without realizing that this is actually a battlefront of competing, and compelling, property rights.
“In more technical terms,” DeMeuse continued, “customary use means that ‘if the recreational use of the sandy area adjacent to the mean high tide has been ancient, reasonable, without interruption and free from dispute, such use as a matter of custom, should not be interfered with by the owner.’”
DeMeuse added, “This description of ‘customary use’ comes from a 1974 opinion of the Florida Supreme Court, in the case of City of Daytona Beach v. Tona-Rama, Inc. This case arose when the owner of beachfront property built an observation tower on the sandy parcel of land lying seaward of the sea wall, but landward from the hard packed driving surface of the beach (in Daytona Beach, you can actually drive your car on the sandy beach along the ocean!). The parties agreed that this area was not inundated by ocean water, except during hurricanes and extremely high tides. Although the case was decided in favor of the tower-builder, the decision is nonetheless seminal in establishing and explaining the right of the public to use the portion of the beach commonly not covered in water by the tidal flows. As the court so eloquently noted, ‘No part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches.’”