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Active Waterfront Property Rights Cases Across the States

In Florida and across the nation, there are a number of active property rights cases triggering state and federal legal reviews as to whether or not government entities must legally recognize and enforce private property boundary lines. Because a number these cases involve beachfront or oceanfront property, our courts and the media seem to be emotionally focusing on the appeal of public beach recreation and missing the primary issue at hand: the ongoing erosion of case law in which our nation’s courts uphold the concept of private property and an owner’s most basic right to use and control land within lawfully titled boundary lines.

A few recent examples of beach property line cases in state and national news:

VOLUSIA COUNTY, FL: Circuit Judge Robert K. Rouse, Jr. recently ruled against a courageous property owner Louis Celenza in his legal appeal to halt public beach driving across his land. When Mr. Celenza protested the fact that the County was moving the posts or markers designating public access further back onto his property, the court failed to recognize Mr. Celenza’s legal rights to control his private land, including his right to exclude others from trespassing. This case certainly suggests that government employees have the ability to arbitrarily alter private property boundary lines without any form of compensation at any time they decide to “move the pilons” designating public and private boundaries.
COLLIER COUNTY, FL: In a recent action, the Collier County Commission has decided to openly ignore the property rights and titled boundary lines of the Moraya Bay condominium development. Moraya Bay’s owners had placed rubber cones on their property in the effort to delineate where their private property line ends and where public access begins. As with many oceanfront properties, the private property line ends at the mean high water line (mhwl). The County Commission voted unanimously to direct staff to remove the cones, which would encourage members of the public to trespass onto Moraya Bay’s private land. The Commission simultaneously voted to file suit if necessary to keep the property owner from “blocking off” what they clearly view as public beach even after advisement by a county attorney that it could take 5 to 7 years for a ruling which could reach up to the U.S. Supreme Court. One commissioner is reported to have encouraged residents to organize a public demonstration on the beach in front of the private property, which is an outrage. The proper role of government is to protect and respect property boundary lines, not to encourage trespassing.

ORANGE COUNTY, CA: In a national property rights case, retirees George and Sharlee McNamee of Corona del Mar recently lost their decade long crusade against the California Coastal Commission. The case involved the McNamee’s right to keep a barbeque, thatched-roof hut and storage shed on their private beach property. Three Orange County appeals court judges ruled against the McNamees and demanded they tear out recreational amenities on the beach portion of their property. The state agency has maintained the 1976 Coastal Act gives it the power to regulate the use of shore-front property, public or private, to protect the environment and ensure public access. The ruling cited provisions of the Coastal Act that allows the state to consider the scenic and visual qualities of the coast, including ocean views, when approving development, saying there was “substantial evidence of the ‘visual impact’ of the McNamees’ shed (and storage lockers and barbecue).” Paul Beard, an attorney for the Pacific Legal Foundation, representing the McNamees, indicated they would appeal the case to the state Supreme Court. “The decision effectively grants the Coastal Commission unprecedented discretion to control how an individual uses and enjoys his private property on an utterly subjective basis: aesthetics,” Beard said.

The serious erosion of property rights in our nation’s courts threatens every property owner in Florida and in America. When the rights of any property owner are impacted by local, state or federal government and our judiciary fails to recognize the most basic rights of property ownership, we all lose a little bit more of the legal protection citizens once enjoyed in America.

Reprinted from Coalition for Property Rights, http://www.proprights.com with permission March 17, 2010

Submitted by Dianne Castaldi

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