Two Florida waterfront property owners asked the 11th Circuit Court of Appeals on Tuesday to strike down an ordinance allowing broad public access to beach areas near their private properties. The appeal represents the latest battle in an ongoing legal fight over the doctrine of 'customary use,' which permits public access to dry sand areas of privately owned beachfront land under certain conditions.

The property owners are challenging a 2018 ordinance passed by the town of Redington Beach that allows the public to use dry sand areas up to 15 feet away from waterfront properties. Their attorney, Timothy Weber, argued before a three-judge panel that the ordinance constitutes an unconstitutional taking of private property.

'This is their homestead,' Weber told the court. 'This is their castle, the place that they're supposed to have despotic dominion over.'

The case highlights the tension between private property rights and public beach access in Florida. While the Florida Constitution already guarantees public access to all beaches below the mean high water line—essentially the wet sand area during high tide—the doctrine of customary use extends that access to portions of dry sand areas under specific circumstances.

Customary use applies when public access has been 'ancient, reasonable, without interruption and free from dispute' over a continuous period. The legal standard requires demonstrating a long history of public use that predates current property ownership.

The current litigation began in 2019 when a group of waterfront property owners sued Redington Beach, arguing the ordinance amounted to an unconstitutional taking of their property without just compensation. The case has followed a winding path through the federal court system.

Initially, a federal district judge ruled in favor of the property owners, finding the ordinance violated their constitutional rights. However, the 11th Circuit Court of Appeals remanded the case back to the district court for reconsideration. On remand, the district court reached the opposite conclusion, ruling that the town had adequately demonstrated a history of customary use dating back to the municipality's founding in 1935.

During Tuesday's oral arguments, Weber focused his attack on the sufficiency of the town's evidence. He argued that Redington Beach failed to prove that the public had historically used his clients' specific plots of land, rather than just the beach area generally.

'I think the problem is the way the town presented the case,' Weber said. 'The town couldn't offer evidence that anyone was ever on plaintiffs' private property because they never established where the line was and where the people went, and so I would submit to the court it was the town's burden, not my burden, to come in and prove an exact trespass.'

U.S. Circuit Judge Britt Grant challenged this argument, noting that the town had presented substantial evidence of regular public beach use over time. 'But the town did have a lot of evidence of people regularly using the beach, people going for walks on the beach, people sunbathing on the beach, people regularly using the beach,' Grant said.

The judge suggested that accepting the property owners' position would require the court to conclude that beachgoers somehow avoided using the private portions of the beach while regularly using adjacent public areas—a scenario Grant appeared to find implausible.

The customary use doctrine has become increasingly important in Florida coastal litigation as beachfront development has intensified. The legal principle allows courts to balance private property rights with long-established public access patterns that may predate current ownership and development.

For property owners, the doctrine represents a potential limitation on their exclusive use and enjoyment of land they purchased. They argue that retroactively applying public access rights based on historical use patterns undermines fundamental property rights and could constitute a regulatory taking requiring compensation.

Municipalities and public access advocates counter that customary use preserves traditional rights that existed before private development and prevents wealthy property owners from privatizing beaches that communities have used for generations.

The 11th Circuit's decision will affect not only Redington Beach but could also influence how Florida courts apply customary use doctrine in future disputes. The state has seen numerous similar conflicts as coastal development has expanded and property values have increased.

The court did not indicate when it would issue a decision. If the property owners prevail, the town's ordinance would be struck down, potentially limiting public access to the contested beach areas. If the town's position is upheld, it would reinforce the ability of municipalities to establish public access based on demonstrated customary use.

The outcome will likely have implications for beachfront property values and development patterns along Florida's coast, as well as the broader balance between private property rights and public access to natural resources.