Florida Senate - 2019                                      SB 54
       By Senator Rouson
       19-00020-19                                             201954__
    1                        A bill to be entitled                      
    2         An act relating to possession of real property;
    3         repealing s. 163.035, F.S., relating to a governmental
    4         entity’s establishment of recreational customary use
    5         on a portion of a beach above the mean high-water line
    6         on private property; providing an effective date.
    8  Be It Enacted by the Legislature of the State of Florida:
   10         Section 1. Section 163.035, Florida Statutes, is amended to
   11  read:
   12         163.035 Establishment of recreational customary use.—
   13         (1) DEFINITION.—The term “governmental entity” includes an
   14  agency of the state, a regional or a local government created by
   15  the State Constitution or by general or special act, any county
   16  or municipality, or any other entity that independently
   17  exercises governmental authority.
   19  governmental entity may not adopt or keep in effect an ordinance
   20  or rule that finds, determines, relies on, or is based upon
   21  customary use of any portion of a beach above the mean high
   22  water line, as defined in s. 177.27, unless such ordinance or
   23  rule is based on a judicial declaration affirming recreational
   24  customary use on such beach.
   27  that seeks to affirm the existence of a recreational customary
   28  use on private property must follow the procedures set forth in
   29  this subsection.
   30         (a) Notice.—The governing board of a governmental entity
   31  must, at a public hearing, adopt a formal notice of intent to
   32  affirm the existence of a recreational customary use on private
   33  property. The notice of intent must specifically identify the
   34  following:
   35         1. The specific parcels of property, or the specific
   36  portions thereof, upon which a customary use affirmation is
   37  sought;
   38         2. The detailed, specific, and individual use or uses of
   39  the parcels of property to which a customary use affirmation is
   40  sought; and
   41         3. Each source of evidence that the governmental entity
   42  would rely upon to prove a recreational customary use has been
   43  ancient, reasonable, without interruption, and free from
   44  dispute.
   46  The governmental entity must provide notice of the public
   47  hearing to the owner of each parcel of property subject to the
   48  notice of intent at the address reflected in the county property
   49  appraiser’s records no later than 30 days before the public
   50  meeting. Such notice must be provided by certified mail with
   51  return receipt requested, publication in a newspaper of general
   52  circulation in the area where the parcels of property are
   53  located, and posting on the governmental entity’s website.
   54         (b) Judicial determination.
   55         1. Within 60 days after the adoption of the notice of
   56  intent at the public hearing, the governmental entity must file
   57  a Complaint for Declaration of Recreational Customary Use with
   58  the circuit court in the county in which the properties subject
   59  to the notice of intent are located. The governmental entity
   60  must provide notice of the filing of the complaint to the owner
   61  of each parcel of property subject to the complaint in the same
   62  manner as is required for the notice of intent in paragraph (a).
   63  The notice must allow the owner receiving the notice to
   64  intervene in the proceeding within 45 days after receiving the
   65  notice. The governmental entity must provide verification of the
   66  service of the notice to the property owners required in this
   67  paragraph to the court so that the court may establish a
   68  schedule for the judicial proceedings.
   69         2. All proceedings under this paragraph shall be de novo.
   70  The court must determine whether the evidence presented
   71  demonstrates that the recreational customary use for the use or
   72  uses identified in the notice of intent have been ancient,
   73  reasonable, without interruption, and free from dispute. There
   74  is no presumption regarding the existence of a recreational
   75  customary use with respect to any parcel of property, and the
   76  governmental entity has the burden of proof to show that a
   77  recreational customary use exists. An owner of a parcel of
   78  property that is subject to the complaint has the right to
   79  intervene as a party defendant in such proceeding.
   80         (4) APPLICABILITY.—This section does not apply to a
   81  governmental entity with an ordinance or rule that was adopted
   82  and in effect on or before January 1, 2016, and does not deprive
   83  a governmental entity from raising customary use as an
   84  affirmative defense in any proceeding challenging an ordinance
   85  or rule adopted before July 1, 2018.
   86         Section 2. This act shall take effect July 1, 2019.