10 F.4th 1125
11th Cir.2021Background
- Redington Beach (small Florida town) passed Ordinance No. 2018-03 on June 6, 2018, recognizing and authorizing public recreational use of the dry-sand portion of its beaches (with a 15-foot private-property buffer). The statute at issue (Fla. Stat. § 163.035) took effect July 1, 2018.
- Several beachfront Property Owners sued the Town, alleging the Ordinance violated § 163.035 and constituted both facial and as-applied takings under the U.S. and Florida Constitutions.
- The Town defended by invoking customary-use rights (a doctrine under Florida law recognizing longstanding public recreational use of dry-sand beaches) and relied on § 163.035(4) to preserve and assert that defense for an ordinance adopted before July 1, 2018.
- After suit was filed, plaintiff Wendy Fields (a Property Owner) was removed from the Town’s Board of Adjustment after being asked to resign for filing the lawsuit; she added a First Amendment retaliation claim.
- The district court granted summary judgment to the Property Owners on all claims (voiding the Ordinance under § 163.035, rejecting the Town’s customary-use defense, finding a taking, and ruling for Fields on her retaliation claim).
- The Eleventh Circuit vacated and remanded: it held the district court misapplied § 163.035, impermissibly weighed evidence on customary use, and improperly resolved factual disputes about Fields’s alleged resignation. Summary judgment for the Property Owners was vacated and the case remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ordinance is void under Fla. Stat. § 163.035 for being kept in effect after July 1, 2018 | Buending et al.: Town kept ordinance in effect after § 163.035 took effect without a judicial declaration, so ordinance is invalid | Town: § 163.035(4) preserves ordinances adopted before 7/1/2018 and allows raising customary use as an affirmative defense | Vacated district court; court held § 163.035(4) permits Town to keep ordinance and assert customary-use defense |
| Whether Town proved customary-use defense as a matter of law | Property Owners: Town’s evidence is anecdotal, imprecise, and insufficient to show ancient, uninterrupted customary use of the dry-sand area | Town: presented historical, testimonial, photographic, municipal-maintenance, event and access-point evidence supporting customary public use of the general beach area | Vacated district court; genuine disputes of material fact exist — summary judgment was improper |
| Whether the Ordinance effected a facial or as-applied taking | Property Owners: with no customary-use right, the Ordinance unconstitutionally takes private property | Town: if customary use exists, Ordinance is a valid recognition of public rights and not a taking | Vacated district court takings rulings; takings issue depends on outcome of customary-use factfinding |
| Whether Fields suffered First Amendment retaliation via removal from Board of Adjustment | Fields: she was removed (terminated) in retaliation for suing the Town | Town: Fields voluntarily resigned (or at least offered to resign) at the meeting; removal vote followed because no written resignation was submitted | Vacated district court; material factual dispute whether Fields actually resigned orally — summary judgment improper |
Key Cases Cited
- City of Daytona Beach v. Tona-Rama, 294 So. 2d 73 (Fla. 1974) (articulates Florida customary-use doctrine and its elements)
- White v. Hughes, 190 So. 446 (Fla. 1939) (historical recognition of public recreational use of beaches)
- Trepanier v. County of Volusia, 965 So. 2d 276 (Fla. 5th DCA 2007) (customary-use proof may focus on the general area, not parcel-specific use)
- Daniels v. Florida Dep’t of Health, 898 So. 2d 61 (Fla. 2005) (statutory interpretation: apply plain text when unambiguous)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing test for public-employee First Amendment claims)
- Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012) (at summary judgment courts must not weigh conflicting evidence or resolve credibility)
- St. Johns River Water Mgmt. Dist. v. Koontz, 77 So. 3d 1220 (Fla. 2011) (Florida and federal takings clauses are interpreted coextensively)