STATEMENT ON THE CUSTOMARY USE LITIGATION

Statement on the Customary Use Litigation

On June 6th, 2018, the Town Commission adopted an ordinance which recognized and protected the public’s long-standing customary use of the dry sand areas of the Town’s beaches for certain recreational purposes. Several Town residents filed suit alleging the ordinance was unconstitutional, and preempted by state law. On February 19th 2020, a federal trial judge agreed and invalidated the ordinance. The Town appealed that decision and, on August 20th 2021, the federal appeals court entered an order vacating the trial order. The appeals court ruled that the Town’s ordinance was not preempted by state law, and that the Town must be allowed to present its evidence of customary use at a trial. In light of ongoing COVID-related court procedures, a trial date may not be set for some time.

 

Allowed Uses

 Since the trial order was vacated, the Town’s ordinance (codified in § 13-30 of the Town Code) is again in effect. It is important to specify what the ordinance does, and does not provide. First, those making customary use of the dry sand areas of the Town’s beach which are under private ownership are allowed to engage in the following uses AND NO OTHERS: 

(1) traversing the beach;

(2) sitting on the sand, in a beach chair, or on a beach towel or blanket;

(3) using a beach umbrella that is seven (7) feet or less in diameter;

(4) sunbathing;

(5) picnicking;

(6) fishing;

(7) swimming or surfing off the beach;

(8) placement of surfing or fishing equipment for personal use; and

(9) building sand creations unless prohibited by § 4-9 of this code concerning sea turtles.

 In addition, residents or visitors accessing privately-owned parts of the Town’s dry sand beach to engage in these customary uses must, under the code, not enter or use a fifteen (15) foot buffer zone located seaward from the toe of the dune, or from any beachfront home located on, or adjacent to, the beach, whichever is more seaward, except as is necessary to utilize an existing or future Town-owned public beach access point for ingress and egress to the beach.

 

 Unlawful Uses

 

 The ordinance did not create a right for residents and visitors to use privately-owned areas of the dry sand beach in the Town for any activity not listed above. The ordinance expressly prohibits the use of tobacco, the possession of animals, and the erection or use of tents in these areas. Additionally, those things which were unlawful either under Town Code or state law before the ordinance remain just as unlawful. Therefore, public nudity, drug use, littering, abandoning property, noise ordinance violations, fireworks use, unpermitted fires, or any other unlawful activities will subject the offender to code or law enforcement action.

 

 Enforcement

 

 As with all provisions in the Town Code, enforcement is provided by the Code Enforcement Deputy assigned to the Town by the Sheriff. The Town does not have authority to direct the Code Enforcement Deputy to take any given enforcement action. Rather, the Deputy must assess the facts for each complaint received, and determine if the code has been violated. Any Town resident who believes any part of the code set forth above has been violated, such complaints should be directed to the Code Enforcement Deputy.

 

 Conclusion

 

 As the Town awaits a trial date, it encourages everyone in the Town, including those who are making lawful use of the Town’s beautiful beach and those who own homes along the beach, to treat each other with respect and kindness. Engaging in confrontations, leaving litter behind, and other similar poor behavior, on the beach or elsewhere, is not what our Town is about.