Buending v. Town of Redington Beach

• Decision Date: 20 August 2021
• Docket Number: No. 20-11354,20-11354
• Citation: 10 F.4th 1125
• Parties: Shawn BUENDING, Robert Dohmen, Thomas Brown, Harry S. Fields, Wendy Fields, Shawn Moore, Dagmar Moore, Plaintiffs - Appellees, v. TOWN OF REDINGTON BEACH, a Florida municipal corporation, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

10 F.4th 1125

Shawn BUENDING, Robert Dohmen, Thomas Brown, Harry S. Fields, Wendy Fields, Shawn Moore, Dagmar Moore, Plaintiffs - Appellees,

v.TOWN OF REDINGTON BEACH, a Florida municipal corporation, Defendant - Appellant.

No. 20-11354

United States Court of Appeals, Eleventh Circuit.

August 20, 2021

Timothy W. Weber, Joseph Patrick Kenny, Weber Crabb & Wein, PA, Saint Petersburg, FL, for Plaintiff-Appellee.

Robert Michael Eschenfelder, Jay Daigneault, Trask Daigneault, LLP, Luke Charles Lirot, Law Office of Luke Lirot, PA, Clearwater, FL, for Defendant-Appellant.

Dwayne Kent Safriet, Holtzman Vogel Baran Torchinsky & Josefiak, PLLC, Tallahassee, FL, for Amicus Curiae Florida Coastal Property Rights, Inc.

Before MARTIN, GRANT, and BRASHER, Circuit Judges.

MARTIN, Circuit Judge:

Florida is famous for its beaches. The Town of Redington Beach, located on a barrier island in the Gulf of Mexico, is no exception. Shawn Buending, Robert Dohmen, Thomas Brown, Harry S. Fields, Wendy Fields, Shawn Moore, and Dagmar Moore (the "Property Owners") own beachfront property in Redington Beach. They sued the Town after it passed an ordinance that granted the public certain access to the dry sand beaches.

This appeal requires us to decide whether the District Court properly granted summary judgment to the Property Owners on their claims that the ordinance violated Florida law and constituted an unlawful taking. It also requires us to decide whether the District Court erred in granting summary judgment to Ms. Fields, who argued the Town violated her First Amendment rights by removing her from the Town's Board of Adjustment after she filed this lawsuit.

After careful consideration, and with the benefit of oral argument, we vacate and remand the District Court's grant of summary judgment to the Property Owners on their claims that the ordinance violated Florida law and constituted an unlawful taking. We also vacate and remand the District Court's grant of summary judgment to Ms. Fields on the First Amendment retaliation claim.

I. BACKGROUND

A. Factual Background

The Town of Redington Beach is primarily a single-family residential community. With a population of about 1,500 people, the Town has a total area of 1.3 square miles, 0.4 square miles of which is land and 0.9 square miles is water. See U.S. Census Bureau, Redington Beach Town, Florida, https://www.census.gov; Redington Beach Map and Weather, http://www.redingtonbeachflorida.org/Redington_Beach_Map_Weather.html (last visited Aug. 20, 2021). Though the Town does not have tourist facilities or promote itself as a tourist destination, tourists do come, and stay at the Royal Orleans (a timeshare hotel) or in vacation rental units. The Town maintains over 20 parking spaces for visitors.

The Property Owners own beachfront property within the Town. Specifically, Shawn Buending and Robert Dohmen, through real estate agent (and fellow Plaintiff) Wendy Fields, bought their home in 2018 for $8.35 million Mr. Buending and Mr. Dohmen divide their time between their homes in Florida and Wisconsin. Thomas Brown, who also maintains a home in Michigan, purchased his property in the Town in 2017, with the house still being constructed at the time of the suit. Wendy and Harry Fields purchased their property in 2004 for $1.7 million. Shawn and Dagmar Moore purchased their property in 2017 for $5.2 million and have listed it for sale for $6.5 million.

The Property Owners, of course, made these purchases against the backdrop of state property law principles. The Florida Constitution gives the public a right of access along the beaches and shorelines of the state, below the "mean high water line[ ]"—the area otherwise known as the wet sand beach.¹ Fla. Const. art. X, § 11. Thus, using the Florida Constitution as a starting point, the Property Owners’ properties would extend at most to the mean high tide line and encompass the dry sand beach landward of that line.

In addition to Floridians’ constitutional right to public access, Florida law also recognizes customary use. Customary use finds its origins in English common law. William Blackstone described the "unwritten laws of England," including the "particular customs, or laws which affect only the inhabitants of particular districts." 1 William Blackstone, Commentaries on the Laws of England *74. This was reflected in court decisions recognizing that, for instance, the inhabitants of a parish could place a maypole on another's property and dance around it, see Hall v. Nottingham, 1 Ex. D. 1 (Eng. 1875), and that parish inhabitants could play games and sports on another's property because of established custom, see Fitch v. Rawling, 2 H. Bl. 393, 126 Eng. Rep. 614 (C.P. 1795). English common law has long recognized use of another's property based on longstanding customs.

The customary use at issue here is the public's access to the Town's dry sand beaches. Florida law allows for localities to recognize the public's customary use of their beaches, with Florida courts invoking the English common law tradition of the doctrine. As the Florida Supreme Court has summarized:

In England, persons of a certain locality or of a certain class may have, by immemorial custom, a right to make use of land belonging to an individual. Thus, there may be a custom for the inhabitants of a certain town to dance or play games on a particular piece of land belonging to an individual, or to go thereon in order to get water. So there may be a custom for fishermen to dry nets on certain land, or for persons in a certain trade (victualers) to erect booths upon certain private land during a fair. The custom, to be valid, must have continued from time immemorial, without interruption, and as of right; it must be certain as to the place, and as to the persons; and it must be certain and reasonable as to the subject matter or rights created.

City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 78 (Fla. 1974) (quotation marks omitted).

Florida courts have for decades recognized the customary use doctrine. But in 2018, the Florida state legislature enacted new requirements that localities must meet to assert the customary use of their beaches. See Fla. Stat. § 163.035. Specifically, when it comes to customary use rules that are adopted after a certain date, § 163.035 requires that government entities seek a judicial declaration affirming customary recreational use of a beach. Fla. Stat. § 163.035(2). Section 163.035 also contains other provisions regulating the recognition of customary use.

The statute went into effect on July 1, 2018. See Fla. Stat. § 163.035. On June 6, 2018, just under a month before the statute's effective date, the Town enacted the ordinance at issue in this appeal, Ordinance No. 2018-03 (the "Ordinance"). The Ordinance created a new section of the Redington Beach Town Code to "recognize[ ] and protect[ ]" the public's "long-standing customary use of the dry sand areas of all the beaches in the [T]own for recreational purposes." Ord. No. 2018-03 § 1. Under the Ordinance, the public could use the dry sand beach in the Town—including such portions of the Property Owners’ properties—for recreational use limited to: traversing the beach; sitting on the sand, in a beach chair, or on a beach towel or blanket; using a beach umbrella that is seven feet or fewer in diameter; sunbathing; picnicking; fishing; swimming or surfing off the beach; placement of surfing or fishing equipment for personal use; and building certain sand creations (as long as those sand creations did not interfere with sea turtles). Ord. No. 2018-03 § (1)(d). The Ordinance sets a 15-foot "buffer zone" around private property that spans "seaward from the toe of the dune or from any privately-owned permanent habitable structure that is located on, or adjacent to, the dry sand areas of the beach." Ord. No. 2018-03 § (1)(c). The Ordinance also prohibits the use of tobacco, tents, and the possession of animals on the beach. Ord. No. 2018-03 § (1)(e). It further states that existing rules governing beach use remained in effect and violations are punishable as set forth in the Town's code. Ord. No. 2018-03 § (1)(f).

B. Procedural History

In 2019, the Property Owners sued the Town, alleging the Ordinance violated § 163.035, and that the enactment and enforcement of the Ordinance amounted to a taking under the U.S. and Florida Constitutions.

After the lawsuit was filed, Ms. Fields, one of the Property Owners, was asked during a Town Commission meeting to resign from her position on the Board of Adjustment (which reviews requests for variances from the Town's zoning code), because she had filed this suit against the Town. Ms. Fields offered her resignation orally but was instructed by the mayor to provide her resignation in writing. After consulting with her lawyer, Ms. Fields refused to submit her resignation in writing. At the Commission's next meeting, the Commissioners voted unanimously to remove Ms. Fields from the Board of Adjustment. The Property Owners then amended the complaint to include Ms. Fields's claim for First Amendment retaliation.

The parties filed cross motions for summary judgment. The District Court granted judgment in favor of the Property Owners on all claims. The court held that the Ordinance was void under § 163.035. It also granted summary judgment to the Property Owners on the Town's customary use defense. And in light of its determination that the public did not have customary use rights over the dry beach area, the District Court found that the Ordinance constituted both a facial and an as-applied taking. Finally, the District Court found that the Town's decision to remove Ms. Fields from the Board of Adjustment violated the First Amendment.

The Town timely appealed.

II. STANDARD OF REVIEW

We review de novo a grant of summary judgment and review findings of fact for clear error. Smith v. Haynes & Haynes P.C., 940 F.3d 635, 642 (11th Cir. 2019). A court assessing motions for summary...