Beulah Town Hall this Monday Evening, June 5th, 6:00-8:00 PM

 

What is the Status of Publicly Accessible Beaches on Perdido Key from a Legal Perspective?

Over the weekend I asked our attorney's office to summarize what we now know about public accessibility of the beaches out on Perdido Key based upon the thorough examination of the title abstracts from every Gulf-front parcel out there.  

I also asked about whether or not any of the numerous dune restoration projects completed by FEMA post Hurricane Ivan would have created new public beaches due to the fact that in some instances after the storm some of those beaches were completely washed away all the way back to the dunes.  So my question was--restoring a previously-existing beach post storm with public money--does that make the restored beaches public?  I did not get a specific answer to that question but rather a general one so I have asked for a more detailed-Perdido Key post Ivan specific answer so I can put that question to rest once and for all with a legal opinion.  Then, if someone disagrees--they can go to court over it if they want to.  Meanwhile, this, below is the answer on public accessibility based upon the title searches.

"Commissioner:

Below is the information you requested.  Please note that much of what follows are concepts.  The details of beach-front property rights and beach renourishment are more involved.  We can certainly provide the details, but they would not be helpful for most people.

First, the entire length of Perdido Key Beach is public – south of the mean high-water line.  So, a person could walk (sunbathe, fish, collect shells, etc.) for the entire 6 miles from Johnson Beach all the way to the Flora-Bama without intruding on private property as long as they remain south of the mean high-water line.  The challenge, of course, is that the mean high-water line is dynamic and changes with the tide and the topography of the beach.  If someone wanted a visual reference, it is generally accepted to remain in the “wet sand” area adjacent to the Gulf of Mexico.  The strand line, which is the mark created by seaweed, shells, and other debris that are washed ashore by the tide, is another visual reference (again these are just conceptual, not a strict legal definition; neither visual reference is an accurate representation of specific location of the mean high-water line).

Second, the entire beach at Perdido Key State Park and Johnson Beach National Seashore are public (subject to regulation by the state and federal governments).

Third, the 64 lots in Gulf Beach Subdivision (13785 Perdido Key Drive west to the State Park) have an additional 75 feet of “dry sand” beach north of the mean high-water line that is available for public use.   That area is contiguous with Perdido Key State Park, so the length of the public beach between the two areas is about 3 miles.  The County also owns Beach Access No. 4 (the former Sundown condominium) west of the State Park, which is another 300 feet of public beachfront.

Fourth, whether a beach renourishment project creates new public beach depends on whether the project increases the elevation on existing beach or places sand south of the mean high-water line in the Gulf of Mexico (i.e., builds up or builds south).  Building up does not create any new public beach while building south can.   Beach restoration projects are heavily regulated by the Florida Department of Environmental Protection (Chapter 161, Florida Statutes), and if a project extends the beach south the County must undertake a lengthy approval process that includes surveying the mean high-water line and recording it as a new boundary between the private and sovereign submerged lands.  The “fixed” mean high-water line is called the Erosion Control Line.  Projects that add beach south of the Erosion Control Line create new public beach.

Please let me know if I can provide further explanation.  (I am copying Tim with this email so he can supplement this email with information on the prior beach restoration projects after Hurricane Ivan and Dennis.)"

MASSIVE Public Records Request Made of Several Commissioners

Friday afternoons are made for document dumps.  Yes, especially long holiday weekends.

Put out information that is not flattering at 4:59PM on the Friday before the long three day weekend.  

That happens.

The new phenomenon?  Make MASSIVE records requests of public officials the Friday before the long weekend.  

Looks like we have had two separate requests from two separate individuals for two unrelated matters blow up over the weekend.   

Luckily for me--I didn't get this one until this evening.  My weekend was amazing--no knowledge of this one till today.  And really, nothing to see here, no smoking gun, no there there.  Just lawyers doing what they do.  Ho hum.

I'm sure this one is simply residual hurt feelings over my post on the outrageous claims made about mistreatment of corpses locally by funeral directors....

The other one I knew was coming.....it will be an easy one, too..... 

 But WOW!  Take a look at this pariticluar request, below.  

This one may take a minute.  

And are some of these requested items even public records in the first place??  This one will be expensive and time consuming, I'm going to guess.

The new thing replacing Friday afternoon "Document Dumps":  "Friday Fishing Expeditions."

 

Perdido Public Beach Access Question: Final Three Abstracts Received, no Additional Public Beach Access Language Found

 

Late last week our office recived the final three property title abstracts from the county attorney's office.  We have now received every title abstract for every Gulf Front parcel of land on Perdido Key.

And what we found is that 64 of the parcels from the 1950's have language specifying a 75 foot easement on each parcel's southerly portion "for the public's use for a public beach."

But thus far, no other parcels we have found contain that language or anything like it delineating the public's right to access the beaches.

Here are the last three abstracts, here, here, and here.  (Land's End, Parasol, Vista Del Mar) All of these are a part of the large property transfer from the State Department of Education in 1912.  They describe mineral rights, petroleum rights, but no public beach access.

The attorney's office also looked through these three abstracts and provided the following initial observation:

"I have finished reviewing the last three abstracts.  Unfortunately, I did not find anything that reserved or established a public beach access easement for Vista Del Mar and Lands End Condominiums and Parasol Subdivision.  The plat for Parasol Subdivision does show a 100 foot “general easement” over the  southern portion of the parcels.  However, the plat dedication indicates that this was intended as part of the common areas for the subdivision, but it would not create any rights for the public-at-large."

SO WHAT HAPPENS NEXT?

I've emailed the county attorney's office with a request for one clean memo based on their legal opinion(s) on the abstracts and also the beach/dune restorations that have occurred out there over the years.  I have also asked for one map of the entire area that delineates where the public can access beaches.  Here is my email to staff.

"Hello Alison,

 Thanks to you and Steve and the legal office for all your assistance as we have sought a resolution on which beaches in Perdido Key are actually available for the public’s use.

 With the last batch of title reports, combined with the ones we have previously received, I think we have a pretty good idea about the answer to the question now.

 The last thing I need from your office is a memo delineating your opinion regarding which beaches are accessible by the public based upon your office’s analysis of all of the relevant Gulf-Side title abstracts.  I believe it will be only the 75 feet easements from the 64 lots in the Gulf Beach Subdivision—but by all means let me know if it is more than just those.

 If we can do this, and simultaneously have the development services department put together one final map of the entire Perdido Key area delineating what we know about public accessibility, this will also be required and I assume it will line up with what your written opinion is from your analysis of the abstracts. 

 If possible, in the same memo----- I’d also like a legal opinion to be included from your office regarding the persistent questions I am receiving regarding historical beach nourishment by Federal Agencies post Hurricane Ivan.  Many believe this beach nourishment (characterized as a “dune replenishment only”) should open up all the beaches to public access due to the public dollars expended to restore the sandy beach areas post storm.  According to Tim Day, whom I have asked this question multiple times and in multiple ways----the projects post-Ivan do not qualify as projects that would trigger public access in perpetuity because in his opinion such beach nourishments did not create “new” beaches by filling in areas that were submerged.  However, a number of reports post-Ivan indicate that the beaches in Perdido Key were dramatically eroded, in some instances back to the wood walkovers.  So the question is, and I want a legal answer for, is this:  Would that not qualify as creating “new” beach when added sand “restores” a previously existing beach?  I need one final, cogent, and accurate legal answer to that to answer the growing number of folks who have asked this question over and over.  Thanks in advance for that—potentially most important—legal opinion.

 Once I have the answer—I can work in conjunction with my fellow board members—with developing the right policy(s) protecting property rights but simultaneously recognizing the public’s right to access those beaches to which they are entitled to access—along with the provision of safety services (lifeguards) if this is legal and appropriate.

 I hope you all enjoy your holiday weekend, and as with most things, the sooner I can have this memo, the better."

 

Escambia County Leading MANY other Large Counties in Wage Growth! Leading Mobile in Job Growth!

Dr. Rick Harper addresses the NAIOP luncheon at the Pensacola Yacht Club 5-24-2023 and provided some significant, positive data on our economic development achievements locally.

At a NAIOP Luncheon I had the opportunity to attend yesterday afternoon at the Pensacola Yacht Club, two speakers gave presentations on the state of the economy and the banking system locally and nationally with an emphasis on where we are now and where we are headed in this uncertain economy.

The first speaker was Heath Jordan, the Chief Investment Officer with Trustmark Bank.  His presentation was on the state of the banking system nationwide and in our region post the Covid pandemic.  He went into great detail about how the Federal Reserve handled the Covid shutdown, and he related that he feels the actions taken prevented a depression.  The actions taken led to "lots of cash sloshing around in the nations's economy" he stated.  This led to large individual (uninsured) deposits at some banks that combined with those same banks' investments in long horizon financial instruments  led to a perfect storm of rapid withdrawals that outpaced the investment returns thus necessitating action be taken by federal regulators in order to prop up these banks.  In particular he was speaking of the recent collapses of Silicone Valley Bank, Signature Bank, and First Republic Bank.  While he feels there may be more banks going under in the 6-9 months ahead, he doesn't believe it will be a widespread phenomenon. "When it happens it will be quick, and it will be quiet" he stated.  According to Jordan-SVB and Signature both were heavily invested in Mortgage Backed Securites--insturments that pay higher dividents but take longer to mature.  With the inflation pressures building and interest rates rising--large deposit holders (uninsured) taking out all of their money outpaced the banks' ability to recapitalize quickly enough to remain solvent. How does that happen?  Jordan held up his phone as he stated, dryly, "This is the reason why....customer ability to withdraw money outpaces the Fed's ability to respond/act." Jordan concluded his remarks stating that he feels a credit slump is coming as the interest rates rise-- but overall he seemed optimistic on our area long term.

Next up was Dr. Rick Harper, Economic advisor with Triumph Gulf Coast.  His presentation had the room listening intently as he started the talk with a bit of humor "The economic situation continues to be ...... interesting" as he threw up a graph on the screen.  But then he continued with some very, very good news.  According to Harper (quoting directly from a news release from the Bureau of Labor Statistics) "Of the 356 largest counties in the United States--Escambia County ranked #22 among all of them for wage growth year over year."  (I subsequently emailed Dr. Harper for the source document and his power point--because that information as well as the balance of his presentation-- was amazingly profound---and a huge justification for the work we do in economic development locally).  

Some other Key Takeaways from Dr. Harper's presentation:

--Escambia County and Pensacola are outpacing Mobile Alabama in terms of job growth--with our area adding 44,200 non-farm jobs to Mobile's 10,500 from January of 1990 to April of 2023 (29.2% growth here, 5.8% in Mobile)

--Construction costs and other factors are damaging to home affordability (costs up 50% compared to  7-8 years ago) 

--Property Insurance prices (state specific to Florida) showing no sign of a "let up."

--Florida leads the nation in year over year population growth (1.9% 2021 to 2022)

--Homeowner equity is very high and debt service is historically low--a good thing

--The Pensacola area ranks #15 out of ALL metropolitan areas in the country in rental price increases from 2020 to 2022 at a 23% increase (affecting housing affordability) 

--Housing prices have grown 6.9% from 2022-2023--exacerbating affordability.

--We have a housing shortage and need to build more.  Absent that, governments should consider allowing greater density, accessory dwelling units, and looking at easing parking regulations/requirements to ease the supply issues.

Dr. Harper also suggested he sees signs of a recession coming--however he was quick to also say he feels confident Florida will weather it far better than other parts of the country because of our low unemployment, tax structure, and growth.

During the Q&A toward the end of the session I had the opportunity to ask Dr. Harper what would happen to the economy and the banking system locally in Pensacola if the Federal Government defaults due to a failure by congress and the white house to come to an agreement on the debt ceiling?  

"They have to solve it, otherwise it will be rising interest rates and chaos" he stated.

Check out Dr. Harper's Power Point here.

Five More Perdido Title Abstracts Received--No Signs of Public Beach Easements Included....

I spent Sunday afternoon in Perdido Key--driving the roundabout from every angle (it works, by the way, if one utilizes the appropriate speed and yields to traffic in the roundabout) and going to each of our public access points and walking up and down the beach.  Some complexes are complying with our sign ordinance, others are not.  Going forward, it appears as if large portions of the beach will open up for public use--but multiple complexes, so far as we can tell thus far, will indeed have private beachfronts as their titles have no public access easements listed.....

Late Monday I received the latest batch of detailed title abstracts from parcels on Perdido Key East of Perdido Skye.  All five of these appear to be from the same batch of parcels that were sold off to local interests in 1912 by the Florida State Board of Education.  As I skimmed each one, I found no language, easements, reservations or any other encumbrance that spoke to public beach access on these parcels.

(read them for yourself here, here, here, here, and here)

Yesterday, I received an email from our attorney who also reviewed these abstracts, and who found essentially the same thing--albeit with a slight disclaimer in his final sentence, below:

"Commissioner:

 I was able to review the most recent batch of abstract reports more quickly than anticipated because the properties have a common chain of title.  Unfortunately, I did not find any references that affirmatively establish a public access easement, although there were several references to that possibility.

 Steve

 Stephen G. West, Senior Assistant County Attorney

Office of the County Attorney"

So what does this mean?

It appears, thus far with only a couple of more abstracts to examine, that the parcels to the East of Perdido Skye do indeed have "private" beaches---as do the parcels directly west of the state park going over to the state line.  That is what we have found thus far.

But-------a HUGE stretch of 64 parcels' worth of beachfront DO contain easement language for public access to public beaches.

So, once we have the final abstracts and have examined them--I will ask the attorney's office to write a comprehensive point paper covering this topic from which the board can make an informed policy decision on how to proceed.  As I have said all along, I respect the rules and the parcels that have private beaches to the water will be respected and the ones that have public access easements will be openend.

And access #1 and #4 will be tricky---but #2 and #3 will be opened.  I will also work hard to bolster safety at #2 and #3 by adding lifeguards and towers as quickly as we can.

I am also going to speak with Represntative Alex Andrade about what the county would need to do to take over and open up the parking facility at the State Park out there that is underutilized due to a partial closure that has gone on for a long time.  I attempted to reach him yesterday and will do so again today.

More to come, but I am working a plan that will provide for more parking safety and access but respects everyone's rights.

No "Upzoning" on Innerarity from One (1) Home to Fifteen (15) Homes Per Lot

Several concerned individuals contacted me with the rumor that a single family lot on Innerarity in District 1 was going to be "upzoned" to allow 15 housed to be built on that one lot.

I knew this wasn't right, so I asked our Development Services Department staff about this.

I was told there was a pre-application submitted about a month ago, but nothing since.  This pre-application was for the utilization of multiple lots, once acquired, to be developed for single family homes not simply one lot.  An LLC has apparently been formed, it is a developer from Perdido Key, and he is acquiring contiguous parcels that once all owned by him, may allow him to develop multiple dwellings under the current zoning (MDR 10 per acre) once he has the property to accommodate the necessary stormwater retention and street requirements.  

But I was also told all of this is under the current zoning and that no upzoning was being requested.

I asked staff if there was any way---even if he assembled multiple lots---to get to 15 homes.

I was told it was doubtful under the current zoning.  The rendering presented does indicate 18 lots over what appears to be multiple existing parcels on both sides of Innerarity Point Road.