Buending v. Town of Redington Beach

Florida state courts traditionally recognized that the public had a right to make customary uses of private owners’ land. In June 2018, the Town of Redington Beach (town) (defendant) passed an ordinance recognizing and protecting the public’s customary use of the dry sand areas of local beaches (beach ordinance). In July 2018, the State of Florida passed legislation requiring municipalities and other governmental entities to seek judicial declarations to affirm customary public use of a beach (beach law). However, the beach law did not apply to rules enacted before 2016, and governmental entities could use ordinances protecting customary uses as affirmative defenses if the ordinances were passed before July 1, 2018 (affirmative-defense provision). Shawn Buending and other Redington Beach property owners (owners) (plaintiffs) sued the town, arguing that the beach ordinance violated the beach law and constituted a taking under the United States Constitution and the Florida State Constitution. The owners argued that the affirmative-defense provision applied only in defense of takings suits. The town offered the testimony of residents and photographs as evidence that the public had customarily used the dry sand area of the owners’ beaches. The trial court granted the owners’ motion for summary judgment on the grounds that the beach ordinance violated the state beach law and that the town’s evidence of customary use was insufficient. The town appealed.