## Facts

- Several owners of beachfront property in Redington Beach, Florida owned land including portions of the “dry sand” area seaward of their homes.
- Florida common law recognizes “customary use,” allowing public rights to use privately owned dry sand areas if use has been ancient, reasonable, continuous, and undisputed.
- In June 2018, the Town enacted Ordinance 2018-03, declaring that the public had acquired customary-use rights to the Town’s dry sand beach areas and stating the ordinance codified and protected that use.
- In July 2018, Florida enacted § 163.035, requiring local governments to obtain a judicial determination before enforcing customary-use claims, while also providing that pre–July 1, 2018 customary-use ordinances may be asserted as an affirmative defense in proceedings challenging enforcement.
- The property owners sued (later in federal court), alleging (1) the ordinance violated § 163.035 and (2) the ordinance effected an unconstitutional taking under federal and state constitutions.
- The Town offered resident testimony and historical photographs to show longstanding public recreational use of the dry sand.
- The district court granted summary judgment to the property owners, ruling the ordinance violated § 163.035 and that the Town’s customary-use evidence was insufficient as a matter of law.

## Issues

1. Whether § 163.035’s affirmative-defense provision permits a municipality to defend a pre–July 1, 2018 customary-use ordinance in proceedings challenging the ordinance’s validity under § 163.035, or only in takings litigation.
2. Whether the Town’s testimony and photographic evidence created a genuine dispute of material fact on the existence and scope of customary use, precluding summary judgment.
3. Whether recognition of preexisting customary use constitutes a taking when customary use may already limit owners’ title under state law (not finally decided on appeal).

## Decision

- The Eleventh Circuit vacated the summary judgment and remanded.
- The court held § 163.035’s affirmative-defense provision is not limited to takings claims and may be raised in any proceeding challenging enforcement of a qualifying pre–July 1, 2018 customary-use ordinance.
- The court held the district court improperly resolved fact questions at summary judgment; the Town’s evidence was sufficient to create genuine disputes requiring trial.
- The court directed further proceedings, including a bench trial, to resolve factual disputes about customary use and to permit assertion of the statutory affirmative defense.

## Legal Principles

- Statutory text allowing an affirmative defense “in any proceeding” is applied according to its ordinary breadth absent limiting language.
- Under Florida law, customary use turns on fact-specific proof that public use of the relevant beach area has been ancient, reasonable, continuous, and undisputed.
- Summary judgment is improper where record evidence (including testimony and historical photographs) permits a reasonable factfinder to find the elements of customary use.
- Property interests for takings analysis are defined by state law; if customary-use rights predate challenged government action, government recognition of those rights may not create a new compensable taking (dependent on factual findings).

## Conclusion

The Eleventh Circuit held that Florida’s beach-law affirmative defense extends to challenges beyond takings claims and that customary-use disputes generally must be tried when the government offers evidence creating material fact disputes about long-standing public use of privately owned dry sand beaches.


Buending v. Town of Redington Beach, 10 F.4th 1125 (11th Cir. 2021)