A state judge has ruled against property owners who alleged that the town of Palm Beach wrongfully took their privately owned area of the beach when it allowed public access.
The case is based on two consolidated lawsuits filed in 2022 in Florida’s 15th Judicial Circuit in West Palm Beach. It centers on a dispute involving public access to an area of privately owned “dry” beach parcels along a .4-mile stretch of Atlantic Ocean shore between Wells Road and Sunset Avenue, referred to by the court as the “subject beach.”
The privately owned beach parcels at issue in the lawsuit are bounded by a seawall to the west and an Erosion Control Line (ECL) to the east as well as their respective north and south property lines.
The plaintiffs were the Condominium Association of Ocean Towers and several homeowners, including Tiffany Dawn Cloutier; Andrea Salvi, as trustee of the Twin Hearts Palm Beach Realty Trust; Avery R. Klann and Joan S. Klann; Molly Fitzpatrick, John Fitzpatrick and David Fisher; and Dune Boggle LLC. (Prior to the trial, plaintiffs Harvey Kinzelberg and Mary Ann Kinzelberg, and Keith A. Meister, voluntarily dismissed their claims. Another plaintiff, the Warden House Association, settled their claims with the town).
The plaintiffs claimed the town committed a legal taking of their property when it declined to enforce trespass on the privately owned parcels of the beach.
In its defense, the town asserted the common-law right of customary use and the existence of a statutory public easement on the beach.
A non-jury trial was held on January 12-16 and April 15-16 before Judge Scott Kerner, who handed down his 47-page ruling on July 10.
Witnesses for the town testified that area residents and the public had used the beach for recreation since the 1950s, without any objection from the owners or barriers to the privately owned area of beach until around 2020.
Town witnesses testified the area of beach is unique among the town’s 13 miles of beachfront because it has long presented as an unguarded public beach, even though it is not.
Until 2020, when the Covid-19 pandemic drove more people onto the town’s beaches, there were no gates, fences or barriers restricting public access to the subject beach from any of the east-west streets.
While other privately owned areas of beach in town are near public access points, the beach between Wells and Sunset has long attracted the public because of the historic availability of public parking and accessibility, according to the court’s findings of fact.
Town witnesses included Dr. Michael Jenkins, a coastal engineer with West Palm Beach-based Applied Technology & Management, and a coastal consultant to the town; retired Judge Daniel T.K. Hurley, who lived in Palm Beach in the 1970s and again in later years; and Palm Beach officials including Town Manager Kirk Blouin, Zoning Director Wayne Bergman, then-Public Works Director Paul Brazil, police Captain William Rothrock, and residents.
Witnesses testifying for the plaintiffs included beachfront homeowners Avery R. Klann and Harvey Kinzelberg, Ocean Towers resident Ellen Goldfarb, and others.
Beach renourishment
In May 2002, the Florida Department of Environmental Protection (FDEP) issued the town a permit for the extended Midtown Beach nourishment, authorizing the town to build a 2.4-mile beach that included the subject beach. The permit contained the condition that the resulting sand addition to upland properties would be subject to public easement, according to testimony from Jenkins.
The FDEP permit required the establishment of a fixed ECL as the new legal boundary between private property and state-owned public beach.
Jenkins testified that sand was added to the plaintiffs’ upland beach property seaward of the seawall as part of nourishments projects in 2003, 2006, 2015 and 2020.
In 2018, the extended Midtown project became federally authorized and funded. In the spring of 2019, the town requested that the plaintiffs and other beach parcel owners along the subject beach execute perpetual easements as required by the US Army Corps of Engineers.
Plaintiff Avery Klann testified that he and some of his neighbors took issue with the perpetual nature and public-use language included in those easements.
According to testimony on both sides of the case, recreational use of the beach intensified in 2019 and 2020, during the COVID-10 pandemic. The plaintiffs and a few of their neighbors began complaining of increased public use by non-residents and asserted they had exclusive use to the dry-sand portion of the subject beach.
During the height of the pandemic, the town experienced a significant increase in the use of all outdoor recreational areas, including the beaches, according to testimony from Palm Beach Town Manager Kirk Blouin.
Avery Klann testified that ride-share companies were dropping beachgoers off along North Ocean Boulevard and that the subject beach area had been designated as a dog beach on social media.
According to testimony from town officials and plaintiff homeowners, the town responded to property owners’ complaints by posting municipal beach rule signs, installing gates at public access points, and adopting ordinances closing those accesses at night. The town also restricted public parking in the neighborhood by converting east-west streets to resident-only parking and spaces on North County Road and Sunrise Avenue from free to paid parking.
During this period, the town began issuing trespass warnings to members of the public who were using the subject beach. Palm Beach Police Captain William Rothrock testified that police had no prior knowledge of the ECL and there were no “prior issues” with the public’s recreational use of the subject beach before 2019. Police understood the boundary between the privately owned beach and the state-owned beach to be the mean high-water line.
Rothrock and Blouin testified that the town’s trespass enforcement policy on the subject beach was due to circumstances of the “Covid era.”
The installation of wooden posts in the dry sand in late 2020 – something never previously seen along the subject beach – triggered public complaints about being denied their longstanding recreational uses.
During the fall of 2020, the town devoted several Town Council meetings. This culminated in a two-hour special council meeting in December 2020, where about 20 residents and non-residents objected to not being allowed to use the subject beach, citing longstanding public use and taxes used to pay for sand renourishments.
Blouin testified at trial that, based on his limited legal understanding at the time, the private beachfront property owners were correct that the public was not have the right to use the subject beach.
Blouin testified that he heard from many residents objecting to the enforcement of trespass on the subject beach. By April 2021, the town sought specialized legal advice. The following October, the Akerman law firm advised the town that there is a “strong argument” that upland owners do not have a right to deny the public access to the subject beach “once the ECL is established to the extent the public is using such land for traditional beach purposes.”
On October 22, 2021, Palm Beach police stopped enforcing trespass on the subject beach where the public was engaged in traditional recreational uses.
“The court finds the discretionary decision to not enforce trespass, when the public may have customary use rights and the police had no probable cause, does not constitute a taking,” Judge Kerner’s final judgment states.
Possible appeal
The plaintiffs were represented by attorney S. William Moore of Moore, Bowman & Reese, headquartered in Tampa.
The plaintiffs have 30 days, from the date Judge Kerner’s decision was entered into the record, to appeal it to the Fourth District Court of Appeals.
Moore told the Civic Association Wednesday that he will discuss the matter with his clients within the next week before a decision is made, but that an appeal is likely.
“We believe the judge’s ruling is an error as a matter of law and we believe the property rights of the landowners will be vindicated on appeal if any appeal is taken,” he said.
The Town of Palm Beach was represented by Town Attorney Joanne O’Connor, her partner Roberto M. Vargas and her associate Lainey W. Francisco of Jones Foster PA.
The town’s case was strengthened by longstanding relationships in the town and the institutional memory of its residents, O’Connor told the council at its July 14 meeting.
O’Connor called the court’s ruling “a complete victory for the town on its defenses against the lawsuit.”
“The core issue was whether the public, through no act by the town, had acquired customary use rights to use this stretch of beach,” she told the Civic Association. “The court correctly found it did.”
Town wins federal case
The case before Judge Kerner was one of two wherein the town recently prevailed against an owner or owners who alleged that it took private property when it declined to enforce trespass on the private beach sand on the Atlantic Ocean beach between Wells Road and Sunset Avenue.
In his June 23 ruling, U.S. District Judge William P. Dimitrouleas ruled against Leslie Daniels’ claim of a Fifth Amendment taking.
Daniels, who owns property at 100 Everglade Avenue, sued the town in 2025 for declaring his private, dry-sand beach to be available for public use.
Dimitrouleas’ ruling followed an April 6-10 bench trial wherein Daniels unsuccessfully sought $6.5 million in damages against the town.
Daniels has appealed to the U.S. Court of Appeals for the Eleventh Circuit.
Michael Pucillo, chairman of the Palm Beach Civic Association, retired attorney, lifelong resident and former Town Council president, was among the residents who testified at both trials.
“Now that the courts have decided these cases, my hope is that the opposing parties will come together and reach an agreement that allows the town to renourish this portion of beach,” Pucillo said. “To the extent the Civic Association can be helpful in that regard, we are certainly willing to be part of that process.”
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