On one hand, the U.S. Court of Appeals' opinion in Buending v. Town of Redington Beach, No. 20-11354 (Aug. 20, 2021) is not a big deal, at least in terms of the issue in the case: did the Town take the plaintiffs' private beach property when it adopted an ordinance allowing the public to use it? Maybe it did, maybe it didn't. The opinion simply vacates the district court's grant of summary judgment to the property owners because there are disputed issues of fact on the Town's affirmative defense of customary use. The district court concluded the Town could not raise the customary use defense.
The Eleventh Circuit, however, held that the Town was not precluded from raising the defense that the property the plaintiffs claimed was exclusively private was also subject to the public's use under longstanding custom, and that the Town's opposition to the plaintiff's motion for summary judgment "provided a range of evidence supporting its customary use defense." Slip op. at 16. The Town submitted evidence showing actual use of the disputed beach area by the public: the Town holds a hotdog cookout on Independence Day each year, it spends public money to rake the beach (apparently including the private parts). That doesn't seem all that controversial. No facts in contention means summary judgment is ok. Conversely, any beef about the facts relevant to a material issue -- here, the Town's affirmative defense of custom -- means that the trier of fact gets to resolve the beef by looking at credibility and the other things that triers of fact get to weigh.
But on the other hand, some of the Town's evidence the opinion points to is decidedly odd. Like "evidence that the Town was designed to accommodate visitors, who may not want to come if they could not access the beaches[.]" Slip op. at 16. That properties in the Town have been rented to visitors. Slip op.at 16-17. Evidence of "the longstanding perception that the Town's beaches are available for public use." Slip op.at 17 (emphasis added). The Mayor testifying about what other people felt. Id. ("The mayor, who moved to the Town as a child in 1955, testified that people 'just felt like the beach was there for us to enjoy and use.'").
While we're not sure that this type of evidence alone would suffice to make summary judgment appropriate, there seems to be enough other evidence of actual public use to get to the trier of fact. We hope on remand that there's a better filtering of what comes in and what stays out.
Buending v. Town of Redington Beach, No. 20-11354 (11th Cir. Aug. 20, 2021)
