WHO OWNS THE BEACH?

Vanderbilt Beach in front of The Ritz-Carlton, Naples. W HILE HANDFULS OF SILVERY FISH mottled the shimmering aquamarine surface about 20 yards off Vanderbilt Beach, a school of well-dressed Neapolitans nearby ignored them.

First, the humans marched down the boardwalk from The Ritz-Carlton, Naples, and out onto the white sand. Then they gathered, either facing each other or studying the rank and file of big development in both directions.

Southward, they could see Pelican Bay high rises and estate homes stretching for nearly three miles, from The Ritz at the western end of Vanderbilt Beach Road almost all the way to Pine Ridge Road and Clam Pass. Northward, they viewed solid development along Gulfshore Drive extending toward Delnor- Wiggins State Park, with its parking lots, observation tower and restrooms about two miles away.

Donned in trousers, dress shirts with ties, sports jackets and even high heels, they stood out like exotic flora.

Such counterintuitive scenes — full dress on a beautiful stretch of sugar sand — could also be replayed along other Gulf beaches, according to officials of the state Department of Environmental Protection. The future of public and private rights on many Florida beaches appears to hang in the balance.

Beach access crusaders Mary Lou Smart and Graham Ginsberg. That's true not only in front of The Ritz, whose employees have kicked passersby off beachfront claimed as private by the hotel and as public by irate citizens, but up and down the Gulf coast, from Estero Island to Manasota Key near Englewood to Destin.

Among the cluster gathered on the sand one morning last week were Ed Staros, vice president and managing director of The Ritz-Carlton Resorts in Naples; John Iglehart, director of district management for the state DEP, who's responsible for state beaches from Collier County north through Lee and Charlotte; and a couple of state surveyors. Two residents who had previously been kicked off the beach by hotel staff wandered up, too: Mary Lou Smart and Graham Ginsberg.

Ms. Smart and Mr. Ginsberg were not the first beachgoers to suffer the indignity of rejection and ejection on this stretch of sand. The well-publicized fight of recent weeks between public and private interests on a beach with no boundary markings had been playing out for some time. Now, it was about to be concluded, at least temporarily, in front of The Ritz-Carlton.

ROGER WILLIAMS / FLORIDA WEEKLY Some public accesses are marked with small signage that sometimes gets painted over. If this had been boxing, the immediate match at The Ritz would have been judged a draw as far as it had gotten — into the middle rounds, with the final outcome uncertain and the past still vivid.

A year ago, according to Naples resident Cindy Buckley, eight high school students who were members of the band and the Junior ROTC program were kicked off the beach for crossing an "imaginary" line onto Ritz property. "These teens were all used to obeying, so they left, devastated," Ms. Buckley said. But several weeks later, she added, "They learned the rules and returned, and refused to leave."

The legal rules ensure that the Florida coastline is surrounded by a strip of public land where every American has a right to go.

But where exactly is the line between public and private on any given beach? Often, that's been anybody's guess.

Laying down the real property line

Ritz officials, standing in the sand with state DEP officials, insisted they have ejected no one from public beaches, only ordering non-guests off their private beach when hotel guests spread out and need room — which happens most frequently on major holidays.

"I'm trying to be a good neighbor, but it backfires when I need the beach," said Mr. Staros, whose resort is flanked by a multi-story public parking garage on its north side. He attempted to define the public-private relationship this way. "I have always welcomed the public to my beach — my sand. I don't own the beach, I own the sand," he explained. "However, on those 30-plus days a year when I have to have the beach for our guests, people say, 'What the hell are you doing throwing me off the beach?'

COURTESY PHOTO Vanderbilt Beach at The Ritz-Carlton. "Well, I'm not. I'm using my own beach — my sand. For 25 years, I've been more than gracious."

Mr. Iglehart, the DEP official in white shirt and tie, said to the hotelier, "I understand." Then he explained the state's position.

Traditionally, the public owns every inch of beach from "the mean high-water line" seaward, Mr. Iglehart said. But when beaches are renourished with public money — which is why the beach in front of The Ritz and beyond it is so broad and sugary — a permanent line is established that doesn't change with tides, winds, storms or lines of chairs and umbrellas.

That line is called the Erosion Control Line. To place it, state officials determine a traditional mean high-water line, survey that line on the beach and call it the ECL. Although the mean high water line can change as the beachfront topography evolves from wind and wave action, the ECL does not change once it is determined.

Money for the renourishment of beaches comes from bed taxes paid by hotel and motel guests.

The bed tax in Collier County, at 4 percent, amounted to about $14 million in 2007. County rules required that 50 percent, $7 million, be spent for beaches, inlets and beach park facilities, and that $3 million, or more than 20 percent, be used to advertise Collier County tourism in North America and abroad.

To that tidy annual treasure, Mr. Staros estimates his company and its guests contribute 20 percent.

But since his sand, as he put it, came from those public funds, as well as the sand on the renourished portion of the beach to the north and south of The Ritz, the state position was unequivocal.

Another state official explained it in a recent e-mail to Mr. Staros.

"As a result of the local governmentsponsored beach restoration projects on this beach, the state set an Erosion Control Line (ECL)," wrote Harold "Bud" Vielhauer, deputy counsel for the state DEP. "The ECL and not the mean high-water line is the boundary between the state-owned public beach and the hotel's private property.

"Waterward of the (ECL) is state-owned public beach," Mr. Vielhauer continued. "The public has the right to put down chairs, towels and blankets, swim and sunbathe and otherwise use the beach for recreation."

So where exactly was this illusoryseeming Erosion Control Line?

In short order the state surveyors did their work, verifying the location of the ECL — the arbitrary boundary based on where the mean high water mark once was before public sand was spread on the beach. They demonstrated that the Ritz's beach ownership extends seaward about 70 feet from each of its four boardwalks, covering roughly 200 yards of beachfront. But it doesn't extend all the way to the water.

Beyond that 70 feet of white sand, hotel employees will no longer be able to stretch a long unbroken line of signature blue beach chairs and umbrellas, as they have done in the past, according to many beachgoers, effectively forming a corral that excludes the public.

The public, meanwhile, is left with 25- 30 feet of beach seaward of hotel property, according to state officials — and that Erosion Control Line extends north and south of the Ritz, too.

Although Collier officials say they will post a sign describing public rights and the location of public property at the public entrance to Vanderbilt Beach, near a multi-story county parking garage, for now it remains difficult to tell exactly where public land ends and private land begins.

That's true not just at The Ritz, but from Clam Pass northward past Delnor-Wiggins State Park and all the way to Barefoot Beach and the Lee County line.

An ECL debate, in effect, is resonating north of that line, too.

In Lee County, Fort Myers Beach residents are debating public and private beach rights as they decide whether to allow government to renourish the shoreline. If they choose to go forward with renourishment in some places, it could give the public a greater right to beachfront butted up against private claims, Mr. Vielhauer says.

Some residents on Fort Myers Beach are advocating strongly against that outcome.

"I have only one request for this council," Fort Myers Beach resident David Tezak wrote last month, in www.fortmyersbeachtalk. com. "Show me the erosion rather than draw imaginary lines on a map. Physically go out onto the beach and place flags or use some other means to identify these areas that are eroding along this five-mile renourishment proposal…

"Also, explain to the tax-paying public why in these very tough economic times is this council wasting so much time, money and resources on this ill-conceived plan."

The larger debate

As the contest between Ritz managers and public gadflies built to a head in recent weeks, Ms. Smart and Mr. Ginsberg — two of the gadflies in question — decided to jumpstart an organization called Keep Our Beaches Open dedicated to protecting public beaches. (The organizers can be reached either by telephone or email at: (239) 287-1196 or smartieml@earthlink. net, and at (239) 404-4221 or callgraham@ yahoo.com.)

Both are ardent beachgoers. Ms. Smart, a Naples Park resident and freelance writer, has walked the beach for many years.

"This is a lot of work," she said of the effort to force officials to defend public rights on the beach, and private owners to acknowledge them. "But when they kicked me off a beach that should be open to everybody, I decided it would be worth it. We've lost so much of what the beach used to be, and the least we can do is try to keep the rest — for everybody, not just for some."

Mr. Ginsberg, a Naples real estate agent and native South African who served as a lifeguard in the rough seas off the South African coast in his youth, frequently brings his children to skim board, swim, windsurf and walk along the North Naples beaches.

The Ritz debate is only the tip of the iceberg in a struggle over public rights on beaches, public access to beaches and fair taxation of the beachfront that extends back many years, they both say.

At many private properties up and down the beach, owners who may insist on privacy and who may benefit financially from the aesthetic allure of beachfront property, are taxed on it only nominally since they can't build on it.

Mr. Ginsberg maintains that such a tax policy on beachfront isn't fair and that it should be reconsidered. Long-standing public use of a beach also provides a legal precedent for public rights, he argues.

"I'm not saying there shouldn't be private property or private ownership on the beach," he said. "I'm saying that if they own the beach and (exclude the public), they should pay taxes on it. It should be the most highly taxed land in Florida. How is it possible to own land that served as roadways for generations and that has been enjoyed by the general public for decades and you get to own it for free?

"And if they don't want to pay taxes on it, they should deed it to the public."

Lost opportunities, last chances

Mr. Ginsberg and others also insist that access to the beaches has been sold down the proverbial river by officials.

Frank Halas, the Collier County commissioner whose District 2 includes all the North Naples beaches, has tried to claim that a county-built water park might make up for the loss of access to the beaches, including the beach at the old Vanderbilt Inn, according to Mr. Ginsberg. That inn, near Delnor-Wiggins State Park, was a long-time watering hole that might have offered a great deal of public access, which is why Mr. Ginsberg and others asked the county to consider buying it when it became available about four years ago, Mr. Ginsberrg said.

But that didn't happen. Today, a condominium high-rise, Moraya Bay, sits on the former inn site.

"Had there been interest by the citizens," Commissioner Halas responded to Mr. Ginsberg in a 2006 e-mail, "the County could have purchased the Vanderbilt Inn, as well. I am hopeful that with the loss of the (Wiggins Pass) Marina and the Vanderbilt Inn as well as the loss of beach access over the years, that the water park will help to offset these losses to the residents of Collier County and provide them with an alternative form of enjoyment."

None of that impresses some local citizens.

"Giving people a water park in lieu of access to the beach is kind of like giving people a mall with pine scent instead of hiking trails," suggests Andy Owen, who recalled a number of residents asking county officials to consider buying the Vanderbilt Inn.

Mr. Owen, an ardent fisherman, grew up in Naples, lives in Naples Park and is an assistant professor of art at Florida Gulf Coast University. "Most of this is a loss of quality, a loss of fixtures that are what attracted people here to begin with," he said.

"There's not another place like (the old Wiggins Pass Marina) anymore, even though the county provided a boat ramp at Cocohatchee Park next to where it was," he said. "But on weekends parking there is up to Wiggins Pass Road and people get ticketed. The only other facility is a boat ramp up at Lovers Key (in Lee County)."

Commissioner Halas did not return phone calls for this story, and Gary McAlpin, director of coastal zone management in Collier County, told a reporter he could not speak without the permission of a public information officer, then left the office and spent the following week elsewhere without returning telephone calls.

The county spokeswoman, Camden Smith, answered questions posed for Mr. McAlpin by e-mail, including one question about opening access to the miles of public beaches fronted by private hotels and condominiums with shuttle service from remote parking lots.

"Approximately three years ago, we did have CAT buses (Collier Area Transit) specifically for the purpose of taking people from Vanderbilt and Conner Park (Immokalee Road) to the beach access with and without parking," she wrote. "However, due to low usage, (officials) agreed it was not cost effective."

Ms. Smith noted that between Vanderbilt Beach Road and Clam Pass there are no beach accesses — that's almost three miles. She also said that beach accesses on North Gulfshore Drive from Vanderbilt to Immokalee road — that's about two miles — are "designed to be walk-to beach access points."

Unless people live or visit in the nearby high-rises, that would require significant walking, since in some cases they're roughly a mile from public parking.

"We could always use more (parking)," Ms. Smith added. "With build-out, that is becoming quite difficult, but we are working on it."

Several residents point to vacant land near The Ritz and elsewhere, where more parking could be provided, and one insists money and build-out are not the problems.

Russ Wimer is a former Collier County commissioner elected to office in the latter half of the 1970s and the early 1980s. Now almost 65, he has paid close attention to the debate over the years. "That's always a great excuse, 'Oh, there is no money.' But millions of dollars are spent on landscaping, on watering all the plants, and we spent $10 million on an overpass on Airport-Pulling Road — probably more," he said. "Come on. Where there's a will, there's a way.

"If they want to provide beach access, would it be expensive? Sure it would. But they need to bite the bullet, and if it is determined more is needed, they need to provide the means to do it."

Real access, faux access

These notions, like the silvery little fish only yards off Vanderbilt Beach, have jumped across the surface of the region and the state for years.

In the minds of many here, Collier County residents and visitors who don't own property on the beach or have the wherewithal to stay in fine hotels have lost out.

"Two things are going on here," surmises Robert Lehrer, a retired attorney and philanthropist who lives in Autumn Woods and owns a condominium overlooking the water in Park Shore. "One is being able to walk on the beach. Everybody has a right to walk along the shoreline. You can come in on a boat, for instance, and put your boat on the shoreline and walk along. That's one thing. The second thing is the access to get there."

To Mr. Lehrer's dismay, he said, that access has been cut off over the years. It's almost impossible to reach much of the public beach property, especially for children or the elderly, unless one is wealthy enough to live along the beach, he added.

"This is an embarrassment. The beach is for everybody, wealthy or not. It's several miles between Vanderbilt Beach parking and Clam Pass (at the western end of Pine Ridge Road). If I arrive at Clam Pass and I want to come across going north with my two little kids and my picnic basket and my chairs, I don't have access. You can cross at low tide, but there are dangerous currents and you can't do it at high tide."

And if you aim to get onto the beach north of Clam Pass, you have to walk all the way up from there, since no other access exists for almost three miles.

Far to the north of that, only a few hundred yards from The Ritz at Vanderbilt Beach, stands the Turtle Club, where people can walk off the beach and up into the open restaurant and bar to have a drink or eat.

"We're a public business, and I think the real challenge is the fact that Vanderbilt Beach (at the parking garage) is the only real access in the whole county," says Peter Tierney, who has managed the Turtle Club for 15 years.

"From the Vanderbilt garage south there's nothing except for Clam Pass, which has very limited parking. And north from Vanderbilt there's only Delnor-Wiggins (with several public parking lots laid neatly into the mangroves). By 9 or 10 a.m. on any given holiday, that park is full. You can't even get onto the main road to go south."

On Gulfshore Drive, which extends from near the end of Vanderbilt Beach Road north to the dead-end of Immokalee Road and Delnor-Wiggins — a nearly twomile stretch — about eight tiny walkways extend from the road to the beach, each sandwiched between condo complexes or beach clubs that display prominent notrespassing signs.

Mary Lou Smart calls that "faux access." Each is about six feet wide — some are boardwalks, and some are merely sod ditches that can fill with water in the summer —and each is marked by a county sign the size of a dinner plate.

At least one of those signs, across from Seabreeze Avenue, had been painted black on a recent weekday, although the words were faintly visible beneath the paint: "Collier County Parks and Recreation," it said, just like the legible ones.

Mr. Tierney summarized the situation this way: "Pelican Bay is just a massive development but completely private. You can walk down along the road, but you can't park."

Meanwhile to the north on Gulfshore Drive, he added, "lots of young kids love the beach, so their parents will drop them off (at the walk-in accesses). But once things get full at the parking garage, or at either end of the beach, people try to park everywhere. The scattered commercial businesses really get hammered with parking. You'd love to own a towing truck in there. Some people DO love owning towing trucks in there."

And neither that situation nor one in which private interests "feel they have to take hard and fast stands" is something Mr. Wimer, the former commissioner, wants to see. "The Ritz is good for the community," he said. "It's been a good neighbor for the most part, and (these debates) are just not good for anybody."

In Mr. Wimer's view, "Somewhere between my time on the commission and the present time, some commissioners were asleep at the switch. They fell behind on many things. I think the present commission has been taking steps to solve the problems, but I don't think it's happened yet. The public needs more access to the beaches."

Just like it used to have.

"I walk that beach regularly, and I have close to 50 years now," Mr. Wimer said. "So I have a 'prescriptive easement.' Everybody goes on about the 'high water line' or some other line, but it doesn't make a whole lot of difference. Myself and my family have a 'prescriptive easement.'"

Under state law, that carries formidable weight, if it can be proven.

"Even if a piece of property along the beach is privately owned, the public may still be able to establish a prescriptive easement by historic use," said Ralph Brookes, a land-use attorney in Lee County. In a case called Tony Rama, Mr. Brookes explained, "the public showed that they had used the dry upland sand of the (private) beach historically for decades, and that they couldn't be excluded from that dry sand area." The Tony Rama case, he added, has been upheld by other cases.

A lot of people in Naples could likely demonstrate historic use of beaches such as the one now owned by The Ritz, they say.

"I'd like to see somebody kick me off that beach," said Mr. Wimer. "They could, physically, of course, but then they'd have a lawsuit so big they couldn't see over it."