Beaches Of South Walton TDC agrees to support customary use of beaches

[BeachSiO2]

I thought this may be of interest from yesterday's TDC meeting.

http://www.waltonsun.com/news/tdc_25...grees_use.html

....."In the past, customary use had been for all types of things," said McGee. "Anything from having a bonfire to running cattle was defined as customary use. It's time for county commissioners to say, yes, the public has a right to customary use of our beaches and draft an ordinance protecting these rights."
McGee believes that tourism will be directly impacted if customary use isn't fully defined.
"What is at stake here is money brought into the county in tourism dollars," he said.....

[scooterbug44]

Hells yeah McGee!!! That's how to get things done!

And how can we vote this guy out?
"Board member, Don McQuade, questioned individual property rights, versus allowing public access to all beaches. "I don't agree with McGee's position," McQuade said. "If I purchased a $5 million home on the beach I wouldn't want just anyone having a picnic on my beach."

[Miss Kitty]

Hells yeah McGee!!! That's how to get things done!

And how can we vote this guy out?
"Board member, Don McQuade, questioned individual property rights, versus allowing public access to all beaches. "I don't agree with McGee's position," McQuade said. "If I purchased a $5 million home on the beach I wouldn't want just anyone having a picnic on my beach."

The nerve! It's jsut anyone.

Mr. McSpecial has a superiority complex that is not very becoming.

[kathydwells]

"I wouldn't want just anyone having a picnic on my beach."

Oh FTLOC!!!!!

[Miss Kitty]

Oh FTLOG!!!!!

Correction...FTLOC! What a tool.

[kathydwells]

Correction...FTLOC! What a tool.

OOOPPPSSS, fixed.

[Smiling JOe]

That should stir some puddin'.

[SWGB]

But you didn't Don, you didn't.

[John R]

Wwjd?

[DuneLaker]

There were people using our beaches before Jesus walked on water.

[Creeklover]

There were people using your property before then also but i bet if someone pitched a place on your lawn you would wont them off of it.

I belive that if they paid for the property then they have a RIGHT to not allow others on their property. If they are told they haft to let the public use their property free of charge then the county/state should purchase it. If not then the property owner should have a right to keep people off of his property that he pays taxes on. Now I would think that if the county would forgive the taxes on the "Beach" area that everyone wonts open to the public (which for some is ALOT of money) and provide the property owner a full release of liability then some might allow others on their property. In todays world it is all about Law suits and belive me if someone got hurt and found a lawer who said they could get them some money they would sue them.

Just beacuse the public has been using someones property free of charge does not allow them the rights to take it a public property with out paying the owner for it. (Just my opion i have no case law to back that up) But if this was the case lets all go find a home that is in forclosure and move in and claim ownership..

[Smiling JOe]

There were people using your property before then also but i bet if someone pitched a place on your lawn you would wont them off of it.

I belive that if they paid for the property then they have a RIGHT to not allow others on their property. If they are told they haft to let the public use their property free of charge then the county/state should purchase it. If not then the property owner should have a right to keep people off of his property that he pays taxes on. Now I would think that if the county would forgive the taxes on the "Beach" area that everyone wonts open to the public (which for some is ALOT of money) and provide the property owner a full release of liability then some might allow others on their property. In todays world it is all about Law suits and belive me if someone got hurt and found a lawer who said they could get them some money they would sue them.

Just beacuse the public has been using someones property free of charge does not allow them the rights to take it a public property with out paying the owner for it. (Just my opion i have no case law to back that up) But if this was the case lets all go find a home that is in forclosure and move in and claim ownership..

Need some case law? Try Trepanier et al v. County of Volusia

In summary:

This court declares that the defendant, COUNTY OF VOLUSIA, on behalf of the public, holds a superior claim to possession and use of the beach landward of the mean low water mark of the Atlantic Ocean to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation in accordance with the definition set forth in Fla. Stat. section 161.54(3) (2004).


Plaintiffs are permanently enjoined from impeding public access to the beach or from acting in any manner inconsistent with the free use of the beach by the public, including access by motor vehicle, subject to the regulatory power of the County of Volusia.

********************************

p30 from the linked Court Ruling:
"Finally, we agree with the trial court's analysis of the "takings" issue. If the law recognizes that the public has a customary right to drive and park on Appellants' property as an adjunct of its right to other recreational uses of that property, as recognized in Tona-Rama, then no takings claim can be made out.(22)

Accordingly, we affirm in part and reverse in part and remand for further
proceedings consistent with this opinion."

Footnote 22:
"22 In his dissent in Stevens v. City of Cannon Beach, Justice Scalia suggests that a takings claim is not foreclosed if the private land owner can establish that the state's post-hoc announcement of a customary right is "pretextual." 114 S. Ct. at 1334. Justice Scalia appears to be of the view that the Hay court in Oregon so completely failed to adhere to the required elements of the common law of custom that it essentially concocted a made-up law of "custom" whose purpose was to secure public access to private property without compensation. Although the Tona-Rama court cited to Hay, the Florida court recognized the requirements to establish a customary right to use private
property, and with the possible exception of "ancient use" – an awkward concept in a new world society – the Tona-Rama court appears to have followed the common law rule. The Tona-Rama court relied on an extensive, fact-intensive record of the nature and extent of the public's customary use of a defined area of beach. Florida may, therefore, avoid the "pretext" problem if this issue arises again with the change in composition of the current United States Supreme Court."

[SWGB]

Why don't we just get a constitutional amendment similar to Hawaii's? Shall we start the leg work?

[Here4Good]

The headline is not exactly correct - the article says:

All members, except Don McQuade, voted to support efforts of defining customary use.

They aren't supporting customary use, not yet anyway. They support defining it.

[sunspotbaby]

People should know when they buy a beachfront lot, they're buying the view, not the beach.

[Smiling JOe]

People should know when they buy a beachfront lot, they're buying the view, not the beach.

Now that is an interesting statement. If the deed reads mean high water mark as the boundary, they ARE buying the beach, but not necessarily with exclusive use. The reason I bring this up is because as I understand it, if a beach goer is injured on that "privately owned" property, the owner of the property may be paying damages if taken to court.

That is what is so crazy for me to understand. The property owners claiming rights to the beach, have been allowing the public to use the beach, without objection for years, though if the public is injured on that property, the owner may be liable. Also, the property owner is going to pay taxes based on the assessed taxable value, which is usually directly tied to the size of the parcel. I see at least two very big ways a Gulf front owner could benefit by quit claiming the lower beach elevation of the property, and it seems that they are essentially not losing anything, since the public has always been using that property anyway. I really don't understand their side, and would love to hear an objection to the above thought.

If the property owner IS sued for damages resulting from an accident on that beach property, I bet the property owner's attorney argues that the beach property is really the public's, due to case law, as the one I previously posted. That is the irony -- the private Gulf front property owners may be the biggest proponent of public beach, if they are sued for damages. Can you imagine a top notch professional football player, stepping into a deep hole on the beach, snapping his leg in two, never again able to play football? With an annual salary of $10 million, and 15 more years of playing time, that is going to be one hefty lawsuit of damages.

[idlewind]

The bottom line is that the public has used the beaches for decades and thus a reasonable person who is considering a purchase of beachfront property would see that the public in fact is using the beach for recreation purposes. Most of the owners used the property themselves prior to their purchase. SWGB has the right idea, amend the constitution to address the issue once and for all. If pregnant pigs deserve protection, those who have always enjoyed the beach do as well.

[BeachSiO2]

The headline is not exactly correct - the article says:

All members, except Don McQuade, voted to support efforts of defining customary use.

They aren't supporting customary use, not yet anyway. They support defining it.

For further clarification, the actual vote was two parts in one motion. The TDC recommended to the BCC to determine if their had been customary use of the beaches in Sowal, with examples of customary use listed that included walking, fishing, sunbathing, picnicing and others.

Then if it was determined that the customary use doctrine should be applied in Sowal, they requested that the BCC change the current Beach Activity Ordinance to acknowledge the principal of customary use of the shoreline.

[Andy A]

Spring must be on the way. The use of the beach issue is raising its head once again. Obviously Creeklove was not here for last year's go around. SWGB has the right idea. If you get something going, let me know. I'm not too old to help but I don't feel like organizing it.

[Bob Wells]

I have tried for years what my opinion on beach use is. On the one hand tax money is used to renourish when necessary. On the other hand there were some folks who did not want the beach behind/ front of their homes renourished. Then we have the government writing insurance/ FEMA grants for folks who own homes on the beach. I guess my mind is made up, if you have none of my sand on your beach, and your home is not rebuilt with my money then I will stay off your beach. Come to think of it I might have an interest in some beach front homes.

[Creeklover]

I still belive if you take some one's property rights from them that you should pay for it.. Maybe if the county started just buying all of the property in the county that came to them with Development order then we would come out cheeper than all the Law Suites we are having. just think of how much Camping on the Gulf will cost or Jolly Bay?????

I still belive we have enough beach land in the public holdings to hold ALL of the visitors to SOWAL that we should leave the homeowners alone with their beach property they paid for. If you for some strange reason only wont to set on that section of beach then you should approch the home owner and buy it.

[Smiling JOe]

Creeklover, there is a major difference between YOU thinking that one thing should be done, and the COURTS, thinking that it shouldn't be done.

[BeachSiO2]

Here is a Destin Log article updating the situation. I could not find it on the Walton Sun or Herald site:

In Walton, it's public beach vs. private property | walton, public, div - News - TheDestinLog.com

The mere mention of "customary use" on Walton County's beaches — which pits the rights of the public against private property owners - ruffled some feathers at Tuesday's County Commission meeting.

"It's absolutely socialism," Blue Mountain Beach resident Emmett Hildreth said of a proposal to update the existing beach activities ordinance and comprehensive plan to include the customary use doctrine. "It's taking private property rights and redistribution of wealth and that's nationalization on a county level."

County commissioners have agreed to investigate a proposal by the Tourist Development Council to include the customary use doctrine in the ordinance. The doctrine determines exactly how the public may use the county's 26 miles of beaches, into the ordinance.

"We're asking the commissioners to ascertain if the doctrine of customary use can apply, and if the evidence that's presented to them supports the doctrine. Then we're further asking that they change the ordinance and comprehensive plan to recognize the doctrine of customary use," TDC Director Sonny Mares said after the meeting.

He said the existing law does not clarify exactly what activities the public may enjoy on the beaches or clarify that the public and businesses can freely use the 60 beach accesses.

Mares said the question is whether the doctrine of customary use supports the public's right to use the dry sand portion of the beach for activities such as swimming, fishing, walking and sunbathing.

Property owners are now putting up signs warning people away from their homes and even hiring private security guards, he said.

Those actions "certainly go contrary to this being a tourist destination and does great harm to the tourist industry in Walton County," which is a $1 billion industry, provides about $20 million to the school district and supports 1,200 jobs.

"Tourism has been one of the largest stimuluses for construction, and this is certainly not the time to be downgrading the importance of tourism and thus losing the benefits of the tax revenue to the county," Mares said.

Commissioner Larry Jones said controversy has been sparked recently over whether property owners have the right to exclude people from certain areas of the beach and it is "probably time that it be addressed."

Commissioners took no action Tuesday; they agreed only to study the issue.

The next step will be for those who support the customary use doctrine to investigate whether there is enough evidence to support its inclusion in the beach activities ordinance.

Jones said if that evidence does exist, another meeting will be scheduled for residents to give their input.

"In a public forum, you'll have people speak against what is being presented," he said after the meeting. "It is now the onus of proof to the commission that there would be reason to move forward to strengthen the ordinance to clarify what areas of the beach the public can use. I think it's going to be a fairly lengthy process."

[sunspotbaby]

It's on the front page of the Sun today.


"This is evil socialism! "

[Beach Runner]

People should know when they buy a beachfront lot, they're buying the view, not the beach.

Now that is an interesting statement. If the deed reads mean high water mark as the boundary, they ARE buying the beach, but not necessarily with exclusive use. The reason I bring this up is because as I understand it, if a beach goer is injured on that "privately owned" property, the owner of the property may be paying damages if taken to court.

That is what is so crazy for me to understand. The property owners claiming rights to the beach, have been allowing the public to use the beach, without objection for years, though if the public is injured on that property, the owner may be liable. Also, the property owner is going to pay taxes based on the assessed taxable value, which is usually directly tied to the size of the parcel. I see at least two very big ways a Gulf front owner could benefit by quit claiming the lower beach elevation of the property, and it seems that they are essentially not losing anything, since the public has always been using that property anyway. I really don't understand their side, and would love to hear an objection to the above thought.

If the property owner IS sued for damages resulting from an accident on that beach property, I bet the property owner's attorney argues that the beach property is really the public's, due to case law, as the one I previously posted. That is the irony -- the private Gulf front property owners may be the biggest proponent of public beach, if they are sued for damages. Can you imagine a top notch professional football player, stepping into a deep hole on the beach, snapping his leg in two, never again able to play football? With an annual salary of $10 million, and 15 more years of playing time, that is going to be one hefty lawsuit of damages.

If you go online and look at plats, you can see that some parcels go to the mean high-water line, and some do not. Like SJ says, the owners of the former pay taxes on that property. In trying to look at it from the point of view of these owners, how can they not have the viewpoint that they own that property? They are buying the beach because that is included in the acreage that they purchased and pay taxes on.

To address the issue of customary use, things have really changed since we first started coming to the area. There weren't the high-density developments north of County Highway 30A that there are now. Back then I wouldn't think that beachfront owners would have minded small numbers of people flowing over into their property from the public accesses. Fast forward to 2008. Now with the proliferation of these high-density developments, there are larger numbers of people from these developments using the public (and private if there's no gate) accesses and thus larger numbers of people flowing over into private property for which, as SJ pointed out, the owner faces liability issues.

In my opinion "customary" is relative. The customs from the past don't relate at all to the situation now because things are different due to higher volumes of people visiting the area and not staying at condos/homes with private beach walkovers.

Someone in Saturday's Walton Sun was complaining that the Planning Commission should approve more projects because the economy is so bad and that people in the development/construction industries need jobs. Isn't that how this whole problem of beach use started? That is, because Planning and then the BCC didn't appear to totally think through the repercussions of approving these high-density developments and approved developments that should never have been approved, these growth issues have occurred?

I'm just trying to look at things from the point of view of a beachfront owner which I am not. It sucks to pay for property and have a boatload of people with all of their beach junk in your front yard (those homes face the beach). Yet it also sucks that people come to "the beach" to vacation and can't use the beach as they once did.

I probably shouldn't post this. Too inflammatory of an issue. There are probably more people who disagree with me than agree. Please don't slam me.

[sunspotbaby]

The beach is not their yard. The beach is whatever Mother Nature wants it to be. What if tomorrow we woke up and it was 3 miles to the water? Would that be theirs too?

Oh, and There would be construction on it before you know it, and then the owners don't have beachfront property anymore.

Property lines shouldn't be determined by high tide. The reason they don't have a yard is because they built as close to the water as they could possibly get a permit for.

Don't go building houses on the sand.

I had my trailer set up in the middle of my lot.

[kzbird]

I've got 30 years of pictures of myself, family members and friends all up and down the beaches of SoWal to document my "customary use". Blue Mtn. is truly my 2nd home and great escape. My family and I own 2 houses right off the water and a gulf front condo and we believe there's enough beach for everyone. These beaches have always been public.(Unfortunately our condo assoc. doesn't like our view) I'm sick and tired of the "this is my beach" crap. I'm ready to submit my pictures to the commission as proof and I'll testify as a gulf front homeowner as well that these beaches need to stay open and accessible to everyone.

[SoWalSally]

» COMMISSIONERS MAKE “FIRST SCRATCH” FOR CUSTOMARY USE


By DOTTY NIST

The issue of public right to customary use of the beach is not a new one in Walton County, but county commissioners agreed last week that the time to begin to address it is now.
Customary use came to the forefront on Jan. 27, with a recommendation to the Walton County Board of County Commissioners (BCC) on behalf of the South Walton Tourist Development Council (TDC).
On Jan. 14, the TDC had approved the recommendation, which reads, “The TDC recommends to the Board of County Commissioners it ascertain the ancient customary uses the public has made of the beaches of Walton County which have been without interruption, reasonable, free from dispute, certain, obligatory and consistent with other customary uses and laws. It is further recommended that the Board of County Commissioners amend the Beach Activities Ordinance and the Comprehensive Plan to recognize the public’s right of customary use and describing the areas of the beaches where the uses may be enjoyed.”
Along with the recommendation was the note: “Examples of typical Customary Uses of the Beaches: Swimming, fishing, walking, sunbathing with or without removable shade devices, playing games, picnicking, photographing, reading books and relaxing. All these uses must be done in accordance with the other provisions of the Beach Activities Ordinance and any other applicable local ordinances and state and federal statutes.”
Sonny Mares, TDC executive director, presented the TDC recommendation to the commissioners at their Jan. 27 meeting.
Mares told the commissioners that the request was in reaction to a ” very intrusive” trend along the beaches, of beachfront property owners putting up “private beach” signs prohibiting residents and visitors from coming onto some areas of the beach. He added that some of these owners have hired private security agencies to turn away people seeking to use the beach.
Mares warned that this beach privatization trend would harm tourism, especially since visitors renting non-beachfront accommodations depend on being able to access the beach for recreation.
Calling the matter “a very important issue,” District 3 Commissioner Larry Jones was of the opinion that the appropriate action would be to begin the investigative process for information to support a claim of customary use of the beach.
Mike Burke, county legal counsel, agreed that the place to start would be with the first part of the TDC recommendation, evaluating what claim the county could make to customary use of the beach and in what sections the claim could be made. This would likely be a lengthly process, he noted.
Not mentioned was a recent decision by the Florida Supreme Court in favor of the public’s right to the use of portions of the beach that have been reclaimed in large-scale beach nourishment projects. More than five miles of beach on the west end of Walton County fall within this category.
Jones made a motion to allow staff to work with the TDC to determine what evidence was available to support the right of customary use.
The motion was approved unanimously.
“You’re just asking us to gather evidence?’” Burke asked for purposes of clarification, with Jones responding in the affirmative.
“We’ve just made the first scratch,” District 4 Commissioner and Commission Chairwoman Sara Comander commented.
Nevertheless, Blue Mountain Beach beachfront homeowner Emmett Hildreth was livid about the decision, which he branded “premature.”
“Customary use has been clearly defined by the Supreme Court of Florida,” Hildreth complained. “It should not involve the county or the TDC,” he argued.
“Customary use goes absolutely against private property rights,” Hildreth continued, warning that establishing such use would devalue beachfront property and deter investors. When a beach house has title to the mean high water line, not only homebuyers but renters expect “a private beach,” Hildreth argued.
“It is evil and the cancer of socialism,” he said of the commission decision.
The Herald-Breeze consulted with Walton County Property Appraiser Patrick Pilcher on Jan. 28 regarding the argument that establishing the public right to customary use of the beach would devalue beachfront property.
Pilcher’s first reaction was that such a contention was “highly speculative.”
He explained that property appraisers are “historians, not forecasters,” and that property values are set through the appraisal method, by evaluating the selling price of comparable properties. The question, he said, would be whether a “marked decrease” in sales prices occurred in connection with properties upon which the right to customary use had been established. He was not aware of any areas where such an action by a local government had devalued property.
Pilcher brought up another aspect of beachfront property ownership that may have a bearing on the question. In Walton County, some beachfront lots are deeded to the mean high water line or the Gulf of Mexico, but in many instances deeding extends only to the bluff or dune line, he noted.
“I’ve never seen a difference in sales prices from one to the other;” Pilcher said, “people typically don’t worry about that.”

[sunspotbaby]

“It is evil and the cancer of socialism,”

PuuuuuuuuuuuuLeeeeeeeeeeeeaze!

[scooterbug44]

Seriously - owners and vacationers alike enjoy taking a walk down the beach and I've never seen someone come out of the water after a swim in the exact location they went in.

Few people are going to refuse to rent because the beach in front of the house isn't private ...................... many will if our area gets a reputation for chasing people off beaches and arresting little kids for building sand castles.

[John R]

PuuuuuuuuuuuuLeeeeeeeeeeeeaze!

beachhouse25? is that you?

[Smiling JOe]

I believe you are on the wrong page. We are talking about customary use, and that has nothing to do with navigable waterways. It could also apply to non-waterfront property, like a property where the County, without payment, paved a road which had been used by the public for many years, but it is on privately-deeded property. There are plenty of those examples in Walton County.