Open question for beach front homeowners, their lawyers and their politician friends

St. Johns ordinance goes all the back to 2007. Volusia County...established by the court in 1976. Lets try to find some counties that are a little bit closer to the deadline. Maybe we should look at what Nassau Co./ Fernandina have been doing since they are one county that has not gone to court yet but passed an ordinance in May2018 anyway with the intent of going to the court.

Comments in [brackets]
twinbrew: My personal view (based on the materials I have reviewed) is that the doctrine of customary use as expressed by the Florida Supreme Court in Tona-Rama is binding Florida law and has been for 44 years [unsure what you intend by “binding’(1), definition below, but FSC “recognized” customary use – or did not preclude it. Only 225 sq ft of private beach was affected in Tona-Rama]. Federal and state courts over the last 44 years (and even as recently as this month) have recognized it as binding Florida law and followed it. That means that every property owner that purchased sandy beach property since 1974 has faced the possibility of customary use at the time they purchased their property if the elements of customary use could be met [every property owner that purchases property faces the possibility of eminent domain, prescriptive easement, and other legal doctrines as well - unsure why pointing out just custom / customary use can be claimed on ANY property - bay front - river banks - hunting areas; not just highly valued private beaches]. This is not something new [not new but is rare compared to other real property law - why is it commissioners do not try prescriptive easement or eminent domain; because custom doesn't require compensation]. Heck, there has even been litigation over whether customary use triggered title insurance policies (it did not) and a plaintiff in a 2007 case even conceded that they weren't challenging the public's right to customary recreational use (only the use of the sandy beach for parking and driving vehicles). There are only three ways that customary use could be abolished: (i) someone takes a case all the way to the Florida Supreme Court and the Florida Supreme Court decides to throw stare decisis out the window and reverse Tona-Roma; (ii) a court finds that customary use is unconstitutional (at least one Florida court has already addressed the issue and said no) [disagree; if you are referring to Blessey there was no ruling on customary use, the court declined, WITHOUT prejudice, according to the judge the case had not meet certain criteria to be heard in Federal court (yet).]; or (iii) the Florida Legislature abolishes it by statute. [(iv) The US Supreme Court rules real property custom claims are Unconstitutional.] The question of whether counties like Walton can establish customary use by ordinance rather than through a court action was litigated in federal court in Alford and the answer was that they could [and was under appeal when HB631 was passed – certainly the FL legislature and Governor felt the Alfords had a case.] The Florida Legislature reversed that outcome by passing HB631 but in doing so reaffirmed and codified the concept of customary use expressed in Tona-Rama (that was the conclusion of the federal court in Blessey). So what is the standard for proving customary use? One Florida appelate court (Trapanier) described it as follows in 2007 - “[W]e do not suggest that the County must prove that cars, horses, or other modes of transportation have customarily traversed and parked on Appelant’s specific parcels of property. Rather, we read Tona-Rama to require proof that the general area of the beach where [the] property is located has customarily been put to such use and that the extent of such customary use on private property is consistent with the public’s claim of right.” [Trapanier appellate court also stated; “[w]hile some may find it preferable that proof of these elements of custom be established for the entire state by judicial fiat in order to protect the right of public access to Florida's beaches, it appears to us that the acquisition of a right to use private property by custom is intensely local and anything but theoretical.” - that ancient historical custom is very fact based, commissioners have the burden of proof, under the rule of evidence.] So that is what will get litigated as Walton County moves forward. I'm sure others may disagree with my personal view. If there is authority out there to the contrary, happy to consider it and stand corrected.

(1) Binding. Legal phrase that an agreement has been consciously made, and certain actions are required or prohibited. For example, a lease for an apartment is legally binding, because upon signing the document, the lessor and the lessee are agreeing to a number of conditions.

St. Johns ordinance goes all the back to 2007. Volusia County...established by the court in 1976. Lets try to find some counties that are a little bit closer to the deadline. Maybe we should look at what Nassau Co./ Fernandina have been doing since they are one county that has not gone to court yet but passed an ordinance in May2018 anyway with the intent of going to the court.

There aren't more counties. The only (now three) counties that have customary use are Volusia, St. Johns and now Nassau (which is questionable). St. Johns and Volusia had quick work of it in court as the beach was a public road and a number of commercial public attractions (the tower for example) on the beach/pier.

On ECL here is a data source, also info on MHWL etc.
LABINS - Survey Data for Florida, aerial images.

Comments in [brackets]
twinbrew: My personal view (based on the materials I have reviewed) is that the doctrine of customary use as expressed by the Florida Supreme Court in Tona-Rama is binding Florida law and has been for 44 years [unsure what you intend by “binding’(1), definition below, but FSC “recognized” customary use – or did not preclude it. Only 225 sq ft of private beach was affected in Tona-Rama]. Federal and state courts over the last 44 years (and even as recently as this month) have recognized it as binding Florida law and followed it. That means that every property owner that purchased sandy beach property since 1974 has faced the possibility of customary use at the time they purchased their property if the elements of customary use could be met [every property owner that purchases property faces the possibility of eminent domain, prescriptive easement, and other legal doctrines as well - unsure why pointing out just custom / customary use can be claimed on ANY property - bay front - river banks - hunting areas; not just highly valued private beaches]. This is not something new [not new but is rare compared to other real property law - why is it commissioners do not try prescriptive easement or eminent domain; because custom doesn't require compensation]. Heck, there has even been litigation over whether customary use triggered title insurance policies (it did not) and a plaintiff in a 2007 case even conceded that they weren't challenging the public's right to customary recreational use (only the use of the sandy beach for parking and driving vehicles). There are only three ways that customary use could be abolished: (i) someone takes a case all the way to the Florida Supreme Court and the Florida Supreme Court decides to throw stare decisis out the window and reverse Tona-Roma; (ii) a court finds that customary use is unconstitutional (at least one Florida court has already addressed the issue and said no) [disagree; if you are referring to Blessey there was no ruling on customary use, the court declined, WITHOUT prejudice, according to the judge the case had not meet certain criteria to be heard in Federal court (yet).]; or (iii) the Florida Legislature abolishes it by statute. [(iv) The US Supreme Court rules real property custom claims are Unconstitutional.] The question of whether counties like Walton can establish customary use by ordinance rather than through a court action was litigated in federal court in Alford and the answer was that they could [and was under appeal when HB631 was passed – certainly the FL legislature and Governor felt the Alfords had a case.] The Florida Legislature reversed that outcome by passing HB631 but in doing so reaffirmed and codified the concept of customary use expressed in Tona-Rama (that was the conclusion of the federal court in Blessey). So what is the standard for proving customary use? One Florida appelate court (Trapanier) described it as follows in 2007 - “[W]e do not suggest that the County must prove that cars, horses, or other modes of transportation have customarily traversed and parked on Appelant’s specific parcels of property. Rather, we read Tona-Rama to require proof that the general area of the beach where [the] property is located has customarily been put to such use and that the extent of such customary use on private property is consistent with the public’s claim of right.” [Trapanier appellate court also stated; “[w]hile some may find it preferable that proof of these elements of custom be established for the entire state by judicial fiat in order to protect the right of public access to Florida's beaches, it appears to us that the acquisition of a right to use private property by custom is intensely local and anything but theoretical.” - that ancient historical custom is very fact based, commissioners have the burden of proof, under the rule of evidence.] So that is what will get litigated as Walton County moves forward. I'm sure others may disagree with my personal view. If there is authority out there to the contrary, happy to consider it and stand corrected.

(1) Binding. Legal phrase that an agreement has been consciously made, and certain actions are required or prohibited. For example, a lease for an apartment is legally binding, because upon signing the document, the lessor and the lessee are agreeing to a number of conditions.

Couple of quick comments/corrections. I'm not sure what the dispute is over "binding." The customary use doctrine is the law in Florida (and has been since 1974) as determined by the Florida Supreme Court. Decisions of higher courts are "binding" on any lower courts. Therefore, the Tona-Rama decision is "binding" on all Florida courts. Seems uncontroversial. Small point but it was the tower the landowner built in Tona-Rama that only occupied 225 sq. ft. The Florida Supreme Court found there was customary use over 15,300 square feet of beach front. On whether customary use is unconstitutional, I wasn't referring to Blessey. I was referring to Trepanier, where the Fifth District Florida Court of Appeals said the following: "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 Appelants' property as an adjunct to its right to other recreational uses of that property, as recognized in Tona-Roma, then no takings claim can be made out." You might also want to read the discussion in footnote 22 of that decision. There was no need to add an item (iv) "the US Supreme Court rules real property custom claims are unconstitutional." The US Supreme Court could be one of the "courts" referred to in item (ii) of my list. As a practical matter, however, you realize how unlikely it is that a case would ever be granted cert by the US Supreme Court right? There is no appeal as a matter of right to the US Supreme Court.

Now you see why I believe this will be decided by the courts. There are clearly 2 sides, one side so opposed and reasoned, that they seem to bring up every reason to not have the issue move forward because it is a certain loss. Then twinpeaks comes in with a well reasoned different perspective, who seems to have some understanding of CU and the law and bouys my perspective. That said, although I prefer a reasoned argument to the name calling and what I see as belittling by members of both sides we will see the results by the opinion of the courts to settle this. Those who win will not be those who, oppose CU or those who favor CU as I do, because it will have damaged our sense community. Those who win are those who will be collecting the check for the services provided.

Bob, I agree with you. Litigation is often the worst way to resolve a dispute but sometimes its ends up being all you have left. The customary use side is in good shape on the law. These cases will rise or fall on the evidence of customary use. That is why it is so important to have every piece of evidence available on all 4 points. It has been said before, but for those supporting customary use, it is incumbent on every single person to provide Walton County with all the evidence they can muster in whatever form. You cannot have too much. It needs to be an avalanche of evidence because this will get appealed as far as possible. So the trial court judge needs to be provided with a firm foundation for any decision.

Now you see why I believe this will be decided by the courts. There are clearly 2 sides, one side so opposed and reasoned, that they seem to bring up every reason to not have the issue move forward because it is a certain loss. Then twinpeaks comes in with a well reasoned different perspective, who seems to have some understanding of CU and the law and bouys my perspective. That said, although I prefer a reasoned argument to the name calling and what I see as belittling by members of both sides we will see the results by the opinion of the courts to settle this. Those who win will not be those who, oppose CU or those who favor CU as I do, because it will have damaged our sense community. Those who win are those who will be collecting the check for the services provided.

Truth

Couple of quick comments/corrections. I'm not sure what the dispute is over "binding." The customary use doctrine is the law in Florida (and has been since 1974) as determined by the Florida Supreme Court. Decisions of higher courts are "binding" on any lower courts. Therefore, the Tona-Rama decision is "binding" on all Florida courts. Seems uncontroversial. Small point but it was the tower the landowner built in Tona-Rama that only occupied 225 sq. ft. The Florida Supreme Court found there was customary use over 15,300 square feet of beach front. On whether customary use is unconstitutional, I wasn't referring to Blessey. I was referring to Trepanier, where the Fifth District Florida Court of Appeals said the following: "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 Appelants' property as an adjunct to its right to other recreational uses of that property, as recognized in Tona-Roma, then no takings claim can be made out." You might also want to read the discussion in footnote 22 of that decision. There was no need to add an item (iv) "the US Supreme Court rules real property custom claims are unconstitutional." The US Supreme Court could be one of the "courts" referred to in item (ii) of my list. As a practical matter, however, you realize how unlikely it is that a case would ever be granted cert by the US Supreme Court right? There is no appeal as a matter of right to the US Supreme Court.

With your previous points about assumptions of ownership, it was unclear if your point was FSC recognition of customary use was binding on the private property owners.
The dispute was over construction of a amusement tower on private beach that competed with Tona-Rama’s amusement tower nearby. I read the “land” alleged for the prescriptive easement claim was the 225 sq ft the tower stood on.
Was unclear what “courts” you were referring to. Given your statement that lower courts are bound by the FSC, wouldn’t the US SC be the only court other than the FSC itself that can reverse real property custom claims in FL? (iv) clarifies that.
Walton commissioners’ David Theriaqu has the burden of proof and the five private property owner attorneys, that I know of, will present their case that Walton’s evidence of old English common-law custom claim established in England over many hundreds of years does not apply to 1,000 individual fee simple parcels in Walton. As the split FSC 1974 Tona-Rama decision, 3 concurred, 3 dissented, and 1 concurred in part and dissent in part, showed it will be close. Only time and millions of tax payer’s dollars will tell. See ya in court.
What is not close is that all FL local politicians shall go to court as the Plaintiff first and not use police powers to declare custom on private property; as prescribed by the FL legislators and Governor in HB631.

The question of whether counties like Walton can establish customary use by ordinance rather than through a court action was litigated in federal court in Alford and the answer was that they could.

It’s been a while since I read the opinion in that case, but I believe you will find that the judge said she found that while Walton County was generally empowered to pass ordinances, including the now outlawed CU ordinance, that fact did not confer legitimacy on all ordinances so passed, that those ordinances were in fact subject to and had to be in compliance with other laws.

She did not rule that Walton was in compliance with other requirements of the law, i. e., the Constitutional issues raised in the suit, and those could be further litigated, depending on how this process plays out. Her skepticism and criticism of what Walton County had done and how it had gone about it were made abundantly clear in her writings. She took the County and the Commissioners to the woodshed.

Other concerns voiced by Judge Rogers you are ignoring include reasonably clear statements that the Constitutional issues raised are valid points, with particular emphasis as respects due process and separation of powers. She did not, however, rule on those, citing lack of ripeness. U.S. Federal Judges have a notable propensity to avoid ruling on Constitutional issues as such, and devices such as ripeness aid and abet such practices.

While we may indulge this mental masturbation until the cows come home, this will be decided in court by judges, not by a mob of partisans on either side of the issue. If not, we are in a lot more trouble than we thought. All of us.

....When you know the law is not in tune with your agenda, you try to obscure the truth with jargon and jingles. Sometimes you even use abstract fables. They are doing a Guliani: trying to win in the court of public opinion, and it's an epic fail.

You mean with phrases like
This sand is your sand....
Stand your sand.....
Etc.
Etc.

The question of whether counties like Walton can establish customary use by ordinance rather than through a court action was litigated in federal court in Alford and the answer was that they could.

It’s been a while since I read the opinion in that case, but I believe you will find that the judge said she found that while Walton County was generally empowered to pass ordinances, including the now outlawed CU ordinance, that fact did not confer legitimacy on all ordinances so passed, that those ordinances were in fact subject to and had to be in compliance with other laws.

She did not rule that Walton was in compliance with other requirements of the law, i. e., the Constitutional issues raised in the suit, and those could be further litigated, depending on how this process plays out. Her skepticism and criticism of what Walton County had done and how it had gone about it were made abundantly clear in her writings. She took the County and the Commissioners to the woodshed.

Other concerns voiced by Judge Rogers you are ignoring include reasonably clear statements that the Constitutional issues raised are valid points, with particular emphasis as respects due process and separation of powers. She did not, however, rule on those, citing lack of ripeness. U.S. Federal Judges have a notable propensity to avoid ruling on Constitutional issues as such, and devices such as ripeness aid and abet such practices.

While we may indulge this mental masturbation until the cows come home, this will be decided in court by judges, not by a mob of partisans on either side of the issue. If not, we are in a lot more trouble than we thought. All of us.

Not participating.