Customary Use Will Happen On Sowal Beaches

With all that's happened in the past several months with total disregard for private property rights, I thought I'd throw in a couple of observations.

I'm really disappointed in the way the thread's creator subsequently performed his end zone touchdown dance as a part of his perceived victory regarding customary use. Plenty of time has gone by and I still feel the same way as my initial reaction when I first read his victory post. I know, I shouldn't be surprised.

What IF the county loses the customary use litigation? What will be the fallout besides the enforcement of private property rights like you've never seen before?

Let's assume, the county does lose which in my opinion is highly likely. Then let's assume we get hit with back to back hurricanes like we did in 2004 and 2005 and suffer beach erosion like we did then. The U.S. Army Corps of Engineers stated they wouldn't support a nourishment project without having approximately 1.5 miles of contiguous properties with signed easements. After the bitter taste that the county (and restauranteers) have shoved down the throats of gulf-front owners, do you think 1.5 miles worth of gulf-front owners would sign construction easements for beach nourishment? I'm pretty sure that Customary Use does not give the county the right to nourish a beach without the private property owners' permission for a construction easement.

Yes, I know the county can self-fund beach nourishment without the Feds help. But I would think a construction easement would still be necessary to do the work and that the economic rules of having enough contiguous property still apply.

And in the meantime, what happens to the millions and millions of dollars that the county is sitting on for beach nourishment that they can not legally use for any other purpose? Anybody seen that money lately and know the exact amount? I'm too lazy to look it up.

I'm really disappointed in the way the thread's creator subsequently performed his end zone touchdown dance as a part of his perceived victory regarding customary use. Plenty of time has gone by and I still feel the same way as my initial reaction when I first read his victory post. I know, I shouldn't be surprised.

You are correct. While Dave R. has had some good points, most cannot distance themselves from his stance on Customary Use.

I am certain, as are others, this defeated the attempt to Incorporate SoWal as this is a dividing topic. Now its "put off" for another year...

I have been a supporter of separation of SoWal for a very long time, actually supported it when it first came up. The current group fails to realize that their flag bearers detract from those of us that would in other situations donate and support this cause.

Need to find a middle ground. Hopefully soon.

This flag waving post, started by Dave R., is a good example. I do like and support his views on some of the other issues.

We have the same issues in Missouri on our streams.
Advocates worry proposal pits paddlers against property owners on Missouri waterways
Use of sand bars or banks for fishing, picnics etc.

Not sure that your statement is correct. If the property owner chooses to allow vendors to set up on their property, they can still do that, I think.

The real issue that's not being discussed while everyone is high fiving --- is the fact that beach vendors can and do reserve up to 50% of the public beach space and keep it from the public. Yet, I don't see the "public" or the commission going after the beach chair vendors to return this space to the public. If the private owners can't --- then neither should the beach vendors be allows to exclusively use the beach for their own for profit purposes.

All this rhetoric --- beaches without boundaries and this sand is yours and mine gets thrown right out the window when you allow beach vendors to take up 50% of the public beaches. The TDC won't allow the public to move those chairs to allow you to sit there, that's the vendor's spot- not yours --- so the public's "customary use" is certainly being interfered with and impeded. So, when is the commission going to act on this and stop chair vendors from pre-setting chairs on 50% of spaces on the public beaches? And following that once the rentee leaves the beach the chair gets picked up? I haven't read anything anywhere that says that "the public's customary use" defines the "public" as a "chair" or a for profit beach vendor. Why are these private entities allowed to privatize the beaches when no one else is??

This whole customary use idea stops dead at the beach vendor's first set of chairs. The facts are the current commission is the same set of characters who complained loudly when steps to address the beach vendor issue and restore some rights to the public on public beaches. At every turn they rationalized supporting the beach vendors. District 5 Tony Anderson said "We are taking a sledgehammer to a fly". Cecilia Jones, who's son owns a beach chair vendor company made every gesture possible to protect the vendors interests. The beach vendors cartel is well protected. But none of the commissioners had any issue with taking away property rights to over 7,000 parcels and devaluing them by as much as 30% with $2 Billion losses in market value, and $18 Million annual loss in tax revenue.

We have the same issues in Missouri on our streams.
Advocates worry proposal pits paddlers against property owners on Missouri waterways
Use of sand bars or banks for fishing, picnics etc.

This is interesting and supports the point that several people have made that customary use could end up applying to other waterways besides the Gulf if those waterways became highly sought after recreational spots.

BeachBum: Your arguments are specious. Customary Use existed long before you bought your property. You therefore bought it and own it subject to that use. You have lost NOTHING. You never owned what you are trying to steal.

One of owners' arguments is the threat of spending millions to fight Customary Use. I agree with Commander, Jones, Chapman and Anderson: Bring it on!

You are entitled to your opinion but not your own facts. The facts are customary use doctrine was ruled FLA Supreme court case Reynolds that it can only be applied on a case by case basis and on a particular piece of beach - meaning per property owner. Secondly, customary use must be uninterrupted use meaning the property owner did not dispute the use. In many cases there is well documented disputes that go back 50 years. You know nothing of the particular beach area this poster is referencing and have no history on it to state that it is subject to customary use doctrine. There is nothing in the deed (it's what the law goes by --- not some ridiculous power point presentation from that "Dr" showing pictures of Native Indians using the beach and claiming there's been no disputes until the last 10 years --- looks like a high school student put that together). There's no easements on these deeds for public use and the county has been more than happy to assess and collect taxes on it --- so there's nothing factual about your statement "You therefore bought it and own it subject to that use" --- that's your opinion --- that's not supported by any facts. On the contrary these 7,000 parcels have lost a projected $2 billion in value, and up to $18 million in lost annual taxes to the county. Again, calling it "nothing" just shows a lack of basic understanding of property ownership and bundle of rights in this country. I guarantee you want those rights for your own property --- but it seems to just fine with you to take them away from someone else, in fact 7,000 of them. That's hypocritical to say the least.

Let's take a different example and see if it passes your "this land is open and free without borders" test:

There's 250 acres of woods North of 30a which I have hunted for 40 years now and my father and grandfather before that going back five generations back to the Native Indians. It's been owned by several folks, many I've never met, but except for a couple of owners they have all let us hunt this land freely. A few parcel owners have been hunt clubs and they tell us that's their land to hunt and we can't hunt there anymore. There's been a few houses put on one of the parcels and they don't want us hunt there anymore but they said we could walk though their properties to get to the other areas.

Hunting is getting harder and harder these days with all the developments going in and I really don't like hunting on state land - I much prefer to continue using that 250 acres of woods that I know so well. Of course I don't own that land and I've never paid a dime for it or any taxes on it --- I'm told it's "private property" so what can I do, I really want to keep hunting there? So, I went down to the county and complained that I couldn't continue to use the woods like I used to and was getting run off. The county hired some out of town attorney and some Dr put together some of my family photos going way back of me and my kin hunting on the land. The county passed a customary use ordinance that all woodlands North of 30A are open to the public to hunt freely and without interference. Now I can bring all my buddies and we can have hunting parties any place we like. Can't wait to set up our deer stands in the back yard of those houses --- that was once my favorite spot to shoot deer, they have really made it into a nice area with lanes and food plots and the lawn area is kept so nice --- that's now my new favorite spot, I'll be there everyday.

You good with that? See nothing wrong with it? You own property in Walton county?

The simple, obvious answer is that there is more demand than supply. Simple economics. Saying there is thousands of acres of public land and why is that not enough is disingenuous. What is in demand is the square footage of white sandy beach. I know of no huge demand for bay front so that is also a red herring. The demand is for the beach. The beach is why taxable values have increased exponentially in Walton County, is responsible for thousands of jobs being created, is responsible for millions in economic activity and is responsible for the population of Walton County tripling in the last 40 years. The bottom line is that the engine that drives our economy is those square feet of white sand. Everyone that has moved here in the last 40 years knew that before they bought their slice of paradise. The public has used the beaches since I can remember or around 50 years and billions of dollars of property values are derived from the property being in close proximity to that white sand. If the public cannot access the beach in large numbers then inland property values will be negatively effected and jobs will be lost. Lower property values and fewer jobs means the government will have less resources to build and improve infrastructure and thus the economic growth of the county will be negatively impacted. That is a high price to pay for changing the dynamics that have existed for decades.

As to it "not being the beachfront owners problem" that is absolutely wrong. We are a community and so it is everyone's problem. You cannot divorce yourself from those around you.

Then where is your fight to kick the beach chair vendors from consuming 50% of the public beach real estate? You are not consistent in your application of addressing solving a problem you have defined. If we are out of public beach space then why is it that beach chair vendors are allowed to consume up to 50% of the real estate for profit?

And when did public demand run over private property ownership? You sound like you support taking by eminent domain. Where is your house in relation to the beach? I can't wait to hear your permissive views when the county wants to take your property without paying you for it to put in a new development due to demand. It's pretty easy and convenient to be so approving of taking away someone else's property and value as long as it's not yours.

The wheels fall right off the wagon don't they?

@graytonbeachguy ...

Are you vying for the position as County Attorney? The way you kiss makes you a shoe in.

I agree with your statement, beachfront and bayfront are 2 different animals. Thank you for clearing that up.

Why are they different? Customary use doctrine is customary use period. Beach, woodlands, bay front, your own back yard, a mountain top. That you state it wouldn't apply to 99% of the land in Walton County shows a willingness to support taking from others what you place value in, which has nothing to do with customary use doctrine.

If we are out of public beach space then why is it that beach chair vendors are allowed to consume up to 50% of the real estate for profit?

Because the County is stuck on stupid. Not only are they allowed to consume 50% of public beaches, (prime real estate that the taxpayers helped spend millions of dollars on) but we give it to them pretty much at NO Charge!

Where else in the known world can someone set up a private business on millions of dollars worth of PUBLIC property for free?

I can't wait to hear your permissive views when the county wants to take your property without paying you for it to put in a new development due to demand.

Not gonna happen, not a big demand for property in NoWal and even less demand in Paxton.

As for Customary Use...lived in Texas most of younger days (South Padre Island specifically) and Texas doesn't have these issues mostly because it was decided long ago people could traverse the beach anywhere to the mean high tide line.

Seaward of the mean high water line isn't at issue, since the Florida Constitution states, "Sovereignty lands.—The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people."

Then where is your fight to kick the beach chair vendors from consuming 50% of the public beach real estate? You are not consistent in your application of addressing solving a problem you have defined. If we are out of public beach space then why is it that beach chair vendors are allowed to consume up to 50% of the real estate for profit?

And when did public demand run over private property ownership? You sound like you support taking by eminent domain. Where is your house in relation to the beach? I can't wait to hear your permissive views when the county wants to take your property without paying you for it to put in a new development due to demand. It's pretty easy and convenient to be so approving of taking away someone else's property and value as long as it's not yours.

The wheels fall right off the wagon don't they?

I do not support eminent domain. My house is about as far from the beach as you can go north and still be in Florida. I do not want to take anyone's property and do not support giving anyone the right to use public land without paying a franchise fee. I am in favor of purchasing every foot of beachfront that the county can reasonably purchase and using that land to build public access. I do believe that a narrow use of the white sand has existed for many, many years and that use allows the public to walk, fish and sunbathe there as has been done for years. We will see what the courts have to say. But I think graytonbeachguy has a point that the vast majority of beachfront owners knew what was customary on the beaches when they purchased their little piece of paradise.

Well, the Florida Supreme Court held in Tona-Rama that customary use is on a parcel-by-parcel basis and not subject to an ordinance like the BCC passed. If a person purchased a lot with a deed to the white sand portion and then kept people off of it the owner would have a good case that the use has not been without interruption.
Additionally, the customary use issue is not about local residents using the beaches. it is all about the developers and their need to screw the locals for short term $$$$$$$$. Just look at the money interests behind the better South Walton joke. If the BCC really wanted to help local residents they would enforce a strong land development code, disband the TDC and keep South Walton weird.

Well, the Florida Supreme Court held in Tona-Rama that customary use is on a parcel-by-parcel basis and not subject to an ordinance like the BCC passed. If a person purchased a lot with a deed to the white sand portion and then kept people off of it the owner would have a good case that the use has not been without interruption.
Additionally, the customary use issue is not about local residents using the beaches. it is all about the developers and their need to screw the locals for short term $$$$$$$$. Just look at the money interests behind the better South Walton joke. If the BCC really wanted to help local residents they would enforce a strong land development code, disband the TDC and keep South Walton weird.

Holy !

Love this post!

I do not support eminent domain. My house is about as far from the beach as you can go north and still be in Florida. I do not want to take anyone's property and do not support giving anyone the right to use public land without paying a franchise fee. I am in favor of purchasing every foot of beachfront that the county can reasonably purchase and using that land to build public access. I do believe that a narrow use of the white sand has existed for many, many years and that use allows the public to walk, fish and sunbathe there as has been done for years. We will see what the courts have to say. But I think graytonbeachguy has a point that the vast majority of beachfront owners knew what was customary on the beaches when they purchased their little piece of paradise.

Danny, I agree with about 90% of everything you say, but I think you have missed the mark on this one unless you just mean traversing.

Because the County is stuck on stupid. Not only are they allowed to consume 50% of public beaches, (prime real estate that the taxpayers helped spend millions of dollars on) but we give it to them pretty much at NO Charge!

Where else in the known world can someone set up a private business on millions of dollars worth of PUBLIC property for free?



Not gonna happen, not a big demand for property in NoWal and even less demand in Paxton.

As for Customary Use...lived in Texas most of younger days (South Padre Island specifically) and Texas doesn't have these issues mostly because it was decided long ago people could traverse the beach anywhere to the mean high tide line.

I am amazed at all the conflicts of interest the beach vendors are escaping without getting a scratch and the 7,000 parcels are projected to lose up to $2 Billion in value. Seems very unethical to me and it starts with the attorney's involved stating opinions they can't possibly back up. Both Davis and Theriaque...

I do not support eminent domain. My house is about as far from the beach as you can go north and still be in Florida. I do not want to take anyone's property and do not support giving anyone the right to use public land without paying a franchise fee. I am in favor of purchasing every foot of beachfront that the county can reasonably purchase and using that land to build public access. I do believe that a narrow use of the white sand has existed for many, many years and that use allows the public to walk, fish and sunbathe there as has been done for years. We will see what the courts have to say. But I think graytonbeachguy has a point that the vast majority of beachfront owners knew what was customary on the beaches when they purchased their little piece of paradise.

Again simply not true. Communities were developed on the concept of a private beach several decades ago. I.e; the original large parcels extended onto the beach to the MHWL. That's what a developer "bought" and then they sold lots and granted shared ownership of the beach property. The words on deeds and covenants were very clear --- "The developer dedicates the private beach area for the exclusive use of the owners of the lots." It was very specific and I would imagine in most cases - the county had to approve both the purchase and subdivision of these large parcels. All you have to do is pull the deeds and covenants from the clerk's office --- it's all out there and legal.

These were the very communities that put 30A and the beach "on the map". And what was one of the things that made these buyers of real estate pay huge sums of money for their lot? .... a private beach!!

The council should have read ... "The Rights of Property: a Refutation of Communism and Socialism"
By Louis Adolphe THIERS (President of the French Republic.) prior to voting.

The only situation you might have a point that property owners knew in advance ---- is where those who owned just to the dunes, applied for "quiet title" to get ownership to the MHWL without anyone noticing.

With all that's happened in the past several months with total disregard for private property rights, I thought I'd throw in a couple of observations.

I'm pretty sure that Customary Use does not give the county the right to nourish a beach without the private property owners' permission for a construction easement.

How soon we forget. In 2005 Walton fortified the western Walton and Okaloossa the eastern Destin private and public beaches. A few private property owners objected and did not sign easements to do the construction on their private property.
March 27, 2006 – Special/Regular Meeting Prepared by: Brook Spires, page 7
"Mr. Brad Pickel, Director of Beach Management, discussed the issues regarding the upcoming Western Walton County Beach Restoration Project. He stated that the project is going well and moving 300-400 feet per day. He requested the Board’s direction regarding three property owners who requested that the area of beach in front of their homes not be renourished. Mr. Pickel explained that the county’s options are to restore the entire beach [against the property owners wishes] or to bypass those homes. He explained that bypassing that area would create a low-lying area which would be prone to future damage. Attorney Hallman felt that the county would be subject to litigation regardless of the chosen action. He explained that the Board has the inherent police power to restore the entire beach, including those where owners are in objection. Mr. Pickel felt that it is in the county’s best interest to restore the entire span of beach.
Motion by Commissioner Cuchens, second by Commissioner Pridgen, to continue the restoration project including the areas where the property owners are in opposition. Ayes 5, Nays 0. Jones Aye, Meadows Aye, Pridgen Aye, Brannon Aye, and Cuchens Aye."

The BCC's intent and vote was to use police powers on properties without easements. I was told the BCC did not use police powers on the Walton properties without easements. Regardless Walton BCC voted to misuse their police power. Would this or future BCC do it again?

It's funny (not) to read this forum from 10 years ago with these same arguments, just different authors today, except a few like BlueMtnBeachVagrant that I read. I'm glad to see the minority beachfront owners speak up for their Constitutional rights against the majority who think that if they want something, they deserve it, and can have it, even if they haven't paid for it (by having all Walton tax payer$ litigate for it).

And Danny's, and others, economic impact argument is NOT a custom criteria to take private property rights. IMO it defeats the custom argument because historically one who claims custom on another's property can not profit (or take value from the owner) by the claimant's use of the property.

You are entitled to your opinion but not your own facts. The facts are customary use doctrine was ruled FLA Supreme court case Reynolds that it can only be applied on a case by case basis and on a particular piece of beach - meaning per property owner.

To clarify, about 20 years after Tona Rama in 1995 the Fla. 5th Dist Court of Appeals in Reynolds v. County if Volusia (Daytona Beach) [not the FSC] clarified the scope of the prior case, stating that courts must determine the degree of customary and ancient use that particular beaches have supported. Tona-Rama’s holding has, thus, been limited to the beach that was the subject of the original litigation; under Reynolds, the doctrine of custom must be applied on a case-by-case basis [by the Fla 5th DCA].

Tona-Rama, was a 1974 prescriptive easement case on 225 sq ft of commercial beachfront. Tona Rama wasn’t even a customary use case. The FL Supreme Court (FSC) took it upon themselves to apply custom to justify not removing an commercial observation tower on Daytona Beach, which was ordered by the lower court to be removed (but has since been abandoned and torn down as a danger to the public). IMO the FSC didn’t understand or negligently ignored the many hundreds of years of custom or the criteria to establish a custom and created a legal mess that resulted in Reynolds, 1995, and Trepanier, in 2007, having to clean up the FSC Tona-Rama mess. The best you can say about Tona Rama, IMO, is FSC did not dismiss custom out-right as a way to establish a right of local persons (not public) on local property (not county or state) that would be superior to the owners right of exclusion and a way to obtain use of the property (doesn't have to be beachfront) without paying for it; but it is rightly a very narrow and limited legal doctrine or what else could people claim custom on that they wanted without paying for it? The original Tana Rama observation tower did not stand the test of time and the Tona Rama FSC ruling should not either.

Well, the Florida Supreme Court held in Tona-Rama that customary use is on a parcel-by-parcel basis and not subject to an ordinance like the BCC passed. If a person purchased a lot with a deed to the white sand portion and then kept people off of it the owner would have a good case that the use has not been without interruption.
Additionally, the customary use issue is not about local residents using the beaches. it is all about the developers and their need to screw the locals for short term $$$$$$$$. Just look at the money interests behind the better South Walton joke. If the BCC really wanted to help local residents they would enforce a strong land development code, disband the TDC and keep South Walton weird.

If people understand the history of custom and Blackstone’s commentaries, that have been relied on by American courts; to say that the all persons have established a custom to use all privately owned (that owners pay taxes on the property) Walton beaches (or why not all FL beaches) is superior to Constitutional private property rights is disingenuous or ignorant. I just wish Danny, Dave R., and the commissioners had skin in the game and had to spend their own money to protect their property rights like beachfront owners have to. I wonder if Commissioners Chapman, Jones, Comander, Anderson, and Nipper would make the same decision if it was their personal money at risk? Since 1845, other than Tona-Rama, what other FL beach has custom not been overturned by the FL courts? None. FL history is no guarantee but is a good indicator. The BCC just has to spend all Walton taxpayers million$ to try.

..... I wonder if Commissioners Chapman, Jones, Comander, Anderson, and Nipper would make the same decision if it was their personal money at risk? Since 1845, other than Tona-Rama, what other FL beach has custom not been overturned by the FL courts? None. FL history is no guarantee but is a good indicator. The BCC just has to spend all Walton taxpayers million$ to try.

If you or I wanted to serve on the BCC, do you think there's any chance in hell that we could get elected without supporting Customary Use? We can blame the individual commissioners all day long (and we should) for this debacle. But in the end, the real blame should be directed at those who believe "what's theirs is ours" (majority of people) and then translate that to the so called political process by putting pressure on the commissioners. The Dave Rs among us are as much to blame if not more so.

How do you change the hearts and minds of your neighbors? Gulf-front owners are in the extreme minority and are of course repeatedly viewed as "rich, mean and greedy" by more than a few. It's dumb pigeon-holing to make one feel justified. Interestingly, as a nation, we don't tolerate persecution of any minority group by the majority under most all circumstances that I can think of. Yet, the BCC has just taken away beach front private property rights for the entire county without any due process or other supporting Florida Customary Use cases whatsoever.

The filed law suits will be a true and elemental test of our Constitution that protects private property rights that we ALL enjoy and cherish.

I propose that if Customary Use is defeated at the supreme court, that all Board members who voted for Customary Use and are still serving, resign their position immediately for allowing this bad decision to go as far as it has. If a commissioner can hide behind Customary Use to garner support and votes, then they should be the first to resign when it is defeated - a really simple method of them having "skin in the game".

Yea, I know....I can wish.

To clarify, about 20 years after Tona Rama in 1995 the Fla. 5th Dist Court of Appeals in Reynolds v. County if Volusia (Daytona Beach) [not the FSC] clarified the scope of the prior case, stating that courts must determine the degree of customary and ancient use that particular beaches have supported. Tona-Rama’s holding has, thus, been limited to the beach that was the subject of the original litigation; under Reynolds, the doctrine of custom must be applied on a case-by-case basis [by the Fla 5th DCA].

Tona-Rama, was a 1974 prescriptive easement case on 225 sq ft of commercial beachfront. Tona Rama wasn’t even a customary use case. The FL Supreme Court (FSC) took it upon themselves to apply custom to justify not removing an commercial observation tower on Daytona Beach, which was ordered by the lower court to be removed (but has since been abandoned and torn down as a danger to the public). IMO the FSC didn’t understand or negligently ignored the many hundreds of years of custom or the criteria to establish a custom and created a legal mess that resulted in Reynolds, 1995, and Trepanier, in 2007, having to clean up the FSC Tona-Rama mess. The best you can say about Tona Rama, IMO, is FSC did not dismiss custom out-right as a way to establish a right of local persons (not public) on local property (not county or state) that would be superior to the owners right of exclusion and a way to obtain use of the property (doesn't have to be beachfront) without paying for it; but it is rightly a very narrow and limited legal doctrine or what else could people claim custom on that they wanted without paying for it? The original Tana Rama observation tower did not stand the test of time and the Tona Rama FSC ruling should not either.

Thanks for the clarification and it's important. My point of course was about it being "case by case". It's also true that the hired attorney David Theriaque is the one who misleadingly used Tona-Rama to guide the BCC in their vote, I haven't found statements from Mark Davis to this effect but he certainly did not caution or clarify Tona-Rama or even mention Reynolds to the BCC to my knowledge in any public statements --- and it's not credible to believe Davis or Theriaque were not aware of Reynolds. I believe Theriaque should be brought up on professional conduct violations with the FLA Bar ("Misleading legal argument ...Truthfulness in statements to others") , the Bar states "...legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts" (he also misled the public at large) but that's another matter.

The FLA Attorney General's Advisory Legal Opinion on the very question of customary use:
Advisory Legal Opinion - AGO 2002-38
"In any particular case, however, whether this "customary right of use" exists in a particular piece of property is a mixed question of law and fact that must be resolved judicially. As the Fifth District Court of Appeal recently recognized in the case of Reynolds v. County of Volusia,[17] "[t]hat doctrine requires the courts to ascertain in each case the degree of customary and ancient use the beach has been subjected to and, in addition, to balance whether the proposed use of the land by the fee owners will interfere with such use enjoyed by the public in the past."[18] "

If I can find it with Google, then you would think the county attorney's would be well aware of it.

....If I can find it with Google, then you would think the county attorney's would be well aware of it

What attorney?