Customary use wins in Federal Court!
- Thread starter Matt J
- Start date
-
Trouble logging in? Send us a message with your username and/or email address for help.
I know you said it was a guess as to the next step.
So do you guys think the next step for the losing party would be the U.S. Supreme Court?
Also, whatever happened to the federal case where the constitutionality of customary use was being challenged? I honestly thought that was going to tank CU once and for all.
I don't know if it matters, but being that Rick Scott's house in Naples is next to a Collier County public beach access, perhaps that had something to do with his actions.
(Public info) Rick Scott's house in Naples, FL
If the beaches were already public next to Rick Scott's house as you state, then what would Rick Scott have to gain by signing 2018 HB631? It was not going to reverse the existing public beaches in Naples back to private.
BTW, you responded to the previous post where it was claimed that Rick Scott introduced the bill. That is simply not true.
After the bill passed by an OVERWHELMING MAJORITY in the house (95 Y - 17 N or 85% in favor of) AND in the senate (29 Y - 7 N or 80% in favor of), Rick Scott simply signed it. It would have been political suicide, in my opinion, for him to have opposed it after such a convincing vote.
Click here to see the bill's history. You might find it interesting to click on the Analysis tab.
All the CU people were constantly looking for someone to blame:
Mike Huckabee and his so called connections
Rick Scott
Property owners stealing beach via quiet title (amazing how this myth still floats around)
Old greedy white men with lots of money and powerful lawyers
But in the end, all the bill did was force the issue into court where it belonged as opposed to the county passing customary use with absolutely NO DUE PROCESS and completely undermining private property rights. Customary Use is not just claimed. It has to be proven in court. And, BTW, it was supposed to be proven on a parcel by parcel basis. I never understood how the county tried to convert over 1000 parcels into just 5 "defendants".
BUT....
The question still remains (and why I jumped into this thread), why did the county throw in the towel just before the trial was to start?
Any theories?
That's cool - that would be like waving a magic wand. He needs to change "30A" to "South Walton" to keep consistent with the story of customary use because that was what the area is historically known as before it was corrupted by private beaches, branding, over development and politics...kind of exposes he's a newcomer.
Last edited by a moderator:
I LIKE JOEL!!!
The statute cited:
163.035 Establishment of recreational customary use.—
(1) DEFINITION.—The term “governmental entity” includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority.
(2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE.—A governmental entity may not adopt or keep in effect an ordinance or rule that finds, determines, relies on, or is based upon customary use of any portion of a beach above the mean high-water line, as defined in s. 177.27, unless such ordinance or rule is based on a judicial declaration affirming recreational customary use on such beach.
(3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON PRIVATE PROPERTY; JUDICIAL DETERMINATION.—A governmental entity that seeks to affirm the existence of a recreational customary use on private property must follow the procedures set forth in this subsection.
(a) Notice.—The governing board of a governmental entity must, at a public hearing, adopt a formal notice of intent to affirm the existence of a recreational customary use on private property. The notice of intent must specifically identify the following:
1. The specific parcels of property, or the specific portions thereof, upon which a customary use affirmation is sought;
2. The detailed, specific, and individual use or uses of the parcels of property to which a customary use affirmation is sought; and
3. Each source of evidence that the governmental entity would rely upon to prove a recreational customary use has been ancient, reasonable, without interruption, and free from dispute.
The governmental entity must provide notice of the public hearing to the owner of each parcel of property subject to the notice of intent at the address reflected in the county property appraiser’s records no later than 30 days before the public meeting. Such notice must be provided by certified mail with return receipt requested, publication in a newspaper of general circulation in the area where the parcels of property are located, and posting on the governmental entity’s website.
(b) Judicial determination.—
1. Within 60 days after the adoption of the notice of intent at the public hearing, the governmental entity must file a Complaint for Declaration of Recreational Customary Use with the circuit court in the county in which the properties subject to the notice of intent are located. The governmental entity must provide notice of the filing of the complaint to the owner of each parcel of property subject to the complaint in the same manner as is required for the notice of intent in paragraph (a). The notice must allow the owner receiving the notice to intervene in the proceeding within 45 days after receiving the notice. The governmental entity must provide verification of the service of the notice to the property owners required in this paragraph to the court so that the court may establish a schedule for the judicial proceedings.
2. All proceedings under this paragraph shall be de novo. The court must determine whether the evidence presented demonstrates that the recreational customary use for the use or uses identified in the notice of intent have been ancient, reasonable, without interruption, and free from dispute. There is no presumption regarding the existence of a recreational customary use with respect to any parcel of property, and the governmental entity has the burden of proof to show that a recreational customary use exists. An owner of a parcel of property that is subject to the complaint has the right to intervene as a party defendant in such proceeding.
(4) APPLICABILITY.—This section does not apply to a governmental entity with an ordinance or rule that was adopted and in effect on or before January 1, 2016, and does not deprive a governmental entity from raising customary use as an affirmative defense in any proceeding challenging an ordinance or rule adopted before July 1, 2018.
History.—s. 10, ch. 2018-94.
163.035 Establishment of recreational customary use.—
(1) DEFINITION.—The term “governmental entity” includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority.
(2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE.—A governmental entity may not adopt or keep in effect an ordinance or rule that finds, determines, relies on, or is based upon customary use of any portion of a beach above the mean high-water line, as defined in s. 177.27, unless such ordinance or rule is based on a judicial declaration affirming recreational customary use on such beach.
(3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON PRIVATE PROPERTY; JUDICIAL DETERMINATION.—A governmental entity that seeks to affirm the existence of a recreational customary use on private property must follow the procedures set forth in this subsection.
(a) Notice.—The governing board of a governmental entity must, at a public hearing, adopt a formal notice of intent to affirm the existence of a recreational customary use on private property. The notice of intent must specifically identify the following:
1. The specific parcels of property, or the specific portions thereof, upon which a customary use affirmation is sought;
2. The detailed, specific, and individual use or uses of the parcels of property to which a customary use affirmation is sought; and
3. Each source of evidence that the governmental entity would rely upon to prove a recreational customary use has been ancient, reasonable, without interruption, and free from dispute.
The governmental entity must provide notice of the public hearing to the owner of each parcel of property subject to the notice of intent at the address reflected in the county property appraiser’s records no later than 30 days before the public meeting. Such notice must be provided by certified mail with return receipt requested, publication in a newspaper of general circulation in the area where the parcels of property are located, and posting on the governmental entity’s website.
(b) Judicial determination.—
1. Within 60 days after the adoption of the notice of intent at the public hearing, the governmental entity must file a Complaint for Declaration of Recreational Customary Use with the circuit court in the county in which the properties subject to the notice of intent are located. The governmental entity must provide notice of the filing of the complaint to the owner of each parcel of property subject to the complaint in the same manner as is required for the notice of intent in paragraph (a). The notice must allow the owner receiving the notice to intervene in the proceeding within 45 days after receiving the notice. The governmental entity must provide verification of the service of the notice to the property owners required in this paragraph to the court so that the court may establish a schedule for the judicial proceedings.
2. All proceedings under this paragraph shall be de novo. The court must determine whether the evidence presented demonstrates that the recreational customary use for the use or uses identified in the notice of intent have been ancient, reasonable, without interruption, and free from dispute. There is no presumption regarding the existence of a recreational customary use with respect to any parcel of property, and the governmental entity has the burden of proof to show that a recreational customary use exists. An owner of a parcel of property that is subject to the complaint has the right to intervene as a party defendant in such proceeding.
(4) APPLICABILITY.—This section does not apply to a governmental entity with an ordinance or rule that was adopted and in effect on or before January 1, 2016, and does not deprive a governmental entity from raising customary use as an affirmative defense in any proceeding challenging an ordinance or rule adopted before July 1, 2018.
History.—s. 10, ch. 2018-94.
