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

[Bob Wells]

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.

 

[twinbrew]

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.

 

[Dave Rauschkolb]

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

 

[FloridaBeachBum]

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.

 

[lazin&drinkin]

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.

 

[BlueMtnBeachVagrant]

....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.

 

[Shannon Lince]

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.