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Walton County Customary Use in the News
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Court issues final judgment on customary use case, authorizes closing file on the caseBy DOTTY NIST
Walton County’s lengthy customary use of the beach court complaint has come to a close with a Feb. 15, 2024, final judgment, and the outcome of the case promises to be even more long lasting.
The lawsuit had been filed in Walton County Circuit Court over five years ago, in December 2018, with notification provided to owners of 1,194 beachfront parcels. The court filing had been in line with requirements for affirmation of recreational customary use of the beach that went into effect with House Bill 631, legislation which had also been interpreted as negating Walton County’s customary use ordinance.
Hundreds of parties, mainly beachfront property owners, had opted to intervene in the lawsuit in opposition to the county court effort.
The vast majority of the 1,194 parcels have been dismissed with prejudice (on a final basis) from the lawsuit, and the owners of a smaller number of parcels have agreed to a settlement agreement with the county providing for limited public use of those parcels during certain hours.
For 81 other parcels, the court has made a finding indicating that Walton County has been successful in affirming a right by the public to the customary uses of traversing the beach and sitting on the beach.
Walton County Circuit Court Judge David Green, presiding judge in the case, had been reluctant to put off the seven-week trial that had been set to begin on May 22, 2023. He had done so on May 15, 2023 at the request of Clay Adkinson, acting county attorney, who had asked for a continuance so that the county and intervening parties could pursue a settlement.
Walton County was able to avoid the trial through the dismissals, along with reaching a settlement agreement with some of the intervenors and the filing of motions for summary judgment regarding parcels that had not intervened while the litigation was pending.
The Feb. 15, 2024, final judgment issued by Judge Green dealt with those remaining parcels, the owners of which had not intervened in the lawsuit.
In the judgment, Judge Green granted eight motions for summary judgment filed by Walton County applying to specific parcels in the general beach areas of Grayton Beach, Blue Mountain Beach, Santa Rosa Beach, Seacrest Beach, Seagrove Beach, Beach Highlands Beach, Eastern Lake Beach, and Inlet Beach. There were a total of 81 parcels listed in the eight motions.
Judge Green made the finding that Walton County had “demonstrated the existence of customary use on the dry sand beach,” of the properties listed in the motions, for the uses of traversing/walking and sitting.
This was based on the court’s determination that the county had met the burden for the granting of summary judgment, with the court agreeing with the county’s contention that evidence presented had established the elements for customary use that had been adopted as standards in the landmark 1974 City of Daytona Beach v. Tona-Rama, Inc. decision. These elements are that the recreational use of the sandy area adjacent to the mean high tide has been ancient, reasonable, without interruption, and free from dispute.
In the final judgment, the court determined a limited right of customary use on the 81 parcels in line with conditions previously agreed to by the county in the partial settlement agreement document that had been signed by the judge in June 2023.
These conditions included a specific area for public use extending 20 feet landward of the wet-dry sand line (known as the Transitory Zone), the specific uses of walking, running, jogging, access to the wet sand for swimming, surfing, surf fishing, and skim boarding, sunbathing on the sand, a towel, or chair privately owned by the user, and hours for the public use beginning at 9 a.m. and extending to 4 p.m.
Additional terms state that the rights of beach parcel owners are “superior” to the general public’s rights in the Transitory Zone (TZ) and that sunbathing-related uses are only allowed when the property owner is “not actively using that area,” with other such use by the general public to be considered “an act of trespass.”
Other conditions provide for a property owner to exclude members of the public from the TZ who are “not respectfully conducting themselves…,” and set a maximum density of one member of the public per five feet of beach frontage.
The conditions of use for the 81 parcels are consistent with those for the several dozen properties who had previously entered into a settlement agreement with Walton County, as the settlement agreement document had pledged that, in seeking to establish customary use rights on parcels that had not intervened in the lawsuit, the county would be limited to establishment of such rights consistent and not greater than those provided for in specific sections of the settlement agreement.
The terms of the settlement agreement have already proved challenging, as the owners of a beachfront parcel on Eastern Lake who had entered into the agreement had recently filed a motion to withdraw, charging that Walton County had failed to enforce the terms of the agreement. On Feb. 27, the Walton County Board of County Commissioners voted to allow for the property owners to withdraw from the settlement agreement and be dismissed from the lawsuit without prejudice.
William J. Dunaway of the Clark Partington law firm, an attorney representing the Eastern Lake parcel owners and other beachfront property owners intervening in lawsuit, provided the following comment on Judge Green’s final judgment:
“The rule of law and the constitutional protections of private property were upheld by Judge Green’s Final Judgement. While the County sought in its years-long litigation to convert all private beach fronting property in Walton County to public use without compensation, Judge Green followed the law and ruled that no customary use exists on the private beach fronting properties that disputed the establishment of customary use. It was only on those isolated properties that did not dispute customary use that the County was able to show, without opposition, that the transitory use by the public was ancient, reasonable, without interruption, and free from dispute. Our clients are pleased that Judge Green’s rulings judicially establish that there is no customary use on their private property and they look forward to the County properly and promptly communicating this fact by signage and outreach to all beachgoers.”
As part of the communications referenced, the Walton County Tourism Department recently began circulating an interactive map aimed at distinguishing between dry sand sections of the beach that are open to public use and private beach areas. The map may be viewed online at the link: https://www.visitsouthwalton.com/beach-bay-access-locations/
The tourism department has also indicated plans to place signage along the showing usage for the various sections and including a QR code linking to the interactive map.
In all sections, beach areas seaward of the mean high water line—essentially the wet sand portions—are held in trust for the public based on the state constitution, as are beach areas seaward of the erosion control line that exists along much of the west end as the boundary between state sovereignty beachfront and upland property subject to private ownership.
The Surfrider Foundation is a nationwide non-profit organization dedicated to protection and enjoyment of the beaches, one of its missions being ensuring “full and fair” beach access. Staley Prom, senior legal associate for the foundation, provided the following comment from Surfrider about the final judgment:
“Surfrider is pleased that the court ruled correctly here, and agreed that the County plainly established that public use at these beaches has been ancient, reasonable, without interruption, and free from dispute. However, Surfrider remains concerned with the County’s prior settlement agreement, and is dismayed that the public’s customary access and recreational rights will be constrained by that agreement on these beaches. The public’s rights under the agreement are alarmingly more restrictive than the public’s historic use, and the agreement creates significant ambiguities.”
Judge Green, who served his last day in office before retirement on Feb. 29, 2024, on that day authorized the closing of the file on the customary use case by the Walton County Clerk of Courts, also noting that any party would be able to have the file re-opened “to request enforcement of the Settlement Agreement by the court.”
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Appeals court rules on Walton County beachfront properties from Gulf Shore Manor plat
April 10, 2024 Quinton News
A DEPICTION of the area of the 1925 Gulf Shore Manor plat containing properties which had been the subject of a 1978 declaration by the Walton County Board of County Commissioners. The declaration indicated that all property lying between the Gulf of Mexico and Blocks 17, 18, 19, and 20 of the subdivision, including a strip designated as “Gulf Shore Beach” and one designated as “Bathing Beach’” in the plat were “renounced and disclaimed” by the county. In recent years the declaration had played a key role with a Walton County Circuit Court ruling and with a November 2021 appeal of that ruling in the First District Court of Appeal (DCA). The appeals court recently affirmed the earlier Walton County Circuit Court ruling.
By DOTTY NIST
A First District Court of Appeal (DCA) ruling has upheld an August 2021 decision in Walton County Circuit Court involving beachfront lots contained in property originally platted in 1925 as the Seagrove-area Gulf Shore Manor subdivision in south Walton County. The properties had later been replatted as part of the Jasmine Dunes and Seawalk subdivisions.
In litigation during recent years, the lot owners have stated that their property had originally been identified on the Gulf Shore Manor plat as either “Gulf Shores Beach” or “Bathing beach.”
The properties had been among the 1,194 that had originally been included in Walton County’s customary use court complaint, through which the county had sought to affirm a right by the public to customary use of the dry sand beach area on all privately-owned property on the beachfront in Walton County.
In an August 2021 ruling and an earlier order, then-Walton County Circuit Court Judge David Green, presiding judge for the county’s customary use case, had found in favor of an argument by the owners of the Jasmine Dunes and Seawalk lots in question. The property owners had joined in a motion for summary judgment maintaining that in 1978 Walton County had abandoned customary use rights on the properties.
Judge Green’s August 2021 determination had been based on a March 28, 1978, resolution approved by the Walton County Board of County Commissioners (BCC) reading: “All property lying between the Gulf of Mexico and Blocks 17, 18, 19, and 20 of Gulf Shore Manor Subdivision, including strip designated as ‘Gulf Shore Beach’ and a strip designated as ‘Bathing Beach’ according to the plat of Gulf Shore Manor recorded in Deed Book 63 at Page 603, records of Walton County, Florida, and the same is hereby renounced and disclaimed.” (The resolution had not specifically referred to customary use.)
In the landmark 1974 City of Daytona Beach v. Tona-Rama (Tona-Rama) decision by the Florida Supreme Court, the court had introduced the doctrine of customary use, stating that recreational use by the public of the sandy area, “adjacent to mean high tide line,” on beachfront property should not be interfered with by an owner, on the four conditions that such use had been ancient, reasonable, without interruption, and free from dispute.
As part of his August 2021 order, Judge Green had ruled that any new claim by Walton to customary use rights after the 1978 resolution would have been barred by interruption of customary use due to the resolution—and also because any new claim of this nature could have begun no earlier than the date the resolution was passed. This would have meant that customary use could not have existed longer than for the period from 1978, the date of the resolution, to 2018 when Walton County filed the customary use court complaint.
Judge Green had found that a use over such a time period was “not sufficient in length,” to be deemed ancient. “Accordingly,” he wrote, “the county is also unable to prove the first element necessary for establishment of customary use rights, that of ancient use.”
However, Judge Green had declined in the August 2021 order to find the customary use doctrine as set forth by the Florida Supreme Court “void by vagueness,” as argued in a counterclaim by the Jasmine Dunes and Seawalk property owners. He had cited a prohibition contained in the Florida Supreme Court’s 1974 Gilliam v. Stewart ruling stating that “The constitution system of courts in this State contemplates that only the Supreme Court may overrule its own decisions.”
In November 2021, Walton County had filed an appeal of Judge Green’s decision on the Jasmine Dunes and Seawalk subdivision property owners’ motion for summary judgment to the First District Court of Appeal.
On Oct. 25, 2023, oral arguments in the appeal case had been presented in Tallahassee, with Adam Tanenbaum, Bradford Thomas, and M. Kemmerly Thomas, DCA judges, hearing the arguments.
At the Oct. 25 oral arguments, attorney David Theriaque had spoken on behalf of Walton County, noting that the appeal applied to just seven beachfront parcels in Walton County. He had maintained that the BCC’s adoption of the resolution in 1978 could not legally constitute an abandonment of the public’s right to customary use of the beach on the properties.
Speaking on behalf of the property owners, attorney Kent Safriet had continued with contentions related to the property owners’ counterclaim, which had been presented in a cross appeal to the DCA on behalf of the property owners.
Safriet had asked the appeals court to answer the question whether or not the discussion of customary use in Tona-Rama had been binding as a legal precedent. maintaining that the discussion had instead been “dicta,” or non-binding individual views by the author of the opinion. Safriet also asked for an answer to the question whether, if not dicta, customary use was unconstitutional either as a “taking” or a due process violation.
In a March 27, 2024, ruling, the three DCA judges concurred in simply affirming the lower court decision (Judge Green’s August 2021 order).
As of April 8, the DCA ruling was not final pending the disposition of any potential motion or motions for rehearing that may be filed with the appeals court in a timely manner.
Upon becoming final, the DCA ruling would dispose of the remaining parcels originally contained in the customary use lawsuit that had been awaiting a determination.
Walton County had opted to avoid the case going to trial—and had succeeded in doing so through a settlement, motions for summary judgment, and dismissals of the vast majority of the lawsuit parcels.
Of the original 1,194 parcels, several dozen had entered into agreements with the county providing for conditional public use within a Transitory Zone (TZ) extending 20 feet landward of the wet-dry sand line during the hours between 9 a.m. and 4 p.m. Those parcels had been dismissed with prejudice from the lawsuit, meaning that Walton County would not be allowed to bring them back before the court at a later date seeking to affirm customary use on the properties.
In a motion for summary judgment, Walton County had included 81 parcels whose owners had not opted to intervene in opposition to the county’s customary use affirmation effort as hundreds of other property owners had done. The county had asked for a customary use ruling on the 81 non-intervening parcels.
Judge Green had found that the county had met the burden of proof to affirm customary use on the 81 parcels.
Due to terms agreed to by Walton County as part of the settlement agreement document, which had been included with the Feb. 29, 2024, final judgment on the customary use case, the conditions applying to the parcels entering into the agreement for public use in the TZ are also to apply to the 81 parcels.
Apart from the 81 parcels and the few contained in the DCA appeal, prior to Judge Green having authorized the closing of the customary use case file on Feb. 29, 2024, Walton County had dismissed with prejudice (on a final basis) all parcels that had been part of the original customary use lawsuit. This had included parcels previously dismissed without prejudice.
The customary use case has now been reopened with the filing of several notices of appeal of the final judgment to the DCA. The appellants are property owners, with both Walton County and the several dozen settlement agreement property owners named as appellees in the notices.
As of April 8, no additional information on these new appeals was available.