A few days before Walton County, Indian River County filed in court to affirm customary use on 22 beachfront properties using the process set up in FS 163.035. A trial on that case took place last month but no decision yet.
Walton County Customary Use in the News
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DeFuniak Herald/Beach Breeze Nov. 1, 2023
By DOTTY NIST
With the sun setting on Walton County’s court effort, ongoing for almost five years, to affirm a right by the public to customary recreational use of the beach, it appears that there has been a small win for customary use.
Walton County Circuit Court Judge David Green, presiding judge in Walton County customary use court complaint, issued an Oct. 26 order finding that Walton County had established the existence of a right by the public to use a portion of the beach on 95 privately-owned parcels for traversing and sitting on the beach.
The parcels in question were listed in motions for summary judgment that had been filed with the court, with the county’s most recent notice listing the parcels contained in the motions having been submitted on Oct. 25.
Parcels contained in the motions had previously numbered 192. Properties had been dismissed from the lawsuit and removed from the motions after objections on the part of some property owners and a ruling by Judge Green indicating that notification by Walton County had not been sufficient in instances of property owners who had acquired their parcels after the notification process at the start of the lawsuit.
With its original customary use court filing in December 2018, Walton County had sought to affirm a right by the public to customary recreational use on the dry sand area of all privately-owned beachfront parcels in the county, with the complaint applying to 1,194 properties. The lawsuit had been filed in line with the newly-created process contained in House Bill (HB) 631, legislation that had invalidated Walton County’s existing customary use ordinance, with the bill having been codified into law as Section 163.035 Florida Statutes.
Specific customary uses sought to be affirmed with the original lawsuit had included traversing the beach, sitting on the sand in a beach chair or on a towel or blanket, using an umbrella seven feet or less in diameter, sunbathing, picnicking, fishing, swimming, swimming or surfing off the beach, placement of surfing or fishing equipment, and “building sand creations.”
More than 500 property owners had opted to intervene in the lawsuit in opposition to the county effort.
After over four years of hearings, there had been a February 2023 decision by the Walton County Board of Commissioners (BCC) to have their legal team pursue a settlement of the lawsuit and avoid the case going to trial. Judging from limited public comments by the commissioners, interest in avoiding the high cost of a trial was a motivation for the decision, along with advice from legal counsel and the officials’ belief that the court system would not work in favor of their success with a trial.
In a partial settlement agreement approved by the court on June 30, 2023, several dozen parcel owners had signed on for dismissal with conditions for limited use of their property by the public during certain hours within a “Transitory Zone” (TZ) extending 20 feet landward of the wet-dry sand line. However, the vast majority of the parcels that had been part of the lawsuit were dismissed from the case by the county without the owners agreeing to the TZ or conditions for public use on the privately-owned portions of the lots.
In July 2023, Walton County had pledged in a letter to Judge Green to file court motions aimed at “disposing of all matters” related to parcels on which the county would seek a determination of recreational customary use—and at dismissing any parcels not included in the latter motions, with the exception of one property for which a counterclaim was pending. (The BCC recently voted to approve a settlement related to the latter property).
The 95 parcels coming before Judge Green in Walton County’s motions for summary judgment that were part of his Oct. 26 order were the only ones remaining at issue in the lawsuit. The owners of these properties had not intervened in the lawsuit or taken any other action regarding the lawsuit.
With the motions, the county sought an affirmation of only two customary uses, traversing the beach and sitting on the beach, with agreement by the county that the applicable portion of the beach would be as stated in the settlement agreement document (presumably 20 feet landward of the wet/dry sand line).
Section 163.035 Florida Statutes had set the requirement for, in order for local governments to affirm recreational customary use, evidence be provided to prove that the use has been ancient, reasonable, without interruption, and free from dispute. These were the standards set forth by the Florida Supreme Court for the doctrine of customary use in the landmark 1974 City of Daytona Beach v. Tona-Rama, Inc., decision.
In his Oct. 26 order, Judge Green found that the county had met requirements for granting of summary judgments by providing material for the record that could not be genuinely disputed to support assertions made. He also found that the county’s motions had cited “abundant evidence in support of its positions,” that the uses covered in the motions were ancient, reasonable, continuous, and free from dispute.
He noted that the county had cited in the motions affidavits and other evidence from witnesses describing uses of the beach areas over many year—and had argued without opposition that the evidence established that the use of the dry sand area on the beach parcels or in their general area had been for a period longer than any of the uses described in either the Tona-Rama decision or appellate briefs filed in the Supreme Court proceedings in that case.
Judge Green found that the customary use rights claimed—traversing and sitting on the beach—”are the most basic of uses for beachfront property and are very similar to the uses described in Tona-Rama.”
“The county argues that the requirement that the uses be reasonable has thus been established,” he noted.
Judge Green also found that evidence provided by the county showed “substantial proof of continuing use of the areas claimed for decades without interference, problems, or objection,” thus establishing the remaining two customary use elements of the use being without interruption and free from dispute.
In light of these findings, Judge Green directed that a proposed final judgment be prepared by the county’s legal counsel based on his order and circulated to the attorneys for all intervenors in the lawsuit.
“If no objections are received,” he wrote, “the final judgment, with any revisions made by the court, will be entered seven days after it has been sent by mail to intervenors’ counsel. If objections are received and cannot be resolved by the parties, then the court will consider the objections and prepare an appropriate final judgment.”
The parcels covered in Walton County’s motions are located in Grayton Beach (two parcels), Blue Mountain Beach (20 parcels), Santa Rosa Beach (seven parcels), Seacrest Beach (16 parcels), Seagrove Beach (19 parcels), Beach Highlands Beach (one parcel), Eastern Lake Beach (12 parcels), and Inlet Beach (18 parcels). Parcels numbers are provided in the county Oct. 25 court filing entitled “Walton County’s Third Amended Notice as to Remaining Parcels and Dismissed Parcels.”
Walton County had been one of the first counties to go to court on the basis of the process newly established in HB 631 and Section 163.035 Florida Statutes for affirmation of customary use. A final judgment carrying over from Judge Green’s Oct. 26 order would mark a successful navigation of that process by a local government and would likely serve as a precedent for similar efforts by other governmental entities.
Court finds that Walton County has proved customary use on 95 beach parcels
By DOTTY NIST
With the sun setting on Walton County’s court effort, ongoing for almost five years, to affirm a right by the public to customary recreational use of the beach, it appears that there has been a small win for customary use.
Walton County Circuit Court Judge David Green, presiding judge in Walton County customary use court complaint, issued an Oct. 26 order finding that Walton County had established the existence of a right by the public to use a portion of the beach on 95 privately-owned parcels for traversing and sitting on the beach.
The parcels in question were listed in motions for summary judgment that had been filed with the court, with the county’s most recent notice listing the parcels contained in the motions having been submitted on Oct. 25.
Parcels contained in the motions had previously numbered 192. Properties had been dismissed from the lawsuit and removed from the motions after objections on the part of some property owners and a ruling by Judge Green indicating that notification by Walton County had not been sufficient in instances of property owners who had acquired their parcels after the notification process at the start of the lawsuit.
With its original customary use court filing in December 2018, Walton County had sought to affirm a right by the public to customary recreational use on the dry sand area of all privately-owned beachfront parcels in the county, with the complaint applying to 1,194 properties. The lawsuit had been filed in line with the newly-created process contained in House Bill (HB) 631, legislation that had invalidated Walton County’s existing customary use ordinance, with the bill having been codified into law as Section 163.035 Florida Statutes.
Specific customary uses sought to be affirmed with the original lawsuit had included traversing the beach, sitting on the sand in a beach chair or on a towel or blanket, using an umbrella seven feet or less in diameter, sunbathing, picnicking, fishing, swimming, swimming or surfing off the beach, placement of surfing or fishing equipment, and “building sand creations.”
More than 500 property owners had opted to intervene in the lawsuit in opposition to the county effort.
After over four years of hearings, there had been a February 2023 decision by the Walton County Board of Commissioners (BCC) to have their legal team pursue a settlement of the lawsuit and avoid the case going to trial. Judging from limited public comments by the commissioners, interest in avoiding the high cost of a trial was a motivation for the decision, along with advice from legal counsel and the officials’ belief that the court system would not work in favor of their success with a trial.
In a partial settlement agreement approved by the court on June 30, 2023, several dozen parcel owners had signed on for dismissal with conditions for limited use of their property by the public during certain hours within a “Transitory Zone” (TZ) extending 20 feet landward of the wet-dry sand line. However, the vast majority of the parcels that had been part of the lawsuit were dismissed from the case by the county without the owners agreeing to the TZ or conditions for public use on the privately-owned portions of the lots.
In July 2023, Walton County had pledged in a letter to Judge Green to file court motions aimed at “disposing of all matters” related to parcels on which the county would seek a determination of recreational customary use—and at dismissing any parcels not included in the latter motions, with the exception of one property for which a counterclaim was pending. (The BCC recently voted to approve a settlement related to the latter property).
The 95 parcels coming before Judge Green in Walton County’s motions for summary judgment that were part of his Oct. 26 order were the only ones remaining at issue in the lawsuit. The owners of these properties had not intervened in the lawsuit or taken any other action regarding the lawsuit.
With the motions, the county sought an affirmation of only two customary uses, traversing the beach and sitting on the beach, with agreement by the county that the applicable portion of the beach would be as stated in the settlement agreement document (presumably 20 feet landward of the wet/dry sand line).
Section 163.035 Florida Statutes had set the requirement for, in order for local governments to affirm recreational customary use, evidence be provided to prove that the use has been ancient, reasonable, without interruption, and free from dispute. These were the standards set forth by the Florida Supreme Court for the doctrine of customary use in the landmark 1974 City of Daytona Beach v. Tona-Rama, Inc., decision.
In his Oct. 26 order, Judge Green found that the county had met requirements for granting of summary judgments by providing material for the record that could not be genuinely disputed to support assertions made. He also found that the county’s motions had cited “abundant evidence in support of its positions,” that the uses covered in the motions were ancient, reasonable, continuous, and free from dispute.
He noted that the county had cited in the motions affidavits and other evidence from witnesses describing uses of the beach areas over many year—and had argued without opposition that the evidence established that the use of the dry sand area on the beach parcels or in their general area had been for a period longer than any of the uses described in either the Tona-Rama decision or appellate briefs filed in the Supreme Court proceedings in that case.
Judge Green found that the customary use rights claimed—traversing and sitting on the beach—”are the most basic of uses for beachfront property and are very similar to the uses described in Tona-Rama.”
“The county argues that the requirement that the uses be reasonable has thus been established,” he noted.
Judge Green also found that evidence provided by the county showed “substantial proof of continuing use of the areas claimed for decades without interference, problems, or objection,” thus establishing the remaining two customary use elements of the use being without interruption and free from dispute.
In light of these findings, Judge Green directed that a proposed final judgment be prepared by the county’s legal counsel based on his order and circulated to the attorneys for all intervenors in the lawsuit.
“If no objections are received,” he wrote, “the final judgment, with any revisions made by the court, will be entered seven days after it has been sent by mail to intervenors’ counsel. If objections are received and cannot be resolved by the parties, then the court will consider the objections and prepare an appropriate final judgment.”
The parcels covered in Walton County’s motions are located in Grayton Beach (two parcels), Blue Mountain Beach (20 parcels), Santa Rosa Beach (seven parcels), Seacrest Beach (16 parcels), Seagrove Beach (19 parcels), Beach Highlands Beach (one parcel), Eastern Lake Beach (12 parcels), and Inlet Beach (18 parcels). Parcels numbers are provided in the county Oct. 25 court filing entitled “Walton County’s Third Amended Notice as to Remaining Parcels and Dismissed Parcels.”
Walton County had been one of the first counties to go to court on the basis of the process newly established in HB 631 and Section 163.035 Florida Statutes for affirmation of customary use. A final judgment carrying over from Judge Green’s Oct. 26 order would mark a successful navigation of that process by a local government and would likely serve as a precedent for similar efforts by other governmental entities.
11/9/2023 Order. "The Tona-Rama case nowhere defines ancient. The county argues, >>>without any opposition (the previous opposing memoranda having been withdrawn from consideration by agreement)<<< that the evidence establishes use of the dry sand area of the beach parcels or the general area in which they are located[1] for a period longer than any of the uses described in either the Tona-Roma decision itself or in the appellate briefs filed in the Supreme Court proceedings in that case, and that the uses must therefore necessarily be deemed to be of a duration sufficient to satisfy the requirement that the use be of ancient origin."
"No contrary evidence >>>having been provided to rebut<<< the showing made by the county, ..."
So Walton prevailed on 95 properties by uncontested legal default. Because many of the other hundreds of interveners, previously dismissed without-prejudice (customary use could be litigated again), objected to the Walton summary judgment, and were prepared to dispute CU "ancient" use and other criteria, were (prior to this order) BCC changed to dismissed with-prejudice (customary use can never be litigated by Walton again) along with the many hundreds of original interveners BCC dismissed with-prejudice, left only those 95 parcels (out of 1,194) that did not intervene or have legal representation to object to the summary judgment and "ancient" use, were then adjudged to have public customary use for traversing and sitting on those parcels by legal default. 95 CUs and a few public use agreements and over $8,000,000 of our tax payer money. Leaving law enforcement about 100 piano board of parcels to enforce to the Mean High Water Line (legally not wet sand) for high percentage of parcels east of Topsail State Park.
"No contrary evidence >>>having been provided to rebut<<< the showing made by the county, ..."
So Walton prevailed on 95 properties by uncontested legal default. Because many of the other hundreds of interveners, previously dismissed without-prejudice (customary use could be litigated again), objected to the Walton summary judgment, and were prepared to dispute CU "ancient" use and other criteria, were (prior to this order) BCC changed to dismissed with-prejudice (customary use can never be litigated by Walton again) along with the many hundreds of original interveners BCC dismissed with-prejudice, left only those 95 parcels (out of 1,194) that did not intervene or have legal representation to object to the summary judgment and "ancient" use, were then adjudged to have public customary use for traversing and sitting on those parcels by legal default. 95 CUs and a few public use agreements and over $8,000,000 of our tax payer money. Leaving law enforcement about 100 piano board of parcels to enforce to the Mean High Water Line (legally not wet sand) for high percentage of parcels east of Topsail State Park.
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Thank you for clarifying that. The title of the article, "Court finds that Walton County has proved customary use on 95 beach parcels", baffled me. It does not make any sense especially when one understands that...
"95 parcels (out of 1,194) did not intervene or have legal representation to object to the summary judgment and "ancient" use."
Walton County did not prove anything regarding customary use. Wait a minute... I'm wrong about that. What they did prove is that the county can steal private property rights from a citizen if one does not fight back with an attorney.
Everyone can thank Florida Beaches for All (including the founders), their followers and misguided commissioners, pandering to the majority of their constituents, for all the divisiveness and a total waste of tax payer's money.
None of you willingly show your faces in public, you're all greedy scum hiding behind lawyers. You'll reap what you've sown.
Matt J "It would also end the legally required maintenance from the aholes that used to own the one adjacent to the outfall."
Just the most recent examples Matt J has posted out of the 24,350 posts.
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For someone who violates these more than anyone that I've read. Hides their SoWal profile (BMBV does not) and name; you do not have much credibility. Wonder if SoWal moderator would allow what you post from BMBV?
What do you mean "You'll reap what you've sown"? Who will reap what, from whom, and what have "they" sown? Sounds like a threat from you to BMBV or beachfront owners to me.
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It means whatever I want it to mean and that definition is none of your business.
You're clutching your pearls too tightly, I think it's cutting off oxygen to your brain.
I have randomly ended up sitting a few seats from you at the bar at the Hurricane Oyster Bar & Grill. Does that count? But I do admit that I like hiding behind my mugs of beer when in public.
Anyone pushing people off the beach is not going to get any kindness on a forum with millions of beach lovers. Go somewhere else to kick sand in someone's face.
It's good to get a different perspective on customary use. You indicate above that "the county can steal private property rights from a citizen". Which private property rights are being stolen?