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COMMISSIONERS MAKE “FIRST SCRATCH” FOR CUSTOMARY USE

Feb 6th, 2009 | 0

By DOTTY NIST

The issue of public right to customary use of the beach is not a new one in Walton County, but county commissioners agreed last week that the time to begin to address it is now.
Customary use came to the forefront on Jan. 27, with a recommendation to the Walton County Board of County Commissioners (BCC) on behalf of the South Walton Tourist Development Council (TDC).
On Jan. 14, the TDC had approved the recommendation, which reads, “The TDC recommends to the Board of County Commissioners it ascertain the ancient customary uses the public has made of the beaches of Walton County which have been without interruption, reasonable, free from dispute, certain, obligatory and consistent with other customary uses and laws. It is further recommended that the Board of County Commissioners amend the Beach Activities Ordinance and the Comprehensive Plan to recognize the public’s right of customary use and describing the areas of the beaches where the uses may be enjoyed.”
Along with the recommendation was the note: “Examples of typical Customary Uses of the Beaches:  Swimming, fishing, walking, sunbathing with or without removable shade devices, playing games, picnicking, photographing, reading books and relaxing. All these uses must be done in accordance with the other provisions of the Beach Activities Ordinance and any other applicable local ordinances and state and federal statutes.”
Sonny Mares, TDC executive director, presented the TDC recommendation to the commissioners at their Jan. 27 meeting.
Mares told the commissioners that the request was in reaction to a ” very intrusive” trend along the beaches, of beachfront property owners putting up “private beach” signs prohibiting residents and visitors from coming onto some areas of the beach. He added that some of these owners have hired private security agencies to turn away people seeking to use the beach.
Mares warned that this beach privatization trend would harm tourism, especially since visitors renting non-beachfront accommodations depend on being able to access the beach for recreation.
Calling the matter “a very important issue,” District 3 Commissioner Larry Jones was of the opinion that the appropriate action would be to begin the investigative process for information to support a claim of customary use of the beach.
Mike Burke, county legal counsel, agreed that the place to start would be with the first part of the TDC recommendation, evaluating what claim the county could make to customary use of the beach and in what sections the claim could be made. This would likely be a lengthly process, he noted.
Not mentioned was a recent decision by the Florida Supreme Court in favor of the public’s right to the use of portions of the beach that have been reclaimed in large-scale beach nourishment projects. More than five miles of beach on the west end of Walton County fall within this category.
Jones made a motion to allow staff to work with the TDC to determine what evidence was available to support the right of customary use.
The motion was approved unanimously.
“You’re just asking us to gather evidence?’” Burke asked for purposes of clarification, with Jones responding in the affirmative.
“We’ve just made the first scratch,” District 4 Commissioner and Commission Chairwoman Sara Comander commented.
Nevertheless, Blue Mountain Beach beachfront homeowner Emmett Hildreth was livid about the decision, which he branded “premature.”
“Customary use has been clearly defined by the Supreme Court of Florida,” Hildreth complained. “It should not involve the county or the TDC,” he argued.
“Customary use goes absolutely against private property rights,” Hildreth continued, warning that establishing such use would devalue beachfront property and deter investors. When a beach house has title to the mean high water line, not only homebuyers but renters expect “a private beach,” Hildreth argued.
“It is evil and the cancer of socialism,” he said of the commission decision.
The Herald-Breeze consulted with Walton County Property Appraiser Patrick Pilcher on Jan. 28 regarding the argument that establishing the public right to customary use of the beach would devalue beachfront property.
Pilcher’s first reaction was that such a contention was “highly speculative.”
He explained that property appraisers are “historians, not forecasters,” and that property values are set through the appraisal method, by evaluating the selling price of comparable properties. The question, he said, would be whether a “marked decrease” in sales prices occurred in connection with properties upon which the right to customary use had been established. He was not aware of any areas where such an action by a local government had devalued property.
Pilcher brought up another aspect of beachfront property ownership that may have a bearing on the question. In Walton County, some beachfront lots are deeded to the mean high water line or the Gulf of Mexico, but in many instances deeding extends only to the bluff or dune line, he noted.
“I’ve never seen a difference in sales prices from one to the other;” Pilcher said, “people typically don’t worry about that.”

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