By DOTTY NIST
Walton County, FLA —— Beachfront property owners who had sued Walton County in federal court over its ordinance banning unpermitted obstructions on the beach such as ropes, chains, signs, and fences, have filed new motions in the case.
Among other requests, they have asked the court for a stay on discovery proceedings in connection with common law customary right issues until the court resolves the property owners’ claims against another ordinance, the customary use ordinance approved by Walton County on Oct. 25. The latter ordinance is scheduled to take effect on April 1, 2017. The ordinance banning unpermitted obstructions on the beach stated that it applied to the beach as defined as “the soft sandy portion of land lying seaward of the seawall or the line of permanent dune vegetation.”
The plaintiffs, Ed and Delanie Goodwin, owners of beachfront property at Fort Panic in south Walton County, had filed their lawsuit in July 18, soon after Walton County approved the ordinance disallowing beach obstructions.
The litigation was in the form of a civil rights lawsuit. It alleged that the county ordinance prevented beachfront owners from using signs to convey messages, including those indicating property boundaries and private ownership—and that the ordinance therefore impeded signs as “a medium of speech.” As such, the property owners maintained, the ordinance “violates the First Amendment on its face.” They asked the court to bar enforcement of the ordinance, among other requests.
In an August 15 response, Walton County argued that the property owners’ case was not “about” free speech but was instead a disguised property rights position aimed at securing “a beachhead against the potential determination that the public has gained the right of use of the subject beach through the Customary Use doctrine.”
The county further stated that the ordinance did not interfere with the property owners’ ability to “display on their property any message they like in any manner they like, even using signs, so long as they comport with the restriction as to location.” Signs, according to the county response, “are implicated only to the extent that they constitute an obstruction on the beach.”
In an Aug. 19 order, M. Casey Rodgers, chief United States District judge and presiding judge in the case, ordered an evidentiary hearing, observing, in part that, “If a public use custom is established, the property owner does not have the right to interfere with the public’s right of use and enjoyment…and thus the Plaintiffs’ alternative means of communication, i.e., placing signs on the remainder of their property, would be adequate.”
Adding that the “custom and use doctrine requires a fact-intensive inquiry that must be determined on a fully developed record,” Judge Rodgers stated that this issue would “decide the merits of the suit.”
She ordered thus proceeding with the trial on its merits, with it to be consolidated with a hearing on the preliminary injunction sought by the plaintiffs.
The Goodwins were allowed to amend their original complaint to include both the obstruction and customary use ordinances. On Nov. 14 they filed a motion requesting an injunction against the recently-approved customary use ordinance, arguing that it represented a “taking” of their property.
The customary use ordinance provides for public “at large” to utilize the dry sand areas of the beach without interference for traditional recreational activities—with the exception of a buffer zone to be set aside at a distance seaward of the toe of the dune, or at the same distance from any privately-owned permanent habitable structure on or adjacent to the dry sand areas of the beach, whichever is more seaward.
The Nov. 14 motion was followed the next day by a motion by the Goodwins for a stay of discovery proceedings in connection with common law customary right uses of the beach until their taking claims in connection with the customary use ordinance had been resolved.
In the latest filing, on Nov. 21, Walton County responded to the plaintiffs amended complaint, asking the court to grant a motion requiring a “more definite statement” from the plaintiffs, calling the complaint: “a vague, ambiguous, incoherent jumble.”