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.