Court order issued following Oct. 21 hearing on customary use complaint

A COURT ORDER issued on Oct. 25 has determined that Walton County Circuit Court has jurisdiction over the subject matter of Walton County’s Complaint for Declaration of Recreational Customary Use. The judge’s order also make the finding that Walton County had not met statutory requirements for notification of property owners who had not filed to intervene in the case.

By DOTTY NIST

An Oct. 25 court ruling has determined that Walton County Circuit Court has subject matter jurisdiction in Walton County’s Complaint for Declaration of Recreational Customary Use. However, according to the Oct. 25 order, Walton County has not met statutory requirements for notification of property owners who have not filed to intervene in the lawsuit.

Walton County Circuit Court Judge David Green issued the order four days after a hearing in which two motions were taken up. The two motions included a Motion to Determine Jurisdiction and to Extend Time that had been filed on Feb. 28 by George Mead, II, attorney, and a Defendants’ Motion to Stay and for Case Status Conference that had been filed on May 10 by attorney William Dunaway. Both attorneys represent beachfront property owners opposing the county filing, and other defendants had joined in the motions after they were filed.

In his motion, Mead, had asked the court to “determine whether subject matter jurisdiction exists” with regard to real property that is the subject of the complaint, and he argued at the hearing against the existence of subject matter jurisdiction in the case.

In his order, Judge Green ruled that the court has jurisdiction over the subject matter of the case “pursuant to the provisions of Section 163.035, Florida Statutes (2018) and Chapter 86, Florida Statutes (2018).”

Section 163.035 contains the provisions stemming from the customary use ordinance portion of the much-discussed House Bill (HB) 631. The section sets forth procedures to be used by local governments to affirm customary recreational use of the beach. Chapter 86, Florida Statutes deals with the jurisdiction of circuit and county courts and states, in part, “The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, statues, and other equitable or legal relations whether or not further relief is or could be claimed.”

Court jurisdiction over persons, their property and interest was another matter dealt with in the court order. This type of jurisdiction is established by service of process/notification.

Section 163.035 sets detailed, specific requirements for local governments to follow in connection with a notice of intent to file a complaint to affirm recreational customary use, and in connection with filing a complaint to affirm recreational customary use, with the same requirements applying for both, and with notification to be provided to owners of property subject to these actions.

At the Oct. 21 hearing, Walton County’s legal counsel had reported that there remained 39 beachfront property owners who had not moved to intervene in the action and for which the county had not received return receipts for the notice mailed out of the filing of the complaint. Walton County Attorney Sidney Noyes also stated that five of those 39 property owners had refused service of the mailing. The county representatives had argued that Walton County had gone “over and above” the notification requirements, with notices having been mailed out at least six times to each of the 39 remaining property owners and seven or eight times for some of those.

Dunaway had countered, “They have not met their statutory requirements.” He credited the county with being “diligent” but maintained that they had not been successful in providing notification to all parties, which, he argued, was what was legally required.

While determining that parties who had filed to intervene in the action without raising objection to the court’s jurisdiction had, in doing so, “waived any objections they might have had to the jurisdiction of the court over them,” Judge Green also made a finding that, “the notices provided to the owners who have not intervened in this action did not contain the information specifically required by statute.” He also observed that newspaper notices published about the complaint did not provide a date of receipt for the notice or final date for intervention and therefore did not meet a requirement for property owners to be given 45 days after they were notified to intervene in the case.

In summary, Judge Green concluded that the court does have subject matter jurisdiction, that the court has jurisdiction over the parties who had moved to intervene without challenging the court’s jurisdiction at the time the motions to intervene were filed, and that the court lacks jurisdiction over parties who had acted to challenge the court’s jurisdiction and who had taken no other action that would “submit them to the jurisdiction of the court.”

While the majority of the owners of the nearly 1,200 parcels that are the subject of the complaint have moved to intervene without challenging the court’s jurisdiction, hundreds of property owners would likely fall outside the court’s jurisdiction as a result of the court ruling.

The order also specified that an existing stay on the action/complaint would remain in effect at least until the next hearings in the case. These are scheduled to begin at 9 a.m. on Nov. 12.

An amended order was issued on Oct. 30 to correct a scrivener’s error in the Oct. 25 court order. This was followed by a corrected amended order issued on Nov. 4 to reverse an unintentional change to another part of the document that had accompanied the scrivener’s error correction in the Oct. 30 amended order.