Judge sets Dec. 11 trial date for counterclaims in customary use lawsuit

COUNTERCLAIMS RELATED TO Walton County’s customary use lawsuit are set to be heard in Walton County Circuit Court in December 2023.


Walton County Circuit Court Judge David Green has set a Dec. 11 trial date for the only remaining claims against Walton County in connection with the county’s customary use lawsuit.

Judge Green, presiding judge in the case, set the schedule for the trial at a July 26 hearing in Walton County Circuit Court.

In the original lawsuit, in which Walton County had sought to affirm a right by the public to customary recreational use of the beach, 1,194 privately-owned beachfront parcels had been included, with hundreds of owners of those parcels having intervened in the lawsuit in opposition to the county effort.

In a partial final judgment approved by the court on June 30, Walton County had agreed to enter into a settlement agreement providing for limited public use of beach parcels with parties taking that option—and to dismiss other intervenors from the lawsuit without prejudice under certain conditions if the owners instead chose that option. Other intervening parcel owners have been dismissed with prejudice, meaning that the county would not be able to seek to affirm customary use on those parcels in court in the future.

In early July, Walton County had committed to filing court motions within 45 days aimed at “disposing of all matters” related to parcels on which the county seeks a determination of recreational customary use—and at dismissing any parcels not included in those motions, with the exception of one property for which a counterclaim is pending.

That remaining property is under the ownership of Lionel and Tammy Alford. The Miramar Beach beachfront property owners had opted to continue to trial rather than seeking dismissal from the case or entering into a settlement agreement with the county.

The Alfords had filed their counterclaim in April 2021. The counterclaim, together with challenging/denying that Walton County is entitled to a declaration of customary use on their property, also charges that Walton County’s customary use ordinance, which was in effect from April 1, 2017 until July 1, 2018, represented an unconstitutional temporary “taking” of the counterclaimants’ property without compensation. Payment for damages, attorney fees, and other costs are sought by the property owners in connection with the filing.

         In addition, with the counterclaim the Alfords are seeking a declaratory judgment that the Florida Supreme Court’s 1974 adoption of the doctrine of customary use was unconstitutional and that the doctrine is unconstitutionally vague and in violation of due process rights.

At the July 26, 2023, hearing in Walton County Circuit Court, Judge Green viewed a timeline for the “Alford portion” of the lawsuit that had been worked up by the property owners’ attorney, Kent Safriet, and Eric Krebs, who is serving as legal counsel for the county in connection with the counterclaim.

Judge Green called for the proposed timeline to be shortened. “We need to get this case resolved, and we need to get it resolved this year,” he told the attorneys.

Judge Green ruled for a revised timeline calling for discovery related to the counterclaim to be completed by Oct. 6, final witness and exhibit lists to be filed with the court by Dec. 1, and the trial to begin on Dec. 11.

It is anticipated that the trial will take two weeks.

Judge Green discussed with the attorneys the need for an additional trial on damages if at the Dec. 11 trial there is a finding of takings. Safriet estimated that the follow-up trial would take from several days to a week’s time. He envisioned the proceeding taking place in May 2024.

“I doubt I’ll let you put it off that long,” Judge Green responded, but he added that “we can wait” until after the Dec. 11 trial to schedule the damages portion of the counterclaim if there is a takings finding.

On July 28, Walton County filed an amended response to the Alfords’ counterclaim. Among arguments put forth were that the county’s enactment of the customary use ordinance did not eliminate all economically-beneficial use of the subject property and that the takings claims are barred by statute of limitations.