Officials unanimously approve beach customary use ordinance

DeFuniak Springs– An ordinance addressing the public’s right to the use of the sandy beaches in Walton County received unanimous approval by the county commission and got mixed reaction from constituents and property owners.
The public hearing on the ordinance kicked off the Oct. 25 Walton County Board of County Commissioners (BCC) regular meeting at the Walton County Courthouse in DeFuniak Springs.
Workshops and studies 
The topic had been on the front burner for the current BCC since mid-March, when the officials held a workshop on the topic at Emerald Coast Middle School attended by an estimated 425 people, the vast majority of whom had voiced support for customary use.
The following month, the BCC had voted to hire Tallahassee attorney David Theriaque to research, explore and analyze historical beach use data and determine the degree to which it would support a claim of customary use of the beaches in Walton County.
Six months later, at an Oct. 19 BCC workshop, Theriaque had introduced archaeological consultant James J. Miller, who summarized a 135-page research study he had been enlisted to assemble, entitled “The Historical Basis for Customary Use in Walton County Florida,”—and presented his findings that use of the beach in Walton County met the criteria for customary use. Established as part of Florida’s customary use doctrine in the 1974 City of Daytona Beach v. Tona Rama, Inc., lawsuit, the criteria include the use being ancient, without interruption, free of dispute, and reasonable.

The proposed customary use ordinance
On the agenda for the Oct. 25 BCC meeting was an ordinance “protecting the public’s long-standing customary use of the dry sand areas of the beaches,” stating, in part, that “the research and analysis of Dr. James Miller, as well as the testimony of citizens in Walton County, confirm that the doctrine of customary use has applied to all of the beaches in Walton County since before 1970….”
The proposed ordinance provided 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.
As proposed when the ordinance was first presented to the BCC for review on Oct. 19, the buffer zone had been set at 25 feet. However, as the ordinance was presented on Oct. 25, the buffer zone was specified as 15 feet.
The dry sand area of the beach was defined in the ordinance as, “the zone of unconsolidated material that extends landward from the mean high water line to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation, usually the effective limit of storm waves, whichever is more seaward.”
Permitted recreational activities stated to be permitted for members of the public on privately-owned dry sand areas of the beach were: “walking; jogging; sitting on the sand, in a beach chair, or on a beach towel or blanket; using a beach umbrella that is ten (10) feet or less in diameter; sunbathing; picnicking; fishing; playing beach games; building sand castles; and similar traditional recreational activities.”
Putting up of tents as defined in the Waterways and Beach Activities Ordinance was prohibited for members of the public on privately-owned dry sand areas of the beach, per the proposed ordinance.
Described as being “provided voluntarily and solely as an accommodation to the private property rights of those individuals who own property on which a portion of the dry sand areas of the beach is located,” the 15-foot buffer zone was to be observed by the public, per the ordinance, “except as is necessary to utilize an existing or future beach access point for ingress and egress to the beach.”
The ordinance provided for an violation of its provisions to constitute a civil infraction punishable by a fine not to exceed $500, with each day a violation occurs to represent a separate offense. “In addition,” the ordinance stated, “the County shall have the power to sue for relief in civil court to enforce the provisions of this Ordinance.”

Public comment and discussion
Public comment was taken at the meeting from all attendees who wished to speak. Beachfront property owner John Boushy was the first to speak, commenting on behalf of his wife Lisa Boushy who was not able to attend. Among her sentiments relayed was a desire for harmony in the community and for a committee to be created to formulate constructive suggestions and a plan that would provide for conflict to be avoided. Her offer to serve on the committee was also relayed.
Attorney Theriaque addressed two issues that had been brought up at the Aug. 19 workshop, which included potential liability to property owners associated with the public using the dry sand portion of their property and a potential “taking” situation associated with beachfront property owners not being able to exclude the public from the beach on their property.
He said his research had indicated that, absent any wanton negligence or willful misconduct, property owners would encounter no liability in connection with the use and that no duty would be imposed upon them to keep their property in a safe condition in order not to be subject to liability.
On the “taking” issue, Theriaque said the Oregon Supreme Court, in examining the same issue, had found that the “right to exclude” the public from the beach had not been among the “bundle of rights” that beachfront property owners had acquired along with their property, as customary use had essentially “preceded their ownership.”
District 2 Commissioner Cecilia Jones expressed agreement with Lisa Boushy’s suggestion for a committee to formulate recommendations on public beach use.
She clarified that this would not represent a compromise the position on customary use but would be aimed at achieving better dialog on the issue. “My goal is to see this community get along and not be divided,” Jones said.
BCC Chair Sara Comander agreed, saying that whether or not the ordinance was passed that day, she would like to see the committee created and would like to extend the effective date of the ordinance while the committee considers its recommendations.
Comander said she had heard from many beachfront owners who said they did not exclude anyone from the beach but were concerned about beachgoers leaving trash on the beach and making loud noise.
“I understand where they’re coming from,” she said.
Comander said she also understood the concerns of people who had been turned away from the beach when trying to enjoy it and had even been chased away with guns. She was hopeful of solutions “we can all live with.”
“Customary use really is a judicial doctrine,” Richard Brightman, an attorney representing approximately 20 beachfront property owners, told the commissioners. It is properly applied, he continued, by courts and not by county commissions. Brightman also warned of negative impacts on beachfront property values and therefore on the tax base with customary use in force.
Seagrove resident Richard Butela countered that the negative impact on property values would be more overall without customary use, since most people who use the beach do not live on the beach.
Eastern Lake resident and historian Brenda Rees spoke of her appreciation for Dr. Miller’s Oct. 19 presentation and on the importance of the history of Walton County. She emphasized the history of strong ties between north and south county over the years.
In response to a question from Max Watson, who had also attended the Oct. 19 BCC workshop, Walton County Attorney Mark Davis stated that the ordinance was not intended to affect private beach access points.
Nora Murphy, who manages three gulffront properties, said, “I just don’t think this is what we need to do,” speaking of the ordinance. She spoke in favor of the committee. Murphy expressed concern that a 15-foot buffer would not provide enough space for beachfront owners to sit on the beach along with the public use that would occur.
She warned of “legal battles” that would ensue if the ordinance were approved and added that she would like to see the BCC purchase more land for public use.
Speaking on his own behalf, John Boushy said “I think together we can solve almost any problem.”
He called Dr. Miller’s Oct. 19 presentation on customary use “excellent,” but also said it “reminded me of an Oliver Stone movie,” in being “pieced together” to cause one to draw a conclusion.
Boushy said he had found it interesting that the property developed as Seascape in the 1970s had been used as an example of uninterrupted public beach use over many years, when public use there, in his estimation, had been interrupted for a long time.
Robert Shelton, who said he was representing neighboring Surfside, agreed, also saying that Miller had done a good job with his report in establishing the public’s right to the use of private property. Shelton however wondered why the move to establish public use would be limited to private beachfront property and not extended by the same token to other property, for example the 15th hole of the golf course at Sandestin or the north shore. These remarks were made not in the sense of suggesting the latter but to call Miller’s findings into question.
Jack Hanes, president of the homeowners’ association for Sanctuary by the Sea, said he was “heartened” to hear of the committee which could look to find solutions. “Please do not pass this ordinance this morning,” he asked, warning that doing so would “poison” the committee’s efforts. “Give the compromise a chance,” Hanes requested. He warned that he would be on the phone with the association’s attorney if the ordinance were passed.
Julie Hilton, owner with her family of beachfront property eastern Walton County, said she was also heartened at the idea of a committee to help people come together and be “reasonable.”
Hilton told the commissioners that the ordinance would “take more rights” from property owners than would be the case with a beach nourishment project in the area. She also contended that the ordinance would give the public more rights to use the beach “than they have at public parks.” Hilton also joined others in warning that lawsuits would result “that will cost money to everyone.” She assured the commissioners that many owners “feel that this is so unjust.”
Area attorney Bruce Anderson advised the commissioners to consider why other counties have not approved customary use ordinances. He contended that there is no support for customary use in Florida law and warned that beachfront owners would be able to sue for “impact on their property” of the ordinance.
Beachfront property owner Beth Clay commented that since the time she and her husband purchased their property in 2002, they had seen respect for property rights erode continuously. She requested that the BCC make a statement that private property rights are supported. She was hopeful that a committee could reach a “reasonable solution.”

BCC comments and questions 
District 5 Commissioner Cindy Meadows commented that, from what she had been able to see, private ownership of many of the beachfront properties where there had once been public or common property adjacent to the beach had since been extended to the water by means of the owners using quiet title procedures. She recalled that attorney Steve Hall had been enlisted to research the situation and report on it to the BCC. Meadows emphasized that the information that Hall would provide would be important in this matter.
She was confused, she continued, to hear two commissioners calling for a committee on the issue when it was her understanding that the ordinance had been expedited to be heard at this particular meeting.
“I think if we don’t pass something, you can kiss the tourism business goodbye,” Meadows said.
Calling quiet title actions “just the tip of the iceberg,” Meadow also warned that the BCC failing to act would result in people from other areas of the county having “no place to go to the beach.”
“I can attest to that,” she said, “because I watched Palm Beach, I watched Miami Beach, I watched a lot of these exclusive beaches be shut down slowly but surely, one by one…”
“Nov. 7 will be my last meeting,” Meadows, who was not successful in the 2016 primary, noted. “I’m just putting my two cents in now,” she said.
Referring to public comments that the customary use question was for the courts to decide, District 1 Commissioner Bill Chapman asked Davis how one could get the courts to decide it without passing an ordinance.
Davis responded that the only other way would be for Walton County to file suit against all 900+ beachfront property owners in the county.
Chapman asked for more information on the proposed committee. Although he said he was willing to consider it, he expressed concern that putting off passing the ordinance to wait for committee recommendations could result in no action on customary use for six months or more.
Chapman asked about the reduction in the buffer area from 25 feet to 15 feet. Davis explained that it had been determined that, with current beach erosion, there would not be enough space in some areas to provide a 25-foot buffer and still have room for public beach use.
Davis was appreciative of the public comments that had indicated the need to clarify that the ordinance was not intended to affect private beach access points. He recommended, for clarification, adding the word “public” in front of “future beach access point” in the provision requiring the buffer to be observed “except as is necessary to utilize an existing or future beach access point for ingress and egress to the beach.”
In response to a question, Davis said it was his understanding that, due to the BCC moving forward with customary use, the Walton County Sheriff’s Office was not currently enforcing trespass on the beach.

Action on the ordinance and committee
After some additional discussion, Meadows noted that she had promised the people of Walton County that she would fight for their access to the beach. “I’m going to stick with my promises,” she said.
Meadows also observed that, with the BCC pursuing the ordinance she had seen some beachfront owners who had previously been excluding people from the beach “coming to the table.” She was of the opinion that adopting the ordinance would bring others to the table as well.
She moved for approval of the ordinance as written, with the buffer at 15 feet and with the addition of the word “public” as recommended by Davis, so that the BCC would have “something on record” as work continued to find solutions in the matter.
At the suggestion of Jones, Meadows also specified April 1 as the effective date for the ordinance.
Her motion was approved unanimously.
The vote was followed immediately by a motion by Jones to form the committee as discussed, with eight to 10 members and different viewpoints represented, to be tasked with coming up with suggestions and, if needed, changes to be applied to the ordinance.
Davis suggested a deadline of Nov. 7 for applications to be submitted, and Meadows suggested having prospective committee members apply on application forms already available for citizens interested in serving on county volunteer boards.
Jones’ motion was approved by unanimous vote, with committee workshops envisioned for January and February and final recommendations to be formulated in March, per BCC discussion.