Walton County Beach customary use ordinance adopted Oct. 25

Archaeologist presents evidence of customary use of the beaches in Walton County, citizens address officials


South Walton beaches by Gary Woodham.
  South Walton beaches by Gary Woodham.


Archaeological consultant James J. Miller, Ph.D., presented evidence on Oct. 19 of the existence of customary use of the beaches in Walton County, after which the Walton County Board of County Commissioners (BCC) took public comment on the matter.
This was at a public workshop devoted to the topic and held at the South Walton Annex.
Educated at Florida State University, Duke University, and the University of Pensacola and with degrees in both anthropology and planning, Miller served as state archaeologist for Florida from 1987 until 2003. Currently he provides specialized consulting services in archaeology, historic preservation and heritage planning.
In introducing Miller, Walton County legal consultant David Theriaque noted that the purpose of the workshop was for Miller to present his research and for public comment related to the research to be taken. He indicated that comments on the county’s proposed customary use ordinance would be taken at the BCC meeting on Oct. 25.
However, many of the public comments did relate to the ordinance, which provides for the protection of “the public’s long-standing customary use of the dry sand areas all of the beaches in the County for recreational purposes,” with the applicable area defined 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.”
Recreational activities permitted on privately-owned property subject to customary use per the ordinance would be walking, jogging, sitting on the sand in a beach chair or on a beach towel or blanket, using beach umbrellas, sunbathing, shell collecting, picnicking, fishing, throwing a Frisbee, building sand castles, and “similar traditional recreational activities.”
The ordinance provides for a voluntary agreement for the public not to utilize a 25-foot buffer zone around permanent or residential structures “except as is necessary to utilize an existing or future beach access point for ingress and egress to the beach.”

Miller’s presentation

Miller outlined the elements of customary use, that the use was ancient, without interruption, free from dispute and reasonable.
He spoke about materials used for his study, among those articles, studies, public records, interviews with longtime community residents, photographs, maps, videos, which were organized into a chronological narrative of beach use in Walton County, with the study area being the area south of the bay.
Archaeological site information from the Florida Department of State from 5,000 years ago to 500 years ago demonstrated that use of the beach “has been ancient,” Miller commented, displaying a map of recorded Native American archaeological sites on the beach in what is now Walton County.
Florida became a state in 1845, he noted, with U.S. government surveys, the first step toward private land ownership, beginning in 1849.
From 1893 to 1956, government patent deeds issued by the U.S. Bureau of Land Management represented the first conveyance of property to private ownership, Miller explained, with 4,417 acres in the study area conveyed in 120 beachfront deeds. By 1929, 95.2 percent of coastal patented land had been conveyed out of U.S. government ownership through 66 patent deeds, he reported.
Miller spoke of Grayton Beach, the first subdivision in Walton County, and other subdivisions, along with 63 newspaper articles from the DeFuniak Herald and the Pensacola Journal from 1906 to 1954. The articles he called “an amazingly real body of evidence” of beach use by nearly 1,000 persons and of related cultural patterns of the time. Beach use was revealed to be “such a trend and important way of life in this area,” he noted, not only for residents of this part of Florida but also for south Alabama residents.
Other evidence presented included aerial photographs from the state Department of Transportation, the University of Florida, and the U.S. Geological Survey from the period between 1941 and 1985 showing land use and development, beach paths used for beach access, and dirt roads and trails leading to the beach, along with cars parked near paths.
Miller provided a lengthy list of documented uses of the beach, from launching canoes, riding horses, driving on the beach, dancing on a beach pavilion, to fishing, picnicking, swimming, sunbathing, walking on the beach, enjoying bonfires, and spending time friends and family.
He said he got the sense that the beach in Walton County “is a place where you pass on your family oral traditions” and learn as a young person the values of your family and how to get along with others.
It was Miller’s finding that use of the beach in Walton County was not only ancient but without interruption, with historical research from the first private ownership in the 1890s to the 1990s revealing no interruption in the right of use or exercise of use of the beach.
He also reported that all long-time residents and visitors interviewed had indicated that there had never been any objection to or restriction of beach use, or dispute in connection with that use except for during the past 10 years.
Regarding the last criterion, whether the use is reasonable, Miller stated that, based on historical research and the aforementioned interviews, use of the beach is “a normal and expected human activity,” that is appropriate both to the character of the land and the traditions of the community.
“Visiting the beach was universally viewed as a healthful, enjoyable, and relaxing experience,” Miller concluded.

Public comment

With more than two dozen people addressing the commissioners at the workshop, most being county residents and property owners, opinions were almost evenly divided between supporters and opponents of customary use.
The first speaker, Beverly Humphries of Beachfront Trail, maintained that the only customary use had been “by trespassers.”
Bob Gelardi, a beachfront property owner since 1992, commented, “We don’t need Margaret Mead to analyze something,” and urged the commissioners to protect beachfront owners’ rights to their private property.
Beachfront Trail resident Kristen Nostrand told the commissioners that all the activities described could take place seaward of the mean high water line (MHWL) and asked that they discontinue their effort with regard to customary use north of that line. She said of beach access, “The access is still available,” stating that beachfront owners are willing to share use of the beach with the public seaward of the MHWL.
“How many miles of public beach already exist in Walton County?” asked Jack Hanes, president of the homeowners’ association for Sanctuary by the Sea. He pledged that the 85 owners in his association would fight customary use in court and urged the BCC, instead of pursuing customary use, purchase additional beachfront property and “make it public.”
“Money spent protecting freedom is always well spent,” Eastern Lake resident Ed Billeaud told the commissioners.
He said he and his wife had owned their home on the lake for 20 years and had always been able to use the beach without interference until recent years. “The trend is clear,” he said, for beachfront owners to continue barring others from using the beach. Misbehavior of some beachgoers should be addressed, he urged, adding, “That’s not a reason to block everyone from the beach.”
Billeaud said he could not understand why anyone would want to live on the beach if they were opposed to traditional beach activities which were existing there.
Richard Brightman, an attorney representing over 20 property owners, told the commissioners that what Miller had presented “is not evidence in a court of law.” He called the proposed ordinance a “short cut,” while if pursuing this matter the BCC should go to court, proceeding parcel by parcel, and let the court decide. “The right thing to do is protect property rights,” Brightman said, met with loud applause.
Brenda Rich, who said her family has been in Walton County since 1954, told the commissioners, “My entire life I have used Blue Mountain Beach.” She was of the opinion that Florida was “a little late” in taking up the doctrine of customary use, which, she noted has been used in Oregon and Hawaii, with New Jersey and Texas using the public trust doctrine to address the public’s right to use the beach.
“You have beaches, that’s what you advertise,” she reminded the commissioners.
Bill Hackmeyer of Vizcaya countered that the states mentioned “are all socialist states.” “Florida is not a socialist state,” he asserted, calling customary use a taking of private property.
“I would think you would work with us instead of fighting us,” he told the commissioners, speaking of beachfront owners.
“I believe that the beaches do belong for the public’s use,” said Garner Chandler. She said she had heard of people being kicked off the beach by property owners “for very benign activity.”
“I strongly urge you to pass the customary use ordinance,” Chandler said.
Blue Mountain Beach resident Michael Sturdivant also thanked the commissioners for taking up the customary use issue. He observed that people living in the north end of the county need to be able to get to the beach and use it. He encouraged the BCC to “stay with” the issue.
Walton County native Brenda Rees also urged the commissioners to “stay the course.”
Representing the homeowners’ association at One Seagrove Place, Jim Bagby asked the commissioners to “take a breath on this issue.”
Most beachfront property owners, he contended, are not bad people and don’t mind the public walking on the beach or sitting to watch a sunset. “Their big problem is people who behave badly on the beach,” Bagby explained. With that solved, there would be no problem and no need for a customary use ordinance, he reasoned.
“There’s more questions than there are answers right now,” Bagby added.
“Everyone has their position, but it can be worked out,” said beachfront property owner Maddie Savoie, who expressed concern about the enforcement of the buffer zone in the proposed ordinance and about her liability with regard to the public on her property.
Grayton Beach property owner Scott Covell echoed previous comments with the observation that there could be “a more palatable way to go about this.” He was not aware of any beachfront owner in his community who had impeded anyone from using the beach.
Beachfront property owner John Boushy found some of the arguments that had been presented for customary use to be false. He said beachfront owners had stated that they were not trying to restrict beach access but that there is a problem with many ordinances not being enforced on the beach. “There has to be a solution that is more mutual,” he told the commissioners, offering to help find one that works both for beachfront owners and the public.
Lisa Boushy spoke in support of a committee, possibly composed of citizens on both sides of the issue. She suggested that the BCC get input from people who would like to help.
The workshop concluded with BCC Chair Sara Comander commenting that the commissioners would be looking at the customary use ordinance draft at their Oct. 25 regular meeting.
The ordinance and Miller’s presentation may be viewed online on the Walton County website, www.co.walton.fl.us under the heading “Government,” by selecting, “Agendas & Minutes,” then “Agendas, Minutes and Live and Archived Meeting Videos…” and clicking on “Agenda” corresponding with the date of the meeting, 10/19/16.
ADDENDUM: At the Oct. 25 meeting of the BCC, on a motion made by Commissioner Cindy Meadows, the board voted unanimously to adopt the ordinance, with two changes. First was a reduction of the “buffer zone” from 25 feet to 15 feet. Second was a clarification of “future beach access” to mean “public beach access.” The ordinance will be effective as of April 1, 2017.
Also passed unanimously was a motion to form a citizens committee to discuss beach use and formulate recommendations for possible revisions to the ordinance.
The Herald Breeze will have further details in next week’s edition.