Back to the drawing board for Walton Customary Use Ordinance

TOM McLAUGHLIN @TomMnwfdn

Walton County officials are taking an optimistic approach to a new law that, as of July 1, will wipe their Customary Use Ordinance off the books.

“As the legislature passed and the governor signed HB 631, a clear path was created to determine if the public has the right to recreationally use Florida beaches,” county spokesman Louis Svehla said in a Friday news release.

The “path” will be “lengthy and cumbersome,” the release noted. But “it provides the county with the opportunity to ‘have its day in court' as it presents all evidence and testimony in the appropriate proceeding, anticipating a favorable ruling which will solidify the public's right to use all the beaches of Walton County for recreational purposes.”

After spending much time, money and effort developing it, Walton County, in early 2016, rolled out its Customary Use Doctrine, the document on which county commissioners later relied to defend their decision to pass an ordinance opening “dry sand areas” of county beaches to the public.

The ordinance angered several of the many county residents who have built beachfront homes along Walton County’s 26 miles of coast and lawsuits were filed. In November of 2017, a Federal Court judge in Pensacola ruled the county had not overstepped its bounds by passing an ordinance, but that beach homeowners were entitled to “judicial review and a determination of the existence of customary use rights.”

This legislative session, a bill was introduced that sought to force county governments like Walton to defend its doctrine of customary use anytime a private homeowner questioned it. A compromise was reached before the bill was passed and signed by the governor, however, that will allow counties to create a single customary use policy and defend it just once in court.

Walton County commissioners have already instructed county staff to “begin the process laid out in the legislation to substantiate a customary use claim,” Friday’s news release said. “This will include the gathering of evidence and a public hearing to determine if such a claim is supported by substantial evidence and testimony.”

The testimony and evidence gathered will be presented to a judge, the release said.

“If the judge agrees with the county, the Customary Use Ordinance will be validated and take effect,” the release said. “If the judge disagrees, the ordinance will be null and void.”

Before the judge gets a look at the county’s argument for a customary use ordinance, county commissioners will be obligated to provide all property owners with proper notice of all proceedings and allow time for those wishing to do so to insert themselves into the customary use debate.

Walton County resident Don Riley said he worked with state lawmakers to help get the the customary use law passed. As a supporter of private property rights, he said he believes the Walton County Commission overstepped its bounds when it passed its Customary Use Ordinance, and believes the new law will make it more difficult for the county to do so in the future.

“The burden of proof for each parcel requires the county to prove each and every one of the elements of customary use to (a) judge’s satisfaction, failing any one of which customary use is denied for the parcel,” Riley said. “That was the law before the county’s legal action and it remains precisely that now that the law has passed.”

The county’s 14-page Customary Use Doctrine, produced by attorney David Theriaque, was created to provide the type evidence the county will bring before a judge, such evidence will be built upon as the county builds its customary use argument, Svehla said.

The doctrine’s core premise is that for as long as mankind has resided in coastal areas, the shoreline has been open to access by anyone. The doctrine leans heavily on the findings of a judge ruling in 1974 in the case of City of Dayton Beach v. Tona-Rama Inc.

“No part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches,” the ruling states. “And the right of the public of access to, and enjoyment of, Florida oceans and beaches has long been recognized by this court.”

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