Good and bad news: Recent federal and local customary use rulings could impact Walton County

DeFUNIAK SPRINGS — Walton County was dealt a blow late last week in its effort to have all 26 miles of its beaches declared open to the public by virtue of the doctrine of customary use.

But at the federal level, a ruling impacting customary use on Redington Beach in Pinellas County could prove crucial in ultimately advancing Walton County's cause. 

At least one and possibly as many as 20 private property parcels were removed from customary use consideration last week when Walton County Judge David Green ruled that the county itself had acted to disrupt the elements of "ancient" and "without interruption" needed to obtain a declaration of customary use.  

Green ruled in favor of a motion made by attorney Kent Safriet on behalf of N. Henry Davis.

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"These properties are out of the customary use case," Safriet said. "The judge said the county has abandoned all customary use claims in these areas."

The motion argued that Walton County had lost any right to claim customary use on the beaches behind Davis' Seagrove Beach home in 1978 when it passed a resolution "abandoning all claims of the public to any such portion of property landward of the mean high water line" in the Gulf Shore Manor neighborhood.

"The court finds that any customary use of Davis' property (and the adjoining property included in the county's 1978 resolution) was interrupted when the county abandoned the public's claim of any rights landward of the mean high-water line," Green said in his ruling.

According to customary use doctrine, a parcel of land must be used by the public for a period that is ancient, reasonable, without interruption and free from dispute to qualify as publicly accessed for time immemorial. The consequence of the county's resolution was "making it impossible for the county to prove the third element required to establish customary use of property," the judge wrote.

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He went further to state that even if he were to allow a new customary use claim on Davis' land, the 40 years that had passed between the time the county passed its resolution and filed its customary use lawsuit didn't qualify as ancient.

"Accordingly, the county is also unable to prove the first element necessary for establishment of customary use rights, that of ancient use," Green said in his ruling.

Green's declaration that 40 years couldn't be considered ancient established a benchmark in customary use law, according to Safriet.

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"In the larger scheme of things, ancient means longer than 40 years," he said. "We don't know how much longer."

Green's ruling was the most recent in a legal battle that began in December 2018 when Walton County, bound by a law that had gone into affect that July 1, filed a lawsuit to declare all of the dry sand areas of its beaches open to the public by virtue of customary use.

Owners of the majority of the 1,194 parcels of privately held county beachfront property signed on in opposition to the county's effort, and the case has been tied up in court ever since. 

Redington Beach

While Green's ruling could create a ripple effect in the local case, a ruling handed down Aug. 20 at the 11th Circuit U.S. Court of Appeals might impact the customary use issue in its entirety. 

The Georgia-based Circuit Court of Appeals, which falls one step below the U.S. Supreme Court in the judicial hierarchy, vacated a summary judgment at the U.S. District Court level which had upheld private property holder claims that the Town of Redington Beach's customary use ordinance violated Florida law and qualified as an unconstitutional "taking" under the U.S. Constitution.

"My reading is this is a positive decision for all those who support customary use anywhere," said Walton attorney and customary use advocate Daniel Uhlfelder. "I'm looking for something in this that might not be good for Walton County and I'm not finding it."

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Redington Beach had passed its customary use ordinance about three weeks before July 1, 2018, when a law that wiped Walton County's ordinance off the books took effect. 

The District Court said the Redington Beach ordinance was void under the law. It also rejected the town's customary use defense and said that enforcement of the ordinance constituted a "taking" of private property.

The Appeals Court said the town was within its rights to keep its customary use ordinance intact after July 1, 2018, and also was permitted to use it as an affirmative defense of customary use.

"A locality may raise an affirmative defense of customary use 'in any proceeding,' " the ruling said, quoting the law.

It also said the District Court had failed to give proper weight to evidence of customary use presented by Redington Beach. 

"Florida courts have long recognized the unique nature of its beaches," the ruling said, in noting cases in which that uniqueness was emphasized. The Appeals Court said Florida lawmakers also have recognized the importance of the state's beaches, citing a goal written into the state's comprehensive plan "to ensure the public's right to reasonable access to beaches."  

The Appeals Court implied the District Court had acted too hastily to disregard evidence the town had prepared in defense of customary use and declare summary judgment. It remanded that portion of the case back to the trial court for further consideration.

"You can't say that customary use has prevailed, but now there's certainly a strong argument that it will," Uhlfelder said. 

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Uhlfelder said evidence specifically cited by the Appeals Court as having value, items like maps showing a "general area" where beaches have been subject to customary use, the existence of public accesses and beach maintenance, even testimony from longtime residents, is all evidence Walton County's attorneys are using to help to prove their case. 

The 11th Circuit Court of Appeals also said in its ruling that Florida law recognizes customary use. That, Uhlfelder said, could be key in Walton County.

"One of the things we've been fighting in Walton County was whether we can even accept customary use as a recognized principle," he said. "This ruling makes it very clear that it is. It's a very powerful opinion to support customary use as a recognized principle under Florida law."

Safriet said he did not see the Circuit Court of Appeals ruling as overly impactful in Walton County's customary use battle.

The court did note a couple times in its ruling that the Redington Beach case is unique in several ways — while Walton County has 26 miles of beach, Redington Beach encompasses just 1.3 miles, 0.4 miles of which is land.

"The federal ruling was extremely limited to the facts of the Redington Beach case," Safriet said. "That case goes back to the trial court now to look at the facts, to take a look at whether they (the town) did establish customary use. The Court of Appeals just kind of punted them back to the same posture we're in."