Customary Use Will Happen On Sowal Beaches

[John G]

Well, the Florida Supreme Court held in Tona-Rama that customary use is on a parcel-by-parcel basis and not subject to an ordinance like the BCC passed. If a person purchased a lot with a deed to the white sand portion and then kept people off of it the owner would have a good case that the use has not been without interruption.
Additionally, the customary use issue is not about local residents using the beaches. it is all about the developers and their need to screw the locals for short term $$$$$$$$. Just look at the money interests behind the better South Walton joke. If the BCC really wanted to help local residents they would enforce a strong land development code, disband the TDC and keep South Walton weird.

Holy !

Love this post!

 

[FactorFiction]

I do not support eminent domain. My house is about as far from the beach as you can go north and still be in Florida. I do not want to take anyone's property and do not support giving anyone the right to use public land without paying a franchise fee. I am in favor of purchasing every foot of beachfront that the county can reasonably purchase and using that land to build public access. I do believe that a narrow use of the white sand has existed for many, many years and that use allows the public to walk, fish and sunbathe there as has been done for years. We will see what the courts have to say. But I think graytonbeachguy has a point that the vast majority of beachfront owners knew what was customary on the beaches when they purchased their little piece of paradise.

Danny, I agree with about 90% of everything you say, but I think you have missed the mark on this one unless you just mean traversing.

 

[formosa64]

Because the County is stuck on stupid. Not only are they allowed to consume 50% of public beaches, (prime real estate that the taxpayers helped spend millions of dollars on) but we give it to them pretty much at NO Charge!

Where else in the known world can someone set up a private business on millions of dollars worth of PUBLIC property for free?



Not gonna happen, not a big demand for property in NoWal and even less demand in Paxton.

As for Customary Use...lived in Texas most of younger days (South Padre Island specifically) and Texas doesn't have these issues mostly because it was decided long ago people could traverse the beach anywhere to the mean high tide line.

I am amazed at all the conflicts of interest the beach vendors are escaping without getting a scratch and the 7,000 parcels are projected to lose up to $2 Billion in value. Seems very unethical to me and it starts with the attorney's involved stating opinions they can't possibly back up. Both Davis and Theriaque...

I do not support eminent domain. My house is about as far from the beach as you can go north and still be in Florida. I do not want to take anyone's property and do not support giving anyone the right to use public land without paying a franchise fee. I am in favor of purchasing every foot of beachfront that the county can reasonably purchase and using that land to build public access. I do believe that a narrow use of the white sand has existed for many, many years and that use allows the public to walk, fish and sunbathe there as has been done for years. We will see what the courts have to say. But I think graytonbeachguy has a point that the vast majority of beachfront owners knew what was customary on the beaches when they purchased their little piece of paradise.

Again simply not true. Communities were developed on the concept of a private beach several decades ago. I.e; the original large parcels extended onto the beach to the MHWL. That's what a developer "bought" and then they sold lots and granted shared ownership of the beach property. The words on deeds and covenants were very clear --- "The developer dedicates the private beach area for the exclusive use of the owners of the lots." It was very specific and I would imagine in most cases - the county had to approve both the purchase and subdivision of these large parcels. All you have to do is pull the deeds and covenants from the clerk's office --- it's all out there and legal.

These were the very communities that put 30A and the beach "on the map". And what was one of the things that made these buyers of real estate pay huge sums of money for their lot? .... a private beach!!

The council should have read ... "The Rights of Property: a Refutation of Communism and Socialism"
By Louis Adolphe THIERS (President of the French Republic.) prior to voting.

The only situation you might have a point that property owners knew in advance ---- is where those who owned just to the dunes, applied for "quiet title" to get ownership to the MHWL without anyone noticing.

 

[FloridaBeachBum]

With all that's happened in the past several months with total disregard for private property rights, I thought I'd throw in a couple of observations.

I'm pretty sure that Customary Use does not give the county the right to nourish a beach without the private property owners' permission for a construction easement.

How soon we forget. In 2005 Walton fortified the western Walton and Okaloossa the eastern Destin private and public beaches. A few private property owners objected and did not sign easements to do the construction on their private property.
March 27, 2006 – Special/Regular Meeting Prepared by: Brook Spires, page 7
"Mr. Brad Pickel, Director of Beach Management, discussed the issues regarding the upcoming Western Walton County Beach Restoration Project. He stated that the project is going well and moving 300-400 feet per day. He requested the Board’s direction regarding three property owners who requested that the area of beach in front of their homes not be renourished. Mr. Pickel explained that the county’s options are to restore the entire beach [against the property owners wishes] or to bypass those homes. He explained that bypassing that area would create a low-lying area which would be prone to future damage. Attorney Hallman felt that the county would be subject to litigation regardless of the chosen action. He explained that the Board has the inherent police power to restore the entire beach, including those where owners are in objection. Mr. Pickel felt that it is in the county’s best interest to restore the entire span of beach.
Motion by Commissioner Cuchens, second by Commissioner Pridgen, to continue the restoration project including the areas where the property owners are in opposition. Ayes 5, Nays 0. Jones Aye, Meadows Aye, Pridgen Aye, Brannon Aye, and Cuchens Aye."

The BCC's intent and vote was to use police powers on properties without easements. I was told the BCC did not use police powers on the Walton properties without easements. Regardless Walton BCC voted to misuse their police power. Would this or future BCC do it again?

 

[FloridaBeachBum]

It's funny (not) to read this forum from 10 years ago with these same arguments, just different authors today, except a few like BlueMtnBeachVagrant that I read. I'm glad to see the minority beachfront owners speak up for their Constitutional rights against the majority who think that if they want something, they deserve it, and can have it, even if they haven't paid for it (by having all Walton tax payer$ litigate for it).

And Danny's, and others, economic impact argument is NOT a custom criteria to take private property rights. IMO it defeats the custom argument because historically one who claims custom on another's property can not profit (or take value from the owner) by the claimant's use of the property.

 

[FloridaBeachBum]

You are entitled to your opinion but not your own facts. The facts are customary use doctrine was ruled FLA Supreme court case Reynolds that it can only be applied on a case by case basis and on a particular piece of beach - meaning per property owner.

To clarify, about 20 years after Tona Rama in 1995 the Fla. 5th Dist Court of Appeals in Reynolds v. County if Volusia (Daytona Beach) [not the FSC] clarified the scope of the prior case, stating that courts must determine the degree of customary and ancient use that particular beaches have supported. Tona-Rama’s holding has, thus, been limited to the beach that was the subject of the original litigation; under Reynolds, the doctrine of custom must be applied on a case-by-case basis [by the Fla 5th DCA].

Tona-Rama, was a 1974 prescriptive easement case on 225 sq ft of commercial beachfront. Tona Rama wasn’t even a customary use case. The FL Supreme Court (FSC) took it upon themselves to apply custom to justify not removing an commercial observation tower on Daytona Beach, which was ordered by the lower court to be removed (but has since been abandoned and torn down as a danger to the public). IMO the FSC didn’t understand or negligently ignored the many hundreds of years of custom or the criteria to establish a custom and created a legal mess that resulted in Reynolds, 1995, and Trepanier, in 2007, having to clean up the FSC Tona-Rama mess. The best you can say about Tona Rama, IMO, is FSC did not dismiss custom out-right as a way to establish a right of local persons (not public) on local property (not county or state) that would be superior to the owners right of exclusion and a way to obtain use of the property (doesn't have to be beachfront) without paying for it; but it is rightly a very narrow and limited legal doctrine or what else could people claim custom on that they wanted without paying for it? The original Tana Rama observation tower did not stand the test of time and the Tona Rama FSC ruling should not either.

 

[FloridaBeachBum]

Well, the Florida Supreme Court held in Tona-Rama that customary use is on a parcel-by-parcel basis and not subject to an ordinance like the BCC passed. If a person purchased a lot with a deed to the white sand portion and then kept people off of it the owner would have a good case that the use has not been without interruption.
Additionally, the customary use issue is not about local residents using the beaches. it is all about the developers and their need to screw the locals for short term $$$$$$$$. Just look at the money interests behind the better South Walton joke. If the BCC really wanted to help local residents they would enforce a strong land development code, disband the TDC and keep South Walton weird.

If people understand the history of custom and Blackstone’s commentaries, that have been relied on by American courts; to say that the all persons have established a custom to use all privately owned (that owners pay taxes on the property) Walton beaches (or why not all FL beaches) is superior to Constitutional private property rights is disingenuous or ignorant. I just wish Danny, Dave R., and the commissioners had skin in the game and had to spend their own money to protect their property rights like beachfront owners have to. I wonder if Commissioners Chapman, Jones, Comander, Anderson, and Nipper would make the same decision if it was their personal money at risk? Since 1845, other than Tona-Rama, what other FL beach has custom not been overturned by the FL courts? None. FL history is no guarantee but is a good indicator. The BCC just has to spend all Walton taxpayers million$ to try.

 

[BlueMtnBeachVagrant]

..... I wonder if Commissioners Chapman, Jones, Comander, Anderson, and Nipper would make the same decision if it was their personal money at risk? Since 1845, other than Tona-Rama, what other FL beach has custom not been overturned by the FL courts? None. FL history is no guarantee but is a good indicator. The BCC just has to spend all Walton taxpayers million$ to try.

If you or I wanted to serve on the BCC, do you think there's any chance in hell that we could get elected without supporting Customary Use? We can blame the individual commissioners all day long (and we should) for this debacle. But in the end, the real blame should be directed at those who believe "what's theirs is ours" (majority of people) and then translate that to the so called political process by putting pressure on the commissioners. The Dave Rs among us are as much to blame if not more so.

How do you change the hearts and minds of your neighbors? Gulf-front owners are in the extreme minority and are of course repeatedly viewed as "rich, mean and greedy" by more than a few. It's dumb pigeon-holing to make one feel justified. Interestingly, as a nation, we don't tolerate persecution of any minority group by the majority under most all circumstances that I can think of. Yet, the BCC has just taken away beach front private property rights for the entire county without any due process or other supporting Florida Customary Use cases whatsoever.

The filed law suits will be a true and elemental test of our Constitution that protects private property rights that we ALL enjoy and cherish.

I propose that if Customary Use is defeated at the supreme court, that all Board members who voted for Customary Use and are still serving, resign their position immediately for allowing this bad decision to go as far as it has. If a commissioner can hide behind Customary Use to garner support and votes, then they should be the first to resign when it is defeated - a really simple method of them having "skin in the game".

Yea, I know....I can wish.

 

[formosa64]

To clarify, about 20 years after Tona Rama in 1995 the Fla. 5th Dist Court of Appeals in Reynolds v. County if Volusia (Daytona Beach) [not the FSC] clarified the scope of the prior case, stating that courts must determine the degree of customary and ancient use that particular beaches have supported. Tona-Rama’s holding has, thus, been limited to the beach that was the subject of the original litigation; under Reynolds, the doctrine of custom must be applied on a case-by-case basis [by the Fla 5th DCA].

Tona-Rama, was a 1974 prescriptive easement case on 225 sq ft of commercial beachfront. Tona Rama wasn’t even a customary use case. The FL Supreme Court (FSC) took it upon themselves to apply custom to justify not removing an commercial observation tower on Daytona Beach, which was ordered by the lower court to be removed (but has since been abandoned and torn down as a danger to the public). IMO the FSC didn’t understand or negligently ignored the many hundreds of years of custom or the criteria to establish a custom and created a legal mess that resulted in Reynolds, 1995, and Trepanier, in 2007, having to clean up the FSC Tona-Rama mess. The best you can say about Tona Rama, IMO, is FSC did not dismiss custom out-right as a way to establish a right of local persons (not public) on local property (not county or state) that would be superior to the owners right of exclusion and a way to obtain use of the property (doesn't have to be beachfront) without paying for it; but it is rightly a very narrow and limited legal doctrine or what else could people claim custom on that they wanted without paying for it? The original Tana Rama observation tower did not stand the test of time and the Tona Rama FSC ruling should not either.

Thanks for the clarification and it's important. My point of course was about it being "case by case". It's also true that the hired attorney David Theriaque is the one who misleadingly used Tona-Rama to guide the BCC in their vote, I haven't found statements from Mark Davis to this effect but he certainly did not caution or clarify Tona-Rama or even mention Reynolds to the BCC to my knowledge in any public statements --- and it's not credible to believe Davis or Theriaque were not aware of Reynolds. I believe Theriaque should be brought up on professional conduct violations with the FLA Bar ("Misleading legal argument ...Truthfulness in statements to others") , the Bar states "...legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts" (he also misled the public at large) but that's another matter.

 

[formosa64]

The FLA Attorney General's Advisory Legal Opinion on the very question of customary use:
Advisory Legal Opinion - AGO 2002-38
"In any particular case, however, whether this "customary right of use" exists in a particular piece of property is a mixed question of law and fact that must be resolved judicially. As the Fifth District Court of Appeal recently recognized in the case of Reynolds v. County of Volusia,[17] "[t]hat doctrine requires the courts to ascertain in each case the degree of customary and ancient use the beach has been subjected to and, in addition, to balance whether the proposed use of the land by the fee owners will interfere with such use enjoyed by the public in the past."[18] "

If I can find it with Google, then you would think the county attorney's would be well aware of it.