Story and photos by DOTTY NIST
-WALTON- Citizens attending a workshop on the issue of the public’s access to the beach overwhelmingly asked the county commission to confirm and ensure their ability to enjoy the beaches in Walton County.
Held at Emerald Coast Middle School on March 16, the Walton County Board of County Commissioners (BCC) workshop attracted an estimated 425 people, according to calculations by Walton County Public Information Director Louis Svehla.
The workshop was livestreamed on YouTube. As of the morning following the meeting, Svehla said that YouTube had reported 305 views.
All county commissioners were in attendance at the workshop with the exception of District 3 Commissioner Bill Imfeld, who was away in Washington, D.C., on behalf of the county.
Information on customary use
During the first part of the workshop, the commissioners and attendees heard from David Theriaque, an attorney with the Tallahassee-based Theriaque & Spain legal firm, on the topic of customary use, a.k.a, the Doctrine of Custom.
Included in Theriaque’s discussion was City of Daytona Beach v. Tona-Rama, Inc., (Tona-Rama for short), an important case decided by the Florida Supreme Court in 1974, in which the Florida Supreme Court concluded: “If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner. However, the owner may make any use of his property which is consistent with such public use and not calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area.”
He explained that customary use does not affect land ownership nor create interest or an easement in connection with the land in question. He also advised that customary use does not address how the person gets onto the beach.
Again quoting from the Tona-Rama decision, Theriaque read, “This right of customary use of the dry sand area of the beaches by the public does not create any interest in the land itself…The rights of the owner of the dry sand area may be compared to the rights of a part-owner of a land-locked nonnavigable lake…,” and “The general public may continue to use the dry sand area for their usual recreational activities, not because the public has any interest in the land itself, but because of a right gained through custom to use this particular area of the beach as they have without dispute and without interruption for many years.”
Turning to Trepanier v. County of Volusia, a Florida Fifth District Court of Appeals case, Theriaque noted that the 2007 decision on the case had expanded the doctrine of customary use by interpreting Tona-Rama to signify that, to be established, the historic use did not need to be specific to a parcel in question if located within the “general area” of the beach where the parcel is located.
Theriaque noted that other states and territories recognizing the Doctrine of Custom included Hawaii, Texas, Idaho, Rhode Island, and the Virgin Islands.
As a separate issue, he also discussed the economic impact of tourism in Walton County, which had been calculated at $2.9 billion in direct impact annually, with 19,500 jobs directly related to tourism.
“If the public doesn’t have the right to walk on the dry, sandy area, where are they going to go?” Theriaque asked, speaking particularly of tourists.
Public comment portion
Most of the remainder of the three-hour workshop consisted of comments from the public, with over 40 attendees coming forward one by one to address the commissioners. Opinions ran more than four to one in favor of confirming and protecting the public’s customary use of the beach.
Beach Highlands resident Celeste Cobena was the first to speak.
Cobena lamented that up until now the county commission had not taken a stand on customary use—and that over the last few years beachfront property owners had been using “various legal manoeuvres” to take ownership of the beach, then roping off the beach, and/or not letting people get on the beach.
Some but not all Walton County lots along the beach were originally deeded to the gulf or the Mean High Water Line (MHWL). Some were deeded adjacent to parcels designated as beachfront common areas for the subdivision. In recent years, some property owners in the latter situation have gone to court to obtain quiet title judgments that negated the common areas and extended the property owners’ deeds to the gulf.
In late 2015, some Beach Highlands beachfront property owners were successful with a quiet title procedure, and there had been concern in the community that the judgment would result in the closing down of two public beach accesses in the subdivision that are bordered by the newly-extended lots. The accesses remain open as of now.
However, in recent years in other areas there has been an increase in property owners, including resorts, condominiums, and individual homeowners, putting up “private beach” and “no trespassing signs,” sometimes accompanied by the roping or chaining off of property boundaries on beachfront parcels in some cases.
Cobena called for the BCC to “put forth a customary use ordinance that includes the dry, sandy part of the beach from the Mean High Water Line to either the toe of dune or the vegetation line…”
Calling this a “critical issue,” she acknowledged that this action would make some people unhappy but urged that it should be undertaken “for the good of all people.”
Walton County native Glenda Wood told the commissioners that her grandmother, who was born in 1876 would be “so sad and disappointed to know” that her grandson who had wanted to fish at Stallworth Beach Access had been intimidated by property owners. “When it comes right to it, customary use is for the people,” she said.
Tom McGee said he had brought the customary use issue to the attention of the Walton County Tourist Development Council (TDC) in 2009 and that hundreds of witnesses had been identified who could testify to the historic customary use of the beaches in Walton County. Such use goes back to the Indians, he told the commissioners.
McGee clarified that customary use includes walking, swimming, sunbathing, fishing, and games such as volleyball. He acknowledged that the Indians may not have played volleyball.
Jacquee Markel thanked the commissioners for taking up the issue. She called for a multi-pronged approach that would include a look at whether the land being transferred in the quiet title judgments is in fact available to the parties obtaining the decisions. She called for an effort to obtain for the public “every square inch” of beach to which they are entitled.
“Private beaches will kill Walton County,” warned Matthew Jones.
Paul Casarona, a longtime vacationer in Walton County and relatively new resident in Cassine Village, said he would not have vacationed in the county or bought property if there had been limited or no access to the beach.
Speaking in favor of confirming customary use, Seaside restaurateur and county resident Dave Rauschkolb also suggested acquisition by the county of more property for beach accesses.
Local realtor Garner Chandler told the commissioners that removing customary use would destroy businesses. She questioned how she could help a client buy a home if they would not know whether they would be able to use a beach nearby. She also called for a stop to the Walton County Sheriff’s Office being called to remove people walking on the beach or a family building a sand castle. “The signs and fences have got to go,” Chandler added.
Anita Page commented that customary use “is not a new right, it is an existing right.” She urged the BCC to clarify this and what uses are included by codifying customary use.
Amanda Schuette stated her support of customary use and, foreseeing a fight, told the commissioners, “Feel free to hire lawyers.”
Bob Dobes called for the property taken in quiet title judgments to be taken back by the county for the same amount of money that the property owners had paid to obtain the property, nothing.
Chandler Williams asked for fences and obstructions to be disallowed on the beach for environmental reasons. He also called for a look at the public’s cultural and heritage rights associated with the beach.
“I’m for a compromise,” said Beach Highlands property owner Dottie Culp. She suggested entry to the beach access in her neighborhood with cards issued to subdivision homeowners. She also urged for better promotion of Topsail Hill Preserve State Park.
Beachfront property owners provide input
Lisa Boushy, one of the Beach Highlands owners who had obtained the quiet title judgment, clarified that nothing had been closed off after the decision.
“Good stewards of the neighborhood beach are not a problem,” she said. She did have concerns about impacts of increase in tourism and about what customary use would include. Walking, fishing, and sunbathing may not be a problem, but vending and tents could be, Boushy commented.
A number of beachfront property owners were more critical of customary use.
Blue Mountain beachfront property owner Linda Hildreth asked that, if what Theriaque had said was true, why had the state not opened its beachfront parks to the public free of charge?
“Customary use is socialism,” charged Emmett Hildreth.
He said of the workshop, “This is being orchestrated by the board of county commissioners. Are you going to orchestrate a meeting opposed to customary use?”
Hildreth also suggested that if beachfront lots were going to be designated for customary use, that this be done with all lots throughout the county so that beachfront owners could “have a picnic” on those lots.
Fort Panic beachfront property owner Ed Goodwin gave the history of his property, which he said had formerly been government property homesteaded by an Eglin Air Force Base officer. He said he and his wife had maintained no trespassing under the law and— that what was being discussed was taking away their protection against trespassing.
He said he had no problem with people walking along the water line but that “they are not supposed to be coming up to our house.”
While acknowledging that the public has access seaward of the MHWL, Goodwin said that the MHWL lies in the gulf on his property.
Beachfront property owner Gary Drake called for respect for quiet enjoyment of their lots by property owners. Most do not have a problem with people walking or sitting quietly on the beach, he said, but expressed concern that customary use could mean beachgoers drinking and making disturbances. The public, Drake added, has access to the beach at three state parks in Walton County and nine regional beach accesses.
Kent Safriet, an attorney representing some beachfront property owners,
urged the commissioners to get a “neutral party” to advise them on customary use and “get the pros and cons.” He warned that approximately 1,110 property owners would have to be named in a lawsuit in order for customary use to be established.
Seacrest beachfront property owner Sharon Higgins said customary use made her laugh because it used to be that the only people customarily using property in her area had been nudists.
She said she had never told anyone that they could not go on the beach but that she had told people to leave if they were abusing the privilege of being there. She was concerned about liability associated with customary use.
The liability issue was responded to be Theriaque. He said that in his opinion it would only be incurred by a property owner being grossly negligent, for example digging a 10-foot-deep hole and not warning people about it.
A course of action
The commissioners thanked attendees for participating in the workshop.
County Commission Chair Sara Comander reminded those in attendance that the BCC could not take any vote since this was a workshop and not a regular meeting. She asked the other commissioners for their comments.
District 5 Commissioner Cindy Meadows said she would have questions for the attorneys on the quiet title issue and what the BCC’s options would be in that regard.
District 1 Commissioner Bill Chapman commented on the need for the commissioners to “be cognizant” of the effects of obstructions on the beach on wildlife such as beach mice and sea turtles.
District 2 Commissioner Cecilia Jones said she did not want attendees to leave the meeting without knowing her feelings.
“I believe in the public beaches…,” she said, “I believe…in the public’s right to access our beaches. I strongly support the commission moving forward with a position on this issue as soon as possible.”
Jones continued, “It’s time to make a decision…we don’t need to kick this can down the road any more. I believe in the residents of Walton County, and the private beach residents are part of that group. My desire is to find a solution.”
“If we can’t find a solution, we have to rely on judges to make these decisions for us.” Jones noted, “so, with that, I would like to, if my fellow commissioners would agree with me, I would like to direct staff to work with Mr. Theriaque in coming up with some kind of action, some kind of plan, to bring back to us, and please include those atrocious fences and those unsightly signs…”
“Aesthetically, we don’t need those ugly fences and we don’t need those no trespassing signs,” Jones concluded.
Addressing staff, Comander observed that they had the BCC’s direction. It was indicated that something in response would be presented to the BCC at its 9 a.m. March 22 regular meeting at the Walton County Courthouse.
Comander encouraged the citizens to attend that meeting.