Governor Signs Bill Voiding Walton County’s Customary Use Ordinance

Governor Signs Bill Voiding Walton County’s Customary Use Ordinance

Governor Signs Bill Voiding Walton County’s Customary Use Ordinance

William J. Dunaway

On March 23, Governor Scott signed Senate / House Bill 631.   The new legislation has the effect of voiding Walton County’s Customary Use Ordinance.  The new State law lays out very specific procedures that a county must follow if the county desires to seek to have a court judicially recognize a right of the public to use a certain area of the beach based on customary use.  Beachfront landowners who have a deed showing the southern boundary of their property as the mean high-water line who have questions or concerns about the new customary use ordinance or their property rights can contact me with any questions.  The new law provides:

Section 10.  Section 163.035, Florida Statutes, is created to read:

163.035 Establishment of recreational customary use. –

(1) DEFINITION. – The term “governmental entity” includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority.

(2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE. – A governmental entity may not adopt or keep in effect an ordinance or rule that finds, determines, relies on, or is based upon customary use of any portion of a beach above the mean high-water line, as defined in s. 177.27, unless such ordinance or rule is based on a judicial declaration affirming recreational customary use on such beach.

(3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON PRIVATE PROPERTY; JUDICIAL DETERMINATION –  A governmental entity that seeks to affirm the existence of a recreational customary use on private property must follow the procedures set forth in this subsection.

(a)     Notice. – The governing board of a governmental entity must, at a public hearing, adopt a formal notice of intent to affirm the existence of a recreational customary use on private property.  The notice of intent must specifically identify the following:

(1)     The specific parcels of property, or the specific portions thereof, upon which a customary use affirmation is sought;

(2)     The detailed, specific, and individual use or uses of the parcels of property to which a customary use affirmation is sought; and

(3)     Each source of evidence that the governmental entity would rely upon to prove a recreational customary use has been ancient, reasonable, without interruption, and free from dispute.

The governmental entity must provide notice of the public hearing to the owner of each parcel of property subject to the notice of intent at the address reflected in the county property appraiser’s records no later than 30 days before the public meeting.  Such notice must be provided by certified mail with return receipt requested, publication in a newspaper of general circulation in the area where the parcels of property are located, and posting on the governmental entity’s website.

(b)     Judicial determination. –

  1. Within 60 days after the adoption of the notice of intent at the public hearing, the governmental entity must file a Complaint for Declaration of Recreational Customary Use with the circuit court in the county in which the properties subject to the notice of intent are located.  The governmental entity must provide notice of the filing of the complaint to the owner of each parcel of property subject to the complaint in the same manner as is required for the notice of intent in paragraph (a).  The notice must allow the owner receiving the notice to intervene in the proceeding within 45 days after receiving the notice.  The governmental entity must provide verification of the service of the notice to the property owners required in this paragraph to the court so that the court may establish a schedule for the judicial proceedings.
  2. All proceedings under this paragraph shall be de novo.  The court must determine whether the evidence presented demonstrates that the recreational customary use for the use or uses identified in the notice of intent have been ancient, reasonable, without interruption, and free from dispute.  There is no presumption regarding the existence of a recreational customary use with respect to any parcel of property, and the governmental entity has the burden of proof to show that a recreational customary use exists.  An owner of a parcel of property that is subject to the complaint has the right to intervene as a party defendant in such proceeding.
  3. APPLICABILITY. – This section does not apply to a governmental entity with an ordinance or rule that was adopted and in effect on or before January 1, 2016, and does not deprive a governmental entity from raising customary use as an affirmative defense in any proceeding challenging an ordinance or rule adopted before July 1, 2018.  This act shall take effect July 1, 2018.

This publication should not be construed as legal advice.Its applicability is dependent upon specific facts and circumstances and is provided for informational purposes only.  You should not act upon this information without seeking advice from a lawyer licensed in your own state.