November 1, 2023

Customary Use Litigation in Walton County, Part I

You may have seen Customary Use lawsuits in Walton County on the news over the past several years and again late last year. If you were confused by a county suing its own beachfront property owners and all the legalese with it, you aren’t alone.

As someone who represented private property owners in the recently concluded Walton County Customary Use litigation and someone who has negotiated environmental matters at the federal, state, and local government level for more than 20 years, I hope I can clear things up for you. Here’s Part One of this two-part series.

A Brief Introduction to Customary Use
In Florida, the boundary line between public and private land along the Gulf of Mexico and the Atlantic Ocean is the Mean High Water Line (MHWL). The public’s right to use the beach seaward of the MHWL has never been in question. The question of when the public can use the area of the beach landward of the MHWL to the toe of the dune is answered by the legal doctrine of Customary Use.

The doctrine of Customary Use is an unusual one in that it allows non-owners to acquire a right to use a particular area of private property for a particular “custom” or practice, upon proving certain facts. Courts considering this issue have noted that it often “requires a fact-intensive inquiry that must be determined on a fully developed record.” Trepanier, County of Volusia, 965 So. 2d 276, 286-91 (Fla. Dist. Ct. App. 2007).

The Florida Supreme Court first addressed Customary Use in City of Daytona Beach v. TonaRoma, Inc., 294 So. 2d 73 (Fla. 1974). In the TonaRoma case, the Court stated that the facts must show the public’s use by custom exists and that it has been “ancient, reasonable, without interruption, and free from dispute.”

The Customary Use claimant must meet all of these elements. This is a difficult task, not only because it is hard to prove rights from “ancient” times, but also because failure on even one element defeats the claim. Intuitively, if there is an actual dispute about whether the right exists or not, then it does not exist, as being “free from dispute” is an element that must be proven.

What Happened on Walton County Beaches?
The United States took title to all land in West Florida from Spain with the execution of the Adams-Onis Treaty of 1819 (also called the Transcontinental Treaty, ratified in 1821). In 1845, Florida was admitted as a State on the condition that federal lands remained undisturbed.

It was not until the 20th Century that the United States conveyed the majority of its beachfront property in Walton County to private landowners without reserving any public use to its beaches. Thus, unless acquired by the state (as were the State Forest and State Park lands) or county (as were the Government Lot access easements), the majority of the beaches in Walton County are private property from the water to the MHWL.

Limited access to the beaches of Walton County made their use by the public difficult, with the majority of documented early uses concentrated at Grayton Beach and other areas with limited road access. Additionally, with so much of the beaches remaining in the hands of the United States and other large private landowners like the St. Joe Company (neither of whom were developing or promoting the beachfront), there was an abundance of beach area available for the public who braved the trips down from DeFuniak Springs or over from Fort Walton Beach and Destin.

As the St. Joe Company liquidated its landholdings and new communities like Seaside, Rosemary Beach, and others were developed, the new property owners (or those private communities) began to assert their ownership rights on the beachfront property to the MHWL. Still, there was plenty of beach front available for the local demand. With the success of The Truman Show movie and the Tourist Development Council’s aggressive campaigns promoting “The Beaches of South Walton,” the influx of vacationing beachgoers caused friction with private property owners of increasingly expensive (and exclusive) beachfront property.

The initial solution for this friction was beach nourishment. Beaches nourished with public funds created public beaches from the MHWL seaward because the newly installed sand was seaward of the MHWL (and therefore public property). This was made possible by the state law establishing an Erosion Control Line (ECL) at the MHWL before any nourishment efforts. In Walton County, with little fanfare or attention, the beaches from the Okaloosa County line east to Topsail State Park were nourished in the mid-2000s, thus creating a large area of public beach in the Miramar Beach area seaward of the ECL.

However, after SuperStorm Sandy in the Northeast, Congress passed a law requiring upland private property owners to sign a construction easement granting the U.S. Army Corps of Engineers access to their private property to construct the required dunes that accompanied nourishment projects. When private property owners in Walton County with beaches that had not been nourished (i.e., the 30A area) were presented with the easements, they overwhelmingly refused to sign, and so the federally funded nourishment effort failed around 2009.

Part Two of this two-part series can be found here.

If you have any questions about your rights to beach access on your property, beachfront or otherwise, please feel free to contact me using the information below.

Helpful links:
Final Summary Judgment on Remaining Parcels, issued 2/15/2024 
Beach and Bay Access Location Map on visitsouthwalton.com.

About Will Dunaway

Will Dunaway is a land use and environmental attorney at Clark Partington Law Firm in Pensacola, Florida. Clark Partington also has offices in Destin, Grayton Beach, and Tallahassee, and has been proud to serve the Gulf Coast since 1976. Mr. Dunaway represented private property owners in the recently concluded Walton County Customary Use litigation and has negotiated environmental matters at the federal, state, and local government levels for over twenty years.

Before joining Clark Partington, Will had a career in the United States Navy, serving as a Naval Surface Warfare Officer and, following law school, as a Prosecutor, Defense Counsel, Military Judge, and, after further schooling, Environmental Attorney.

The content above can be used for background, citing Will Dunaway of the Clark Partington Law Firm as the source. For an interview or on-the-record statements, please contact Cecily Kopytchak at (850) 208-7043 or ckopytchak@clarkpartington.com.

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