December 5, 2023

Customary Use Litigation in Walton County, Part II

For the past several years, the Walton County Board of Commissioners has been in a lawsuit with 1,194 beach-front property owners along the Walton County coastline. This litigation has been over the doctrine of “Customary Use,” and whether the public has a right to use privately owned beaches.

This is the second of a two-part blog series on this lawsuit. Click here to read Part One.

What Triggered the Walton County Lawsuit?

Walton County held initial public hearings on Customary Use options in 2009, but did not take official action until it passed a local ordinance in 2016 that declared the public had Customary Use rights to all beaches in Walton County. The outrage over this local ordinance led the Florida Legislature to void the action by passing Chapter 163.035, Fla. Stat. (2018). The new state law did NOT take any beach use rights away from the public; it simply required that any such rights acquired by the public must be judicially affirmed by a circuit court judge (a judicial process) and not by local ordinance (a legislative process).

In response, the Walton County Board of County Commissioners, following a series of public hearings, filed a single lawsuit in 2018 naming 1,194 private properties. The lawsuit sought judicial affirmation that the public had seven specific recreational uses on the beaches of Walton County by custom and that those uses were “ancient, reasonable, without interruption, and free from dispute.”

What Did the County’s Customary Use Lawsuit Accomplish?

As the active litigation draws to a conclusion, opinions can differ on whether the county’s efforts in the Customary Use litigation benefitted taxpayers. A fair question to ask is, what did the public gain from five years of Walton County litigating against its own private beachfront property owners? The numbers are telling. The county spent millions of dollars in legal fees on outside attorneys representing the county in the litigation.

A majority of the private beach-front property owners named in the lawsuit hired their own attorneys to defend against the litigation and so collectively also spent millions in legal costs and fees. Over 6,300 docket entries are in the court record representing the pleadings, discovery, and hearings that occurred before Judge Green over the five years of active litigation.

In the end, every single private property owner who was represented by counsel and objected to the establishment of Customary Use on their beach obtained a dismissal with prejudice and a finding that Customary Use does not exist on their beach or a settlement agreement that allows the public a 20-foot transitory area for walking and sitting, and a finding that Customary Use does not exist on their property.

Out of the total 1,194 original parcels the county sued, Judge Green ultimately had to decide whether the county proved the existence of Customary Use against approximately 95 unrepresented properties that never objected to the litigation. In the face of no objection, Judge Green found that on those particular parcels (scattered across South Walton), the public had Customary Use rights. This was not a surprising or unanticipated ruling since the property owners of these 95 parcels did not dispute or present any evidence contrary to the county’s evidence.

At the end of the Walton County litigation, public beaches are still public and private beaches are still private. Seaward of the MHWL is still protected for public use and seaward of the ECL in western Walton County is still available for the public’s recreational use. There are, however, 95 parcels in Walton County that have a judicial finding of Customary Use. Whether the county passes another local ordinance relying on this ruling is still to be determined. Under the settlement agreement, the county is required to create signage and maps informing the public of areas of the beach the public may use and areas that the public may not use.

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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