Customary Use: FAQ

Customary Use: Frequently Asked Questions (FAQ)

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 below 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.

What exactly is 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 doctrine that 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).

What is the history of Customary Use in Florida?

The Florida Supreme Court first addressed Customary Use in City of Daytona Beach v. Tona-Roma, Inc., 294 So. 2d 73 (Fla. 1974)). In the Tona-Roma 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 was 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) beach-front 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.

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.

What should local beachgoers, vacation renters, and property owners in Walton County know now about beach use?

All beachgoers, property owners, and vacation renters should be aware of the status of the beach they are planning to use and the best way to know is to read the signs (when the county posts them). If the sign indicates it is a public beach area, then you are welcome to use it responsibly. If the sign indicates the area is private property, it is not available for public use. Of course, all beachgoers may freely enjoy the area seaward of the MHWL (but take care as this line is rarely clearly marked on the beach).

As a practical matter, most private property owners (even the larger gated subdivisions) are not likely to confront walkers or joggers passing over their private beach front property along the shoreline as long as visitors are on the “wet sand” (that area where the current action of the waves are in contact with the shoreline).

Confusion may also arise when vacationers rent in a specific subdivision or community, but their rental unit is not directly on the beach. Often, these vacationers assume that because they are staying in a particular beach community, the beaches are available for them to use. This is not always the case, so vacationers should verify both beach access and beach use (they are not the same) with their rental manager or the county’s Tourist Development Council before they vacation in South Walton.

South Walton is a beautiful and singularly unique vacation destination for millions of visitors each year and the beauty of the beaches of South Walton can be (and should be) shared by all. Knowing where to use and enjoy the beach will increase the enjoyment for all—visitors and beachfront owners.

About Clark Partington
Clark Partington is a preeminent Gulf Coast regional law firm, serving the comprehensive legal needs of individuals and businesses as trusted advisors and counsel, with offices in Pensacola, Destin, Santa Rosa Beach & Tallahassee.

We stand on the shoulders of the founders who forged the success of our Firm, we are shaped by our respect for their legacy, and propelled forward by a quiet confidence born of 47 years of excellence.

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