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Florida county avoids costly trial over public access to the beach

A settlement agreement reluctantly approved by Walton County commissioners will preserve at least two-thirds of the beach for general access, while some areas will remain private.

(CN) — Along a vast majority of Florida’s lengthy coastline, whether it be the Atlantic Ocean or the Gulf of Mexico, the general public is welcome to find a designated parking spot, unload a car full of beach supplies and stake their claim in the sand to spend a day frolicking in or near the surf.

But in one panhandle county, public access rights have been restricted and most beachgoers have been sequestered — by law — to designated public or private beach areas.

In certain stretches along Walton County’s 26-miles of sugar white beach, the general public is corralled into narrow strips of access between private properties, where landowners have been quick to erect “no trespassing” signs and in a few cases, even fences on the beach to deter uninvited guests.

The contentious issue of “customary use” exploded onto the scene there in 2017, when the Walton County Board of County Commissioners passed an ordinance establishing the right of the public to use the entire beach, save for a 15-foot buffer from the toe of the sand dunes landward.  

Private property owners fought back, arguing their deeds granted ownership rights of the dry sand to the mean high water mark, which is established by the average tides over a 19-year-period. The issue was further complicated by the state’s beach renourishment efforts, which introduced the concept of an “erosion control line” while also requiring private property owners to grant easements to the state in order for public money to be spent on such projects.

Beachfront property owners in Walton County rejected renourishment requirements and in 2018, successfully lobbied the Florida Legislature to pass a law preventing local governments from establishing customary use ordinances elsewhere around the state. Meanwhile, Walton County doubled down. It filed a lawsuit against 1,194 private property owners in an attempt to encourage the courts to affirm recreational customary use, a case it has since spent several million dollars litigating. 

A trial estimated to span eight weeks was scheduled to begin May 22 but on Monday, the Walton County Board of County Commissioners approved a settlement agreement which “may resolve most, if not all, issues between the parties,” according to a motion for continuance filed Friday.

As of Tuesday afternoon, the county has not responded to requests to publicly disclose the settlement agreement, but during brief comments at Monday’s public meeting, Chairman Danny Glidewell said, “Conservatively, I can think of 8 million reasons [the settlement] was the best way to go.” 

Interim county attorney Clay Adkinson added the trial would have cost the county between $3 million and $4 million, while the settlement “will secure at least two-thirds of the beach in Walton County for some form of public access going forward.” 

District 1 Commissioner William “Boots” McCormick called the settlement a compromise.

“But it forces us into getting the best deal for our citizens and I think we have achieved that,” he said.  

Keith Dean, organizer of a nonprofit organization called Floridians for the Preservation of Customary Use, is a native Floridian who grew up around the beaches of Walton County and said they used to be considered public.

“We've never had this issue here until really the last few years because people move here from other places and they think they own the beach behind their house. Well, they don't. You have to have a deed that goes down to the high water mark, which no one knows what the high water mark is because it's constantly changing," he said.

Dean said he has debated the issue with several lawmakers and found generally they were misinformed or guided by wealthy donors and investors who have money and interest in grabbing valuable land from the public. 


“No one else in Florida is really dealing with this,” he said. “The issue is that historically, these beaches were there but because they weren't owned by the county or the state, as neighborhoods were developed, the developers or property owners assumed they owned the beach. As more and more people move here and visit here, it has caused conflict and that question of who owns the beach here has never been answered.”

Kent Safriet is a partner with Holtzman Vogel law firm and represents several private property defendants. 

“It’s a monster of a case,” he said in an interview on May 9. “But the historical record shows the vast majority of those parcels — perhaps 99% — were deeded to the mean high water line from the federal government sometime between 1893 and 1955. Sometimes the intent of the developer was to deed the beach parcel to the subdivision’s homeowners association, so it's a common area for those homeowners to use. But it was never owned by the public so the public never lost any ownership interest in that property. Therefore it was always privately owned by somebody.”

Safriet believes the county’s position stems from a misinterpretation of a 1974 ruling of the Florida Supreme Court – specifically, if the public’s use of the beach is “ancient, reasonable, without interruption and free from dispute,” then the private property owner should not interfere with those uses. Safriet and other attorneys for the defendants have argued that language amounts to dicta, or superfluous statements made by the court that were not critical to the ruling.

“Look, the county has the power of eminent domain,” he said. “They are free, just like any other government in the United States, to go take property for public use and pay just compensation to do that. They don't want to do that because they don't want to pay for it.

"So over time, they attempted to do some beach restoration projects which would create public beaches in front of the private property. When that didn’t work, they turned to this doctrine of customary use the Florida Supreme Court purported to create in 1974, but it’s just an extreme modification of the English doctrine of customary use.”

Safriet said the larger problem is a tourism development council that encourages more and more visitors to book vacations in Walton County, where there is limited public beach access. With a full-time population of around 80,000 residents, Walton County experienced an influx of 5.2 million tourists in 2022, resulting in an economic impact of more than $7 billion according to the tourism board’s annual report. Safriet said it’s like selling 200,000 tickets to an event at a stadium that has a maximum capacity of half that. 

“It goes back to poor planning,” he said. 

Mary Kathrine "Kay" Simpson is an attorney with Guilday Law in Tallahassee and intervened in the case on behalf of her clients, the owners of the Edgewater condominiums. Last year, the circuit court judge ruled in their favor. 

“Edgewater was one of the first developments in Walton County,” she said. “It was developed as a private development of regional impact, which had to be approved by both the state of Florida, Walton County and the Northwest Florida Utilities Managers Council. So in the documents that were submitted to be approved, Edgewater pointed out that it was private beach property and it was going to be maintained as private beach property for the exclusive use of Edgewater’s owners and guests and this was back in the early 1980s. And since that time, up until 2018 when Walton County filed its declaratory judgment action for customary use, Edgewater maintained the beaches as private.”

Simpson said over the years the condominium owners, not the county, hired private security guards, beach attendants, cleaning and restoration crews. 

“There was a lot of money spent on the assumption it was a private beach since Walton County nor any of the public ever contended it was not,” she said. “And so the judge ultimately found that Walton County and the public were equitably estopped because they hadn't tried to use or maintain it since 1985 forward.”

Similarly, Clifford W. “Sandy” Sanborn, a partner at Barron & Redding P.A., said he was recently informed his clients would be dismissed from the case, essentially winning their argument against the county on the merits.

“It was going to be a very difficult case for the county,” he said. “I think customary use was an idea that somebody came up with that kind of morphed into this creative concept to try to allow development north of [the scenic beach route Highway 30A] to sell the beaches of Walton County after they had already been sold. But it’s getting to be a little congested over there and you have more asses than you have sand for the asses to plunk down on.” 

Sanborn said his clients typically didn’t mind people walking across their property or even setting up for the day, but it became problematic as the number of visitors grew, with some camping out, acting disruptive or leaving litter on the beach after they left. 

“Frankly the tipping point was that ordinance that said you don't have the right to say who comes and goes,” he said. “While it may have been well intended, it became a bomb that went off and set this whole thing in motion and it’s a shame the county has spent this much money basically chasing its tail.” 

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