COURTS

'No end in sight': Walton County spends over $2.3M in taxpayer dollars on customary use case

Tom McLaughlin
Northwest Florida Daily News

DeFUNIAK SPRINGS —  More than $2.3 million in Walton County taxpayer dollars have been spent covering the cost of seeking a judicial declaration of customary use that would open 13.4 miles of privately held beach property to the public.  

However, that amount is somewhat deceiving in that it only includes funds committed by the county to fight for the declaration.

The reality is that a thousand or so of the same tax-paying residents chipping in to the county's customary use effort are also paying lawyers to help defeat that very proposition, which they believe violates their private property rights as beach owners.

Money money and more money:Walton County budgets $1 million to cover annual cost of customary use litigation

Historically controversial:A stormy summer in Walton County

Activist and beachfront property owner Suzanne Harris estimated she personally has spent $30,000 in legal fees in the last two years as a resident of the Edgewater condominium complex to fight the county's effort to open the beaches to the public.

But Harris said she made a recent public records request for invoices on county spending on behalf of residents of north Walton County who aren't directly involved in the lawsuit.

"The county has spent all that money on customary use and we still have people in the north that don't even have good roads. There are people living on dirt roads who are being told they can't get them paved because 'we don't have the money,' " Harris said. "There are potholes so deep on some roads people can't get to their homes when it rains, but they have to get on a waiting list and wait for years for anything to be done."

Customary use matters

Invoices obtained by Harris show that David Theriaque, the attorney the county has employed since 2016 to handle customary use matters, is reaping the lion's share of the benefit from the county's now 1,200-day effort to obtain its declaration.

Between May 2016 and February of this year, records show that the law firm of Theriaque and Spain has billed Walton County $1.5 million. 

Also benefitting from 3 1/2 years of litigation is Dr. Jim Miller, who had made $332,000 through mid-February in "expert fees." Miller provides the county expertise in the historical basis for customary use, having studied beach activities from as far back as 3000 B.C., according to county documents.

Another $462,000 in taxpayer dollars has gone to the law firm of Stearns Weaver Miller, which lists "government affairs" among its many areas of practice.

Most recent rulings:Is customary use doctrine constitutional? Walton County judge declines to rule on it. 

Walton commissioners officially began their quest to have the county's beaches opened to the public in 2018 when they unanimously voted to request a legal declaration of customary use.

The requirement that county officials turn to the courts for permission to pass a customary use ordinance and open the beaches was established when then-Gov. Rick Scott signed House Bill 631 into law. The law states Florida counties must seek and obtain a judicial declaration that customary use exists before establishing a customary use ordinance.

Customary use ordinance

On Nov. 3, 2018, following six hours of testimony from the public, the Walton County Board of Commissioners didn’t even deliberate before voting 5-0 in support of taking their case to court.

The second step toward establishing a customary use ordinance was taken Dec. 11, 2018, when attorneys for the county filed a complaint in Circuit Court seeking a declaration of recreational customary use for 1,194 private beachfront properties.  

It has fallen upon Walton County Judge David Green to decide whether the county's beaches should be opened to all. Florida Supreme Court guidance on the issue states a determination of customary use can be made if the beaches are proven to have been available for the enjoyment of all for a period of time deemed "ancient, reasonable, without interruption and free from dispute."

No compromise:Walton's Glidewell eschews compromise

Attorneys representing the county in the initial stages of the case were plagued with issues involving the notification of the 1,194 beachfront property owners that would be impacted by the customary use lawsuit. Those issues were finally resolved in June 2020 after 14 months of effort.

Judge Green then ordered the county, in July of 2020, to more clearly define what it is attempting to accomplish through its lawsuit. He gave the county 90 days to provide a detailed definitive statement clarifying its intentions or amend its legal complaint to better express its demands.

“Although it might require less effort on the part of the county to plead in vague generalities, neither the statute at issue nor general principles of justice permit it to do so,” Green said in his ruling.

The judge has indicated all along that there were some issues brought up by attorneys on both sides of the case that he as a trial judge would not be able to decide. Customary use doctrine in Florida was initially dictated by the Florida Supreme Court in the 1974 Dayton Beach vs. Tona-Rama case, and Green has made it clear the Supreme Court would be the proper venue for hearings on constitutional issues revolving around that case.

Beach Share

On March 21, Green gave the county a court victory by ruling against property owners in the separate customary use case titled Walton County vs. Northside Holdings LLC and Lavin Family Development LLC. With the ruling, Green opened the door for an appeal of Tona-Rama to move to the First District Court of Appeals and a step closer to the Supreme Court.

It's taken way too long to accomplish much too little, Harris said.

"There's no end in sight now that Judge Green wants it to go to the Supreme Court," she said. 

There have been times in the 1,200-day course of the case that a compromise to settle it has been discussed.

As early as 2016, former Arkansas Gov. Mike Huckabee, who lived in a beachfront home in Blue Mountain Beach at the time, suggested a compromise he called “Beach Share.”

The plan called for beach property owners to opt in to participating in Beach Share, and in doing so agree to allow visitors to use their beach property in return for abiding by certain established rules.

Alternatives suggested:Some favor eminent domain over customary use

Failure to obey the rules, established by the property owner, would subject visitors to prosecution under trespassing ordinances, Huckabee’s plan stated.

Walton County would, in its turn, grant landowners immunity from liability if guests on their property are injured, provide law enforcement support, and a couple other provisions.

Huckabee also suggested beach owners could allow visitors to use some portion of their property in exchange for proportional tax breaks.

Harris said most beach property owners don't oppose the public accessing their beaches, but want to see strict enforcement of rules against lewd, drunken and lawless behavior. She said the county could have saved a lot of money and frustration by adopting, or at least discussing, Huckabee's plan.

At the county level, though, discussion of customary use compromise has most notably occurred during election cycles when County Commission seats are in play. 

In 2018, candidate Bill Fletcher advocated for seeking a compromise and was defeated handily by Trey Nick after Nick declared his unwavering support for customary use and the repeal of HB 631.

A continuing problem:Beach access on the Emerald Coast

The same year, candidate Danny Glidewell also declared himself a proponent of opening the beaches to the public, but privately engaged beach property owners — including Huckabee — in discussions of negotiating a customary use compromise.

“The opposition continues to stir this and is going to continue to push farther and farther to try and catch either Fletcher or I ‘opposing’ CU so they can hammer us,” Glidewell told Huckabee in a July 28, 2018, email.

In another email from the same time period directed to Fletcher and several South Walton residents, Glidewell stated, “I think a reasonable compromise is both possible and desirable.”

“If we (Glidewell and Fletcher) can get elected I believe that with (commissioner) Melanie (Nipper) we would have a real good opportunity to craft a compromise to get us out of this mess,” the email said.

Glidewell stepped back from the idea of compromise shortly after being sworn in. On Thursday he said compromise is no longer being discussed.

"To my knowledge that's not in the cards," he said, declining to elaborate or comment further in light of the ongoing lawsuit.

Nick did not return a message seeking comment for this article.

Hope and disappointment:NEW LOOK: Walton County Commission could change the course of the customary use discussion

Related:Putting a value on sand is a slippery slope

Prior to being elected to the commission in 2020, William "Boots" McCormick and Mike Barker were asked by the Northwest Florida Daily News if they had thoughts about finding a compromise to end the legal battle.

Neither spoke directly for or against opening the beaches to the public, but each offered a suggestion.

"A possible idea that may never become more than an idea is to find land acquisition funding or grants and have the state declare eminent domain and purchase the property," McCormick said. "For property owners, to ensure that they are paying zero taxes for the property in question, reduce the taxable value of their property so they are not taxed for what they cannot control."

Barker said, "I believe we need to re-evaluate how effective our legal representatives have been on this issue."

After their election, hope was expressed in some quarters that McCormick and Barker might provide the leadership needed to negotiate a workable compromise and end the lawsuit.

"Neither of these two are politicians or part of the developer community. I believe and hope they, along with Commissioner (Danny) Glidewell, will search for a compromise solution to public beach access," South Walton resident Paul Zmigrosky said at the time.

Shortly following the election of Barker and McCormick, County Attorney Sidney Noyes, who appeared to have been largely responsible for the property owner notification process that went so badly awry, submitted her resignation. The letter announcing her decision to leave did not address the customary use issue.

Neither Barker nor McCormick has advocated publicly since their election for compromise in the case. Neither returned phone calls seeking comment for this article. 

Commissioner Tony Anderson declined to comment on the issue of compromise, citing the active lawsuit.