Two property owners escalate Walton customary use debate
WALTON COUNTY — The latest twist in Walton County’s tumultuous customary use battle has some beach property owners threatening to seek legal sanctions against the county’s attorneys for attempting to claim, as public, land that in years past had been specifically declared to be private.
Edgewater Beach Condominium homeowners say if the county doesn’t exempt their beach property from its efforts to make all of the county’s coastline public, they will seek court action for a violation of an agreement reached in 2009 to end a legal battle between the two parties.
That agreement ended a year-long dispute over a volleyball net Edgewater had erected on the beach behind its condos. It was signed by Circuit Court Judge Howard LaPorte.
“The county does not dispute that Edgewater is the exclusive, fee-simple absolute owner of the private, beachfront real property ... which lies between the toe of the dune and the Erosion Control Line,” the judgment order states.
The order further states the Edgewater Owners Association is entitled to “impose and enforce certain rules of conduct” on its beachfront property and “maintain its private personal property on its beachfront property without interference from the county” so long as its rules are at least as restrictive as certain county ordinances.
A motion provided with the letter states that Walton County “acknowledged (in the 2009 settlement agreement) that Edgewater’s beachfront property has been historically at all times for the exclusive, private use of Edgewater’s owners and guests.”
In mid-June, attorneys representing Guilday Law in Tallahassee notified David Theriaque, Walton County’s customary use attorney, that the county had until July 5 to remove Edgewater Beach Condominium from a lawsuit seeking to declare all county beaches to be public by virtue of the doctrine of customary use.
Customary use asserts that beaches should be accessible to all by virtue of mankind’s ancient and uninterrupted use of the coastline for recreational purposes. The county is seeking through legal channels to have its entire coastline declared public.
“The county, as evidenced through previous litigation, has already recognized that such recreational customary use has not been present on Edgewater’s private beach property,” the motion states.
An agreement was reached after the county’s attorneys received the Guilday Law letter to move back the deadline for the county to consider Edgewater’s threatened legal action. The Board of County Commissioners will gather in executive session Tuesday before its 4 p.m. meeting to discuss the issue.
“We settled that original case in good faith with the county. We never dreamed a new county attorney would want to undo what a Walton County judge had signed,” said Suzanne Harris, president of Edgewater’s homeowner’s association. “Unless the BCC votes in executive session to take us out of the lawsuit we will take this all the way to the Supreme Court. It will be a sign from Walton County that their word is not their bond.”
A second party, N. Henry Davis, has filed civil litigation requesting sanctions against the county’s attorneys based on the same principle brought forward in the Edgewater case.
Kent Safriet, the attorney representing Davis, argues that in 1978 the county legally renounced “any right of the county and public” to an area known as Gulf Shores Beach that lies between the Gulf of Mexico and the Gulf Shore Manor Subdivision.
The motion cites a resolution passed by the Walton County Commission and recorded on April 25, 1978. Resolution 1978-16 states, in part, that “any right of the county and public in and to” the beach behind Gulf Shore Manor Subdivision known as Gulf Shore Beach “is hereby renounced and disclaimed.”
The Davis motion states that customary use rights, if they exist at all, can be abandoned. It asserts that Walton County has abandoned any right to the beaches behind Gulf Shore Manor Subdivision.
“The county has no factual or legal basis to claim customary use as to the Gulf Shore Manor Property,” the motion says.
The Davis motion for sanctions, which was filed with the Walton County Clerk of Court on June 26, also addresses the legal standard that allows for the request for attorneys fees in both its action and the Edgewater homeowners association action.
Attorneys’ fees can properly be assessed when “the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court ... was not supported by the material facts necessary to establish the claim or defense” or “would not be supported by the application of then-existing law to those material facts.”
No hearing date has been set for the Davis motion. County Attorney Sidney Noyes declined to say whether action was taken in executive session in regard to the Davis motion.
“I do not comment on matters discussed in executive session,” she said in an email.