Walton County, Florida’s “customary use” lawsuit – seeking to protect the public’s right to recreate on the panhandle-County’s sandy beaches – has settled out of court for many beachfront properties. The County’s lawsuit, filed in 2018 pursuant to HB 631, sought a judicial declaration of the public’s recreational rights to the dry sand based on historic customary use, and had been scheduled to go to trial this spring. The settlement between the County and settling property owners, filed with the Circuit Court of the First Judicial Circuit in and for Walton County, Florida provides specific limited public rights to a strip of dry sand, as described more below. However, the issue of the public’s rights to the dry sand seems far from clear, and conflicts far from over. While Surfrider appreciates the County’s efforts to protect the public’s customary use rights, the rights established in the agreement are far more restrictive than the public’s historic use, and the agreement creates significant ambiguities.
The settlement allows the public to use the 20 feet landward of the “wet/dry sand line” (the “transitory zone”) on the owners’ parcels for the following limited purposes:
(1) transitory purposes like walking and running;
(2) accessing the wet sand and ocean for swimming, surfing, surf fishing, and skim boarding; and
(3) stationary uses like sitting, or laying on the sand, towel or privately owned beach chair (not from a vendor), between the limited hours of 9 am and 4 pm.
Thus, while the public may use the 20-foot strip of dry sand for transitory purposes at any time, users may only stop on the dry sand – stand, sit, or lay – between the limited hours of 9 am and 4 pm. These are alarmingly restrictive hours. In summer, for example, the sun doesn’t set until after 7:30 pm in Walton County, which means there will be a significant period of daylight when people can’t stop on the dry sand. The agreement also prohibits members of the public from using umbrellas and chairs seaward of the wet / dry line, which means there will often be several hours where the public is left without sun protection from umbrellas.
Further restrictions apply to stationary uses in the dry sand including (1) a “maximum density” of no more than one person for each five feet of ocean frontage, and (2) members of the public may not “interfere” with an owner’s current “active use” of the beach (“owner” includes owners, renters, and their guests). If an owner is actively using their dry sand beach, and a public use would interfere with the owner’s use, an owner may request that the person(s) relocate on the parcel, or leave the parcel (relocation is preferred under the agreement). An “active use” isn’t defined, nor is “interference,” though it impliedly includes “not respectfully conducting” oneself and otherwise violating the County’s Beach Activities Ordinance.
The County agrees that its local law enforcement will enforce the agreement on the settling owners’ beach parcels, and settlement terms will be incorporated into the County’s Beach Activities Ordinance. Particularly in light of the agreement’s ambiguities, it is critical that the County fairly enforce it in a manner reasonably protective of the public’s rights - owners must not abuse the limitations by feigning active uses or interference, and the County must reasonably determine what public uses may interfere with an owner’s use, and not for example, require a beachgoer to vacate the dry sand if an owner instigates a confrontation. There is also ambiguity in the agreement as to where the “wet / dry line” is on the beach. Typically, the debris line, which indicates the upper wash of the sea, has been used to denote the public trust boundary and would be most protective of public rights. How the County interprets the wet / dry line for enforcement purposes will be important, but could potentially be a source of tension between the County and property owners.
Some other issues of concern include that, perplexingly, the County purported to restrict the public’s use of the settling owners’ parcels seaward of any currently existing erosion control line (“ECL”) which are lines established prior to publicly funded beach renourishment projects. However, property seaward of an erosion control line is vested in the state and the public has recreational rights to those renourished beaches. Therefore, there’s no privately owned property seaward of an ECL to regulate, and in any event, Surfrider would strongly oppose any diminishment of such public rights. The settlement also allows settling beachfront property owners to post at least two large signs regarding the public’s new rights, between 7 am and 7 pm. This increases concerns for visual clutter, the risk of sign misplacement, and misperceptions regarding the zone of public rights.
Walton County’s case involved more than 1,100 privately owned beachfront parcels, with approximately 450 of those owners intervening in the lawsuit. Many but not all of the intervening owners joined the settlement. In addition to agreeing to dismiss the settling owners, the County has agreed to dismiss non-settling owners, but will have the right to refile a new customary use lawsuit against them by May 31, 2024. Currently, trial may proceed on July 10th with respect to one non-settling intervenor. With respect to beachfront owners who didn’t intervene in the case, the County may either continue to seek a judicial declaration of customary use on their properties in this lawsuit, but limited to the transitory uses agreed to in this settlement, or dismiss and refile by May 31, 2024. The issue of customary use on any parcel subject to the agreement will be forever moot.
Given this parcel by parcel nature, members of the public will foreseeably have difficulty knowing where exactly they have rights to the dry sand. Individual parcel numbers will eventually be included in the County’s Beach Activities Ordinance. But most, if not all, beachgoers typically have no idea what parcel number they are on, or even where parcel boundary lines are. Concerningly, the settlement shifts the burden of proof for potential trespass claims. A beachgoer accused of trespassing landward of the 20 foot “transitory zone,” will have the burden of proving they were not trespassing on an owner’s parcel as well as the two neighboring parcels.
In short, while the settlement does clearly protect transitory uses along the County’s sandy shorelines, it leaves much to be desired with respect to stationary uses that Florida beachgoers have enjoyed for generations. Surfrider will continue to closely watch as the County implements the new agreement, to ensure fair and reasonable enforcement. As for customary use, it remains to be seen how H.B. 631’s process will play out in the courtroom. Walton County’s case would have been precedent setting, as one the first and certainly largest lawsuit to be filed pursuant to the law. A significantly smaller case involving Indian River County, is still pending, though the parties have been engaged in settlement discussions.