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First court hearing held on county’s filing to affirm customary use of the beach


COURT PROCEEDINGS in connection with Walton County’s efforts to affirm customary recreational use of the beach have begun with a Feb. 18 hearing on numerous requests to intervene in the litigation. (Photo by Dotty Nist)


By decision of Walton County Circuit Court Judge David Green, parties will have additional time to request to intervene in Walton County’s court complaint to affirm customary recreational use of the beach.

Judge Green so directed at the first court hearing on the county’s filing on Feb. 18 at the Walton County Courthouse.

In accordance with the provisions set forth in state law last year for affirmation of customary recreational use of the beach, Walton County had filed a “Complaint for Declaration of Recreational Customary Use” in circuit court on Dec. 11, 2018. The filing applies to “1,194 Private Properties Located in Walton County, Florida,” according to the document.

Effective July 1, 2018, HB 631, the same legislation setting forth the latter provisions, had negated Walton County’s customary use ordinance applying to privately-owned beachfront parcels, with that ordinance having been in effect for a little over one year.

Representing Walton County at the Feb. 18 court hearing were Walton County Attorney Sidney Noyes and David Theriaque of Theriaque & Spain, who is serving as legal counsel for the county with the customary use litigation. Also in attendance were 15 attorneys representing beachfront property owners, homeowners’ associations, and other interested parties.

HB 631 provides that a notice of the filing of a complaint for declaration of recreational or customary use be furnished to the owner of each property that is subject to the declaration-and that each owner receiving the notice must be allowed to intervene in the proceeding within 45 days of receiving the notice.

The first issue dealt with at the hearing was which of the parties who had filed motions to intervene in the case would be allowed to do so. While the legislation had referred to property owners and not associations of any type, many of the requests to intervene had been filed on behalf of homeowners’ associations.

Theriaque did not object to associations representing beachfront property owners being allowed to intervene. Discussion at the hearing indicated that he had directed for parties included in the motions to intervene who were not owners of beachfront property to be dropped from the motions-and that a number of attorneys had complied with this direction by amending their motions. An example of this was a Feb. 14 “Notice of Withdrawal” of two Seaside community neighborhood associations represented by attorney David Smolker. These were the Forest Street Neighborhood Association and the Ruskin Place Artists Colony Neighborhood, whose members do not have an ownership interest in beachfront property.

Theriaque did not object to three motions to intervene recently filed by attorney Daniel Uhlfelder on behalf of parties in support of customary use, even though it was later confirmed that members of one of the organizations filing to intervene are not beachfront property owners. Judge Green noted that a separate hearing would be scheduled on these motions to intervene.

Smolker and attorney Dana Matthews brought up the issue of non-beachfront property owners who have a specific “right of use” or written easements to use beach property, some through their homeowners’ association membership. They raised the question of whether there would be a requirement for these property owners to be notified of the complaint.

Theriaque responded that the customary use issue relates to whether beachfront property “is burdened by customary use,” so the complaint would not pertain to these non-beachfront property owners, and notification of these parties would not be required.

In response to a question by Judge Green about notifications to beachfront property owners mailed out by the county, Noyes said those had been sent out on Jan. 11 and that the county was still waiting on return receipts from some of those notices.

Judge Green ruled that an additional 60 days be allowed for the county to attempt to serve all appropriate parties and for an additional 45 days to be allowed for answers, responses and requests to intervene to be filed with the court.

At Judge Green’s request, Theriaque agreed to create a service list and keep it updated.

There was consensus that a case management hearing would be necessary at some point, but that it should not be scheduled yet.