Article Courtesy of The Destin Log
By Tom McLaughlin
Published July11, 2019
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.
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.” |
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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.
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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. |