Judge Green hears arguments from lawyers to dismiss Walton County customary use lawsuit

DeFUNIAK SPRINGS — Walton County’s efforts to open its 26 miles of beach to the public have again been delayed by its attorneys’ failure to properly notify everyone who could be impacted.

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A roomful of lawyers gathered for a big day of hearings were left shaking their heads Tuesday as County Judge David Green granted a last-minute emergency request to postpone all further proceedings in the county’s customary use lawsuit.

The motion, filed by attorney Will Dunaway, argued the county should be required to contact 420 beach property owners Green had identified in a recent order as not having been properly notified of the county’s effort to seek a declaration of customary use.

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Green said he was "disappointed" the motion for a delay had not been filed sooner, but felt obliged to grant it.

"I understand your frustration," he told one lawyer. "The court is frustrated as well."

The county was given 21 days to get out a new set of notifications, either by certified mail or, possibly, through process servers. County Attorney Sidney Noyes did not respond after the hearing to a request for comment.

Once the notifications are received, home owners will then have 45 days to respond by intervening in the lawsuit against the county.

It could be as late as May before another hearing can be held in the case, according to attorney Ted Borowski, whose motion to dismiss the county’s case was one of three scheduled to be heard Tuesday.

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The 420 property owners not considered properly notified were those who had not filed to intervene in the case against the county. In an October ruling, Green stated that he did not believe he had jurisdiction over that group as it pertained to the customary use case.

"The issue is that the county did not send out the proper notice. Presumably, if the county sends proper notice (the 420 property owners) will be subject to the county’s jurisdiction," Borowski said.

But Borowski also noted that Judge Green had not specified what would entail proper notice under a state statute being tested for the first time in this case.

"I don’t think the notice the county sends out this time will be proper either," he said. "I think we’ll be having this discussion six months to a year from now."

David Theriaque, who is representing Walton County as it seeks the declaration of customary use — that its beaches should be considered public by virtue of their having been enjoyed for time immemorial — supported Dunaway’s motion, though it was filed by an opposition attorney.

David Pleat, who also represents clients fighting the customary use declaration, said Green had no real choice but to again delay court action in the controversial lawsuit.

"The judge, as frustrated as he was, realizes as long as there are outstanding notice issues he doesn’t want to go forward and make substantive decisions on issues," Pleat said. "He’s thinking ’I don’t want to be in a situation where I don’t have everybody at the table.’ "

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The county encountered its first issues with notification failures before it ever filed suit seeking its customary use declaration. At a public hearing held September of 2018 county commissioners chose not to vote to seek the declaration because an estimated 13 of 1,194 households potentially impacted by it had not received notification of the county’s plans.

In April, Green extended the time period by which the county was to provide proof it had reached all beach property owners regarding customary use. Another delay was granted in May after termites invaded the county attorney’s office.