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NEW LOOK: Walton County Commission could change the course of the customary use discussion

Tom McLaughlin
Northwest Florida Daily News

SANTA ROSA BEACH — For just shy of two years, Walton County has been funding a legal battle to wrest control of 16.4 miles of crystal white beach from the hands of private property owners.

The goal is to obtain a declaration of customary use that would open all the county's 26 miles of beach to the public and bring an end to squabbling over where beachgoers, including the millions of tourists who drive the county's economy, can and cannot recreate. 

More:Walton County's beaches can be hard to get to

Beachgoers enjoy a day along the water in South Walton County. New county commissioners Mike Barker and William "Boots" McCormick will inherit the divisive customary use issue when they take office.

A problem exists in that the 1,194 landowners who will be affected by the declaration are the county's own taxpayers, most of whom hold deeds that say they own the sand behind their home all the way to the mean high water line. The vast majority adamantly oppose the county's efforts to take their private property rights away.

The county's complaint for a declaration of customary use, filed Dec. 11, 2018, is costing both it and the taxpayers a lot of money, with no end in sight to the legal wrangling.

More:Walton County has spent close to $1 million on customary use battle

More:Walton County budgets $1 million to cover annual cost of customary use litigation

There is hope in some quarters that Mike Barker and William "Boots" McCormick, two new county commissioners slated to be sworn in Monday, will bring the leadership skills needed to negotiate a workable compromise and end the lawsuit.

Mike Barker

More:Walton County candidates discuss issues, including customary use, on eve of election

"Barker and McCormick received an overwhelming majority of beachfront owners' support," said South Walton resident Paul Zmigrosky. "Neither of these two are politicians or part of the developer community. I believe and hope they, along with Commissioner (Danny) Glidewell, will search for a compromise solution to public beach access."

Both men said this week they would like to be a part of a solution to the customary use problem, but wanted to learn more from the county's perspective before advancing a plan of action.

"Boots" McCormick

More:The legal realities of obtaining, and taking, beach property (PHOTOS)

"I'm still at 30,000 feet, trying to piece together what's been done and figure out what can be done," McCormick said. "I sure would like to see that issue come to a close. I hate to think we'll be dealing with it for the next four years." 

More:Official winner in commissioner race announced in Walton, Okaloosa still recounting

Barker said his first job as a commissioner would be to analyze information that wouldn't have been available to him previously.

"We'll have new people on the commission with new ideas and new thoughts. Maybe we can get things moving instead of being stopped at a standstill," he said.   

More:Judge orders Walton to clarify customary use lawsuit

Dave Rauschkolb, a staunch advocate for customary use, said he has never heard either McCormick or Barker speak against opening the beaches to the public.

More:Notifications could sink customary use case

"Boots McCormick has been steadfastly in support of customary use from all the indications I've gotten," Rauschkolb said. "And I believe Mike Barker has spoken in support of customary use as well." 

McCormick and Barker were asked by the Northwest Florida Daily News before their elections in August if they had thoughts about finding a compromise to end the legal battle. Neither spoke directly for or against opening the beaches to the public, but each offered a suggestion.

"A possible idea that may never become more than an idea is to find land acquisition funding or grants and have the state declare eminent domain and purchase the property," McCormick said. "For property owners, to ensure that they are paying zero taxes for the property in question, reduce the taxable value of their property so they are not taxed for what they cannot control."

Barker said, "I believe we need to re-evaluate how effective our legal representatives have been on this issue."

In 2018, Gov. Rick Scott signed into law House Bill 631, which wiped out Walton County’s existing customary use ordinance but laid out a course by which the county could obtain a legal ruling through which its beaches again could be opened to the public.

The law decreed the county would have to file a lawsuit to have its declaration of customary use verified by a judge.

As the lawsuit stands now, the county recently complied with an order from Walton County Judge David Green to clarify its original legal complaint to specify what evidence it will use to prove its case for public access on all 1,194 potentially affected parcels.

To do that, the county must show that the beaches have been used recreationally for a period of time deemed "ancient, reasonable, without interruption and free from dispute."

The mostly wealthy beach homeowners have between them engaged almost 100 law firms to fight the customary use effort.

County commissioners have thus far shown no inclination to compromise, and budgeted $1 million for fiscal 2020-21 to continue its end of the fight. Sitting commissioners and County Administrator Larry Jones, acting, they said, under the advice of legal counsel, have refused to discuss the litigation.

Umbrellas and people line the beach front near the Whale's Tail Beach Bar in Grill in South Walton County.

McCormick was elected in County Commission District 1 to replace outgoing longtime Commissioner Bill Chapman. Barker won the District 3 seat vacated by Melanie Nipper.  

Glidewell, mentioned by Zmigrosky as a possible third commission member willing to seek compromise on customary use, has spoken in the past of bringing property owners and county officials together to seek solutions.

Trey Nick and Tony Anderson, who remain on the commission, ran for office as strong advocates of customary use and have not hinted at being willing to work to settle the lawsuit.