Walton Judge says he won't rule on the constitutionality of customary use doctrine

Tom McLaughlin
Northwest Florida Daily News

DeFUNIAK SPRINGS — Attorneys representing beach property owners defying Walton County's efforts to obtain a declaration of customary use can cease their pleas to Judge David Green to rule that the statute governing the doctrine in Florida is unconstitutional.

He's not going to do it. 

In an order filed Thursday, Green made his stance on the issue of overturning a Florida Supreme Court opinion perfectly clear.

"This court does not have the authority to rule that the customary use doctrine adopted by the Florida Supreme Court is unconstitutional," Green wrote.

Walton County Judge David Greene has said he does not have the authority to rule that the customary use doctrine established by the Florida Supreme Court is unconstitutional.

The latest:Beachfront property owners gaining ground in Walton County customary use battle

Previously:Walton County customary use case: Is it constitutional?

But in the same ruling — perhaps the most impactful made thus far in the nearly 3-year-old case — Green also decreed that the owners of eight specific properties were free to walk away from the lawsuit altogether. 

"The court finds that the county abandoned any and all customary use rights with respect to the properties in Blocks 17, 18, 19 and 20 of the Gulf Shore Manor plat which might have existed as of March 28, 1978," the order said.

Removing those platted parcels from the lawsuit impacts properties owned by N. Henry Davis; the Jasmine Dunes Property Owners Association; Kenneth Shaia, William D. Arthur III, W. Charles DeLoach, Kent H. and Suzan Jill Wallace as co-trustees of the Kent H. Williams Trust; and Carl Grivner, trustee of the Carl Grivner Trust.

People enjoy a beautiful day at Miramar Beach in south Walton County Wednesday afternoon.

Kent Safriet, who represents all the owners released from the suit, said Green's order actually affects about 15 of the 1,194 county parcels caught up in the customary use lawsuit originally filed by the county in December 2018.

Green's ruling also states that the parties removed from the lawsuit are entitled to court costs in an amount to be determined at a later date.

The judge found that when Walton County filed an amended complaint in 2020 seeking a declaration of customary use that would open its beaches to the public, it declared that the dry, white sand along its coastline had been used for recreation for a period of time meeting the tests set down by the Supreme Court as being ancient, reasonable, without interruption and free from dispute.

But in 1978 the County Commission passed a resolution that set aside as private the beach areas behind the Gulf Shore Manor community, thereby abandoning all public claims to it, Green said in his ruling. At that time, the county lost any right to claim the beach there had been publicly accessed for a period both ancient and uninterrupted.

Related:'Customary use' an issue in beach safety, Walton commissioners told

"The county is unable to establish that customary use or defendant's properties has been either uninterrupted or ancient, both of which elements must be proven under the judicially adopted customary use test," his ruling said.

Pensacola Attorney Ted Borowski, who represents about 50 beach property owners in the customary use case, said it is of note that Green addressed the issues of both "ancient" and "uninterrupted" is his ruling, although the judge did not lay out specifics of what either term means when applied to customary use doctrine.

It is the vagueness of those terms, as well as "reasonable" and "free from dispute" that had led the land use attorneys fighting the county to argue that the entire customary use matrix, established by the Florida Supreme Court in the 1974 Tona-Rama case is unconstitutional. 

Although Green said in a ruling last week that he wouldn't throw out court motions questioning the Supreme Court ruling as unconstitutional, this week's order clarified how he would treat those arguments. He cited a high court ruling that stated "only the Supreme Court may overrule its own decisions."

"As such, the court fears that the request made by the (property owner attorneys) encourages it to violate that prohibition and the court declines to take such a path," Green said in his order. "As such, the court concludes that, as a matter of law, it must assume the judicially created customary use doctrine is constitutional."

Walton County attorney Daniel Uhlfelder, who supports customary use and at one time represented clients who sided with the county in the lawsuit seeking a declaration, found Green's ruling on constitutionality compelling.

People enjoy a beautiful day at Miramar Beach in south Walton County Wednesday afternoon.

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He said some attorneys now fighting the county over customary use helped draft House Bill 631, the legislation that wiped out Walton County's customary use ordinance and forced the county to sue to get a judicial finding that the doctrine applies for all or some of the county's beaches.

He finds their arguing against the constitutionality of a law they helped create hypocritical.

"If they knew customary use was unconstitutional in 2018 when they helped get the law passed, why didn't they challenge the constitutionality of the Supreme Court ruling then?" he asked. "Why would you create a statute that says customary use has to be proven if later you're going to argue that it should be ruled unconstitutional?"

People enjoy a beautiful day at Miramar Beach in south Walton County Wednesday afternoon.

Both Safriet and Borowski said HB 631 said nothing about laws governing customary use, but simply helped create a procedure by which a county could obtain a judicial ruling that it existed.

"The statute is procedural, all it does is say 'county, if you're going to do a customary use declaration as the 1974 ruling said you could, follow this procedure,' " Safriet said. "It doesn't say customary use is a thing. We're not challenging a statute."