WALTON COUNTY, Fla. – Feb. 11, 2019 – For years wealthy Walton County beach property owners have found ways to build big homes or sprawling condominiums on sand-covered lots that gave them an unimpeded view of the Gulf of Mexico.
Some, like massive Sandestin, obtained what is known as Development of Regional Impact status, with permitting that included ownership of all the beach behind its entire complex.
Others, including former Arkansas governor and presidential candidate Mike Huckabee, would follow up on their home purchase by hiring an attorney to obtain "quiet title," a court judgment extending their property lines from the toe of the dune where their house had been built to the mean high water line – effectively the Gulf itself.
Today, 64 percent, or 16.4 miles of Walton County's nearly 26 miles of coastline is considered private property. That compares to about 5.4 percent, or 1.38 miles of county-owned beach.
These figures haven't fluctuated much in several years, but the mood of the county and its residents has, particularly following last year's passage of controversial House Bill 631, which made coastal property rights a priority for homeowners and beachgoers alike, and resulted in a long hot summer of squabbling about them.
The battle is far from over. The Walton County Commission unanimously decreed in December that it wants to make all of the county's beaches accessible to the public and has requested a Circuit Court declaration that customary use exists on the dry sand areas behind 1,194 private beachfront properties.
Customary use relies on the argument that the county's beaches have been open and accessible to everyone since mankind first began using them. Under that premise, they should remain open to the public regardless of what is written on a property deed.
"Ownership of the dirt, and the fact that a plat line or a survey line was drawn to the mean high water line, is irrelevant from our perspective," said David Theriaque, the attorney who will represent Walton County in its customary use effort. "Customary use is not dependent on where somebody draws a line."
If the county gets its declaration, it could re-establish a customary use ordinance that was wiped out last year when Gov. Rick Scott signed HB 631 into law.
A group of attorneys has lined up to represent the private property owners.
How did we get here?
Attorney Dana Matthews, whose clients include Sandestin, said that for years no one had trouble with the public traversing the beach on their property. Beachgoers mostly respected the private resorts' status and homeowners didn't put up signs or fencing to keep people off their land.
Ed and Delanie Goodwin of Fort Panic in South Walton might have been the first to try to erect privacy fencing along the beach using poles and plastic chains, claiming they were tired of people behaving badly in their backyard.
"Most owner problems come with the bad eggs," Matthews said.
After the county ordered the fencing removed, the Goodwins sued and won, and the impetus to create a county customary use ordinance to force owners to open their beaches was born.
From Matthews' perspective, the county's stance on customary use has forced the owners' hands, and HB 631 has freed them to post no trespassing signs and order passers-by to traverse their property only in wet sand areas. Some have hired security guards and several have demanded the county cease all public works activity on their sections of beach.
"Anybody that owns private property on the beach is coming to lawyers asking, 'What do we do to protect ourselves from a claim of customary use or some other easement near the mean high water line?' " Matthews said. "It's a funny balance the private property owners find themselves in now. All of a sudden you've changed the rules of engagement."
On Aug. 23, 2012, Huckabee and his wife, Janet, along with their good friend and next door neighbor David Haak, obtained "fee simple ownership" to property "lying adjacent and to the south of their lot to the mean high water line of the Gulf of Mexico."
Quiet title was granted through a summary judgment issued by acting Walton County Judge David Green. The ruling actually gave the beach behind the Huckabees' 10,000-square-foot house on Blue Mountain Beach Road to the Angus B. Wiles Trust.
The trust was headed by Huckabee accountant Bryan S. Jeffrey. The Huckabees would take over management of it the following December.
While perhaps cloaked in greater secrecy than others, the Huckabees' transaction was hardly the only instance in which homeowners on Blue Mountain Beach Road asked for and received quiet title from the original southern border of their home to the mean high tide line.
The Northwest Florida Daily News found 13 lots in the same subdivision that had secured title declarations in the five years before the Huckabees did and seven others who have done so since.
To obtain the title declaration, Huckabee and his neighbors were required to pay a $400 filing fee and $3 for every summons issued to resolve the matter, according to Walton County Clerk of Courts Alex Alford.
And while Huckabee has said more than once that he pays exorbitant property taxes to live where he does, he pays no more to own down to the mean high water line than he did before he secured title to that slab of beach.
Beach property, while fine for recreation, holds no taxable value because it can't be built on. The value, Matthews said, is in the having.
"That's your beach. You own to the mean high water line. People pay crazy prices for that," he said.
Matthews assisted residents in the Beach Highlands community in their 2015 effort to obtain quiet title to the mean high water line. He said he has found historic precedent that proves property owners are entitled to possess the dry sand between their homes and the Gulf.
He has sifted through property records dating almost to 1842 – the year Florida became a state – to find the first land surveys conducted in Walton County.
What he's discovered, Matthews said, is the property lines along the county's coastline have been drawn to the mean high water mark since the federal government owned the land in the 1800s, and Department of the Interior documents from 100 years later verify the finding.
"Government patent lines were used to lay out the land in this part of the state, and all of the land on the beach in Walton County were patent lots," Matthews said. "The government patent maps show all the property sold by the government was sold to the mean high water line."
In the Beach Highland case, Matthews said, the subdivision's developer drew lot lines that actually stopped before they reached the beach proper, then labeled the area between the lots and the Gulf as simply "beach" on the development map.
"We found the original developer had never conveyed title to the beach. It was pretty evident to me that the developer intended the beach to be available for the homeowners, so I filed for quiet title," he said.
"In Blue Mountain Beach, the developers planned something, except the developer gave the beach to all the owners within the plat. The owners would have the right to use the beach but not the public. The other owners can use that beach," Matthews added. "When it comes to platting your property and saying how you use it, that right belongs to the owner."
Theriaque, representing the county in its fight for the customary use declaration, said property lines established in 1845, or in 2012, are meaningless under his interpretation of land use law.
"(County-hired historian) Dr. James Miller researched all the way back to 2000 B.C.," he said, and has built a case that the public has used Walton County's beaches since that time.
The question Theriaque said will ultimately have to be answered by the Circuit Court is whether "there has been a historical pattern of use on the beach that satisfies the criteria for customary use." Florida's Supreme Court defines the criteria as a public use that has been ancient, reasonable, without interruption, and free from dispute.
It is undisputed that what the county intends to do is encumber land that is owned by private entities in some locations, Theriaque said.
"Our position is that before folks started purchasing property that the property, the dirt, was already encumbered with the doctrine of customary use and it gives them (property owners and beachgoers) co-equal rights. One right doesn't trump the other," he said. "But it's separate from ownership, and that's why we also dispute (the other side's) contention that this is a taking."
Homeowners and their lawyers "can't allege something has been taken when the owner of that property never had the right to (prevent access) in the first place because of the doctrine of customary use," Theriaque said.
"The legal ownership question to me is really a non-factor, because everybody concedes we are applying customary use to privately owned lands. We wouldn't be having the dispute if we weren't applying it to privately owned lands," he said.
Although the legal definition of fee simple ownership states such ownership is the "most complete," Theriaque said that obtaining fee simple possession of property through quiet title is not a defense against customary use doctrine.
"Quiet title goes to who owns the dirt, customary use goes to who has the right to use the dirt for recreational purposes and doesn't dispute the private ownership," he said. "Quiet title converts something public to private, and then you have the dispute about whether the privately owned property is subject to the customary recreational use."
Horrible, unintended consequences
Should Walton County prevail and all of its beaches be declared public through customary use, Matthews said he envisions "horrible unintended consequences."
"What will happen to the value of that property when customary use becomes law?" he asked. "The land we can't do anything with now, what if we can't even recreate on it without sharing it with the public?
He said under a customary use doctrine, property owners might have no control over what happens on their property, and even conceivably be held liable if someone gets hurt while recreating on their property.
And why, Matthews asked, does the county want to drag the Developments of Regional Impact into the customary use battle.
"They're the biggest ad valorem taxpayers," he said. "We wouldn't have the services we do without them."
© 2019 the Northwest Florida Daily News (Fort Walton Beach, Fla.), Tom McLaughlin