Beachfront Owners Suing to remove County Public Beach Access at Sugar Dunes

[UofL]

My cousins have been staying in Beachside Villas for years. Guess that's why they started going to Gulf Shores this year. Ellen

 

[Dawn]

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defuniakherald.com

By DOTTY NIST

The dune walkover leading to the gulf at the Sugar Dunes Neighborhood Beach Access remains in use by the public, in spite of adjacent property owners’ efforts in recent years to have the walkover removed.

However, in contrast with the situation at the access just a couple of years earlier, the public is not being allowed to set up beach chairs, umbrellas, etc. within the 66-foot-wide easement containing the walkover.

Next to the public walkover is a sign placed by owners of the property containing the easement stating that there is “No Public Beach” and that the walkover is “Only to Access Gulf to Walk Along Waterline.”

The beach access is located at the south end of Beachside Drive in the Eastern Lake community. The Walton County Tourist Development Council (TDC) lists it as one of the TDC’s 46 neighborhood beach accesses. A trash can and shower are provided on the street side of the access.

The Walton County Tourism Department official map showing beach access points currently identifies the beach at the Sugar Dunes Neighborhood Beach Access as a “Resort/Vacation Rental-Managed Private Beach,” with the notation, “Access to these beaches is site-specific to the resort, rental agency or individual property owner. Accommodations can include condos, cottages, townhouses, or single-family homes. Renters and guests should check with their accommodations for access details.”

The use by the public of the easement containing the dune walkover at the Sugar Dunes Neighborhood Beach Access dates back to 1993, when the TDC/Walton County had constructed the public walkover.

The eastern 33 feet of the 66-foot-wide easement containing the dune walkover is the property of the Sugar Dunes Owners’ Association, the association for the Sugar Dunes Condominium. The western 33 feet is owned by CBHIV, L.L.C., (CBHIV), owner of Azzurro Homes to the west. Both the Sugar Dunes and CBHIV properties extend to the mean high water line (MHWL).

In December 2020, the homeowners’ association and CBHIV had filed suit against Walton County in Walton County Circuit Court seeking to have the walkover and public beach access removed.

These property owner plaintiffs had argued that the presence/existence of the boardwalk “has previously been permissive,” and that no prescriptive rights had been acquired by any person or entity in connection with the use of the boardwalk.

They had also stated that they had withdrawn permission for the boardwalk to remain in place, that its presence was unauthorized, and that the structure constituted “a continuing trespass.”

In May 2022, Walton County Circuit Court Judge David Green had ruled in favor of Walton County, stating that areas of the 66-foot-wide strip in use by the county for the dune walkover, plus other parts of the easements used by the county in connection with the beach access, were “subject to an easement in favor of Walton County for such uses and purposes.”

In June 2022, Judge Green had issued an amended ruling (Amended Final Judgment) clarifying that, as had been agreed to by the lawsuit parties, the litigation had dealt only with rights related to access “to and from the waters of the Gulf of Mexico and the adjoining wet sand beach area by use of the boardwalk and claimed easement across the disputed area…”

He had noted that the lawsuit did not “attempt to address any rights concerning the sandy beach area for any reason other than access to and from the Gulf and the wet sand beach area.”

That the latter had been agreed to by the county and the property owners had been borne out in a transcript of a May 9, 2022, hearing on the case. It was not specified why the county had not sought additional use of the easements.

In late June 2022, the Sugar Dunes Owners’ Association and CBHIV, L.L.C., had appealed the Walton County Circuit Court ruling to the First District Court of Appeal in Tallahassee. That appeal is pending.

At an October 2023 Walton County Board of County Commissioners (BCC) meeting, there had been a discussion about conflicts between beachgoers and property owners in the area of the access, including property owners’ use of orange cones to restrict walking area for beachgoers.

Speaking at the BCC meeting, Walton County Sheriff Mike Adkinson had classified the use of the cones as a county code issue—but had said that the Walton County Sheriff’s Office (WCSO) did not view putting cones in the water as appropriate. “We believe the water in the wave line is sovereign to the state of Florida; that it is pretty clear from our standpoint,” Sheriff Adkinson had stated.

He had also commented that the WCSO would not “destroy the public’s use of the wet sand.”

The wet sand area of the beach is generally treated as public, due to the area seaward of the MHWL being deemed as held in trust for “all the people” by the Florida Constitution.

Also at the October 2023 BCC meeting, Clay Adkinson, acting attorney for Walton County, had referenced a lawsuit filed against Walton County by CBHIV, L.L.C., in federal court, along with the state court appeal. He had noted that discussion on the topic was limited due to the pending litigation.

However, attorney Adkinson had made the following comments on the county’s position: “…at this point in time unequivocally for everybody in that area, is [that] there is a 66-foot-wide easement that goes, including the boardwalk, all the way to the wet sand, and then people can traverse east and west. Now should people be setting up within that 66 foot, setting up beach chairs, tents, blocking access? No, they can’t do that.”

“But the owners of either of those parcels,” he had stated, “burdened by those easements, should not be preventing people from traversing the dry sand and going east-west, and we will address obstructions in the form of cones.”

The federal court lawsuit was filed by CBHIV, L.L.C., against Walton County in August 2023 with the United States District Court for the Northern District of Florida in Pensacola. The lawsuit concerns CBHIV’s 33-foot-wide easement.

Among the allegations included in the lawsuit are that “uninvited members of the public” have been trespassing on CBHIV’s easement “outside of the rights” contained in Judge Green’s June 2022 Amended Final Judgment—and that the property owner’s efforts to prevent this have been “to no avail.” It is also maintained that the public sets up on the beach outside of the 33-foot-wide easement on other beachfront lots owned by CBHIV in the same subdivision.

It is alleged that the county has not acted to discourage this use of the property and that the WCSO has not assisted with removal of trespassers.

The four “counts” or causes of action contained in the lawsuit include charges of: violation of the Fifth Amendment of the U.S. Constitution’s “Takings Clause,” which prohibits private property from being taken for public use without just compensation; violation of the Fourteenth Amendment of the U.S. Constitution, which prohibits any person from being deprived of life, liberty, or property without due process of law; violation of the Fourth Amendment of the U.S. Constitution, which provides people with the right to be secure from unreasonable seizures; and another violation of the Fourteenth Amendment with regard to the requirement on the part of governments for equal treatment of similarly-situated people.

The latter was based on claims that CBHIV was being treated differently from property owners who had entered into a 2023 settlement agreement with Walton County in connection with the customary use court complaint, an agreement with provisions for a “transitory zone” on the lots of parties entering into this agreement.

Several dozen property owners had voluntarily signed on for the settlement involving the transitory zones, which provided for limited public use of their property and restrictions on such use.

Among actions sought by CBHIV from the court in the lawsuit was a requirement for the county to take action to prevent the public from using CBHIV’s property beyond walking across the property, plus just compensation and award of attorney’s fees and costs.

In a January 2024 order by United States District Judge T. Kent Wetherell, II, presiding judge, the court dismissed three counts of the lawsuit, denying to dismiss only the alleged violation involving the takings clause.

It was ruled that: The property rights that were the basis for the due process claim had been created by state law rather than the U.S. Constitution and that therefore there had been a failure to “state a due process claim;” that the unreasonable seizure claim failed because Fourth Amendment protections do not extend beyond the home itself (not to the dry sand area of the property); and that the allegations had not been sufficient to show that CBHIV was similarly situated to the property owners with transitory zones on their property.

With regard to the first count of the lawsuit, Judge Wetherell found that the plaintiff property owner had stated a plausible taking claim.

“The allegations in the complaint,” he wrote, “when viewed in the light most favorable to Plaintiff, establish that the County has effectively turned the dry sand area of the 33-foot strip into a public beach by not doing anything to restrict the public’s use of that area to traversing that area to get to the wet sand and water as allowed by the easement.”

Walton County was allowed 14 days to answer the one count that had not been dismissed.

In a Jan. 12, 2024, answer, Walton County disagreed with the contention that the public’s rights to the property were limited to crossing the property. The property owner’s allegation that the county advertises the entire property as a beach access was also denied by the county, as was the allegation of the county having an obligation to remove members of the public allegedly trespassing there.

Walton County denied that any of the county’s acts or omissions “rose to the level of a physical taking or the authorization of the public to physically invade Plaintiff’s property”—and asserted that the county’s use of the easement/access was in line with the purpose and scope authorized by the Walton County Circuit Court June 2022 Amended Final Judgment.

Together with the appeal case, the federal case remains open, and a May 21, 2024 order extended the discovery deadline for the latter case to Aug. 24, 2024. This is the process of exchanging information among lawsuit parties about witnesses and evidence to be presented at trial.