Escambia County staff brief commissioners on "customary use" legal path for Perdido Key beaches

County Attorney Christy Hankins and Natural Resources Deputy Director Tim Day briefed the Escambia County Board on the legal framework and practical steps for pursuing "customary use" rights on parts of Perdido Key, telling commissioners staff will seek public comment and build a record before any legislative action.

Hankins said the county had operated under a statutory regime (cited in staff materials as 163.035) from July 2018 through June 23, 2025; after the statute’s repeal, customary-use claims return to common-law methods that require notice, an ordinance and, if challenged, litigation. "The previous statutory requirements from 07/01/2018 to 06/23/2025 were on 163.035," Hankins said, and added customary-use elements the board would need to establish include that the public use was "ancient, reasonable, without interruption and free from dispute."

Tim Day explained technical coastal terms commissioners asked about and described where the county lacks memorialized access on Perdido Key. Day said mean high water is determined from a 19-year tidal average, beach nourishment places sand on submerged lands, and dune projects following Hurricane Ivan placed nearly 1,000,000 cubic yards of sand for shoreline and infrastructure protection. He advised staff would provide maps and funding details showing where dune restoration occurred and where public access is lacking.

Commissioners pressed staff on geography and risk. Staff repeatedly advised not to disturb an existing 75-foot perpetual easement shown on county maps and noted customary use can be established in discrete sections rather than across an entire island. Hankins cautioned the county that the process is evidence-driven: typical evidentiary materials are sworn testimony, photographs, historical documentation and records of county expenditures; commissioners were told property owners can still pursue litigation and that the county would want a strong legislative record before acting.

The board heard that a related federal appeal — a Reddington Beach matter currently before the 11th Circuit — may influence local legal contours; staff said oral argument is scheduled in late February and that a written opinion could follow at an uncertain date. Commissioners asked staff to collect deeds, plats and other documentary materials and to allow members of the public to submit historical evidence at the public comment period.

Staff recommended taking public comment at the next board meeting and building a targeted record in advance. The transcript records both a reference to a board meeting with public comment on Feb. 19 and an earlier oral reference to Feb. 29; staff told commissioners they will confirm the board schedule and urged that public feedback be taken before staff seeks direction. Staff also said a business-impact study may be required before passing any ordinance, per a recent state-law change, and recommended securing that research if the board decides to pursue an ordinance.

Multiple commissioners said they favor identifying "low-dispute" or commercial-access areas first and holding a public discussion that includes condo owners, property owners and members of the public. Others stressed protection of private-property interests and warned litigation is likely; commissioners agreed to continue deliberations after staff returns with maps, deed records and a plan for public input.

The county attorney and staff did not propose specific ordinance language or a final boundary; they recommended a phased approach of staff analysis, public comment, evidentiary submission and legal review before the board considers an ordinance.