Fordham Law


Supreme Court to hear Florida beach property rights dispute

Dean William Michael Treanor in The LA Times, December 02, 2009

Supreme Court to hear Florida beach property rights dispute

Homeowners with private beachfronts on the Gulf Coast have sued over a government program that added sand to eroded beaches and made the new strip of land public property

By David G. Savage

Reporting from Washington -  With climatologists predicting an era of rising seas, the Supreme Court today will take up a property rights claim from Florida's Gulf Coast to decide whether private land owners or the public gain the benefits of restoring beaches eroded by hurricanes or high waters.

The case is the first property rights dispute before the Roberts court, and it renews the clash between the public's wish for open beaches and the rights of property owners to keep out unwanted guests.

The Constitution says private property may not be "taken for public use" without the government paying for it, but it is not entirely clear what is private property when the state is adding new sand to an eroded private beach.

The Florida case began in 2004 when five property owners objected to a state-funded beach restoration project east of Pensacola. More than six miles of white sandy beaches had been eroded by several hurricanes, and the project called for adding up to 75 feet of new sand to the shoreline.

But this public benefit came with a downside for beachfront property owners. The newly built-out beach would be public land.

While many landowners accepted this deal, a few objected and then sued when the project went ahead. They claimed the government had taken their private property, or at least their right to a private beachfront.

"Everyone knows that waterfront property is more valuable than water-view property, and that a private beach is worth a lot more than a public one," said Kent Safriet, a Tallahassee, Fla., lawyer representing the property owners. "This is not a land grab by my clients. It is a land grab by the state to create a public beach."

The disgruntled beach owners won before a state appeals court but lost last year in the Florida Supreme Court. In a 5-2 decision, the state high court ruled that in "the context of restoring critically eroded beaches," the newly created beach strip was the property of the public, not the owner of the private beachfront.

To property rights advocates, this amounted to a radical change in the traditional law governing shorelines. In Florida and elsewhere, the line separating public from private land is usually the mean high-water line. On the water side, the public owns the land along the shore up to the customary high-water mark. Visitors are free to walk on it. But the area of normally dry sand can be held as private property.

In the Florida case, the state said it had maintained this line and took title to the newly created sandy beach. The property owners cried foul because their property no longer extended to the water.

The beach owners appealed to the U.S. Supreme Court, and to the surprise and dismay of state officials and environmentalists, the justices voted to hear the case, now known as Stop the Beach Renourishment Inc. vs. Florida.

If the property owners win, Safriet said, they will demand either monetary compensation for the partial loss of their beach or the right to take title to the enlarged beach. "What they are asking for is what they had before: a private beach," he said.

In their defense, Florida and Walton County lawyers say it is strange to argue that "private" property was "taken" by the government when the white sand was dumped there at a cost of millions of dollars to the taxpayers.

"The beach restoration project did not take an inch of the [owner's] land; it provided critical new protection against storm damage, Walton County and the city of Destin, Fla., wrote in a statement to the Supreme Court.

The Constitution "protects against takings of private property without just compensation; it does not compel the state to transfer to private claimants ownership over a new strip of beach constructed by the state on state land at taxpayer expense."

The high court will hear arguments in the case today. Property law experts said the decision could affect legal disputes over public access to the beaches. As examples, they cited cases from California, Hawaii, Texas, New Jersey, Oregon, Washington and Michigan.

The Florida case has another odd twist. The lawyers for beachfront owners urge the justices to rule, for the first time, that property was taken unconstitutionally by the state's judges. In the past, the court has said that city or state officials wrongly seized private property, but they have never said state judges violated the Constitution when they defined property rights.

"This could be a huge takings case," said William Treanor, dean of Fordham Law School in New York.

In the past, Justice Antonin Scalia has called for stepped-up Supreme Court protection for private property rights, but he has not had a majority for that view. Treanor said the outcome in the Florida case might be affected by the stinging criticism of the court's last major property rights decision, the Kelo case in 2005.

By a 5-4 vote, the justices said city officials in New London, Conn., could seize the home of Susette Kelo and several of her neighbors as part of a redevelopment project, so long as they paid her "just compensation." Kelo had argued that clearing the land for private development did not qualify as a "public use."

Though the city won its legal case, its redevelopment project collapsed recently when pharmaceutical giant Pfizer Inc. announced it was closing its research center in New London, leaving behind empty lots where new town houses and stores were planned.

"The court may well react to the firestorm of criticism of its pro-government decision in Kelo by embracing a pro-private-property position in Stop the Beach Renourishment," Treanor said.