Miami Herald: Supreme Court to hear Florida beach-property rights case

November 30th, 2009

Six Florida homeowners are asking the U.S. Supreme Court for help in a beach renourishment fight that left them without waterfront property.

Miami Herald--November 29, 2009

WASHINGTON -- Florida's beaches -- the blindingly white shores of the Panhandle, the bikini dotted sands of South Beach -- are the state's signature attraction.

Now they're the subject of a U.S. Supreme Court case. On Wednesday, the high court will take up a case that could affect coastal property rights, beach access and efforts to shore up storm-eroded shorelines across the United States.

At issue is whether the Florida Supreme Court -- by siding with state efforts to restore miles of beach in the Panhandle -- took away homeowners' property rights.

For decades, Florida has battled erosion of its Gulf and Atlantic beaches by depositing fresh sand along the coast. But a group of Walton County homeowners took exception, arguing that a proposed renourishment project would leave a strip of sand between their property and the Gulf of Mexico that amounted to a public beach. And that swath of sand, they warned in court records, could attract vendors peddling kayaks, ``inflatable boat rides, personal watercraft, and parasails.''

The Florida Supreme Court -- in a 5-2 decision authored by former Justice Kenneth Bell, himself a Panhandle native -- upheld the state project, finding Florida has a ``constitutional duty to protect Florida's beaches.''

Now the six homeowners are asking the U.S. Supreme Court to find that the state court negated their rights in the now-completed project. They're arguing that they were not compensated for losing property that once extended to the water -- and now ends at a public beach. And they argue that homes that once fetched top dollar as beachfront property, they say, are now simply beach view.

``This beach renourishment project was not needed or wanted by the homeowners,'' said Tallahassee attorney Kent Safriet, who represents the Walton County homeowners and argues that the county was looking to carve out a public beach in an area where development is crowding out open space.

``The intent is a land grab by local government to create a public beach where a private beach previously existed.''


Florida counters that beach restoration provides private owners with benefits like protection from erosion and storm surges -- and taxpayers pick up the tab.

``Over the years, about 198 miles of Florida's 825 miles of beaches have been restored . . . providing enormous protection and benefits to the public as well as to thousands of beachfront property owners,'' Florida Attorney General Bill McCollum argues for the state. ``None of these property owners have claimed entitlement to money or title to the state-owned portions of restored beaches -- until now.''

The case has attracted the interest of builders' groups and property rights activists nationwide, who argue that the property owners had a beach stretching 200 feet to the water; now there's 75 feet of public beach between the property line and the water.

``The homeowners paid considerable sums for oceanfront properties with private beaches, yet they have received nothing for the loss of what they paid for,'' attorney Peter Ferrara wrote for the American Civil Rights Union, a conservative legal organization.

Beach restoration advocates -- including the Florida Shore and Beach Preservation Association, whose directors include Miami-Dade and Broward environmental officials -- warn that a loss in court could chill Florida's attempts to shore up its eroding beaches.

``An adverse ruling would clearly stop Florida's beach restoration program as we know it,'' said Debbie Flack, governmental affairs director for the beach preservation association.

``It would mean the cost of nourishment would become almost financially prohibitive. What government, local, state or federal, would pay for a project and then pay a property owner for the beach that is created?''


The case could also affect beach access nationwide, suggested D. Benjamin Barros, an associate professor at the Widener University School of Law, who blogs on property rights issues.

``If the court holds it was a judicial taking, it could limit the ability of state courts to expand public access to beaches in the future,'' Barros said, citing disputes over public access in New Jersey and Oregon where state courts have decided in favor of the public.

Twenty-six states, including Oregon and New Jersey, have signed a friend-of-the-court brief arguing that siding with the property owners ``would undermine the states' well established and traditional authority to determine the scope of their own property laws.''


The federal government has also weighed in, with Solicitor General Elena Kagan arguing that because the federal government provides flood insurance to coastal property owners, the United States ``has an interest in ensuring that state and local governments are able to protect coastal property against hurricanes and storms.''

She told the court the government believes the loss the homeowners are claiming is not ``sufficiently severe'' to require payment.

``The state neither altered the boundaries of upland parcels nor physically invaded them,'' Kagan wrote, noting that the homeowners aren't claiming that the beach restoration ``deprived these lands of all economic value.

``The loss . . . of direct contact with the water was simply the incidental consequence of the state's exercise of its proprietary and sovereign rights to restore beach on its property,'' Kagan wrote.