Public or private beach in Fla.? US Supreme Court to consider property rights question

US Supreme Court to hear Fla. beach dispute

DESTIN, Fla. — The latest property rights battle before the U.S. Supreme Court started where the Gulf of Mexico laps at the crystalline white beaches of this seaside resort.

The justices will hear oral arguments Wednesday over whether a nearly seven-mile stretch of beach is public or private after the state of Florida poured more sand on the rapidly eroding shores. The new sand dumped in a project that ended in 2007 was designated public property by the state, angering residents who believe their property extends to the water, no matter how much sand is in between.

Six residents claim in a lawsuit they are due undetermined compensation, contending the state’s action was a “taking” of their property.

“They have been trying to take our private beaches and make them public for years now,” said Linda Cherry, head of the local Save Our Beaches group that supports the landowners. “In this case, they are taking our property without permission and without compensation. If the government can take our property like this, they can take anyone’s property.”

It’s the first major property rights case to come before the high court since Justice Sonia Sotomayor took the bench. Perhaps the most famous and controversial “takings” case came in 2005, when the justices ruled 5-4 that cities had the right to use eminent domain powers to take property for private development.

The Florida case is far less sweeping, but states are watching closely, concerned about the proposition that federal courts could make decisions about their property laws. Briefs filed for 26 states claim federal courts could intrude in areas ranging from how property is divvied up in divorces to the location of utility easements.

The federal government has also stepped into the case, supporting Florida’s position.

“If this court were to recognize a judicial takings claim, it should only be when a state court radically and unexpectedly deviated from settled state property law,” U.S. Solicitor General Elena Kagan wrote in a brief. “The decision of the Florida Supreme Court is not in that category.”

To the six landowners — collectively known as Stop The Beach Renourishment Inc. — the Florida Supreme Court “suddenly and dramatically changed” property law on beach rights when it ruled against them. They claim their property values have diminished.

“These background principles of Florida law include direct and exclusive access to the ocean,” said the group’s attorney, Kent Safriet.

If their beach access is no longer exclusive because of sand restoration, the homeowners contend the state should be forced to pay them for “taking” their property as required under the U.S. Constitution.

The state contends nothing has changed for the homeowners: Their beach ownership remains intact and they still have full rights to use the new stretch of sand paid for with taxpayer dollars. Some of the homes are already near beaches with public access, meaning beachgoers could walk to a part of the sand that was previously deemed private.

Many local residents said they fully support the project because it keeps the region’s main tourist draw from washing away and adds protection from hurricane storm surges.

The legal battle is “really frustrating for people who support the renourishment because we are trying to protect our buildings and our tourist economy,” said John Comer, whose family has owned Pompano Joe’s restaurant for 24 years.

The case is Stop The Beach Renourishment Inc. v. Florida Department of Environmental Protection, 08-1151.

Anderson reported from Miami.