DESTIN, Fla. – Nov. 24, 2009 – The sugar-white sand that stretches from Slade and Nancy Lindsay’s deck to the clear, green waters of the Gulf of Mexico is some of the finest in the world. Tiny, uniformly shaped quartz crystals make the beach that stretches along the Florida Panhandle unique, experts say.
So what could be wrong with creating more of it?
That is what Florida’s beach restoration and renourishment program has been doing statewide for years, pumping in wide new strips of sand to save eroding shorelines.
But the Lindsays and other homeowners challenged the program because it comes with a catch: The new strips of beach belong to the public, not the property owners. They feared their waterfront view of bleached sand and sea oats would include throngs of strangers toting umbrellas and coolers.
The Florida Supreme Court disagreed that the homeowners’ property rights had been infringed upon just because their waterfront property line may not actually touch the water.
And that decision, in turn, has created a new challenge from the landowners: that the state high court ditched 100 years of common law to endorse the popular beach renourishment program, depriving them of their constitutional rights.
It is the latter charge that created the unusual case that the U.S. Supreme Court will hear next week. Justices will examine a concept they have pondered for more than 40 years without resolution: whether a decision by the judicial branch, rather than the executive or legislative, can create the kind of taking of private property forbidden by the Constitution.
“It’s one of the great open questions” in property law, said D. Benjamin Barros, a law professor at Widener University who edits a blog on such topics. The importance of the issue of whether a judicial decision “can eliminate important property rights and leave the owner without a remedy” will only increase with the growing number of public-private disputes over waterfront property, he said.
Florida’s beach renourishment and restoration program has operated for 30 years without such a claim. That is not surprising, because most often the money is spent on coastline ravaged by erosion and hurricanes. Homeowners are generally glad for the help.
But the response was different in parts of Destin, the self-proclaimed “world’s luckiest fishing village.” About 125 boats still leave the harbor each day in search of amberjack, red snapper, grouper and a local delicacy called scamp, City Manager Greg Kisela said. But the real catch these days is developers and tourism.
Destin’s population of fewer than 13,000 swells to nearly 60,000 during what Kisela calls the “100 days of summer,” the visitors lured by a picturesque combination of sand and surf.
Stephen Leatherman, a professor at Florida International University whose top-10 lists of American beaches earned him the title “Dr. Beach,” says the blindingly white sand is unique to the area. “It’s all quartz,” he said, so fine that it squeaks underfoot and even underwater reflects the light in a way that creates clear green and blue bands of water along the Gulf Coast.
Kisela said the beaches are “the economic engine that drives this market,” and acknowledged that with the area’s development, “there’s less beach to go around and more people to enjoy it.”
Slade Lindsay and his lawyer D. Kent Safriet of Tallahassee say that sentiment — and not erosion — was the real reason for state and local officials to initiate the nearly seven-mile restoration project in Destin.
“It was a way to bring tourists in, where the tourists could go and not have local property owners say yea or nay about it,” Lindsay said.
That is because the Florida law changed where to affix the property line for beachfront owners. In most coastal states, it is set at the mean high water line — a fluctuating boundary. Landowners own everything upland of the mark, while the state owns the land seaward. If sand accumulates and creates new beach, it generally benefits the landowner and expands his property.
But when Florida sets out to fix an eroding beach, it decides on a permanent boundary, called an erosion control line. It, too, is usually set at the mean high water line. But after that, any sand that accumulates seaward, either through natural forces or the state’s efforts to pump it along the coast, belongs to the public.
“They’re trying to make a beach without paying for it, whereas if they took the beach by eminent domain, they’d have to pay for it,” Safriet said.
The Florida Supreme Court disagreed in a 5 to 2 vote. It said the restoration program reflected “the state’s constitutional duty to protect Florida’s beaches in a way that reasonably balances public and private interests.”
Landowners still have rights to “access, use and view” the water, even if their waterfront property does not extend to the water’s edge, the court said. It denied that Florida common law ever provided such a right, or gave emerging land to the owner.
But there was a fiery dissent from Florida Justice R. Fred Lewis that probably caught the attention of the U.S. Supreme Court. He said his colleagues had “butchered” Florida law to find a way to further the goal of beach restoration. The decision “is based upon infirm, tortured logic and a rescission from existing precedent,” he wrote.
The words seemed carefully chosen to conform with Justice Potter Stewart’s 1967 definition of when a state court’s decision could rise to the level of creating a judicial taking. Such a decision, he said, would show “a sudden change in state law, unpredictable in terms of the relevant precedents.”
On the current court, Justice Antonin Scalia has been the most outspoken in looking for a federal takings case. He said such a challenge would be warranted if the state court changed a property owner’s rights by “invoking nonexistent rules of state substantive law.” Since Scalia’s 1994 words, the court passed on 15 challenges that attempted to raise the issue before accepting the Florida case.
It has drawn considerable interest from conservative and libertarian legal groups and property rights advocates, on one hand, and support for Florida from a majority of states, the federal government and coastal advocacy groups.
But the federal government said that the case is an unsuitable vehicle for deciding an issue of such consequence, and that the Florida ruling was well-supported. Solicitor General Elena Kagan warns the court that getting involved in reviewing such decisions will require the Supreme Court to delve deeply into a state’s common law and second-guess that state’s high court.
State and local officials in Florida argue that what happened in Destin was not a taking at all.
“The state has not invaded or carved off a single inch of their land,” the city said in its brief. State law prevents any structure being built on the beach in front of their property, or interfering with their access to the water.
But Safriet said statutory rights, which can be changed, are no substitute for constitutional protections. “While from a technical sense, no square inch has been taken, every square inch of this property has been transformed, from waterfront to water view,” he said. “And as you well know, the price difference between those two is tremendous.”
The case is Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection.
Copyright © 2009 washingtonpost.com.
Related Topics: State regulations