State of the Beach/Perspectives/Fill and Access
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By: MARK SHERMAN
The Supreme Court is weighing whether owners of beachfront homes in Florida must be compensated because a beach-widening project cost them their exclusive access to the Gulf of Mexico.
The justices heard argument Wednesday in a case with potentially widespread implications for coastal communities nationwide that confront beach erosion. The court is being asked to rule for the first time that a court decision can amount to a taking of property. The Constitution requires governments to pay "just compensation" when they take private property for public use. Six homeowners in Florida's panhandle are challenging a Florida Supreme Court decision that changed their "oceanfront property into oceanview property," their lawyer, D. Kent Safriet, told the court.
The Florida court decision ratified the designation of the new sand along nearly seven miles of storm-battered beach that stretches through the city of Destin and neighboring Walton County as public property, depriving the homeowners of the exclusive beach access they previously enjoyed.
They say the ruling "suddenly and dramatically changed" state law on beach property and caused their property values to decline. The homeowners want the state to pay them undetermined compensation for "taking" their property, which Florida law had long recognized as extending to the water line at high tide.
The court appeared divided about whether the homeowners lost anything.
"People pay a lot more money for beachfront homes," Justice Antonin Scalia said. On the other hand, Scalia said, the homeowners received what sounded like a good deal. "I'm not sure whether I wouldn't want to have the sand replaced at the cost of having a 60-foot stretch that the state owns," Scalia said.
Chief Justice John Roberts and Justice Samuel Alito appeared to favor the homeowners, raising the prospect of hot dog vendors and spring break parties on the new strip of public land.
Alito asked Florida Solicitor General Scott D. Makar whether the homeowners could do anything to prevent "televised spring break beach parties in front of somebody's house" on the new public beach.
Justice Stephen Breyer suggested the state was taking a reasonable approach, undertaking critical erosion control while assuring that the homeowners would have access to the water and prohibiting anything from being built on the new beach. Scalia, however, said beachfront owners everywhere "would be astounded to learn" that they had merely purchased access to the water.
Justice John Paul Stevens was absent from Wednesday's argument with no explanation. Stevens owns an apartment in a beachfront building in Ft. Lauderdale, Fla. If the remaining eight justices are split 4-4, the court would affirm the Florida decision without setting any precedent that could be used to guide other states. The Obama administration and 26 states are backing Florida in urging the court to reject the challenge.
The state says it did not touch the homeowners' existing beach property and undertook the sand-pumping project to preserve the area's attractiveness to tourists, but also to protect the homes and the beach in front of them. The homeowners still have private beachfront and can use the new stretch of sand paid for with taxpayer dollars, the state says.
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.
Justice Anthony Kennedy expressed concern that, if the homeowners win, the court would have to second-guess the Florida high court about Florida law. Kennedy's reference raised a comparison to the Bush v. Gore case in 2000, when the justices voted 5-4 to stop a vote recount that had been ordered by the Florida court. The case is Stop The Beach Renourishment Inc. v. Florida Department of Environmental Protection, 08-1151.