Property rights advocates and Florida officials are facing off before the U.S. Supreme Court late this fall in the first takings case to be argued before Chief Justice John Roberts.
At issue is a unique situation that arose when beach-front property owners in the Florida Panhandle found their property lines no longer extended to the Gulf of Mexico as a result of state efforts to rehabilitate local beaches. Under Florida’s Beach and Shore Preservation Act, counties and municipalities can restore beaches eroded by hurricanes and storms by adding sand beyond a state-designated erosion-control line – separating private property from what is now state land. The statute stipulates that the new sand dumped on the beach creates a public beach, because the restoration is paid for by federal and state funds.
In 2004, water-front property owners in Walton County filed a suit seeking to block the restoration of their beach. They argued that creating a public beach on land that had once been theirs amounted to a taking of their property under the U.S. Constitution. In 2006, Florida’s First District Court of Appeal sided with the property owners, ruling that the government-funded restoration efforts constituted an uncompensated taking of the owners’ property under the Fifth Amendment to the U.S. Constitution. That decision, however, was overturned by the Florida Supreme Court in September 2008. According to Greenwire (August 26, 2009), the Florida Supreme Court argued, among other things, that restoring the beach from storm damage protects property owners’ “littoral rights to access, use, and view.”
A key issue in the litigation, notes attorney Melanie King “is that by adding sand to the waterfront and restoring the beach, the State of Florida will assume ownership of some of the beach. The property owners have argued that their littoral [coastal] rights would be limited, amounting to a regulatory taking, without just compensation.”
The National Association of Home Builders and the Cato Institute are among a group of 12 organizations filing friend-of-the-court briefs in support of the property owners. Environmental groups are expected to weigh in with their own briefs backing the position of Florida state officials. The case, Walton County v. Stop the Beach Renourishment, Inc., will be heard in late fall or early winter, with a ruling expected to be handed down sometime in the second half of 2010.
Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.