Washington Post
In Print: Wednesday, November 25, 2009
DESTIN — 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 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 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 can create the kind of taking of private property forbidden by the Constitution.
Beach renourishment has long been a controversial subject in Florida. Beyond the arguments over the environmental effects, there has been debate on whether millions of taxpayer dollars should be spent for projects that so often benefit private homeowners and businesses.
Since 1997 Congress has appropriated $100 million on average per year for beach renourishment through the Army Corps of Engineers.
In 1998, the Florida Legislature dedicated a source of funding, which is appropriated at roughly $30 million annually, for state participation in beach erosion control projects.
Homeowners are often glad for the help, but the response was different in parts of Destin. The town’s population of fewer than 13,000 swells to nearly 60,000 during what City Manager Greg Kisela calls the “100 days of summer,” the visitors lured by a picturesque combination of sand and surf.
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 Kent Safriet of Tallahassee say that sentiment — and not erosion — was the real reason for state and local officials to initiate the nearly 7-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.
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, 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.”
But there was a fiery dissent from Florida Justice Fred Lewis that probably caught the attention of the U.S. Supreme Court. He said his colleagues had “butchered” Florida law.
The case 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 Florida’s high court.
