Landowners along Florida beaches ask Supreme Court to examine taking of private property

SOURCE: | The Washington Post - November 24, 2009
By Robert Barnes
Washington Post Staff Writer
Tuesday, November 24, 2009

DESTIN, FLA. -- 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.

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