Landowners' request for compensation heard by Supreme Court
By Robert Barnes
Washington Post Staff Writer
Thursday, December 3, 2009
On one hand, Justice Antonin Scalia noted Tuesday, Florida's beach replenishment program seems like a "good deal." It rescues homeowners from eroding shorelines and promises to maintain the wide beaches that are the treasure of the state.
On the other hand, the state says the new strip of sand it builds along the coastline belongs not to the landowner, but to the state, for public use. The Florida Supreme Court agreed with the state in a ruling that held that owning waterfront property does not necessarily mean the property line extends to the water.
"I think in every state, beachfront owners would be astounded to learn that that's the case," Scalia said.
Scalia's was among many conflicting opinions offered Tuesday as a small group of landowners asked the justices to find that they be compensated for what they say are lost property rights. If the justices find for the landowners, it would be an unprecedented ruling: that a decision by the judicial branch, rather than the executive or legislative, created the kind of taking of private property forbidden by the Constitution.
Justice Ruth Bader Ginsburg found it "kind of strange" that landowners from the Florida Panhandle first challenged the Florida legislature for enacting the program and then went on to make the judiciary their "target" after it upheld the law.
But the homeowners' attorney, D. Kent Safriet of Tallahassee, said, "Given this court's jurisprudence that a state's legislative and executive branches cannot violate the Fifth Amendment [protecting property rights], we see no reason why the judicial branch should be treated any differently."
The justices seemed conflicted on the question and might be split when they try to decide whether a recognition of a "judicial takings" is warranted in this case.
Justice John Paul Stevens, who owns a unit in a Fort Lauderdale high-rise whose beach is scheduled for replenishment under the program, did not participate in the arguments. That leaves eight justices to decide the case; if there is a tie vote, the Florida Supreme Court decision would stand, without setting a precedent.
The state seemed to have strong support from Ginsburg and Justices Stephen G. Breyer and Sonia Sotomayor, who wondered what the homeowners near the resort town of Destin had lost.
Breyer said that state law gives property owners a fortified beach; preserves their access to, and views of, the Gulf of Mexico; and forbids commercial development. "You didn't lose anything," Breyer told Safriet.
But Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito, and to some extent Scalia, seemed to agree with Safriet that the state-owned strip of sand transforms his clients' property from oceanfront to "ocean view," with a resulting decrease in value.
Roberts and Alito said that if the homeowners do not have a constitutional right to their land all the way to the water's edge, the statutory protections provided by Florida could be changed at anytime.
The two raised the possibility of the state creating a wide beach in front of the homeowners' land and opening it to blanket-toting tourists, port-a-potties and hot dog vendors. Alito wondered whether, in encouraging more college-student tourism, the state could create a beach for "televised spring break parties."
Roberts and Alito suggested that the homeowners at least deserved the chance to present their claims to a court to decide if they should be compensated.
The justices would have to delve deeply into Florida common law to decide whether the state Supreme Court's actions constituted a judicial taking. Safriet described the court's decision as a sudden break with more than 100 years of Florida law; Florida Solicitor General Scott D. Makar contended it was consistent with the court's previous interpretation of the rights of those who own coastal property.
The prospect of second-guessing the Florida Supreme Court on Florida law seemed to trouble Justice Anthony M. Kennedy, who could be the deciding vote. Although he said he was uncomfortable with the notion that Florida could do whatever it wanted with the beach it created, he also said the decision appeared to be a "close call" and wondered whether it would have to be "clearly unreasonable" to amount to a judicial taking.
The court has second-guessed the Florida justices before. But no one at the arguments mentioned Bush v. Gore.
The case is Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection.
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