By Robert Barnes
Washington Post Staff Writer
Friday, June 18, 2010; A10
Florida's beach restoration program does not violate the rights of waterfront property owners, the Supreme Court decided unanimously Thursday, even though the new strip of sand created by the state belongs to the public, not the private landowners.
But the court split evenly on the broader property-rights issue the case represented: whether the action of a court can create an unconstitutional "taking" of private property, just as if the action had been taken by another arm of government.
For decades, Florida's beach restoration and renourishment program has been pumping in wide strips of sand to save eroding shorelines and protect the state's most important tourism feature.
Homeowners have not objected before. But a group of property owners in the Florida Panhandle objected because they the program comes with a catch: The new strips of beach have been deemed to be public property.
The homeowners feared their waterfront view of white sand and sea oats would soon include throngs of strangers toting umbrellas and coolers. They said the state law meant that their property lines no longer touched the water. The Florida Supreme Court said that did not matter, since they enjoyed the same access to the beach they had always had.
The U.S. Supreme Court agreed, saying the state was filling in only submerged land that belonged to the public and that the property owners had not suffered a loss.
The judgment was 8 to 0; Justice John Paul Stevens did not participate because he owns a condominium on a strip of South Florida beach that is scheduled for restoration.
But the justices split evenly on the broader issue in the case, which was whether the actions of the judiciary -- in this case, the state's high-court decision upholding the program -- could constitute a "taking" of private property forbidden by the Constitution.
Four members of the court -- Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. -- said yes.
"It would be absurd to allow a state to do by judicial decree what the takings clause forbids it to do by legislative fiat," Scalia wrote. He provided a standard for what would constitute a taking:
"If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property," he wrote.
On the current court, Scalia has been the most outspoken in looking for a judicial takings case, an issue important to advocates of private property rights. He said in 1994 case that such a challenge would be warranted if the state court changed a property owner's rights by "invoking nonexistent rules of state substantive law." Since then, the court had passed on 15 challenges that attempted to raise the issue before it accepted the Florida case.
Even though he was unable to muster a majority, Scalia seemed to want to get his position on record.
The other justices -- Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Ruth Bader Ginsburg -- said there was no reason to make such a finding to decide the Florida case.
Kennedy and Sotomayor further suggested that they may not find such judicial takings to be authorized by the Constitution.
"It is unclear whether the takings clause was understood, as a historical matter, to apply to judicial decisions," Kennedy wrote for the two.
But D. Benjamin Barros, a professor at Widener University School of Law, noted that Kennedy and Sotomayor still seemed sympathetic to property owners. He pointed to Kennedy's words in the concurrence that a "judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is 'arbitrary or irrational' under the due process clause."
The case is Stop the Beach Renourishment v. Florida Department of Environmental Protection.