Uncle Sam at the beach

Excerpts: Property Rights at the Water's Edge
The Supreme Court gets a seaside view of the Fifth Amendment.

Floridians who think life's a beach should be watching the Supreme Court closely today when the Justices hear oral arguments about whether the state may confiscate private waterfront land for a dubious public purpose.

The case, Stop the Beach Renourishment v. Florida Dep't of Environmental Protection, began in 2003, when home owners in the Florida Panhandle objected to changes in their property lines caused by a "beach renourishment" program. Typically done in the name of deterring erosion, the government carts in truckloads of sand, making the beach bigger. But rather than extending the property of the owner, the state declares itself owner of the sandy addition, effectively separating waterfront home owners from the water itself.

The Florida Supreme Court ruled 5-2 for the state and claimed the program doesn't mean the state can go around "creating as much dry land between upland property and the water as it pleases." There's a point, they said, at which such beach additions would represent an unconstitutional taking. But the problem is where exactly that point occurs: Without a specific demarcation, it's a slippery slope for how much land the state may seize without having to compensate the private owners.

To reach its decision, the Florida high court had to throw over 100 years of common law to declare that waterfront property owners have "no independent right of contact with the water." In a scathing dissent, Florida Justice Fred Lewis wrote that for the court to say that waterfront rights are unconnected with ownership of the land abutting water is a non sequitur. The court had "butchered Florida law," he wrote, and "unnecessarily created dangerous precedent based on a manipulation of the question actually certified." . . .

If the state wants to create a public beach, it may have the power to do so by invoking eminent domain and compensating owners for their loss. Short of that, the action is a taking that violates the Fifth Amendment, and this case provides an opportunity for the Supreme Court to begin making amends for the damage it did to property rights in the 2005 case of Kelo v. New London.