Replenishing Private Beaches in Florida Turns Them Public

The U.S. Supreme Court just decided that it's not a "taking" to require just compensation when Florida dumps so much sand in the ocean next to private property that 75 feet of new beach -- public beach -- are created.

Under Florida law, the Court held, waterfront property owners have the right to access and view the beach, but not the right to have their land extend to the water's edge at high tide. Since Florida fixed the the waterfront owners' property line at the mean high tide line before adding the sand, no taking occurred. The properties were the same size, before and after, and had the same rights of access and view.

Just because Joe Public now had a 75-foot-wide expanse to use and enjoy between the ocean and all the houses on once-private beaches didn't mean a property right was taken.

Over the Objections of Property Owners

At first blush, this decision is as jarring as Kelo v. City of New London, particularly when considering the context. In the name of protecting critically eroded beach, the cities encompassing the properties sought to "restore" them over the objection of the property owners who said, essentially, hey, the beach is 200 feet wide, our homes aren't threatened by erosion, and we don't want your help. Indeed, some of the objecting property owners refused access to the construction workers, who were then ordered to trespass and finish the job.

That said, the property owners do benefit from the beach restoration, in that gradual erosion and hurricane-driven beach devastation will no longer shrink their properties. Moreover, the law prohibits building any structures on the new beach beyond those necessary to protect it, and forbids "injurious use" of the public beach (the loss of privacy resulting from simple public use not constituting injury), so it's not as if the new public beach could become covered with public services. And the state's money -- that is, the public's tax money -- is used to do the project, so why shouldn't the public gain access to the new land?

Finally, as Florida noted, the law allowing the beach restoration had been on the books and successfully used to restore 198 of Florida's 825 miles of beach without objection for 40 years.

The Ruling Doesn't Set Much Precedent

Although many states filed a brief in support of Florida and against finding a taking in this case, it's important to note that the decision hinges on Florida law about what property rights waterfront owners have, so property owners elsewhere shouldn't automatically fear the insertion of a public beach between them and the water.

The case came up to the Supreme Court as an appeal of a Florida Supreme Court decision, charging that the Florida court had, by upholding the challenged law, "taken" property from the waterfront owners. The judgment that this case was not a "taking" was unanimous, as the justices all agreed that the property owners had no property rights in what the state "took."

The Court fractured, however, over whether courts could actually effect a taking, with four justices (Scalia, Roberts, Alito and Thomas) saying courts could, and four (Ginsburg, Sotomayor, Kennedy and Breyer) saying they refused to address the question because it wasn't properly presented or necessary to decide this case. (Justice Stevens owns property in Florida and so recused himself.) As a result, the value of this decision as a precedent is limited outside of beach restoration projects that Florida does under its statute.

The opinion and all the briefs are available from SCOTUSblog.