Recent Broward Law Blog Features

Friday, December 25, 2009

Who Owns the Beachfront?

If you are the owner of beachfront property and the state comes along and widens the beach, do you own the new land or does the state?

Will the vision of hot dogs stands, port-a-johns and partying spring breakers lead the Supreme Court to overturn part of a Florida law designed to replenish lost beach sand?

Will Justice John Paul Stevens’ ownership of a beachfront Fort Lauderdale condo wind up effecting the result of a major judicial decision?

Early this month, the Supreme Court heard arguments evolving out of a dispute about the ownership of new land created by Florida's beach replenishment program. The state claims it controls the new land it creates. Interesting debate I have been meaning to blog upon.

A group of disgruntled beach-front property owners on Florida's panhandle don't see the program as an environmental blessing. Instead, they contend it is a naked land grab by the State to turn private beaches into public hands.

The private landholders' concerns were echoed loudly in the courtroom by skeptical justices who raised numerous concerns over the possibilities of what could happen on the new land. Chief Justice John Roberts wondered if a hot dog stand could go up on the new beach. Justice Samuel Alito asked about the possibility of a televised spring break beach party.

Florida Solicitor General Scott Makar argued that the state controls all land it creates on its side of the dividing line though it preserves the private landholder's right to access the water.

That concession didn't go over well with Justice Antonin Scalia who said, "The notion that the only purpose of the contact with the water is so that you can have access, that is -- is that not silly?"

Justice Samuel A. Alito Jr. said that the owners might have more to fear than a lone hot dog vendor, wet or dry. “You could have televised spring-break parties in front of somebody’s house.”

Roberts also seemed dismayed at Makar's suggestion that the hog dog-stand scenario wasn't on point because it wasn't part of the justification to create new beach land. It was an intriguing debate.

"That is what the whole case is about," Roberts said. "Whether [the private owners] have a right to contact the water or not."

Justice Kennedy first expressed concern about handing down a ruling leading to federal judges getting mired in questions of state law. But later in the argument he took issue with the potential consequences of the state's control of the new land. "I'm asking whether or not a state beach with, what do you call them, port-a-johns and hot dog stands and what-not, isn't a substantial impairment of the (private) owner's use?

In a somewhat surprising development, Justice John Paul Stevens did not take part in the arguments. There was no immediate explanation for his apparent recusal, but he owns a beachfront condominium in Fort Lauderdale. A tie would automatically affirm the lower court’s decision, meaning the property owners would lose.
My only thought is I don't want to see Justice Stevens give up the condo. I like seeing him quietly have an omelette at the Floridian every so often.

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