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Friday, April 12, 2024 | Back issues
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Beachfront Property Rights|at Issue in Supreme Court

WASHINGTON (CN) - Supreme Court justices heard arguments Wednesday on whether Florida beachfront property owners are entitled to land the state added to combat erosion. The property owners claim the state changed their land from oceanfront property to ocean-view property without compensation. Florida suggested the landowners shouldn't complain. "It's basically a beachfront property protection act," said the state's lawyer.

The question turned on whether the land Florida added to the beach is state property or private property.

Florida undertook a project to restore its eroded shorelines, pushing back the water line. Six beachfront property owners who hold titles to land up to the mean high-water mark now claim the 75 feet of new dry land is theirs, and are demanding compensation if it is taken by the state.

Florida Solicitor General Scott Makar argued on behalf of the state and said the new water line would not change the property lines. He said the government was fully entitled to the land because it simply added sand to its own property below the mean high water mark.

Kent Safriet from Hopping Green & Sams represented the landowner group Stop the Beach Renourishment. He said the Florida Supreme Court violated the 5th Amendment and dramatically redefined property rights in ruling that the landowners did not own the added land and that they should therefore not be compensated for the "taking."

The landowners maintained that they had rights all the way until the mean high water mark, which now happens to be farther towards the ocean.

"You didn't lose one inch. All you lost was the right to touch the water," Justice Stephen Breyer said to Safriet.

Breyer asked, seeming to suggest there is little difference whether the land is public or not, "Don't you have a right to walk across and put your boat in the water and swim, and nobody can stop you?" Safriet replied that the owners would have that right.

Justice Antonin Scalia remarked, "When there's avulsion, it can happen that some land between the property owner and the water will be owned by the State," referring to the property rule that says boundary lines should stay as they were originally, assuming there is a sudden change of water, like if a river changes course. "Why wasn't this an avulsion?" he asked.

The lawyer for the property owners replied that the first avulsion resulted from a hurricane that eroded the shore, meaning the landowners still owned the property below the rising water line. When the state came in to replace the shoreline, this did not count as an avulsion because it was artificial, Safriet said, leaving the property owners their rights to the land from before the hurricane.

On the other hand, if the shore gradually changes, like if the sea level rises or falls, the property boundary changes with it.

Scalia said that if the state had not intervened, the beach would have continued to erode, slowly diminishing the landowner's property. "Maybe that's sufficient compensation," he said of the state's restoration. "Nobody thought it was a good deal?" Scalia asked.

But Chief Justice John Roberts asked a question that played into the hands of the landowners. "Could the state sell this new land to somebody else?" Safriet replied that it could.

On a similar note, Justice Samuel Alito asked whether Florida could add sand below the high-water mark and promote spring break parties on the new beach. Makar, representing Florida, said that the state could do that assuming legislation didn't bar it.

The district court ruled in the property owners' favor, claiming that they had rights to the land, and that the state should compensate them for the taking. But when the issue came before the Florida Supreme Court, it ruled against the property owners, holding that the law only gave them rights up to the old high-water mark.

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