Fla. property case no day at the beach for Supreme Court

USA TODAY - December 3, 2009

WASHINGTON -- Supreme Court arguments over Florida homeowners' property rights took a lively turn Wednesday as justices raised scenarios of college spring-break parties, noisy hot dog stands and portable toilets on once-private beaches.

The case that appeared to divide justices tests whether Florida's restoration of coastline through the addition of sand and a new public beach is a government "taking" of land that requires payment to property owners.

The Florida Supreme Court ruled against the six property owners from the Panhandle last year and endorsed state law allowing the new sand to prevent erosion and protect buildings.

The stakes are significant in Florida, which has the longest coastline of the 48 contiguous states. More broadly, the court's view of judges' latitude for deciding property rights clashes could affect disputes nationwide.

Dozens of groups have weighed in, including the National Association of Home Builders, siding with the challengers, and 26 states led by California, joining Florida. The U.S. Department of Justice also sides with Florida, stressing the federal interest in ensuring that state and local governments can protect against hurricanes and storms.

Kent Safriet, representing the challengers, said the state's ownership of the land outweighed any benefits in the beach preservation program.

"If somebody wanted to put up a hot dog stand on this new land, would you have the right to tell them they can't?" Chief Justice John Roberts asked.

"Absolutely not," Safriet said.

Justice Antonin Scalia noted that "people pay a lot more money for beachfront homes." He said a private beach is "quite different from having a house behind the beach at Coney Island."

Scalia owns property in a section of North Carolina's Outer Banks where some landowners sued to keep the public off beaches in front of their homes. A state court dismissed the case in 2003. Court spokeswoman Kathy Arberg said Scalia had no comment on that case.

Safriet said the Florida court expanded state law and "suddenly and dramatically" altered property rights.

Justice Stephen Breyer, who was among the justices sounding more sympathetic to the state, told Safriet, "You didn't lose anything." Breyer elicited from Safriet that the state prohibits any beach use that would be "injurious" to property.

Similarly, Justice Ruth Bader Ginsburg said, "They have a wider beach that's theirs, so they have gained property."

Florida Solicitor General Scott Makar said longstanding Florida law allows the state to create a swath of sand even if it breaks the property's contact with the water's edge.

Justice Samuel Alito questioned whether a local government could use the newly created beach to attract more students on college spring break.

Wouldn't a "televised spring break beach party in front of somebody's house" affect property values? he asked.

Makar countered the law was intended to preserve the coastline, not "create some recreational playground for spring-breakers."

Justice Anthony Kennedy, often in the middle of tightly divided cases, joined in Alito's concern and raised the specter of "port-a-johns" appearing on the beach. Yet Kennedy questioned what standards federal judges would use if they began intervening in state property disputes. "If it's a close case, does the state win?" Kennedy asked.

This case could be closer than usual. Justice John Paul Stevens, who owns property in Florida, did not take part in the arguments. That means the justices could split 4-4. If that occurs, the state court ruling will stand.

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