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Opinion Editorial
After supreme court ruling in Florida case, the property rights struggle continues
by James S. Burling
published in the TCPalm
July 23, 2010
 James S. Burling
PLF Director of Litigation
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It’s not always easy being a property owner — especially a beachfront owner in disputes with government over property rights.
Consider the Florida beachfront homeowners who recently lost at the U.S. Supreme Court in the Stop the Beach Renourishment decision.
This case involved efforts in Walton County and Destin to reclaim beaches from advancing tides.
In a July 14 editorial, this newspaper applauded the Supreme Court for rejecting the claim that the renourishment program abridges property rights. The newspaper contends that, when public money is used to pour sand in the wake of erosion, “the beaches become public and adjacent property owners are not entitled to exclusive access to the water.” In other words, the folks footing the bill for the new sand — the taxpayers — have a right to recreate on it.
This overlooks a central objection that the property owners put forth: They contended that their beaches hadn’t eroded in the first place. They didn’t need or want the publicly financed sand in front of their homes. They weren’t asking for public funding for new sand — and, of course, they weren’t asking for the public to have access to beach property between their homes and the water (property that previously had been recognized as private).
Government officials coming onto your property to “fix” a nonexistent problem is problem enough. But when the same officials justify turning your private land into public because, after all, public money was used to “fix” the problem, then we can have some real unintended consequences. An owner who loses “beachfront” property values may find the value severely diminished — lowering the tax the county can collect and even, perhaps, putting the property “underwater” in the mortgage valuation sense.
Thankfully, the Stop the Beach decision wasn’t all unsettling news for the property rights cause.
Even as it ruled against the property owners in this case, the court underscored the importance of protecting private property and sent an important warning to lower courts. Six of the justices held that a state court could be found to violate the Constitution if it were to redefine state law unilaterally, in a way that would cancel accepted property rights.
The justices didn’t agree that the Florida Supreme Court had committed a Fifth Amendment “taking” by upholding the renourishment program. But a majority of the justices clearly said that lower courts are as bound by the Constitution’s property safeguards as any other government officials.
This language is even now being studied, enthusiastically, where state Supreme Courts have acted, arguably more brazenly than in Florida, to curtail property rights. Court rulings infringing on beachfront private property in Hawaii, for instance, and along the California side of Lake Tahoe, raise a real argument that judges have committed constitutional violations.
So stay tuned: The beach renourishment case may have been a loss for the landowners who brought it — but a significant victory for property rights in general.
Burling is director of litigation at Pacific Legal Foundation, which litigates nationwide for limited government and property rights. It has an office in Stuart and submitted amicus briefs to the Supreme Court in support of the property owners in the Florida case.
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