OCEAN CITY – While local, state and federal officials scramble to find millions of dollars of funding for a major beach replenishment effort in the resort in the wake of a devastating mid-November storm, the U.S. Supreme Court this week heard testimony in a case involving a similar effort in Florida and its alleged “taking” of private property that could have implications in coastal communities all over the country including Ocean City.
The U.S. Supreme Court on Wednesday heard oral arguments in a landmark case involving beach replenishment and its impact on waterfront property owners in Florida. The high court is taking up the case at a time when coastal communities up and down the east coast are getting ready to embark on major beach replenishment projects necessitated by last month’s storm.
At issue is whether Florida’s beach replenishment program constitutes an illegal “judicial taking” of private waterfront property. Coastal property owners in Florida, under the umbrella of a group named Stop Beach Nourishment, filed suit in 2005 challenging the Florida Department of Environmental Protection’s beach replenishment program, alleging the pumping of sand onto the beach in front of their properties created a new public beach and deprived them of their rights to the private beaches they enjoyed in front of their homes.
The Florida Supreme Court last year heard the case, entitled Stop the Beach Nourishment v. Florida Department of Environmental Protection, and upheld the state’s beach replenishment law, ruling against the property owners. The property owners contend the creation of new beachfront areas in front of private property amounted to an illegal taking of the owner’s rights without compensation in what has become a quasi-eminent domain case. In August, the affected property owners appealed to the U.S. Supreme Court and the high court agreed to take up the case. On Wednesday, the Supreme Court justices heard oral arguments from both sides of the case although a ruling could take several months.
Although the circumstances of the Florida case are certainly different than other coastal areas, the fundamental principle remains the same, which is why officials in resort towns all over the county are keeping an eye on its progress.
Florida’s beach replenishment program, like similar programs in coastal areas all over the country including Ocean City, pumps sand onto beaches eroded by hurricanes and other storms in an effort to save them for environmental and economic reasons, including protecting the very waterfront properties whose owners are challenging the practice. If the U.S. Supreme Court reverses the decision of the Florida Supreme Court and rules in favor of property owners, the result could have implications on other communities that currently have beach replenishment programs in place.
“I think this may well be one of the biggest cases for local governments that have a waterfront tourism industry,” said David Hallman, who was the Walton County, Fla. attorney when the case began. “Every local government, Florida or otherwise, should be very concerned about the potential for an adverse outcome here.”
During opening oral arguments on Wednesday, the line of questioning by the Supreme Court justices appears to suggest an adverse outcome is a long shot. For example, Justice Stephen G. Breyer pointed out several reasons why the Florida property owner’s case is flawed, suggesting the pumping of sand to widen the beach does not, on the surface, represent a taking of their private property.
“So those are at least three things and I think there’s a fourth,” said Breyer. “One, you can get to the water; two, you have a right of ingress and egress, if that’s any different from the first. I’m not positive. Three, you have a right under the act that nobody can put anything on that strip which is injurious to the upland owner.”
Breyer went on to suggest a fourth reason, pointing out Florida state law would likely prohibit any new development on the strip of beach created by replenishment projects.
“Yes, the fourth is that nobody can build anything there that is harmful, except if it’s to do with the environment,” Justice Breyer continued. “That’s not harmful, that’s helpful to the beach owner. It’s supposed to be helpful.”
Attorney D. Kent Safriet, who presented argument on behalf of the Florida property owners, conceded there were some who would gladly trade the protection afforded by beach replenishment to any perceived impact on their rights to enjoy the beach in front of their property.
“There are a lot of properties, probably even in this stretch, where water is lapping under the houses and the landowners will want sand and they will be willing to waive any types of property rights claims or compensation to get that sand,” he said.
Justice Antonin Scalia said during Wednesday’s proceedings he would likely waive any perceived property rights infringement for the protection beach replenishment provides.
“If I had a place and it’s being eroded by hurricanes constantly, you know, I’m not sure whether I wouldn’t want to have the sand replaced, even at the cost of having a 60-foot stretch that the state owns,” he said.