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Beach dispute in Fla. reaches U.S. Supreme Court

By Staff | Oct 29, 2009

It started with four beachfront property owners in the Florida Panhandle questioning where their land rights ended seaward after a project to renourish beaches is completed.
The question has wound through the court system unanswered, and now the U.S. Supreme Court will consider the case of “Stop the Beach Renourishment v. The Florida Department of Environmental Protection et al” beginning Dec. 2.
Steve Boutelle, Lee County operations manager for the Natural Resources Division, said the ruling will be critical to Floridians. On Gasparilla Island, where an $11.2 million beachfront renourishment project was completed in April 2007, the future of such work will be determined by the Supreme Court ruling.
Over the years, other beach renourishment projects have been done in Cape Coral, Sanibel, Captiva and Fort Myers Beach.
“Looking at Lee County and the shore projects we’ve completed or envisioned, it really is significant in that the way the state of Florida conducts permitting and funding of beach projects, which is really tied critically to the erosion control line,” Boutelle said. “Shore lines can come and go and boundaries can move with them. We really believe sandy beaches are a critical component of infrastructure in Lee County and Florida.”
Beachfront property owners’ rights have long been etched in Florida law, he said. The ruling will determine how the state goes about protecting its tourism and ecological interests.
“If there is a finding the erosion control line process is in fact a taking, and somebody’s property rights have been taken away from them properly without compensation, that will cause a drastic re-evaluation of beach projects in Florida,” Boutelle said.
“It is a Florida issue with national implications,” said Tina Haisman of the American Shore & Beach Preservation Association. “The court will decide whether state legislation to restore eroded beaches constitutes a regulatory taking or violates the Fifth Amendment.”
Florida law places all lands seaward of the mean high water line in common trust to preserve public beach access.
After a beach project is constructed, all property landward of the erosion control line are privately owned as they were before the project, and all lands seaward of it are state-owned as they were before the project. However, state lands now include some of the dry, sandy beach.
“The property owner keeps every right they had prior to the project,” Boutelle said. “The only thing they don’t get is their ability to actually have a piece of dry property touching the water. They also lose the changing nature of that property line. On a shore line that is eroding, that potentially works to their advantage.”
A precedence for erosion control lines has already been set.
“A number of other states have similar processes as Florida for establishing erosion control lines,” said Brad Pickel, president of Seahaven Consulting and a consultant for Walton County. “So, if the Florida line is ruled illegal, there is a possibility that several other states will have a problem with their lines as well.”
The dispute before the Supreme Court came up following a beach restoration project conducted by the city of Destin and Walton County in 2006-07.
Four property owners sued saying the state of Florida violated their property rights by establishing an erosion control line on the beach behind their homes. This line, based on historic erosion rates prior to a beach restoration project, defines the pre-project boundary between upland private ownership and seaward state ownership of the renourished beach.
The property owners claim:
— The erosion control line changes their property from Gulf-front to Gulf-view.
— The erosion control line will cause them to lose future accretion of sand on the beach.
“While the case before the court is technically a Florida matter, the results of the case could have implications for coastal communities nationwide,” said Harry Simmons, president of the American Shore & Beach Preservation Association. “We believe the state of Florida is correct in its approach to restoring beaches and hope the high court agrees.”