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SCOTUS to decide who owns the beach

By Staff | Mar 3, 2010

The effects of erosion have been devastating along many of Florida's Gulf coast shorelines, including the beaches of Sanibel and Captiva.

The Supreme Court of the United States (SCOTUS) is deliberating over the case “Stop the Beach Renourishment v. Florida (08-1151),” which pits property owners’ rights against beach renourishment benefits.

The outcome may have far reaching implications for Captiva, as the U.S. Supreme Court considers property takings, due process and a Florida law which affects the future of beach renourishment. Attorneys for several property owners in the panhandle argue that Florida – without compensation or due process of law – is “taking” the property rights of a group called Stop the Beach Renourishment (SBR), Inc.

Beginning in 2003, SBR Inc. was formed by beachfront homeowners in Destin (Walton County), who allege a renourishment project was taking their property rights as DEP unconstitutionally reset property lines. The issue was argued before the US Supreme Court in December 2009 and the decision is still pending. The state argues that homeowners get the benefit of the new beach and still have unrestricted access to the water.

The Florida Supreme Court, in the winter of 2008, previously delivered their opinion ruling against SBR, Inc In a 5-2 decision. Florida upheld the legal authority of the Beach and Shore Preservation Act (BSPA.) In finding that beach renourishments protect eroded beach properties and the re-nourishment is done at government expense, they ruled homeowners needn’t be compensated by the state.

The U.S. Supreme Court may have a different opinion. Justice John Paul Stevens – a Florida property owner – recused himself from this case. A majority of five votes are required to overturn the Florida Court, albeit the decision will be made only by the other eight of nine justices. The U.S. Supreme Court is expected to issue a decision by June. Governments, property owners and communities from coast to coast are keeping a watchful eye on this case.

From Maine to California, no less than 27 states have sided with Florida’s state and local governments. The government officials claim the suit filed by SBR, Inc. ” would undermine the states’ well established and traditional authority to determine the scope of their own property laws.”

What does this mean to Captiva? Under challenge is Florida statute 161, “Beach and Shore Preservation Act (BSPA).” This Act is nothing less than the legislation which empowers the DEP to set the seaward property lines on critically eroded beach properties. This Florida statute 161 empowers state and local governments to contribute to the renourishment of our beaches. This statute is the foundation of CEPD’s beach nourishment enabling legislation.

Previously considered settled, the outcome of this critical matter will decide the future of Florida’s beach renourishment vs. personal property rights under the 5th and 14th amendments (re takings and due process). In particular, CEPD’s award winning beach nourishment program and property owner rights are brought into the challenge. This may well spell trouble for beach renourishment as we now know it.

Florida’s beaches routinely erode during heavy storms. The erosion comes from natural causes, but can be exacerbated by inlets, groins, jetties and breakwaters. And beach renourishments have become the critical “soft solution” to ongoing beach survival. Over 25 years ago, Captiva’s saw pristine beaches, private houses and county roads fall victim to erosion. According to FEMA, 25 percent of homes within 500 feet of the coast may fall victim to erosion before the mid-point of this century (2050-60). Indeed, beachfront homes on these islands of Sanibel and Captiva have washed away in our lifetimes.

In the more than 20 years since the first 1988 CEPD renourishment and after two subsequent re-nourishments at about eight year intervals, the CEPD replaced a total of four million cubic yards of sand lost from our beaches at a cumulative replacement cost of over $40 million. The property owners’ share was about $15 million, representing a cost share of around 35 percent. However, aggregate property values doubled within the first two years following the1988 renourishment project. And, during the decades following the first re-nourishment, property values multiplied almost seven fold. The Captiva 1985 value of $224 million grew to $1.5 billion in 2009.

Beach erosion remains an ongoing critical problem. Even though controlled with re-nourishment, it has not been prevented. Without doubt, our beaches require ongoing maintenance. As stated, since 1988 CEPD’s cost share of renourishments was $15 million. This investment, compared to Captiva total property value appreciations of more than a $1 billion, means Captiva property owners can do the math and judge for themselves.