This issue was tied up for years in the Florida courts, determining what rights the owners have. In the Stop the Beach case, the Florida Supreme Court decided by a 5-2 vote that the owners don’t have property rights in this newly-created beach; their property no longer reaches to the water. The affected areas are public land, where people can walk, lay down, set up a hotdog stand, or do whatever they want.
But the Florida court also held that this is not a “taking,” and so the government doesn’t owe anyone any money. So many landowners who bought what was originally beachfront property now only have beach-view property, a view that could include hundreds of people laying down or playing volleyball between the owner’s house and the ocean.
The U.S. Supreme Court is considering whether the property rights extend to the property, such that Florida would have the choice of either allowing the owners to exercise all their rights (including the right to exclude others from walking on their beach land) or have to pay to the owners for their loss.
The issue is made more complex because of all sorts of traditional legal rules. The common law is a little different in each state. Also, in Florida your rights are different from land changes that occur over time versus sudden, unexpected changes. And the Florida statute creating this restoration program also protects certain rights such as the right to access the water as if you still had land going all the way to the waterline.
Because of these issues, it’s not clear which way this case will go. Three of the liberal justices—including Obama’s pick, Justice Sotomayor—seemed to suggest that there is no “taking” here that government needs to compensate. Both of George W. Bush’s picks, Chief Justice Roberts and Justice Alito, clearly think there is a “taking.”
But it’s not completely clear where the other justices come down. It looked like the Court is poised to rule that there is a “taking” by a 5-3 vote, but you can’t be sure from how argument unfolded.
Conspicuously absent from the bench was the normally-vocal (and stridently liberal) Justice Stevens. Stevens reportedly owns waterfront property in Florida, so it’s likely that he recused himself from this case because of the conflict of interest. Without him, if the Court ties at 4-4, it leaves the Florida court decision intact.
Property rights were one of the most important issues to the Founding Fathers. Historically, the king had title to all land in Great Britain. That was one of the king’s greatest controls over his people. He could take land from anyone and reassign it to someone else, and in doing so could decimate his detractors, reward his friends, buy off influential people, and show everyone that he had the ultimate trump card to ensure loyalty and obedience.
So the Founding Fathers believed that a person couldn’t truly be free without the right to own property that no one could take away, because no one can be self-sufficient without property. Government sometimes needs land for public uses, but by forcing government to give the owner full value for the property, it both discourages government from taking property when it doesn’t really need it and also makes sure that private citizens have the means to get equal-value property somewhere else.
That’s why conservatives and libertarians weighed in strongly in this case, arguing for the rights of property owners. We’ll find out shortly whether the High Court agrees.