Battle for beach goes to top court

The sugar-white sand that stretches from Slade and Nancy Lindsay's deck to the clear, green waters of the Gulf of Mexico is some of the finest in the world. Tiny, uniformly shaped quartz crystals make the beach along the Florida Panhandle unique, experts say.

So what could be wrong with creating more of it? That is what Florida's beach restoration and renourishment program has done for years, pumping in sand to save eroding shorelines.

However, the Lindsays and other homeowners challenged the program because it comes with a catch: The new strips of beach belong to the public, not property owners. They feared their waterfront view would include throngs of strangers.

The Florida Supreme Court disagreed that homeowners' property rights had been infringed upon just because their waterfront property line may not touch the water. The decision created a new challenge from landowners: The high court ditched 100 years of common law to endorse the beach renourishment program, depriving them of their constitutional rights.

It's that charge that created the unusual case the U.S. Supreme Court will hear next week. Justices will examine a concept they have pondered for more than 40 years without resolution: whether a decision by the judicial branch, rather than the executive or legislative, can create the kind of taking of private property forbidden by the Constitution.

"It's one of the great open questions" in property law, said Benjamin Barros, a law professor at Widener University's Harrisburg, Pa., campus, who edits a blog on such topics. The importance of the issue of whether a judicial decision "can eliminate important property rights and leave the owner without a remedy" will only increase with the growing number of public-private disputes over waterfront property, he said.

Florida's beach renourishment and restoration program has operated for 30 years without such a claim. Most often, money is spent on coastline ravaged by erosion and hurricanes. Homeowners are generally glad for the help.

The key is tourism. Destin's population of fewer than 13,000 swells to nearly 60,000 during what City Manager Greg Kisela calls the "100 days of summer," when visitors are lured by a picturesque combination of sand and surf.

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He said beaches are "the economic engine that drives this market," and with development, "there's less beach to go around and more people to enjoy it."

Slade Lindsay and his attorney, Kent Safriet, said sentiment, not erosion, was the real reason for state and local officials to initiate the nearly 7-mile restoration project in Destin. "It was a way to bring tourists in, where the tourists could go and not have local property owners say yea or nay about it," Lindsay said.

That is because the Florida law changed where to affix the property line for beachfront owners.

When Florida fixes an eroding beach, it decides on a permanent boundary usually at the mean high water line. After that, sand that accumulates seaward by nature or the state's efforts to pump it on the coast, belongs to the public.