Property Rights at the Supreme Court

The Wall Street Journal previews an important property rights case that the Supreme Court will be hearing today:

The case, Stop the Beach Renourishment v. Florida Dep't of Environmental Protection, began in 2003, when home owners in the Florida Panhandle objected to changes in their property lines caused by a "beach renourishment" program. Typically done in the name of deterring erosion, the government carts in truckloads of sand, making the beach bigger. But rather than extending the property of the owner, the state declares itself owner of the sandy addition, effectively separating waterfront home owners from the water itself….

If the state wants to create a public beach, it may have the power to do so by invoking eminent domain and compensating owners for their loss. Short of that, the action is a taking that violates the Fifth Amendment, and this case provides an opportunity for the Supreme Court to begin making amends for the damage it did to property rights in the 2005 case of Kelo v. New London.

Comments

[Untermensch]

If the gov. is extending the beach, how is not giving the adjacent property owners something that they didn't have before taking something from them that demands compensation? If they were blocked from ocean access, I could see a problem, but is that the case here? If they still enjoy ocean access, how is their property materially harmed?

Admittedly, I have not read the full article, but there must be more to it than apparent here.

[Zach]

I think the point is that they don't necessarily still have beach access. You had waterfront property, now you don't.

[bubba]

Day 1. You have beach front property that extends to the mean high tide line (or something like that).

Day 2. There is a state park between you and the water.

I can't imagine why anyone would find that irritating.

[joshua corning]

What is interesting is that I am sure many of the deeds probably have legal descriptions that describe the property using the term "mean high tide line".

The state respected that legal description when the deed was recorded and the property taxed based on that legal description. My guess is that Florida's DOE will loose this case.

[joshua corning]

If the gov. is extending the beach, how is not giving the adjacent property owners something that they didn't have before taking something from them that demands compensation?

As bubba hinted at the legal descriptions probably claim all land upland from the ever changing mean high tide line. In other words if the state changes that line or if the the drifting ocean does it does not matter. Surveyors were smart back in the day (still are). Knowing that the line is ever changing they constrained the property boundary (and the property right) to that line. The state accepted that legal right when it was first recorded and they continued to respect it when it taxed the property and permitted improvements and subdivisions on it.

[MNG]

"there must be more to it than apparent here"

You must be new here with such a display of common sense. You are supposed to express outrage with the gnashing of teeth and move on.

[Untermensch]

OK. Just read the article and I see now. The state is dumping sand on top of their beach and then declaring that it now belongs to the state, even if the beach wasn't actually extended. That's a pretty key point that wasn't obvious (at least to me) in the excerpt above. Nor was it obvious that it's simply a pretext to create public beaches by stealth.

[Hazel Meade]

If they rule in the state's favor it WILL be used as a pretext to create public beaches, even if that wasn't the intent here.

[Isaac Bartram]

I'm not going to take a side on who owns the "new" property.

I think that the state should just cancell the project and tell the homeowners that if they want to protect their houses and properties from erosion they can pay for it themselves.

[MP]

@Untermensch - When they do actually extend the beach, they are converting the original landowner's property from direct ocean access to indirect. This is a taking in that the act of the government devalues the landowners property, similar to a regulatory taking.

I don't see how this case remotely relates to Kelo though. It's simply another application of the broader Taking concept defined by Epstein.

[MNG]

Does it devalue the land? A person might pay a great deal to have their waterfront property shored up from erosion, and it might be something that would make the house more marketable to a potential purchaser.

[Isaac Bartram]

See my post below.

[prolefeed]

If it didn't devalue the land, why the hell would the owners fight it all the way to SCOTUS?

Use a little common sense, MNG ...

[Hugh Akston]

Untermensch, since I know you're not new here, I'm sure you're familiar with MNG's MO. He's here to equalize the signal:noise ratio.

[MNG]

Suggesting people get more info before they rage=noise for folks like Hugh.

"Hey, you got your careful analysis in the way of my deeply felt, strongly voiced though shallowly constructed opinion!"

[Hugh Akston]

Actually, MNG, I imagine that most people consider the "read before rage" paradigm to be implicit, therefore your helpful suggestion fits nicely into the category of noise.

As does your distribution of ostensible characteristics of mine to "people like" me. Is your argument with me or am I merely a synecdoche of a larger libertarian conspiracy? Who are these people like me? And more importanly, can anyone see them besides you?

[MNG]

The link is to the WSJ OPINION page, so take that for what it's worth.

If anyone wants to know a little WTF they are talking about before getting their rage on (a novel idea I know) the briefs and lower court opinions can be found here:

http://www.scotuswiki.com/inde.....on,_et_al.

[MNG]

Hugh of course is here to give thoughtful, insightful, nuanced, fair and occasionally even multi-sentence and syllable posts.

[Isaac Bartram]

Oh dear, before I embarass myself further.

From TFA:

Beach renourishment has been controversial around the country as a waste of money spent on sand that literally washes back into the ocean. According to the National Oceanic and Atmospheric Administration, by 2002 more than $2.5 billion of federal money had been spent on beach projects. According to a May report by Oklahoma Senator Tom Coburn, many are special interest projects for wealthy communities and have few environmental benefits.

It appears that in this case, though,

The Florida case is all the weirder because the beaches in question aren't threatened by erosion and some have grown naturally in recent years, adding to the suspicion that "beach renourishment" is a state pretext to gain waterfront rights in a desirable area. Unable to stop the state from dumping the new sand on their beaches, several owners offered to pay the state their pro-rata share of the sand distribution to maintain exclusive rights to their waterline. Florida refused the deal.

[emphasis mine]

So, I was wrong. This is not a case of a privileged few demanding a little socialism for the rich, it's an out and out land grab by the state. That last sentence gives it away.

[Shannon Love]

Party rights along water lines are tricky because common law has long established a public easement around all water owing to water's historical values as a means of common transportation. (You don't want someone shipwrecked to be shot for trespassing.) Since the shoreline changes all the time naturally, this means that the property line and the public easement continuously changes as well. In short, virtually no property owner in Florida or anywhere else has ever actually had full property right to all land that abuts the water.

From glancing at the court documents, it appears that the only thing the state is doing is preventing new construction on the added beach area. Property owners still have beach access, they just have to walk a little further across a wider beach.The forbids all construction, even its own, because this is erosion control. Building on top of erosion control is stupid and counterproductive.

I think a good case could be made that the plaintiffs are (1) wanting the state to spend millions protecting the plaintiffs property from erosion and (2) then wanting to claim the land created with state money as their own private property.

[Isaac Bartram]

See my post above.

[A Different Bill]

However, the difference is that, under the landowners' prior deeds, they actually owned the land all the way to the mean high water line. Yes, there is an easement by law that means they have to let people CROSS the land - people are allowed to walk along the waterfront to get from one area to another. But if someone pulls up in a boat and lays out a picnic blanket and lies down to do some sunbathing, the landowner can tell them to please bugger off and move along. After all, one of the principle rights associated with the ownership of real property is the right to exclude others. Look it up.

With the new land in place, in between the landowners' deeded land and the water, there is now a new strip of dry land that was not there before - and which the landowners do not own. So now, anyone else can stroll in and plop down with their kids and umbrellas and boomboxes and cooler, and sit there.

The state has come in and unilaterally reallocated the property rights - changing the bargain the landowners had actually originally obtained.

[joshua corning]

With the new land in place, in between the landowners' deeded land and the water, there is now a new strip of dry land that was not there before - and which the landowners do not own. So now, anyone else can stroll in and plop down with their kids and umbrellas and boomboxes and cooler, and sit there.

There is more to this as well. The state owning the new strip of land would prohibit the land owner from improving it. Before the land owner could improve the land up to the tide line but now they can only improve up to the new upland line prescribed by the state.

*for the laymen when i say "improve" i mean constructing buildings and fences and docks and bulkheads and gazebos and shit.

[joshua corning]

Party rights along water lines are tricky because common law has long established a public easement around all water owing to water's historical values as a means of common transportation.

You are so full of shit it is sickening.

[joshua corning]

I should expound on this:

First your use of of the word "easment" has nothing to do with the actual meaning of the word.

Second the right to tresspass in times of life and heath threatening situations is not particular to water front. If a madman is chasing me i have the right to cut across your lawn. There is nothing special if the trespass is over waterfront property or landlocked property.

Forth the right to trespass to avoid danger does not protect you from civil liability. If you damage the property in your escape you still have to pay for that damage.

Fifth the right to trespass to avoid danger does not prohibit the rights of the land owner to exclusion rights or prevent him/her from improving the property.

There is nothing tricky here.

[ktc2]

Yeah like the SCrOTUmS are going to do anything to "make up" for their evil ways. LOL. Damon, are you really that niave?

[Isaac Bartram]

That is, re:

I think a good case could be made that the plaintiffs are (1) wanting the state to spend millions protecting the plaintiffs property from erosion and (2) then wanting to claim the land created with state money as their own private property.

No they are no, in this case some of the owners have offered to pay and furthermore the relief they are asking for is that the state cancel the project.

It appears that this project is even more bongoggly that your averagr "Beach renourishment" project, in that the beach is not threatened.

Your other points are well taken though.

[Isaac Bartram]

This was to Shannon Love, expanding on my earlier shorter reply.

[Isaac Bartram]

"bongoggly" should be "boondoggly", a word I just made up.

Other typos should be correctable by the reader.

[robc]

MNG,

Maybe you should get more information before you tell people to get more information. The more information (Thanks Isacc) makes you look really stupid.

[A Different Bill]

The issue, as I understand it, is that the landowners' deeds stated that they owned the property to the mean high water line (MHWL) - which is a pretty standard construction of waterfront property deeds. Thus, their property can actually grow and shrink as water levels - and shorelines - change. Example: a hurricane comes through and deposits a few tons of sand from out in the Gulf, extending the land 58 feet - i.e., the MHWL is now 58 feet farther away. Yippee for the landowner; they just got a little more land. OTOH, hurricane comes through and washes away some land; their property just got smaller.

The state owns the land on the other side of the MHWL - the submerged land is sovereign property of the state.

The State's argument is that all their doing is piling sand on the state's sovereign property - converting the state's submerged land to dry land. In doing this, the state came in and fixed the owners' property line at what WAS the mean high water line. So the state claims you're not losing any land - your property is the same as it had been.

But the problem with that is that the state is coming in and unilaterally changing the definition of the property the person acquired by deed - the state is changing the deed so that what you now have is not defined by MHWL, but rather by a definite - and arbitrary - line in the sand. And the state then says "the sand on this side of the line is now ours."

The state is changing the rules, to get more land and get more tourism - at the expense of the immediate land owners. And doing so in quite a disingenuous way.

And kudos to MNG for being so remarkably consistent at missing the point and the actual issue.

[Untermensch]

Thanks for the clarification. That clinches it for me and makes it clear how it works. It would have been nice if the WSJ article had unpacked it for us unfamiliar with the particular legalities here.

[R C Dean]

Dittos. Nicely explained. When the state changes the deed to your property to limit your property rights, then its an obvious taking.

[Lord Jubjub]

NPR had the same issue on this morning and made the case a bit more in favor of the state. NPR also stated the state's claim that where the beach nourishment had not happened, there had been serious erosion from Ida.

NPR also noted that this appeared to be primarily for the benefit of tourists.

[bubba]

NPR came down on the side of the state?

Unpossible! lol

[joshua corning]

weirdness.

I think this is a state by state thing. In Washington state if property is inundated by water the original owner will actually own the property underwater. Also there was a huge case in Washington where the beach is actually growing. 30 years ago when homes were made on the beach perhaps 100 feet from high water they are now 1000 feet from high water. The ruling was that the new land is property of the upland land owner.

[A Different Bill]

I think this is a state by state thing.

Yes. Indeed it is. Property rights are based on state law. And riparian rights in particular can be a tricky issue, with a few different basic models for state law, but even in those states with the same basic concepts, there can be subtle variations. E.g., the Florida state constitution expressly provides that "The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people."

Not all states - even those with a lot of coastlines - have such a provision in their constitutions. But the issue will have been decided by statute and case law.

[prolefeed]

In Hawaii, the state owns all the beaches up to the highest wash of the waves during a year. Thus, no private property owner can exclude people from sitting in front of their house.

This makes beachfront property less valuable than if the owners could exclude people, and did have private ownership and the right to exclude.

[Fluffy]

I think A Different Bill's explanation is critical to understanding this issue.

Because without that info, I would have said that the propertyowners should fuck off.

No one sticks up for property owners more than me. But as far as I am concerned your property right applies to the property itself only. It cannot be a "taking" if I do something that reduces the value of your property indirectly. If you have a piece of oceanfront property worth $X, and I come along and open Fluffy's Shop of Smelly Ugly Shit next door to you and your property value falls as a result to $X-Y, you should not have any recourse against me whatsoever, either through the courts or through so-called "community action". Whatever percentage of the market value of your property that is dependent on me limiting my actions in some way doesn't really belong to you and you should have no legal right to try to "protect" it.

So from that perspective, if someone comes along and creates new land between you and the ocean, tough shit. You still have the same land you had before, and I would have no sympathy for you. But since the issue at hand is how the parcel is defined in the deed, if the state is trying to change that definition in a way that denies the propertyowner the original full definition of their parcel, it's a taking plain and simple.

[?????]

thanks