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U.S. Supreme Court hears Florida beaches case

WASHINGTON

The highest court in the land heard a lot about Florida beach sand Wednesday: Where it comes from. Where it goes. Where spring breakers like to party.

But the big question, the one the U.S. Supreme Court must settle, is: When the government builds a wider beach, who owns it?

The answer will determine the fate not only of Florida's $94 million beach renourishment industry but also of Pinellas County's most popular tourist destination.

"In lots of areas of the county, there would be no beaches without renourishment," said Will Davis, environmental management chief for Pinellas County.

Six beachfront landowners from the Panhandle city of Destin are challenging the current renourishment system, contending it takes their property rights. They lost in a 5-2 decision from the Florida Supreme Court but got a chance Wednesday morning to present their case to the U.S. Supreme Court.

The justices peppered the attorneys for both sides with questions about everything from who owns the sand that accumulates naturally to whether a city could build a beach just to attract spring break parties. No date has been set for a ruling.

If the court sides with the property owners, it could mean that government agencies must reimburse them for taking their property by dumping fresh sand in front of their beaches. "The government wouldn't have enough money to pay that," Davis said.

An end to the long-running renourishment program would affect everything from property values to insurance rates and the $65 billion tourist industry, say business and government leaders.

"It's going to have a crippling effect on Florida's economy," said state Sen. Dennis Jones, R-Seminole, nicknamed "Mr. Sandman" for his tireless efforts on behalf of beach renourishment.

Not true, said D. Kent Safriet, the Tallahassee attorney for the Destin landowners. He predicted that, especially when facing major erosion of their beach, most property owners will be "willing to give up these rights."

Programs cost millions

Engineers have been using new sand — dug up offshore and pumped to the land — to boost the size of beaches since 1922, when Coney Island needed enhancement.

Since then, more than 300 major renourishment projects have been pursued nationwide, dumping a total of 517 million cubic yards of sand on the country's waning beachfronts, according to a study by the National Oceanic and Atmospheric Administration.

Florida's beaches have reaped the greatest number of renourishment projects, with more than 140 designed and engineered projects over the state's 825 miles of sandy shoreline, the study found. Thirty-five of Florida's 67 counties have used taxpayer money to artificially enhance their beaches.

"Sand is to Florida what snow is to Colorado," Jones explained.

This year the state is spending $25 million on renourishment, local governments $26 million, and the federal government $42 million, according to the state Department of Environmental Protection.

Despite the expense, renourishment tends to be popular with beachfront communities, where everyone is well aware of how little beach they would have without it.

"We love beach renourishment," said Nancy Gonzalez, Belleair Beach's city manager. "Our residents love it. We're happy to get it."

The reason residents tend to love it is a simple question of value. "It definitely increases the value of property when you have a big, wide beach behind you, instead of having water coming right up to the seawall," said Martha Thorn, a Clearwater Realtor with Coldwell Banker.

Just ask Bernie Wolfson, 72, of Treasure Island. "They renourish the beach in front of my house periodically, every five years or so," he said. Without that, his house would be worth a lot less money.

But there's a catch: That stretch of new sand doesn't belong to the beachfront property owners. Under Florida law, it belongs to the public.

"If the public pays to restore a beach, they should have the right to access it," Jones contended.

That doesn't sit well with people who prefer their beach to be private. If given a choice, Wolfson said, "I don't want to open it up to the public."

To the six waterfront property owners in Destin, the state's ownership claim is spurious. They say their private property rights should still extend until the beach touches the ocean, no matter what additional sand has been pumped up from offshore.

And if their rights don't extend that far, then they should be compensated for the loss of their property.

Justice John Paul Stevens did not sit for Wednesday's oral arguments, a sign he is likely to recuse himself from the case. Stevens owns a Fort Lauderdale beach condominium and thus has an apparent conflict of interest.

75 feet of sand

Many renourishment projects are targeted at eroding shorelines. Upham Beach, on St. Pete Beach, needs regular renourishment to exist, Davis said. It's the most frequently renourished beach in a county that has been getting renourished beaches since 1966.

But in the Destin case, property owners contend that they already enjoyed a beach that stretched for more than 200 feet from the mean high water line. They owned all that land, they said.

Then, in 2003, Destin, Walton County and the state pumped up enough sand to replace "a private beach with a public beach without paying compensation by creating an additional 75-foot-wide public beach," the landowners contended in their court brief. They say the state took away their "ability to own, possess and exclude persons from the beach," and now "commercial vendors are allowed on the beach" in that 75-foot stretch of sand.

However, Justice Antonin Scalia pointed out that the state has essentially provided the homeowners with something of a quid pro quo by adding new sand at no cost to them.

"Who knows, maybe this is sufficient compensation," Scalia said. "The state could say we're giving you this compensation, and the difference is $2."

If the Supreme Court rules for the property owners, though, "we'd be in the position of paying private property owners to put sand back in their yards," said Jewel White-Cole, Pinellas County's assistant county attorney.

That would boost the cost of renourishment projects beyond what most agencies can now afford, which could have a ripple effect on other aspects of Florida beach life that depend on repeated renourishment. Take federally subsidized flood insurance.

"All of these waterfront property owners are greatly subsidized by everyone else," White-Cole said. "If suddenly all these homes are falling into the sea," then maybe the federal flood insurance program "is not going to want to insure them anymore."

But maybe, said Thorn, the Realtor, that's a more realistic way to treat the state's iconic beaches, rather than pumping sand onto them year after year: "You have to wonder, is it ever going to work? Is it ever going to stop? Or are you just defying what nature is going to do anyway?"

Times researcher Caryn Baird contributed to this report.

300

Major beach renourishment

projects pursued nationwide since 1922

517 million

Cubic yards of sand used

in those projects

140

Florida's renourishment projects

$25 million

Amount the state is spending

on renourishment this year

$26 million

Amount local governments

are spending on renourishment this year

Sources: National Oceanic and Atmospheric Administration,

Department of Environmental Protection

U.S. Supreme Court hears Florida beaches case 12/02/09 [Last modified: Wednesday, December 2, 2009 11:11pm]

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