A Florida taking

Property rights can be tricky.

You own waterfront property along the white sand beaches of the Gulf of Mexico in Florida's panhandle. Waterfront property, being in short supply, commands a much higher price than property which merely offers a "view" of the ocean.

Along comes the state of Florida with its "beach renourishment and restoration" program, dredging up more white sand and dumping it along your shoreline, widening the beachfront.

The program has been operating for 30 years without a complaint, largely because the stretches of shoreline being restored had actually been ravaged by erosion and hurricanes. Homeowners were generally glad for the help, which merely restored beaches to the way they'd been before.

But in the booming beachfront town and gulf fishing port of Destin, a property rights issue now arises.

The state widens the beach. The owners of the beachfront property own as far as the high-tide line -- or thought they did. They say, "Thanks for adding to the size of our lots."

"Not so fast," responds the state of Florida. The newly created land is public land, the state declares -- vast masses of folk who neither bought nor pay taxes on beachfront property can now amble down the newly expanded beach with their coolers and umbrellas. The owners of what was previously "waterfront" property now own "water view" property -- a financially quite different matter.

A group of property owners sued.

"They're trying to make a beach without paying for it, whereas if they took the beach by eminent domain, they'd have to pay for it," said one homeowner's attorney.

The Florida Supreme Court disagreed. But Justice Fred Lewis penned a fiery dissent, arguing his colleagues had "butchered" Florida law to find a way to further the goal of beach restoration. The decision "is based upon infirm, tortured logic and a rescission from existing precedent."

The U.S. Supreme Court will hear the case next week.

The high court ruled badly in its Kelo decision three years ago, holding a municipality can seize private property and turn it over to a new private developer -- an odd contortion of the constitutional notion of "public use."

The temptation, in the Destin case, will be to take the populist political view: The sand-pumping by the state of Florida has created new public beaches, allowing larger numbers of people to enjoy an amenity once "locked up" by a smaller number of land owners.

But if the state of Florida created a public beach by taking away the old private beaches (rendering them not "beaches" but "strips of sand lying landward of the actual, new beach,") isn't that a "taking"? And doesn't the Constitution say the state now owes those landowners "just compensation"?