It started with four beachfront property owners in the Florida Panhandle questioning where their land rights ended seaward after a project to renourish beaches is completed.

The question has wound through the court system unanswered, and now the U.S. Supreme Court will consider the case of “Stop the Beach Renourishment v. The Florida Department of Environmental Protection et al” beginning Dec. 2.

Steve Boutelle, Lee County operations manager for the Natural Resources Division, said the ruling will be critical to Floridians. On Gasparilla Island, where an $11.2 million beachfront renourishment project was completed in April 2007, the future of such work will be determined by the Supreme Court ruling.

Over the years, other beach renourishment projects have been done in Cape Coral, Sanibel, Captiva and Fort Myers Beach.

“Looking at Lee County and the shore projects we’ve completed or envisioned, it really is significant in that the way the state of Florida conducts permitting and funding of beach projects, which is really tied critically to the erosion control line,” Boutelle said. “Shore lines can come and go and boundaries can move with them. We really believe sandy beaches are a critical component of infrastructure in Lee County and Florida.”

Beachfront property owners’ rights have long been etched in Florida law, he said. The ruling will determine how the state goes about protecting its tourism and ecological interests.

“If there is a finding the erosion control line process is in fact a taking, and somebody’s property rights have been taken away from them properly without compensation, that will cause a drastic re-evaluation of beach projects in Florida,” Boutelle said.

“It is a Florida issue with national implications,” said Tina Haisman of the American Shore & Beach Preservation Association. “The court will decide whether state legislation to restore eroded beaches constitutes a regulatory taking or violates the Fifth Amendment.”

Florida law places all lands seaward of the mean high water line in common trust to preserve public beach access.

After a beach project is constructed, all property landward of the erosion control line are privately owned as they were before the project, and all lands seaward of it are state-owned as they were before the project. However, state lands now include some of the dry, sandy beach.

“The property owner keeps every right they had prior to the project,” Boutelle said. “The only thing they don’t get is their ability to actually have a piece of dry property touching the water. They also lose the changing nature of that property line. On a shore line that is eroding, that potentially works to their advantage.”

A precedence for erosion control lines has already been set.

“A number of other states have similar processes as Florida for establishing erosion control lines,” said Brad Pickel, president of Seahaven Consulting and a consultant for Walton County. “So, if the Florida line is ruled illegal, there is a possibility that several other states will have a problem with their lines as well.”

The dispute before the Supreme Court came up following a beach restoration project conducted by the city of Destin and Walton County in 2006-07.

Four property owners sued saying the state of Florida violated their property rights by establishing an erosion control line on the beach behind their homes. This line, based on historic erosion rates prior to a beach restoration project, defines the pre-project boundary between upland private ownership and seaward state ownership of the renourished beach.

The property owners claim: 1) The erosion control line changes their property from Gulf-front to Gulf-view; 2) The erosion control line will cause them to lose future accretion of sand on the beach.

“While the case before the court is technically a Florida matter, the results of the case could have implications for coastal communities nationwide,” said Harry Simmons, president of the American Shore & Beach Preservation Association. “We believe the state of Florida is correct in its approach to restoring beaches and hope the high court agrees.”

Beach resident/official responses

n Joanne Shamp, beach front property owner

The intent of state statutes for beach re-nourishment is to replace sandy beaches that have been lost due to avulsion, in events such as hurricanes. In cases where storm-ravaged beaches have washed away, there is justification for replacement of the sand to the previous mean high water mark for protection of the interests of upland development, wildlife and recreation. Unfortunately, what has occurred is that the State has now expanded that function to create huge state-owned artificial beaches larger than any beach that has historically existed in that location. This unjustified expansion for state ownership of all waterfront is indeed raises a question of unconstitutional taking of property rights and possible misuse of tax dollars.

On Fort Myers Beach, the re-nourishment project is clearly a State and County effort to expand commercial development (tourism) into residential areas and onto private property. This expressly violates the Comprehensive Plan of the Town of Fort Myers Beach. The CORPS project has nothing to do with environmental protection or replacing the beach back to its original mean high water mark, as our beach has already naturally repaired itself after hurricanes such as Donna and Charley. Surveys dating to 1927 prove this. Nor does the project provide critical storm protection in a major event, as the island sits only about 6 feet above sea level and will flood over from time to time.

On Estero Island, the State of Florida is indeed attempting to overreach its role and trample on constitutional littoral property rights for the purpose of commercial expansion, not for the restoration of eroded beach to its original dimensions as was intended by the State Statutes for beach preservation.

If the United States Supreme Court rules that these projects are indeed a taking requiring compensation, it will force state and local governments to return to a policy of restoring beaches rather than expanding them. That decision will save tax payers billions of dollars and truly preserve our environment.

n FMB Mayor Larry Kiker

Recently I read an article that in December the Supreme Court was going to hear a case that was filed in the Walton Beach area discussing whether property rights may be redefined with the advent of beach re-nourishment. Although this case does not directly describe what is happening with local issues on Fort Myers Beach, it does appear to address what property rights individual beach-front owners have after a re-nourishment project is completed.

Some County and experts have made statements that property rights will not be affected and there is no possible way that re-nourishment allows the government to ‘take property’. As I understand, the case reads that by extending the beach line the owners may no longer own the property into the water, but would own beach-view property. With the good intentions of those that have made these statements and for those that have had difficulties with the project, it becomes clear that the U.S Supreme Courts will make that determination.

If property rights are diminished based on this court decision, it would not be a favorable exposure for current property owners to do re-nourishment. If the ruling determines otherwise, it should substantiate acceptance of beach re-nourishment projects. Additionally, it is not clear whether the decision would be retroactive on projects already completed, which would also weigh in on whether someone may want to proceed. Obviously, the results may cause a re-evaluation of beach re-nourishment projects everywhere.

This is the wrong time to jump to conclusions based on personal observations. We should wait and base our conclusions on the results of the U.S. Supreme Court decision. The good news is that the ruling on this particular case should clear up many misunderstandings or misconceptions on property rights.