Beach Access, Legal
December 03 2009

The Case of the Problematic Hot Dog Stand

by Angela

Yesterday's hour-long U.S. Supreme Court hearing on the Florida Department of Environmental Protection v. Stop the Beach Renourishment beach access case afforded a lively debate, including hypothetical scenarios of hot dog stands and spring breakers and enlightening discussion of case law. The case centered around the private oceanfront property owners right to exclude the public from the sandy beach in front of their houses after the state had filled that beach with taxpayer-bought sand.

Justice Sotomayor poignantly highlighted the shaky arguments of the private homeowners, including the tenuous fears of unwanted hot dog vendor who may perturb the sanctity of the sandy beach. Sotomayor pointed out that the hot dog vendor could still sell hot dogs on the beach up to the mean high tide line (or "standing in a foot of water") regardless of the property owners rights based on the public's rights under the Public Trust Doctrine. Her point in bringing up the hot dog vendor in the water was to show that the only right that the property owners are complaining about, with respect to unwanted vendors, is the right to incrementally move the hot dog vendor away from their homes in the case that the beach is accreting. Both Justices Breyer and Sotomayor seemed more sympathetic to the state’s beach renourishment program and its public access goals. Justices Roberts and Alito seemed to side with the private homeowner’s fears of noisy hot dog stands.

Somewhat surprisingly, Justice Scalia, a known supporter for invoking the takings clause, seemed somewhat neutral and inquisitive of the homeowners' motivations. Scalia thought the state's action could be a “good deal” for the private property owners given the erosion control value of the new sand. However, Justice Roberts turned this argument around to say that the value of erosion control could be factored in as a deduction from the "just compensation" given in return for a state purchase of the property.

Additionally, the Justices seemed interested in examining the uncharted concept of a "judicial taking," which would be when an act of the judiciary constitutes an unconstitutional taking of property. The Justices posed the hypothetical of an elected judge who campaigned on the plan of overturning a takings law. If the judge won, and ruled in favor of a "takings" it would presumably be a judicial takings versus a "legislative takings" which is done through an enacted law.

As for the rights of accretions and contact, most of the Justices were not clear on how they interpreted Florida case law, except Scalia who stated that the Sand Key decision was a good application of common law that the right of contact with the mean high water line is inherent in the right of access. Other than Scalia, none of the Justices seemed to reveal whether they felt that the rights of accretion and contact were either taken or existed in the first place.

From the line of questioning presented by the Supreme Court Justices yesterday, most attorneys and scholars have speculated that the decision will likely result in a 4-4 split among the Justices. A tie would automatically affirm the lower court’s decision, meaning the property owners would lose.

Prior to oral arguments, Surfrider Foundation submitted a brief of amicus curiae to the Supreme Court, which sought to persuade the Highest Court that Florida’s beach management program does not take littoral rights from property owners because accretion and contact are not absolute littoral rights and as a result the beach regulations were not unconstitutionally applied nor was the Florida Supreme Court’s decision a “Judicial Takings.”

The final written decision will likely be released before the end of the term in June.

Transcripts from the oral argument are available online.

Some important vocabulary if you are reading the caselaw or hearing transcript:
Avulsion – an abrupt change in the course or channel of a water boundary with land, resulting in the loss or addition of land. The sudden and perceptible nature of this change distinguishes avulsion from accretion.
Accretion – the adding on or adhering of something to property, usually gradual and imperceptible addition of sediment to shore by action of the water
Littoral rights – refers to “rights concerning properties abutting the ocean, sea or lake rather than a river or stream (riparian). Littoral rights are usually concerned with the use and enjoyment of the shore.
Reliction – the gradual and imperceptible withdrawal of water from land by lowering of the surface water level