WASHINGTON -- The unsightly vision of hot dogs stands, port-a-johns and partying spring breakers may lead the Supreme Court to overturn part of a Florida law designed to replenish lost beach sand.
The justices heard arguments Wednesday in a dispute about the ownership of new land created by Florida's beach replenishment program. The state claims it controls the new land it creates.
But a group of disgruntled beach-front property owners on Florida's panhandle don't see the program as an environmental blessing but rather curse what they contend is a naked land grab by the state to turn private beaches into public hands.
The private landholders' concerns were echoed loudly in the courtroom by skeptical justices who raised numerous concerns over the possibilities of what could happen on the new land. Chief Justice John Roberts wondered if a hot dog stand could go up on the new beach. Justice Samuel Alito asked about the possibility of a televised spring break beach party.
Until the beach renourishment plan went into effect, property lines were determined by a complex but generally agreed-upon formula based on the tides. But Florida Solicitor General Scott Makar argued that the state controls all land it creates on its side of the dividing line though it preserves the private landholder's right to access the water.
That concession didn't go over well with Justice Antonin Scalia who said, "The notion that the only purpose of the contact with the water is so that you can have access, that is -- is that not silly?"
Roberts also seemed dismayed at Makar's suggestion that the hog dog-stand scenario wasn't on point because it wasn't part of the justification to create new beach land.
"That is what the whole case is about," Roberts said. "Whether [the private owners] have a right to contact the water or not."
Wednesday's case is similar to the controversial Kelo v. New London case before the high court in 2005 when the justices ruled 5-4 that a Connecticut town was entitled to transfer privately-owned homes into the hands of developers. Justice Anthony Kennedy was in the Kelo majority and will likely prove to be the deciding vote in this case.
Kennedy first expressed concern about handing down a ruling leading to federal judges getting mired in questions of state law. But later in the argument he took issue with the potential consequences of the state's control of the new land. "I'm asking whether or not a state beach with, what do you call them, port-a-johns and hot dog stands and what-not, isn't a substantial impairment of the (private) owner's use?
Justice Stephen Breyer was the most vocal defender of the Florida Supreme Court ruling that upheld the law. He emphasized the private property owners retained access rights and noted that the state couldn't allow anything to be built on the new land that would restrict the private owner's view or enjoyment of the water.
In a somewhat surprising development, Justice John Paul Stevens did not take part in the arguments. There was no immediate explanation for his apparent recusal, but he owns a beachfront condominium in Fort Lauderdale.
If the justices divide 4-4, the Florida Supreme Court ruling will be upheld.