Eroding rights?

Two important court cases, one before the U.S. Supreme Court and another that may come before Michigan's Supreme Court, could drastically impact the rights of beachfront property owners. In both cases, a governmental unit is trying to claim title to a portion of the land that would deprive the owner of access to the water.

The U.S. Supreme Court case is Stop the Beach Renourishment v. Florida Department of Environmental Protection and was argued in December. In that case, the court was faced with the question of whether a state court decision had improperly permitted the State of Florida to wedge — through a replenishment program meant to repair damages due to hurricanes — a strip of land between beachfront property owners and the ocean. Some justices questioned if this was allowed, and if there would be anything that would prevent the state from creating a wedge to allow for increased spring break tourism.

The case also raised the issue of state judicial takings. The federal courts already recognize that actions by state executives or state legislatures can constitute takings that require compensation. To date, the U.S. Supreme Court has not addressed whether a decision by a state court that so upsets traditional property rights — perhaps like the Michigan Supreme Court's decision in Glass v. Goeckel allowing a heretofore unrecognized right to beach walk on private property — would also constitute a taking.

The Michigan case is 2000 Baum Family Trust v. Babel. The Michigan Supreme Court is currently considering whether to review the Michigan Court of Appeals' decision. The lower court was faced with the question of whether beachfront owners who have a county road between their home and the water have "riparian rights," including the right to place a dock in the lake.

The Court of Appeals held that the test to determine riparian rights depends on whether the road was created via a statutory dedication or at common law. A common law road maintains riparian rights for the owner. A statutory dedication, however, only maintains riparian rights if those rights are expressly saved in the dedication, otherwise the riparian rights are with the public. This latter situation will undoubtedly come as a surprise to many "lakeside" property owners.

Beachfront property has long been highly valued because it affords owners the right to access the water. But as the public's demand for access to the water grows, the courts have slowly eroded traditional property rights. Hopefully, the U.S. Supreme Court will at least require that the owners be compensated when the courts do so.

Patrick J. Wright is the senior legal analyst at the Mackinac Center for Public Policy where he directs the Mackinac Center Legal Foundation. He may be reached at wright@mackinac.org.