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"Now, if they put a noisy hot dog stand that keeps you up at night, doesn't that violate the statute?"

"Well, you can have quiet hot dog stands during the daytime."

Justices Breyer and Scalia concern themselves with hot dogs (transcript PDF) in a case about whether public access to newly added beach is a "taking" of the property of homeowners who previously had private beach extending all the way to the water:

?You didn?t lose one inch,? Justice Stephen G. Breyer told the lawyer for the owners, D. Kent Safriet. ?All you lost was the right to touch the water. But the court here says you in effect have that right because you can walk right over it and get to the water.?

The new strip of land is as wide as 75 feet in places, and the public has access to it.

?If somebody wanted to put up a hot dog stand on this new land,? Chief Justice John G. Roberts Jr. asked, ?would you have the right to tell them they can?t??

?Absolutely not,? Mr. Safriet answered.

Justice Breyer said the relevant law did protect the owners? right to enjoy their land in peace, meaning they could at a minimum ban ?a noisy hot dog stand that keeps you up at night.?

Justice Antonin Scalia found the middle ground, as it were. ?You can have quiet hot dog stands during the daytime,? he said.

Justice Sonia Sotomayor added that even before the beach project, ?a hot dog stand could have sat in the water.?

Full post as published by Althouse on December 03, 2009 (boomark / email).