Eminent Domain

Beach Renourishment

Stop the Beach Renourishment v. Florida DEP
Case No. SC06-1449, Fla Supreme Court
Case No. 08-1151, US Supreme Court

This case was won by Walton and Okaloosa Counties (and the City of Destin) in the Florida Supreme Court when that court upheld the statutory manner in which the Erosion Control Line is established for beach renourishment projects under the Florida Beach & Shore Preservation Act, Ch. 161, Florida Statutes.  Essentially, when the ECL is established (as it must be under the statutory scheme), the beachfront property owners lose any rights they may have had in acquiring more beach through natural processes (of course, due to erosion, the property owner likely would stand to lose more beach than gain) and they lose the right to maintain direct contact with the water.  The ECL becomes the line of demarcation between private and public property and it is established seaward of the private property (e.g., between a beach front home and the water).  The property owners argued that the loss of these potential property rights was a taking for which compensation was due.  The Supreme Court disagreed, finding the statutory scheme to strike a lawful balance between these property rights and the constitutional duty of the state to protect Florida’s beaches.  You can link to the opinion here.   FAC and the League of Cities joined on an amicus brief in the state proceedings.

The Pacific Legal Foundation (the group behind the Kelo redevelopment eminent domain decision from the U.S. Supreme Court) has convinced the U.S. Supreme Court to accept jurisdiction of the case and review it for federal issues.  FAC has rejoined the case as an amicus curiae on behalf of Walton County.  In addition, the Florida League of Cities and the Florida Shore & Beach Preservation Association are joining onto the FAC brief.  You can link to the briefs here.  Oral argument was held on December 2, 2009.  You can link to the transcript of the argument here.  The Supreme Court issued its opinion on June 17, 2010.

No Error Found. The Court concluded that the Florida Supreme Court did not take property without just compensation in violation of the Fifth and Fourteenth Amendments in its application of Florida’s Beach and Shore Preservation Act in this case. No taking occurs, unless petitioner can show that, before the Florida Supreme Court’s decision, littoral property owners had rights to future accretions and to contact with the water superior to the State’s right to fill in its submerged land. That showing could not be made here, according to the majority. Two core Florida property-law principles intersected in this case. First, the State as owner of the submerged land adjacent to littoral property has the right to fill that land, so long as it does not interfere with the rights of the public and of littoral landowners. Second, if an avulsion exposes land seaward of littoral property that had previously been submerged, that land belongs to the State even if it interrupts the littoral owner’s contact with the water. Prior Florida law suggests that there is no exception to this rule when the State causes the avulsion. Thus, Florida law as it stood before the decision below allowed the State to fill in its own seabed, and the resulting sudden exposure of previously submerged land was treated like an avulsion for ownership purposes. The right to accretions was therefore subordinate to the State’s right to fill.

The majority found that Florida Supreme Court’s decision in this case was consistent with these principles. See, Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1028–1029 (U.S. 1992). The Florida Supreme Court did not abolish the property owners’ right to future accretions, but merely held that the right was not implicated by the beach-restoration project because of the doctrine of avulsion. Relying on dicta in the Florida Supreme Court’s decision in Board of Trustees of Internal Improvement Trust Fund v. Sand Key Assoc., Ltd., 512 So. 2d 934, 936 (Fla. 1987). petitioner argued that the State took the property owners’ littoral right to have the boundary always be the mean high-water line. But petitioner’s interpretation of that dictum contradicts the clear law governing avulsion. According to the majority, one cannot say the Florida Supreme Court contravened established property law by rejecting it.

Four of the justices, although not a majority of the Court opined that if a court declares that what was once an established right of private property no longer exists, it has taken that property in violation of the Takings Clause. These four justices noted that although the classic taking is a transfer of property by eminent domain, they believe that the Clause applies to other state actions that achieve the same thing, including those that recharacterize as public property what was previously private property. Furthermore, said the four, the Clause is not addressed to the action of a specific branch or branches; the Clause is concerned simply with the act, not with the governmental actor. These four concluded that this Court’s precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the contrary.