| “The real fear is that the threat of legal action alone will make municipalities or states back down and adopt less effective ordinances, laws, or regulations.” | |
| Kristen Fletcher, Coastal States Organization |
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The U.S. Supreme Court recently ruled in favor of the State of Florida in a case that challenged the state law establishing nourished beaches as public property, but it declined to decide the issue pushed by property rights advocates of whether a state judicial decision can ever amount to a government taking of private property without just compensation.
The court’s decision on the state law will likely have little impact outside Florida, but a minority opinion concluding that in some circumstances a judicial decision could amount to a taking may encourage property rights advocates to pursue lawsuits to clarify the issue.
“For the State of Florida, this case was a win,” says Kristen Fletcher, an attorney who is executive director of the Coastal States Organization. “I think on the issue of judicial takings, the court left it gray. I don’t know that it gave a win to either side, but it left the door open for future cases that potentially answer the question or not.”
Kent Safriet, attorney for the property owners in the case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al., called the minority opinion a “major victory for property rights advocates,” but admits that many questions were left unanswered.
“It opens the door that had heretofore not existed,” Safriet says. “It’s a shot across the bow to the state courts, warning ‘don’t be too aggressive’ and ‘don’t get too far outside of the mainstream.’ If that doesn’t squelch court activism, I see the U.S. Supreme Court taking up a case to address it more specifically.”
Defining Takings
While the legal issues around takings are complex, there are three potential scenarios where landowners could lose most or all economic uses of their property due to government interference, explains Fletcher.
The most common form of a taking is eminent domain, where private property is taken for public use, for which the owner is fairly compensated.
A regulatory taking occurs when a government regulation effectively takes enough value away that a person loses all viable economic uses without losing the title to the property, which is a violation of the U.S. Constitution.
A judicial taking—which has never legally occurred—would be if a state court made a decision that effectively changes state or local property law so that property loses its economic viability without just compensation to the owner.
“It’s something debated and discussed in academic circles, but there’s never been a case of a judicial taking,” notes Niki Pace, research counsel for the Mississippi-Alabama Sea Grant Legal Program.
Adding Sand
In the Stop the Beach Renourishment, Inc. case, homeowners in Walton County near Destin filed suit in 2004 to stop a state-planned seven-mile beach renourishment project that included placing sand in front of their homes.
Under the state’s Beach and Shore Preservation Act, counties and cities can use public moneys to restore beaches eroded by hurricanes and storms by adding sand beyond a state-designated erosion control line—this sets the private property beachfront line where it is when a restoration project begins.
If the addition of new sand at water’s edge extends the dry beach farther out toward the water, that new additional dry strip is considered public property.
Land Grab
While Florida’s renourishment program has generally been popular with homeowners, Safriet’s clients felt it was “a land grab.”
“It created public beach in front of their private beach,” Safriet says. “It was a backdoor way to take away private beachfront property.”
State and local governments see the renourishment program as essential to preserving private property, coastal roads, utilities, infrastructure, and tourism.
Decisions
A Florida district court ruled in 2006 that the state’s restoration effort constituted an uncompensated taking, depriving property owners of their right to maintain contact with the water and their “right to accretion,” which is the gradual accumulation of land by natural forces.
The Florida Supreme Court reversed the lower court order.
Without beach renourishment, “the public would lose vital economic and natural resources,” the state Supreme Court held. “As for the upland owners, the beach renourishment protects their property from future storm damage and erosion while preserving their littoral rights to access, use, and view. . . The act facially achieves a reasonable balance of interests and rights to uniquely valuable and volatile property interests.”
Safriet’s clients appealed to the U.S. Supreme Court, seeking a determination that the state court’s decision amounted to an unlawful judicial taking by depriving them of property.
Balancing Interests
On June 17, 2010, the U.S. Supreme Court unanimously agreed that under Florida law and judicial precedents, the state owns the land under the water at the shoreline, and the state continues to own that land even if it adds new sand that interrupts the private property contact with the water.
The court acknowledged that such restoration programs may deprive the homeowners’ waterfront property of some of its value, but the justices noted that long-standing Florida court precedent balanced the public–private interest and therefore there was no taking of private property that would have required compensation from the state.
The Coastal States Organization filed an amicus brief in the case on behalf of the state. “Our basic argument,” Fletcher says, “was that as sovereign entities and landowners, states need to have the flexibility to decide which tools are best for their issues. Some states see beach renourishment as an effective tool to deal with beach erosion, sea level rise, and other issues of climate change.”
Very Specific
The high court’s ruling was “a win for the state and what they’re trying to do to manage coastlines,” Fletcher says. “Florida is in a slightly safer position than it was before. At the same time, there are some creative legal arguments out there, and there’s the possibility of another legal challenge.”
Pace says, “I think it’s an important decision because it held that there was no taking, but it was very specific to Florida and dealt with specific Florida property law. This was a narrow decision that doesn’t have broad application to other states.”
“This case is not the approval of the U.S. Supreme Court of beach restoration, or beach restoration in Florida,” Safriet says. “This case turned on very specific provisions of Florida common law that date back hundreds of years.”
Minority Opinion
What has attracted the attention of property rights advocates, however, is that four of the justices noted in the decision that while this case was not a taking, if a court declares that what was once an established right of private property no longer exists, it has taken the property in violation of the U.S. Constitution.
The remaining four justices held that it was unnecessary to decide such a theoretical question. Justice John Paul Stevens, who owns a Florida beachfront residence, did not take part in the ruling.
Safriet says that as a result of the opinion, he expects to see litigation to clarify judicial takings in the future.
“It’s important to keep in mind,” Pace says, “that all the justices agreed that there was no taking in this case and there was no majority opinion on judicial takings. Right now, we still don’t have a case that has found a judicial taking, so we don’t know what is going to happen.”
Fletcher says, “States and municipalities have more strength against takings claims than they realize. The real fear is that the threat of legal action alone will make municipalities or states back down and adopt less effective ordinances, laws, or regulations.”
She adds, “In my opinion, they can see this case as one more in a series of cases that shows the roles and responsibilities of government is taken seriously, and they can withstand a takings claim.”
For the U.S. Supreme Court’s decision, go to www.supremecourt.gov/opinions/09pdf/08-1151.pdf. For more information on the case, you may contact Kristen Fletcher at (202) 508-3861, or kfletcher@coastalstates.org, or Kent Safriet at (850) 222-7500, or KentS@hgslaw.com. For more information on takings, contact Niki Pace at (662) 915-7775, or nikilpace@gmail.com.
