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US Supreme Court falls short of declaring that “judicial takings” are possible

September 2nd, 2010

by Gary Taylor

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection
(United States Supreme Court, June 17, 2010)

In Florida, with respect to littoral (shorefront) property owners, the state owns the land permanently submerged under water as well as the the land between the low-tide line and the mean high-water line.  At common law in Florida, the littoral property owners own up to the mean high-water line.  Also, littoral owners have “special rights” with regard to the water and the land between low- and high-water line, generally likened to easements.  These “special rights” include the right of access and use of the water, the right to use the water for certain purposes, the right to an unobstructed view of the water, and the right to receive “accretions” and “relictions” to the littoral property. “Accretions” are additions of sand, sediment, or other deposits to waterfront land, while “relictions” are lands once covered by water that become dry when the water permanently recedes.  In order for the littoral property owner to receive these accretions and relictions (i.e., to alter their property line) they must occur gradually and imperceptibly over time.  A sudden change (such as through a hurricane or a specific man-made event) is an “avulsion,” and the property boundary remains the mean high-water line as it existed before the avulsive event.

In 1961, Florida enacted the Beach and Shore Preservation Act (BSPA) to restore and maintain critically eroded beaches within the state. The BSPA allows a municipality to apply to the State for funding and permits to restore an eroded beach, generally by dumping sand on the previously eroded portion of the land.  The BSPA provides that once a project is undertaken, an erosion-control line is established, usually at the current mean high-water line, and sand is added is added seaward of the erosion-control line.  As a consequence of the renourishment under the BSPA, the erosion-control line replaces the mean high-water line as the boundary between the littoral property and state-controlled land.  The establishment of the erosion-control line in effect extinguishes the littoral right of property to accretions and relictions.

In 2003, two counties received permits under BSPA from the Florida Department of Environmental Protection for the funding and permits necessary to restore beaches affecting, among others, Stop the Beach Renourishment, Inc. (SBR), a nonprofit corporation whose members are Florida beachfront property owners whose property eroded due to several hurricanes.  SBR challenged the issuance of the permit and the constitutionality of the BSPA.   The Florida Court of Appeals held that the BSPA eliminated two of the Petitioner’s members’ littoral rights, namely the right to receive accretions and relictions and the right to have their property come into contact with the water, and that therefore the BSPA resulted in an unconstitutional taking.  The Florida Supreme Court reversed, finding among other things that right to accretions and relictions is a “future contingent interest” and not a vested property right, and that there is no littoral right to contact with the water, other than the right of access which the BPSA does not affect.  SBR appealed, and the case reached the U.S. Supreme Court.

The questions relevant to planning were (1) whether a judicial opinion can result in an unconstitutional taking (a “judicial taking”), and if so (2) whether the Florida Supreme Court effected a judicial taking by reversing longstanding holdings that littoral rights are property rights under Florida law. 

The U.S. Supreme Court held 8-0 that the Florida Supreme Court did not take property without just compensation in violation of the Fifth and Fourteenth Amendments. The Court held that there could be no taking unless property owners could show that they had rights to future exposed land and to contact with the water superior to Florida’s right to fill in its submerged land. The Court drew from Florida property law principles that (1) the state, as owner of submerged land adjacent to beachfront property, has the right to fill that land and (2) the exposure of land previously submerged belongs to the state even if it interrupts the beachfront property owners’ contact with the water.

However, Justice Scalia, with three other members of the Court including Chief Justice John G. Roberts and Justices Clarence Thomas and Samuel A. Alito, also opined that a court could be determined to have effected a “judicial taking” in violation of the Takings Clause if that court declares that what was once an established right of private property no longer exists. “If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”  Justice Scalia observed that the Takings Clause, unlike other provisions in the U.S. Constitution, is not addressed to the action of a specific branch or branches.  It is concerned simply with the act, and not with the governmental actor (“nor shall private property be taken”). There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation.  It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.   

 Because only four Justices signed on to this part of the opinion, the concept of a “judicial taking” is not (yet) a principle of Constitutional law.

Federal courts, Takings , ,