International Municipal Lawyers Association - Local Government Blog

“You throw the sand against the wind…and the wind blows it back again.” – William Blake … but is it a taking? | June 22, 2009

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

The big news this last week was that on Monday, June 15th the U.S. Supreme Court granted certiorari in a takings case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. (Florida Supreme Court, decided September 29, 2008, rehearing denied December 18, 2008).  Click here for the Florida Supreme Court opinion.   Here is the Florida Court of Appeal decision which gives more details.

Municipal lawyers will want to follow this for two reasons.  First, it ends a four-year hiatus since the U.S. Supreme Court took on a takings case (last decided were Kelo, Lingle and San Remo Hotel) and it will be the first for the new chief justice.  Second, at root, the case is about global warming and, specifically, the government’s role in adaptation planning. For a primer on the latter, see the recent Pew Center report

As a planner and land use lawyer, I see adaptation planning as the leading regulatory issue of the next decade.

The case was covered by inveresecondemnation.com on June 16th with several good links. It was also addressed by the Eminent Domain Law Blog.

The Court will be deciding whether Florida’s state legislation, the Beach and Shore Preservation Act, effects a per se taking of the upland owners’ property.  Click here for the relevant portion of the statute.

This is the provision at the center of the controversy, a vesting statute contrary to the common law of accretion, that basically gives the state the ownership of the land it creates when it fills seaward of the “erosion control line” which becomes the new property boundary:

161.191 Vesting of title to lands.

(1)  Upon the filing of a copy of the board of trustees’ resolution and the recording of the survey showing the location of the erosion control line and the area of beach to be protected as provided in s. 161.181, title to all lands seaward of the erosion control line shall be deemed to be vested in the state by right of its sovereignty, and title to all lands landward of such line shall be vested in the riparian upland owners whose lands either abut the erosion control line or would have abutted the line if it had been located directly on the line of mean high water on the date the board of trustees’ survey was recorded.

(2)  Once the erosion control line along any segment of the shoreline has been established in accordance with the provisions of ss. 161.141-161.211, the common law shall no longer operate to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process, except as provided in s. 161.211(2) and (3). However, the state shall not extend, or permit to be extended through artificial means, that portion of the protected beach lying seaward of the erosion control line beyond the limits set forth in the survey recorded by the board of trustees unless the state first obtains the written consent of all riparian upland owners whose view or access to the water’s edge would be altered or impaired.

Under the statute the state renourishes beaches, adding sand to them to combat erosion.  The project which started the current litigation would widen the beach at Destin, Florida by 210 feet for a length of 6.9 miles.  Who owns that “new” (actually “restored” given that it is renourishment after all) beach?  The State of Florida says it’s theirs; the littoral owners see the restored beach as belonging to them, not the state.

Take a look at the beach, courtesy of the Environment News Service.

The beach at Destin, Florida (Photo by Jennifer Lee)

The beach at Destin, Florida (Photo by Jennifer Lee)

The takings question before the Florida Supreme Court was this:  “On its face, does the Beach and Shore Preservation Act unconstitutionally deprive upland owners of littoral rights without just compensation?”  The Florida court found no per se taking.  It’s a matter of avulsion, not accretion, said the court.  In following the case you’ll come to learn the critical difference between the two and be able to impress family and friends.  The sound bite version is that avulsion deals with large, sudden changes, while accretion is little bits on new land very slowly over a long time.  Hurricane Opal (1995) was avulsive.

Hurricane Opal's 8 to 14 foot storm surge damaged hundreds of structures along the Florida Panhandle in October 1995. (Photo courtesy UACE 1995).

Hurricane Opal's 8 to 14 foot storm surge damaged hundreds of structures along the Florida Panhandle in October 1995. (Photo courtesy UACE 1995).

The questions presented to the U.S. Supreme Court are:

The Florida Supreme Court invoked “nonexistent rules of state substantive law” to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court’s decision cause a “judicial taking” proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner’s property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

This is a case to watch.  And with your other eye, keep track of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008), reh’g and reh’g en banc denied, — F.3d –, 2009 WL 367528 (Feb. 17, 2009).  The U.S. Court of Appeals for the Federal Circuit held that it was a per se taking to require the water district to provide a fish ladder at its facilities and divert some of its water to protect the fish under the Endangered Species Act.  Watch for a certiorari petition. Two motions for extension of time have been granted so the Solicitor General has until July 15th to file.


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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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