Walton County v. Stop the Beach Renourishment, Inc., No. SC06-1449 (Fla. S.Ct., Sept. 29, 2008).

Melanie King, J.D.

In 1995, Hurricane Opal caused severe damage to several Florida beaches, resulting in their placement on the critically-eroded beaches list by the Florida Department of Environmental Protection (FDEP). To repair the damage, the City of Destin and Walton County initiated a beach renourishment program for the renourishment of 6.9 miles of beaches and dunes under the state’s Beach and Shore Preservation Act (BSPA).1
      Six beachfront homeowners objected to the renourishment project, claiming that the BSPA’s process for restoring critically-eroded beaches deprives littoral property owners of their property rights without just compensation, a violation of the Fifth Amendment. The Florida Supreme Court recently rejected those claims and upheld the BSPA as constitutional.

Background
Under the Florida Constitution, the wet sand beach between the mean high water line (MHWL) and low water lines are held in trust for the public, which the State has a duty to protect under the public trust doctrine. However, coastal, or “littoral”, landowners hold several exclusive common law littoral rights: (1) the right to have access to the water; (2) the right to reasonably use the water; (3) the right to accretion and reliction;2 and (4) the right to the unobstructed view of the water. These are private property rights that cannot be taken without just compensation.
      Under Florida law, the MHWL boundary between public and private land is based on the average high water line over a nineteen-year period. Under the doctrines of erosion, reliction, and accretion, the boundary between public and private lands changes with gradual and imperceptible losses or additions to the shoreline.
      Despite these common law littoral rights, when a beach restoration project is begun under the BSPA, the common law no longer operates “to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion” and an erosion control line (ECL) becomes the fixed property line between private and public lands.3 Under the BSPA, once a local government applies to the FDEP for funding for beach restoration, a shoreline survey is conducted to determine the MHWL for the area. The location of the ECL is based on the MHWL, the amount of erosion or avulsion, and protection of ownership of upland property. The upland owners’ littoral rights are expressly preserved.4 The ECL is canceled if the project does not begin within a two-year period, is halted for six months, or the restored beach is not maintained.
   Accordingly, after Destin and Walton County applied to the department for a joint permit under the BSPA, a coastline survey was conducted to determine the MHWL and an ECL was established at the surveyed MHWL. In July 2005, FDEP entered a final order issuing the permit.
      Stop the Beach Renourishment (STBR), a not-for-profit association of six beachfront property owners, challenged FDEP’s final order before the First District Court of Appeal, claiming that the order was issued pursuant to an unconstitutional statute. STBR asserted that A7 161.191(1) of the BSPA, which fixes the shoreline boundary at the ECL, unconstitutionally divests upland owners of their common law littoral rights by severing these rights from the uplands. Under the BSPA, if the ECL is located landward of the MHWL, the state becomes the owner of the uplands between the ECL and the MWHL. Because common law littoral rights attach to land abutting the MHWL, the state instead of the upland land owners becomes owner of land to which common law littoral rights attach. STBR argued that although A7 161.201 expressly preserves littoral rights, these rights are an inadequate substitute for the owners’ common law littoral rights.
      The First District Court agreed and held that FDEP’s final order issued pursuant to the Act results in an unconstitutional taking of the littoral rights to accretion and reliction. Furthermore, the court found that because the establishment of the ECL would allow the state to own property upland of the MHWL, the BSPA takes the littoral right of contact with the water from property owners. On appeal to the Florida Supreme Court, the court asked whether the BSPA unconstitutionally deprives upland owners of littoral rights without just compensation.

Avulsion
Although the lower court did not consider the doctrine of avulsion in its analysis, it was central to the Florida Supreme Court’s decision. “Avulsion” is a sudden and perceptible loss or addition to land by the action of water. In contrast to the doctrines of erosion, reliction, and accretion, the doctrine of avulsion requires the boundary between public and private land to remain at the MHWL as it existed before the avulsive event. Because hurricanes can cause avulsion, with sudden and perceptible shoreline changes, the boundary between private and public property does not change with the changes in the shoreline caused by storms. Furthermore, under Florida common law, the public has the right to restore its shoreline lost to an avulsive event up to the MHWL.
      Because the court viewed hurricanes such as Hurricane Opal as avulsive events, the court found that under the BSPA, by restoring storm-damaged lands, the State would not be doing anything that is not permitted under Florida common law, i.e. restoring the tidelands it owns below MHWL that were removed by the avulsive event. Thus, the Court reasoned that in such circumstances the Act does not deprive beachfront property owners of their littoral right to accretion and reliction.

Right of Contact
The district court found that the establishment of the ECL takes the littoral right of contact with the water from property owners; however, the Florida Supreme Court disagreed. The court stated that under Florida common law, the littoral right of contact with the water is an ancillary right to the littoral right of access to the water.
      In other words, the right of contact with the water exists in order to preserve the right to access the water. “[B]ecause the Act safeguards access to the water and because there is no right to maintain a constant boundary with the water’s edge, the Act, on its face, does not unconstitutionally eliminate the ancillary right to contact.”5 However, in a footnote the court noted, “There is a point where [an unreasonably distant] separation [between the MHWL and private land] would materially and substantially impair the upland owner’s access, thereby resulting in an unconstitutional taking of littoral rights.”6

Conclusion
The court held that the BSPA, on its face, does not unconstitutionally deprive upland owners of littoral rights without just compensation. The court emphasized that its opinion “is strictly limited to the context of restoring critically eroded beaches under the Beach and Shore Preservation Act.”7    
      In a dissenting opinion, Justice Lewis expressed strong disapproval of the majority opinion “because of the manner in which it has ‘butchered’ Florida law.”8 He argued that the right of contact with water is not ancillary to the right to access. Rather, contact with the water is “the legal essence of littoral or riparian land.” By definition, littoral and riparian property is land that is contiguous to or touches water, and in the case of littoral property, this touching must occur at the MHWL. Justice Lewis cited several Florida Supreme Court cases that have held that littoral rights cannot be separated from littoral lands and that these rights constitute property. He stated that “the private-property rights destroyed [by the majority opinion] are critical and of fundamental importance.”9

Endnotes
1.  The Beach and Shore Preservation Act is codified as Fla. Stat. A7A7 161.011-161.45.
2.  “Erosion” is the gradual and imperceptible wearing away land from a shore. “Accretion” is the gradual and imperceptible accumulation of land on a shore. “Reliction” is an increase in land by a gradual and imperceptible retreat of a water body.
3.  Fla. Stat. A7 161.191.
4.  “If an authorized beach restoration, beach nourishment, and erosion control project cannot reasonably be accomplished without the taking of private property, the taking must be made by the requesting authority by eminent domain proceedings.” Fla. Stat. A7 161.141.
5.  Walton County v. Stop the Beach Renourishment, Inc., No. SC06-1449 at 34 (Fla. S.Ct., Sept. 29, 2008).
6.  Id. at n.16.
7.  Id. at 3.
8.  Id. at 38.
9.  Id. at 53.