Supreme Court to Hear Judicial Takings Case

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SandBar 8:3, October, 2009 Recommended citation: Bowling, Terra , Supreme Court to Hear Judicial Takings Case , 8:3 SandBar 5 (2009). Supreme Court to Hear Judicial Takings Case *Terra Bowling, J.D.* Last year, in Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Florida Supreme Court concluded that the state’s Beach and Shore Preservation Act (BSPA)1 did not result in a compensable taking of shoreline owners’ property. Recently, the U.S. Supreme Court granted cert in the case and will rule on whether the decision results in an unconstitutional taking of private property. Background After several Florida beaches were severely damaged by Hurricane Opal in 1995, the City of Destin and Walton County initiated a renourishment project. Under the BSPA, once a renourishment project begins, an erosion control line (ECL) replaces the Mean High Water Line as a fixed property line between private and public lands.2 Once the ECL is established, 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.”3 Stop the Beach Renourishment filed suit, claiming that the BSPA deprives property owners of their littoral common law rights, including the property owners’ right to accretion, which is the common law right to land that accumulates over time. The Florida Supreme Court found that because the BSPA did not fundamentally interfere with the property owners’ rights to access, use, and view the ocean, there was no taking. Cert In its petition for cert, the petitioners argued that the Florida Supreme Court’s ruling “reversed 100 years of uniform holdings that littoral rights are constitutionally protected common law property rights,” resulting in a “judicial taking” of the beachfront owners’ property rights.4 Although the U.S. Supreme Court should also examine whether the Florida Supreme Court’s approval of the BSPA violated Due Process under the U.S. Constitution, the “judicial takings” issue will likely be the primary focus for the Court. The Fifth Amendment provides, “nor shall private property be taken for public use, without just compensation.” Courts will generally find a right to compensation when the government 1) directly appropriates private property; 2) physically occupies private property; and 3) imposes a regulatory constraint on the use of property so severe as to deprive an owner of all economically beneficial use. However, most “takings” cases have focused on instances in which the legislature, not a court, has appropriated private property. This case will be the first time the Supreme Court addresses whether a court’s ruling has resulted in a “judicial taking.” If the Supreme Court does find that a taking occurred, Florida would be required to compensate private property owners. More than a dozen amicus briefs supporting the property owners’ claims have been filed in the case, primarily asking the court to find that littoral rights cannot be modified without notice, a judicial hearing, and just compensation. Attorneys general from 26 states and several organizations have filed amicus briefs supporting Florida. The argument is scheduled for December 2nd and will be one of the first cases heard by Justice Sonia Sotomayor. Endnotes 1. Fla. Stat. §§ 161.011-161.45 (2008). 2. Fla. Stat. § 161.191 (2008). 3. Id. 4. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Petition for Writ of Certiorari, No. 08-1151 (U.S. Mar. 13, 2009).
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SandBar 8:3, October, 2009
Recommended citation: Bowling, Terra , Supreme Court to Hear Judicial Takings Case , 8:3 SandBar 5 (2009).

Terra Bowling, J.D.

Last year, in Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Florida Supreme Court concluded that the state’s Beach and Shore Preservation Act (BSPA)1 did not result in a compensable taking of shoreline owners’ property. Recently, the U.S. Supreme Court granted cert in the case and will rule on whether the decision results in an unconstitutional taking of private property.

Background
After several Florida beaches were severely damaged by Hurricane Opal in 1995, the City of Destin and Walton County initiated a renourishment project. Under the BSPA, once a renourishment project begins, an erosion control line (ECL) replaces the Mean High Water Line as a fixed property line between private and public lands.2 Once the ECL is established, 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.”3 Stop the Beach Renourishment filed suit, claiming that the BSPA deprives property owners of their littoral common law rights, including the property owners’ right to accretion, which is the common law right to land that accumulates over time. The Florida Supreme Court found that because the BSPA did not fundamentally interfere with the property owners’ rights to access, use, and view the ocean, there was no taking.

Cert
In its petition for cert, the petitioners argued that the Florida Supreme Court’s ruling “reversed 100 years of uniform holdings that littoral rights are constitutionally protected common law property rights,” resulting in a “judicial taking” of the beachfront owners’ property rights.4 Although the U.S. Supreme Court should also examine whether the Florida Supreme Court’s approval of the BSPA violated Due Process under the U.S. Constitution, the “judicial takings” issue will likely be the primary focus for the Court.
The Fifth Amendment provides, “nor shall private property be taken for public use, without just compensation.” Courts will generally find a right to compensation when the government 1) directly appropriates private property; 2) physically occupies private property; and 3) imposes a regulatory constraint on the use of property so severe as to deprive an owner of all economically beneficial use. However, most “takings” cases have focused on instances in which the legislature, not a court, has appropriated private property. This case will be the first time the Supreme Court addresses whether a court’s ruling has resulted in a “judicial taking.” If the Supreme Court does find that a taking occurred, Florida would be required to compensate private property owners.
More than a dozen amicus briefs supporting the property owners’ claims have been filed in the case, primarily asking the court to find that littoral rights cannot be modified without notice, a judicial hearing, and just compensation. Attorneys general from 26 states and several organizations have filed amicus briefs supporting Florida. The argument is scheduled for December 2nd and will be one of the first cases heard by Justice Sonia Sotomayor.

Endnotes
1. Fla. Stat. §§ 161.011-161.45 (2008).
2. Fla. Stat. § 161.191 (2008).
3. Id.
4. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Petition for Writ of Certiorari, No. 08-1151 (U.S. Mar. 13, 2009).