Oral argument: Dec. 2, 2009
Appealed from: Florida Supreme Court (Sept. 29, 2008)
TAKINGS CLAUSE, JUDICIAL TAKINGS, ACCRETION, COASTAL PROPERTY, FEDERALISM
In order to combat beach erosion, the Florida Legislature passed the Beach and Shore Preservation Act. The act authorized local municipalities to restore the coastline by adding sand, creating a temporary buffer against erosion. Petitioner Stop the Beach Renourishment, Inc. (“SBR”) claims that Respondents Florida Department of Environmental Protection, et al. (“Florida”) misused the statute in order to unconstitutionally appropriate private beaches for public use without just compensation. SBR alleges that the Florida Supreme Court violated the due process and takings clauses by suddenly and unpredictably changing state substantive law to deprive SBR of its private property without compensation. SBR asks the court, for the first time, to explicitly articulate a doctrine of “judicial takings” in order to address the growing problem of state judiciaries redefining property rights out of existence so that states can avoid compensating property owners. Florida argues that the U.S. Supreme Court should avoid interfering in state court interpretation of state law out of respect for federalism. Florida contends that, even if there were a situation where a doctrine of judicial takings should be imposed, this is not one of them, because the Florida Supreme Court properly followed common law precedent.
1. 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?
2. 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?
3. 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?
Whether the Florida Supreme Court effected a “judicial taking” by approving legislative and administrative modifications that fixed private landowners’ property lines upland from the coast that they formerly abutted.
Following several devastating hurricanes, Florida identified several areas of coastline as critically eroded. See Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, 1106 (Fla. Sup. Ct. 2008). To curb erosion, Florida sought to deposit additional sand along the coastline in a process known as beach renourishment. See id.
Ordinarily, naturally deposited sand would be added to the private property of the beachfront property owner. See Walton County, 998 So.2d at 1108. Florida’s Department of Environmental Protection (“DEP”) identified the mean high water line (“MHWL”) as the Erosion Control Line (“ECL”). See id. at 1106. According to Florida’s Beach and Shore Preservation Act (“BSPA”), the ECL becomes the fixed boundary between publicly owned land and privately owned land. See id. In other words, the private property owner’s land could no longer expand and, with the addition of sand in renourishment, a strip of public land would be created.
On behalf of its members who owned land along the ECL, Stop the Beach Renourishment (“SBR”) filed administrative petitions challenging DEP’s issuance of a permit to proceed with the renourishment. See Walton County, 998 So.2d at 1106. An administrative law judge recommended that the DEP issue the permit, which it ultimately did. See id.
SBR appealed to the Florida First District Court of Appeal (“DCA”). See 31 Fla. L. 52Weekly D1173 (Fla. Ct. App, 1st Dist. 2006). The DCA held the statute facially unconstitutional because it divested owners of common-law rights to take title of any naturally deposited sand. See id. The DCA further held that those rights were severed because the state would take title of all land on the sea side of the ECL. See id. As the coast line expands and the MHWL moves towards the sea, a strip of publicly owned land between the old ECL and the shore would be formed. See id.
On appeal, the Florida Supreme Court reversed the DCA. See Walton County, 998 So.2d at 1105. The court held that Florida has, under the state constitution, a “duty to protect Florida’s beaches,” and that the BSPA “effectuates” that duty. Id. at 1110, 1115. The court also invoked the doctrine of avulsion, holding that boundaries between public and private land are not changed by an “avulsive event” (one that noticeably changes the shoreline location, such as a hurricane). See id. at 1117. The court held the actions to reclaim beaches are also authorized under the avulsion doctrine. See id. at 1118. Applying the avulsion doctrine, the court ruled that the common-law right to take title of naturally occurring sand deposits did not apply. See id. The court also determined that the right to contact with the water was ancillary to the right of access to the water — losing the former while retaining the latter would not deprive a landowner of core property rights. See id. at 1119–20.
The U.S. Supreme Court granted certiorari on June 15, 2009, to determine whether the Florida Supreme Court’s decision constituted an uncompensated “judicial taking” of the coastal property from the owners.
The U.S. Supreme Court’s decision will affect Takings Clause jurisprudence by clarifying the propriety and scope of judicial takings, and determining whether court decisions that alter or erase previously established property rights may be considered a taking.
The Cato Institute, supporting Petitioner Save the Beach Renourishment (“SBR”), urges federal-court involvement on the issue of judicial takings. See Brief of Amici Curiae Cato Institute, et al. in Support of Petitioner at 5, 10. Without a check on state courts, they argue, state courts would be free to “take” property and circumvent property rights by saying property owners never had certain rights to begin with. See id.
On the other hand, states supporting Florida argue that state courts are the best forum for adjudicating state property law, and that a ruling for SBR could open floodgates of litigation, possibly even at the U.S. Supreme Court level. See Brief of Amici Curiae California, et al. in Support of Respondent at 3. Only the Supreme Court “could hear judicial takings claims against state courts because various jurisprudential doctrines would preclude review in the lower federal courts.” Id. But the effects of that would be overwhelming; the Court would be “without a realistic ability to entertain more than a handful of these disputes or to perform the fact-finding that takings claims inevitably entail.” Id. It could also “inundate the Court of Federal Claims with ‘judicial takings’ claims against other federal courts.” Id. at 4.
SBR and supporting amici urge the Court to find that a judicial taking occurred; they argue that allowing the landowners to go uncompensated runs counter to public policy. Save Our Shoreline, a Michigan nonprofit, argues that if a state court sanctions such government activities as Walton County’s without compensating landowners, “the judiciary improvidently makes policy choices for its citizens, while at the same time avoiding debate — or even input — about the propriety of its choices.” Brief of Amicus Curiae Save Our Shoreline (“SOS”) in Support of Petitioner at 3.
Amici argue that a ruling for Florida would allow other governments to enact similar measures to create public shore space where private owners once held title. “The insatiable government appetite for control over private shores is sure to continue so long as this Court continues a ‘hands off’ response to judicial confiscation of America’s private beaches.” Brief of SOS at 10. This concern is further echoed by Save Our Beaches, a Florida nonprofit, which notes that states could use “protection of the environment as a pretense to circumvent legitimate methods for establishing property rights in order to accomplish otherwise impermissible goals.” Brief of Amici Curiae Save Our Beaches and Southeastern Legal Foundation in Support of Petitioner at 2.
But a ruling for SBR that property owners must be paid may curb support for already costly beach restoration, encouraging states to avoid beach renourishment. See Brief of Amici Curiae Florida Shore & Beach Preservation Ass’n, et al. in Support of Respondent at 9–10. This might cause economic loss for Florida and its communities, homeowners, and businesses. See id. at 3. Not only would the ruling reduce tourism and tax dollars, amici argue, but it could increase the risk for shoreline properties in case of future hurricanes and storms. See id.
The Supreme Court’s ruling will guide judicial takings doctrine and could potentially alter the course of both waterfront property rights and an individual state’s ability to partake in beach renourishment. The ruling will also affect the interplay among state and federal courts regarding the takings doctrine.
The Florida Legislature passed the Beach and Shore Preservation Act (“BSPA”) to combat the erosion of Florida’s beaches and shoreline. See Brief for Respondents, Florida Department of Environmental Protection (“DEP”), et al. at 4 (Fla. Stat. ch. 161). The BSPA authorized local municipalities to restore its beaches, both public and private, by adding sand to create a temporary buffer against erosion. See id. In areas where restoration projects are authorized, the BSPA allows Respondent Board of Trustees of the Internal Improvement Trust Fund to permanently fix a private owner’s property boundary at the current mean high water line (“MHWL”). See id. Petitioner Stop the Beach Renourishment, Inc. (“SBR”) is an association of beachfront property owners who allege that Respondents Florida Department of Environmental Protection (“Florida”), the Board, Walton County, and the City of Destin have misused the BSPA to unconstitutionally convert private beaches into public beaches without having to compensate private owners for their loss. See Brief for Petitioner, Stop the Beach Renourishment, Inc. at 6.
SBR claims the BSPA violates their constitutional right to due process and just compensation before government takings of private property. See Brief for Petitioner at 51–55. Because the statute gives the state ownership of the newly deposited dry sand beaches, SBR argues that the waterfront owner’s property is cut off from the ocean, diminishing its value. See id. What was a private beach becomes public, turning oceanfront property into landlocked property behind a public beach. See id. Furthermore, SBR alleges that, by permanently fixing the property boundary, the BSPA abolishes their right to ownership of any future beach created by naturally deposited sand. See id. SBR also argues that the BSPA attempts to substitute statutory rights for what were constitutional rights, an exercise that is itself an unconstitutional taking because statutory rights are not guaranteed. See id. at 53–54.
Florida and Walton County claim that, under Florida common law, oceanfront property owners only have a right to access the water. See Brief for Respondents, DEP at 39; Brief for Respondents, Walton County and City of Destin at 34–36. Because the BSPA expressly grants oceanfront owners the right to access the water over the newly deposited public beaches, no rights are actually taken away. Additionally, Florida argues that the owners receive, at public expense, great benefits from beach restoration. See Brief for Respondents, DEP at 56–57. The state also claims that property owners do not have any inherent right to ownership of naturally deposited sand. See id. at 35–36. Rather their ownership claim is based on the fact that they bear the risk of erosion and, for fairness sake, should also receive the rewards of natural beach growth. See id. According to Florida, the restoration projects shift the property owner’s risk of erosion to the state, therefore, the state should own any future beach growth. See id.
Did the Florida Supreme Court’s decision constitute a “judicial taking”?
During the state court litigation, the Florida Supreme Court sided with Respondents. See Brief for Petitioner at 16–17. The court ruled that, under Florida common law, beachfront property owners had no right for their property to continue contact with the water, nor any vested right of future accretion. See id. SBR claims that the Florida Supreme Court imposed a “judicial taking” by redefining the rights associated with oceanfront property out of existence, thus allowing the state to avoid compensating the owners for their taking. See id. SBR advocates adoption of a rule “that a state judicial decision effects a taking under the U.S. Constitution when it ‘constitutes a sudden change in state law, unpredictable in terms of relevant precedents.’” Id. at 17 (citing Hughes v. Washington, 389 U.S. 290, 296 (1967) (Stewart, J. concurring)).
SBR argues that the judiciary should be subject to the Fifth and Fourteenth Amendments, just like the executive and legislative branches. See Brief for Petitioner at 34. Although they acknowledge that it is up to the states to define property rights, they claim that, when the judiciary suddenly and unforeseeably changes the definition of property rights, it constitutes the same practical deprivation of property as any other taking. See id. at 40. SBR alleges that state courts redefining property rights to appropriate private property for the state without fair compensation is a growing problem that requires prohibition. See id. at 19. SBR points out that this is especially concerning where the state judiciary is elected, subject to the same political pressures as the legislature and executive. See Reply Brief for Petitioner, Stop the Beach Renourishment, Inc. at 23 FN23.
Furthermore, SBR argues that the right to have oceanfront property contact the MHWL has existed in Florida common law for a century; SBR cites to a Florida Supreme Court decision from 1909 holding that oceanfront rights “may not be taken without just compensation and due process of law.” See Brief for Petitioner at 16. (citing Broward v. Mabry, 50 So. 826, 830 (Fla. 1909)). Because state property law requires contact with the water in order to have any oceanfront rights, SBR argues that contact with the MHWL is the foundational quality that all other rights are based on. See id. at 52–53. According to SBR, if a property’s contact with the MHWL is eliminated, then all other oceanfront rights are severed. See id. Furthermore, SBR argues that the Florida Supreme Court’s holding that there is no vested right to naturally deposited sand directly contradicts precedent. See id. at 16 (citing State v. Fla. Nat’l Prop., Inc., 338 So.2d 13, 17 (Fla. 1976)).
Florida contends that the court did not alter any state substantive law; rather they decided an issue of first impression according to the principles underlying Florida common law. See Brief for Respondents, DEP at 37. Therefore, Florida argues that even if there were a valid argument for a “judicial takings” doctrine, it should not apply here. See id. Furthermore, Florida asserts that the constitutional principal of federalism allows the states to develop state property law. See id. at 58. The Supreme Court should therefore give state courts deference when articulating the common law definition of state property rights. See Brief for Respondents, Walton County at 16.
Florida argues that, under state law, there is no independent right for waterfront property to contact the water. See Brief for Respondents, DEP at 39. Florida characterizes the alleged right as being “ancillary or subsidiary” to the actual right of access to the water, which is preserved via the newly formed public beaches. See id. Furthermore, Florida argues that claiming a right to contact the water is incoherent given that the property line is historically fixed at the MHWL, but due to tidal and weather forces, the actual water line is often farther out than the MHWL. See id. at 40–42.
Florida also denies that there is any present right to naturally deposited sand; rather the right to naturally deposited sand is a future interest contingent on its actual occurrence. See Brief for Respondents, DEP at 48–50. Florida also argues that, under Florida common law, property rights do not change when land suddenly emerges or erodes (as opposed to a slow avulsion). See id. at 2. The state cites Martin v. Busch for the proposition that dry beaches created through artificially deposited land beyond the water line remains state property. See id. at 17–19. In Martin, the state partially drained a lake, leaving newly emerged land. See id. The Florida Supreme Court held that the state retained ownership over the new land, and that the private waterfront owners retained their waterfront right of access. See id. Florida argues that precedent provides legitimate support for the Florida Supreme Court ruling, and consequently the decision below cannot qualify as a sudden change in state law. See Brief for Respondents, Walton County at 17–19.
Does the BSPA allow for sufficient procedural due process protections under the U.S. Constitution?
SBR also contends that the BSPA unconstitutionally denies property owners procedural due process by allowing the executive branch to unilaterally redraw their property lines. See Brief for Petitioner at 8, 19. They also argue that the BSPA lacks sufficient due process protections because it does not provide property owners any meaningful opportunity to be heard prior to deprivation of their property. See id.
Florida contends that the procedural due process was constitutionally sufficient because the property owners are given notice of the boundary line set by the board and they are given the opportunity to contest the decision at a hearing. See Brief for Respondents, DEP at 62. Furthermore, Florida argues that Supreme Court should refuse to consider the procedural due process complaint because SBR failed to raise this issue in the court below and therefore waived the right to appeal it. See Brief for Respondents, Walton County at 19–20.
SBR contends that they did in fact raise the procedural due process complaints below, and that, even if they did not, the Supreme Court has jurisdiction to hear the case regardless. See Reply Brief for Petitioner at 26–28. Additionally, SBR counters that Florida failed to object to the question of procedural due process prior to certiorari, and therefore waived their right to object to it. See Reply Brief for Petitioner at 30.
Respondents Florida Department of Environmental Protection, et al. (“Florida”), created a strip of public land between Petitioner Stop the Beach Renourishment, Inc.'s ("SBR") oceanfront property and the sea. The project was undertaken pursuant to the Beach and Shore Preservation Act to combat the erosion of Florida’s beaches and shoreline. SBR argues that Florida has unconstitutionally taken their private beaches for public use. The Florida Supreme Court held that SBR had no right to the land, and thus there was no taking. SBR argues that the Florida Supreme Court redefined their common law rights out of existence, thereby carrying out a “judicial taking” in violation of the Fifth and Fourteenth Amendments. Florida argues that SBR’s property maintains the same common-law rights of access to the water as before, thereby suffering no loss. Additionally, Florida argues that, out of respect for federalism, the U.S. Supreme Court should avoid interfering with state court interpretations of state property laws.
Edited by: James McConnell
- LII: CRS Annotated Constitution, Fourteenth Amendment, Due Process of Law - Protection of Natural Resources.
- LII: CRS Annotated Constitution, Fourteenth Amendment, Due Process of Law - Vested Rights
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- NOAA: Beach Nourishment, A Guide for Local Government Officials
- PropertyProf Blog: Ben Barros, What’s At Stake in Stop the Beach Renourishment (July 1, 2009)