Thursday, June 17, 2010

SCOTUS Rules Against Florida Beachfront Property Owners In Fifth Amendment Test Case

The U.S. Supreme Court ruled Thursday in a Florida eminent domain case that beachfront property owners not be compensated when the government improves the shoreline to restore beach erosion.

The court's 8-0 verdict is a setback for eminent domain advocates and likely to draw the wrath of property rights groups across the nation.

In this case, the government added sand to the private beaches making those sections public and thereby depriving private beachfront owners exclusive rights and access to their shoreline.

The owners argued their beachfront property values declined and should be compensated under provisions of the Fifth Amendment.

The six homeowners in Stop the Beach Renourishment vs. Florida Department of Environmental Protection claimed the regulatory action by the state violated their common law littoral rights -- direct ocean access, use and view.

I find the case enthralling because it wraps a constitutional issue around 1) the state improving eroded beaches and 2) the owners saying the action amounted to "taking" away their rights of exclusivity.

The facts in the case are best presented in a June 2009 summary by the Owners Counsel of America on its The Eminent Domain blog site.

After years of beach erosion caused by tropical storms and hurricanes, state and local agencies decided to renourish about seven miles of beaches in Destin, Fla., and Walton County by a width averaging 210 feet. It is a process by which sand is dredged from the ocean floor and transported through pipes to the eroded areas.

A survey was taken to establish the high water line. At that point, everything on the land side remained private and everything on the ocean side called the Erosion Control Line became public property.

As a result, beachfront owners would no longer have a direct boundary with the ocean and denied compensation for their loss even though the beaches were improved with a width of 200 feet more of sand.

As the litigation worked its way through the state courts beginning in 2003, the Florida Supreme Court on Sept. 29, 2008 "opined that since enactment of Florida's Beach and Shore Preservation Act (specifically Part I of Chapter 161, Florida Statutes), the state has a constitutional duty to protect the beaches."

Private property advocates had hoped the court would rule for the first time that a court decision can amount to a taking of property.

The court's four conservatives — Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas — were prepared to rule that way, even though the homeowners still would have lost in this case, Scalia said in his opinion for the court. But they lacked a fifth vote.

Retiring associate Justice John Paul Stevens recused himself from the court decision. He owns an apartment in an oceanfront building in Ft. Lauderdale, Fla., an area slated for an erosion-control project similar to the one in the high court case.



Laws in each of the nation's coastal states vary in regards to public access to public beaches. My understanding of the Florida case is that the law suit was a legal stretch since their property was not confiscated by the government but allegedly the loss of exclusivity rights. The plaintiffs did not specify compensatory damages from the state. I am more familiar with California law where all beaches are public and private owners cannot deny access if their property obstructs such passage. In the early 1950s, the private gated community of Three Arch Bay avoided a threatened law suit by the state. It maintained its practice of allowing only visitors who provided names of residents and advanced permission from the owners to enter. However, if the visitor insisted all he wanted to do was enjoy the pleasures of the public beach and nothing else, the security guards would allow entrance after taking the license and make of the automobile and names and addresses of the visitors. And then wish them luck finding a legal parking space. I am informed by a resident I knew then who still resides in Three Arch Bay that she was unaware of anyone who insisted and was granted his state constitutional right to use the beach.

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