Will the Supreme Court "Take" Away City and State Beach Restoration Projects?

By Norman A. Dupont

On December 2, 2009, the United States Supreme Court heard argument on whether the efforts of the City of Destin, Florida and the State of Florida to restore hurricane ravaged beach sands constitutes a Fifth Amendment "taking." Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, No. 08-1151 ("Stop the Beach Renourishment") involves the efforts of private property owners, backed by various private property advocacy groups, to stop environmental restoration of eroded beach sands by public entities.

This case is of keen interest to all California cities and counties that have valuable beachfront lands in their jurisdiction. It also merits the attention of all other California cities with lakefront or other properties susceptible to environmental erosion. For some, Stop the Beach Renourishment offers the first opportunity since Kelo v. City of New London, 545 U.S. 469 (2005) ("Kelo"), to have the Roberts Court tackle the dividing line between public projects and the "taking" of private property. For others, Stop the Beach Renourishment is a case that should be affirmed based on the esoteric details of Florida property law as it applies to the "littoral" (beachfront access) rights of waterfront owners. The National League of Cities, the United States Conference of Mayors, the National Association of Counties, and the International City/County Management Association all joined in an amicus brief in Stop the Beach Renourishment, arguing that no federal Constitutional violation had occurred.

Background

The facts of this case are relatively simple and undisputed. In 1995, Hurricane Opal damaged the sandy beaches of the Florida panhandle city of Destin and those of Walton County. Subsequent hurricanes and tropical storms in 1998, 2002, and 2004 further damaged this shoreline area. The State of Florida placed these beaches on its "high-priority" list for restoration, and after a lengthy administrative process initiated by Destin city and the county, an application was approved by the State of Florida Department of Environmental Protection to restore the beach sands by dredged sand obtained from a nearby area.

By virtue of a Florida state statute, this process included the determination of a new "Erosion Control Line" which effectively fixed the outermost property boundary of various private beachholders. After establishment of the new Erosion Control Line, all lands lying seaward of that land belonged to the public. All lands on the landward side of the new line remained in the ownership of private beachfront owners. Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102, 1106 (2008), cert. granted, No. 08-1151.

In a process remarkably reminiscent of California's Coastal Commission, a permit to dredge sand and restore beachfront land required coastal and environmental permits. A group of six private property owners contested the issuance of a permit both on administrative and Florida constitutional grounds. After abandoning their technical administrative appeal, the property owners sued in Florida state court, alleging that the Florida Beach and Shore Preservation Act's provision of a new "Erosion Control Line" to determine property rights constituted both an unconstitutional taking and violated due process under both the state and federal constitutions. The property owners won in the Florida intermediate court, and lost in the Florida Supreme Court in a 5-2 split opinion.

Realizing that the chances of getting a successful rehearing before the Florida Supreme Court were nearly impossible, the property owners in their petition for rehearing claimed that the Florida Supreme Court had so changed Florida property law that its very decision constituted a "judicial taking" in violation of the federal Constitution. Predictably, the Florida Supreme Court denied this petition for rehearing. The property owners sought review in the United States Supreme Court, which granted certiorari in June 2009.

What is at stake for public agencies?

The legal issues in Stop the Beach Renourishment are complicated and leave many open questions for public agencies:

• Was the Florida Supreme Court's decision distinguishing between certain waterfront property rights and those rights under the doctrine of avulsion (the sudden addition or deletion of tidal property by actions of nature or man) correct? If the Florida Supreme Court's decision was an improper departure from prior Florida real property law, was it such a dramatic departure as to constitute a "judicial taking" under the Fifth Amendment?
• Is there in fact any constitutional support for the doctrine of a "judicial taking," whose principal support came from a single concurring opinion of Justice Potter Stewart in 1967?
• Is the very notion of the United States Supreme Court reviewing state high court decisions under a "judicial takings" doctrine an undisguised invitation to the Court to simply override state law in one of its most traditional aspects, the determination of real property boundaries within the state?
• Can the United States Supreme Court really effectively control state high courts in this area without becoming mired into the messy bog that is state real property law?

We will hopefully gain the answers to these, and other, questions when the Court decides this case sometime in 2010. The ultimate decision could fuel a populist backlash like that seen by the Supreme Court's decision five years ago in Kelo that could make life for every public agency that exercises the power of eminent domain a political nightmare. Or, will the Roberts Court decide the case on narrow grounds that revolve around the esoteric details of Florida real property law?

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