SCOTUS Grants Cert in Florida Beach Restoration Case Providing an Opportunity to Address Regulatory Takings

In September 2008, the Florida Supreme Court determined that on its face, the Beach and Shore Preservation Act does not unconstitutionally deprive upland owners of littoral rights without just compensation, and noted that its decision is strictly limited to the context of restoring critically eroded beaches under the Beach and Shore Preservation Act.

Last week, the U.S. Supreme Court granted cert in the case, providing the opportunity to determine whether the property rights of beachfront landowners in a seven-mile long beach restoration project that would widen the beach by 210 feet were violated. The beach had been eroded by a series of hurricanes and tropical storms.  The State proposes to create a state-owned public beach, 60 feet to 120 feet wide, between private waterfront land and the Gulf of Mexico near Destin, FL.  At issue are the limits on states’ authority to restore storm-eroded beaches along the ocean or lakeshores, when such action modifies private property boundary lines.  

The three questions presented in the Petition for Certiorari are worded as follows:

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?

The petition can be accessed here

The docket from the U.S. Supreme Court is available here

The opinion of the Florida Supreme Court can be accessed here

Read the InverseCondemnation Blog posting here

Read the Pacific Legal Foundation Blog posting here