Real Estate & Property Law

Amicus Brief Supporting Gov't In Beachfront Takings Case: Statute Didn't Eliminate Common Law Rights, It Enhanced Them

By Robert Thomas (inversecondemnation.com)

Brevard County, Florida, has filed an amicus brief supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The U.S. Supreme Court is considering whether the Florida court's reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court's decision violated due process.

The brief argues that under the Tenth Amendment the Florida legislature must first resolve a conflict between provisions in the Florida Beach and Shore Preservation Act regarding whether the mean high water line has been supplanted by the erosion control line as the public/private boundary on beaches. In other words, this case is not ready for judicial review. Second, the brief argues the common law right to accretion was not lost, merely suspended for the duration of the beach renourishment project.

The brief concludes by arguing the Act actually benefits the littoral owners because "there is not a taking of the common law right of accretion but a grant of enhanced statutory property rights which supplant common law accretion, subject to a statutory reverter to common law accretion and erosion if the government fails to complete or maintain a beach restoration project." Brief at 30-41.

We filed an amicus brief supporting the property owners, which is available here. The property owners' merits brief is available here. The other amici briefs supporting the property owners are posted here, here, and here.

Oral arguments in the Supreme Court are set for December 2, 2009.

More about the case on our resource page and in this report from the Destin Log (the hometown newpaper).

Full post as published by inversecondemnation on September 30, 2009 (boomark / email).